TERESA LYNN JACKSON v. AARON THOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CIRCUIT COURT CLERK OF JACKSON COUNTY, TENNESSEE ET AL. (Tenn. Ct. App. March 24, 2011)
Plaintiff appeals the Tenn. R. Civ. P. 12.02 dismissal of her claims against two defendants, the Circuit Court Clerk of Jackson County, individually and in his official capacity, and Jackson County, Tennessee for a violation of 42 U.S.C. section 1983, the Tennessee Governmental Tort Liability Act, and numerous intentional torts. The trial court dismissed all claims against these defendants finding that Plaintiff failed to state a claim. We affirm the trial court in all respects.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/jacksont_032411.pdf
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Thursday, March 24, 2011
Wednesday, March 23, 2011
Opinion: Bills to limit malpractice awards not needed
Former judge and current Memphis lawyer D'Army Bailey writes in an opinion piece today about pending legislation that would limit malpractice awards. The "proposals go well beyond severely limiting Tennessee residents' rights to fair and adequate compensation," he says. "They are designed to protect large corporations and negligent doctors who cause serious harm." Even Gov. Bill Haslam, who is pushing most of these legislative changes, acknowledges they are unnecessary, he continues.
Read his guest column in the Commercial Appeal:
http://www.commercialappeal.com/news/2011/mar/04/guest-column-haslam-wants-to-curb-malpractice/
Read his guest column in the Commercial Appeal:
http://www.commercialappeal.com/news/2011/mar/04/guest-column-haslam-wants-to-curb-malpractice/
Monday, March 21, 2011
General Assembly News: TBA bill aimed at protecting clients, lawyers
Companies that advance money to plaintiffs involved in personal injury lawsuits are lobbying in legislatures across the country to ensure their industry is not subject to usury limits on interest rates or other state laws that protect borrowers.
In Tennessee, the effort to put some controls in place is being led by the Tennessee Bar Association. The TBA initiative, coming from the Tort and Insurance Practice Section, is focused not on the intra-industry fight, but on protecting clients, lawyers and the legal process from many of the excesses of an unregulated industry. The TBA bill (HB1084, SB0921) is sponsored by House Consumer Affairs Committee Chair Jimmy Eldridge (R-Jackson) and Sen. Mae Beavers (R-Lebanon), chair of the senate Judiciary Committee.
In Tennessee, the effort to put some controls in place is being led by the Tennessee Bar Association. The TBA initiative, coming from the Tort and Insurance Practice Section, is focused not on the intra-industry fight, but on protecting clients, lawyers and the legal process from many of the excesses of an unregulated industry. The TBA bill (HB1084, SB0921) is sponsored by House Consumer Affairs Committee Chair Jimmy Eldridge (R-Jackson) and Sen. Mae Beavers (R-Lebanon), chair of the senate Judiciary Committee.
Thursday, March 17, 2011
Court Reviews Trial Court's Suggestion of Remittitur in a Case Involving a Car Accident
JAN OGLESBY and JOHN OGLESBY v. EDWIN T. RIGGINS (Tenn. Ct. App. March 17, 2011)
This case arises from a car accident in which Appellant was injured when her vehicle was struck by Appellee's vehicle. Following a jury trial, the jury awarded Appellant damages, including $100,000 for Appellant's loss of earning capacity claims. Acting as the thirteenth juror, and based upon its finding that Appellant had failed to meet her burden to show loss of earning capacity, the trial court suggested remittitur of the entire $100,000 loss of earning capacity award. Appellant appeals. Discerning no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/oglesbyj_031711.pdf
This case arises from a car accident in which Appellant was injured when her vehicle was struck by Appellee's vehicle. Following a jury trial, the jury awarded Appellant damages, including $100,000 for Appellant's loss of earning capacity claims. Acting as the thirteenth juror, and based upon its finding that Appellant had failed to meet her burden to show loss of earning capacity, the trial court suggested remittitur of the entire $100,000 loss of earning capacity award. Appellant appeals. Discerning no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/oglesbyj_031711.pdf
Tuesday, March 15, 2011
TWCA Reviews Whether an Employer is one that qualifies under a Second Injury Fund
RICKY D. GARRETT v. WILLIAM DAVID BROWN, ET AL. (TWCA March 15, 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. Ricky D. Garrett ("Employee") was injured when he fell from the roof of a barn during the course and scope of his employment as a handyman for William David Brown ("Employer"), a farmer who carried worker's compensation insurance.
Subsequently, Employee filed a complaint for worker's compensation benefits against Employer and Employer's insurance carrier. Employee also named the Second Injury Fund ("the Fund") as a defendant and alleged that the injury he sustained in the fall in combination with his pre-existing disabilities rendered him totally disabled.
The trial court agreed that Employee was permanently and totally disabled as a result of the injury sustained in the fall combined with the pre-existing disabilities and awarded Employee full benefits with 40% liability for the award assigned to Employer and 60% assigned to the Fund. The Fund appealed, asserting, 1) that Employer does not meet the definition of "employer" for purposes of the Second Injury Fund statute; 2) that the proof is insufficient to show that Employer had knowledge of Employee's pre-existing disabilities; and 3) that the judgment awarded Employee was incorrectly apportioned between the Fund and the Employer. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/garrettr_031511.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. Ricky D. Garrett ("Employee") was injured when he fell from the roof of a barn during the course and scope of his employment as a handyman for William David Brown ("Employer"), a farmer who carried worker's compensation insurance.
Subsequently, Employee filed a complaint for worker's compensation benefits against Employer and Employer's insurance carrier. Employee also named the Second Injury Fund ("the Fund") as a defendant and alleged that the injury he sustained in the fall in combination with his pre-existing disabilities rendered him totally disabled.
The trial court agreed that Employee was permanently and totally disabled as a result of the injury sustained in the fall combined with the pre-existing disabilities and awarded Employee full benefits with 40% liability for the award assigned to Employer and 60% assigned to the Fund. The Fund appealed, asserting, 1) that Employer does not meet the definition of "employer" for purposes of the Second Injury Fund statute; 2) that the proof is insufficient to show that Employer had knowledge of Employee's pre-existing disabilities; and 3) that the judgment awarded Employee was incorrectly apportioned between the Fund and the Employer. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/garrettr_031511.pdf
Court Reviews a Wrongful Death Suit Against a City Involving an Unsafe Condition Claim
GUY ALEXANDER, JR., AS SURVIVING SPOUSE OF JULIE ANNE ALEXANDER, DECEASED v. CITY OF MURFREESBORO (Tenn. Ct. App. March 15, 2011)
Julie Alexander died in an automobile accident on South Rutherford Boulevard in Murfreesboro. Her husband sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. After a trial, the trial court found that the city did not have notice and that the road was not unsafe or dangerous. Ms. Alexander's husband appealed. We affirm the trial court's decision that the city had no notice of the condition.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/alexanderg_031511.pdf
Julie Alexander died in an automobile accident on South Rