DAVID WEACHTER v. HARTFORD UNDERWRITERS INSURANCE COMPANY (TWCA February 28, 2011)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Employee was injured in a motor vehicle accident. It is undisputed that his injuries were compensable and that he is permanently and totally disabled as a result of the accident. The issues on appeal are the propriety of the trial court's calculation of the average weekly wage, the trial court's denial of a set-off to Employer for a settlement with the third party tortfeasor, and the award of vocational expert witness fees. We find that the trial court correctly calculated the average weekly wage, but erred by denying the set-off and awarding the expert's fees. The judgment is modified accordingly.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/weachterd_022811.pdf
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Monday, February 28, 2011
TWCA Reviews whether Employee Met the Burden of Proof to Prove Permanent Impairment
LINDA LEE KENNEY v. SHIROKI NORTH AMERICA, INC. ET AL. (TWCA February 28, 2011)
The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf
The employee alleged that she sustained carpal tunnel syndrome and a right shoulder injury as a result of repetitive work activities. She was examined by several doctors provided by her employer, each of whom found that she had no permanent work injury. She sought and received treatment on her own with a physician who treated her for shoulder impingement and carpal tunnel syndrome. This doctor assigned permanent impairment but also testified that those conditions were not work-related. An evaluating physician assigned permanent impairment and testified that the conditions were work-related. Employee was a part-owner of an upholstery business during a period of time prior to the onset of her symptoms. Her testimony concerning the nature of her work for that business was inconsistent. The trial court found that she had not sustained her burden of proof and entered judgment for her employer. She has appealed, contending that the evidence preponderates against the trial court's findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/kenneyl_022811.pdf
TWCA Reviews the Impairment Rating Assigned by an MIR Physician
SARAH LOUISE BEAN v. TEPRO, INC. (TWCA February 28, 2011)
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return.
At trial, the trial judge heard proof regarding the extent of Employee's permanent physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf
Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.
Sarah Louise Bean ("Employee") sustained bilateral shoulder injuries in the course and scope of her employment with Tepro, Inc. ("Employer"). After undergoing surgery on both shoulders, she was released to return to work. Employer was facing reduced work volume at this time, and Employee worked only one day over the course of the next two months. She worked sporadically during the next four months and then was laid off indefinitely due to economic conditions. During the layoff, she applied for and received Social Security disability benefits. When she was called back to work after four months of layoff, she declined to return.
At trial, the trial judge heard proof regarding the extent of Employee's permanent physical impairment from Employee's evaluating physician, Employee's treating physician, and a Medical Impairment Registry ("MIR") physician. After the conclusion of the proof, the trial court determined that Employee had sustained a permanent physical impairment of 19% to the body as a whole, that the impairment rating assigned by the MIR physician was rebutted by clear and convincing evidence, that the Employee was subject to the cap imposed by Tennessee Code Annotated section 50-6-241(d)(1)(A), and that she was entitled to an award of 28% permanent partial disability ("PPD") benefits. Both parties challenge the trial court's decision. After review, we modify the award of PPD to 21%, reduce the award of discretionary costs by $800, and affirm the remainder of the trial court's judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/beans_022811.pdf
Friday, February 25, 2011
TWCA Reviews Whether Employee’s Injuries Resulted from his Intoxication
TIMOTHY RUSKIN v. LEDIC REALTY SERVICES, LTD. (TWCA February 25, 2011)
In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf
In this workers' compensation action, the employee, Timothy Ruskin, worked as a maintenance technician for Ledic Realty Services, Ltd. (Ledic), which managed several apartment buildings. Mr. Ruskin was injured while responding to an after-hours call from a tenant of one of the apartment buildings. In response to his compensation claim, Ledic asserted as an affirmative defense that Mr. Ruskin's injuries resulted from his intoxication. After a hearing, the trial court ruled in Ledic's favor, and Mr. Ruskin appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/ruskint_022511.pdf
TWCA Reviews a Determination of Permanent Partial Disability in a Case Involving Conflicting Assessments between Several Physicians
PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES (TWCA February 25, 2011)
Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment.
The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf
Employee sustained a compensable injury to her lower back. Employer initially provided medical treatment, but Employer's insurer subsequently declined to provide additional medical treatment. Employee sought treatment on her own. Her treating physician found that she retained a 15% permanent impairment as a result of her injury. An examining physician for Employer opined that she had no impairment. A physician was selected through the Medical Impairment Registry ("MIR") process. That physician also stated that Employee had no permanent impairment.
The trial court found that Employee rebutted the presumption of correctness of the MIR physician's rating by clear and convincing evidence pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent partial disability. Both sides appealed. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/brooksp_022511.pdf
Thursday, February 24, 2011
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Court Reviews Denial of Motion to Dismiss in a Medical Malpractice Case
CURTIS MYERS v. AMISUB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL, ET AL. (Tenn. Ct. App. February 24, 2011)
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
The trial court denied Defendants' motion to dismiss in a medical malpractice action initially filed prior to the effective date of the notice and certificate of good faith provisions subsequently codified at Tennessee Code Annotated sections 29-26-121 and 29-26-122, and nonsuited and re-commenced after the effective date of the provisions despite Plaintiff's failure to fulfill the statutory requisites. We granted permission to appeal pursuant to Rule 9 of the Rules of Appellate Procedure. We reverse and remand for dismissal.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/myersc_022411.pdf
Tuesday, February 22, 2011
Court Reviews a Summary Judgment Ruling in a Case in Which Defendant Negated the Damages Element
PAMELA CHAMPION, ET AL. v. CLC OF DYERSBURG, LLC, ET AL. (Tenn. Ct. App. February 22, 2011)
The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf
The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf
Court Reviews a Medical Malpractice Case in which Trial Court Held Membership on Defendant Hospital’s Board of Directors
GILBERT OLERUD, ET AL. v. DR. WALTER M. MORGAN, III, ET AL. (Tenn. Ct. App. February 22, 2011)
This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court's membership on the board of directors of the defendant hospital and the court's denial of their motion for default judgment based on spoliation of evidence. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/olerudg_022211.pdf
This is an appeal of a grant of summary judgment to a hospital and physician in a medical malpractice case. Plaintiffs also appeal the denial of their motion that the trial court recuse itself due to the court's membership on the board of directors of the defendant hospital and the court's denial of their motion for default judgment based on spoliation of evidence. We reverse.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/olerudg_022211.pdf
Monday, February 21, 2011
Friday, February 18, 2011
TWCA Reviews Whether Employee’s Aggravated Pre-Existing Injuries were Related to her Employment
CAROLYN BERRY v. ARMSTRONG WOOD PRODUCTS (TWCA February 18, 2011)
Employee filed a complaint for workers' compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment.
The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability ("PPD") to the body as a whole. The employer appealed, contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A).
We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/berryc_021811.pdf
Employee filed a complaint for workers' compensation benefits against her former employer alleging that her work for her former employer advanced pre-existing arthritis in both knees and required her to have joint replacement surgery on her right knee. The employer denied her claim, contending that her condition was unrelated to her employment.
The trial court found that she had sustained a compensable aggravation of her arthritis and that she had not had a meaningful return to work. It awarded 78% permanent partial disability ("PPD") to the body as a whole. The employer appealed, contending that the trial court erred by finding the award was not subject to the one and one-half times impairment cap found in Tennessee Code Annotated section 50-6-241(d)(1)(A).
We agree with employer that employee is entitled to an award of one and one-half times her impairment rating and decrease the award to 39% PPD to the body as a whole. We affirm the judgment as modified.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/berryc_021811.pdf
Thursday, February 17, 2011
Court Reviews the Jury’s Allocation of Fault in a Medical Malpractice Case
JAMES AND PATRICIA CULLUM, ET AL. v. BAPTIST HOSPITAL SYSTEMS, INC., ET AL. (Tenn. Ct. App. February 17, 2011)
This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals.
The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule.
The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the non-party physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cullumj_021711.pdf
This is an appeal from a jury verdict in a medical malpractice case. Plaintiffs, parents of child who suffered severe, permanent brain injuries during the course of his labor and delivery, filed suit against their physician, physician's employer, and related hospitals.
The physician and her employer settled prior to trial, leaving the related hospitals as the only defendants. This case has been tried twice. Following the first trial, the jury returned a verdict in favor of defendants, which the trial court set aside pursuant to the thirteenth juror rule.
The second trial resulted in a verdict for plaintiffs, with the jury assigning 3.75 percent of fault to the defendants and 96.25 percent of fault to the non-party physician. Because the evidence shows that the members of the jury agreed to be bound by the result of a predetermined averaging process, we have concluded that the jury reached a quotient verdict, which is impermissible. Consequently, we reverse and remand the case for a new trial.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/cullumj_021711.pdf
Wednesday, February 16, 2011
TWCA Reviews Whether Employee Provided Timely Notice of His Injury
WAUSAU INSURANCE COMPANY v. ARCHIE W. RICHARDSON (TWCA February 16, 2011)
The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf
The employee alleged that he injured his back in the course of his employment. His employers denied the claim based upon failure to give timely notice of the injury. The employee saw two medical doctors and a chiropractor shortly after his injury. Their records contained no reference to a work injury; one stated that the injury had happened at home. The trial court found that the employee did not provide timely notice of his alleged injury and, alternatively, that he failed to sustain his burden of proof concerning causation. The employee has appealed from those findings. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/wausau_021611.pdf
TWCA Reviews Whether an Employee was Permanently Disabled
WYATT JOHNSON v. VENTURE EXPRESS, INC. ET AL. (TWCA February 16, 2011)
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf
The employee filed a workers' compensation claim against the employer for injuries sustained in a trucking accident. The trial court ruled that the employee was permanently and totally disabled as a result of the accident and entitled to full benefits. The employer appealed, alleging that the trial court erred in finding the employee permanently and totally disabled. The appeal was referred to the Special Workers' Compensation Appeals Panel pursuant to Tennessee Code Annotated section 50-6-225(e)(3) and Tennessee Supreme Court Rule 51. Because the evidence does not preponderate against the findings of fact made by the trial court, the judgment is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/johnsonw_021611.pdf
Tuesday, February 15, 2011
Court Reviews Whether Plaintiffs Complied with the TCA’s Notice Requirements in a Medical Malpractice Case
KARAH and RYAN DePUE, et al., v. CHARLES D. SCHROEDER, et al. (Tenn. Ct. App. February 15, 2011)
Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf
MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf
Plaintiffs filed their Complaint alleging medical malpractice against numerous healthcare providers on May 26, 2009. They alleged that they had given the notice requirements of Tenn. Code Ann. section 29-26-121(a) prior to April 8, 2009 to the defendants. The defendants filed several motions, including motions for summary judgment, stating that plaintiffs failed to comply with the notice requirements of Tenn. Code Ann. section 29-26-121. The record establishes that plaintiffs did not give the requisite notice, "at least 60 days before the filing of their Complaint". In response to the motions for summary judgment the Trial Court excused compliance with the code section and defendants appealed. On appeal, we reverse the holding of the Trial Court on the grounds that non-compliance with the code section could only be excused upon the showing of extraordinary cause.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/depuek_021511.pdf
MCCLARTY dissenting
http://www.tba2.org/tba_files/TCA/2011/depuek_DIS_021511.pdf
Friday, February 11, 2011
Court Reviews Apportionment of Fault in a Wrongful Death Case Against the City of Clinton
CURTIS ROBIN RUSSELL, ET AL. v. ANDERSON COUNTY, ET AL. (Tenn. Ct. App. February 11, 2011)
This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.
The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.
On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf
This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.
The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.
On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf
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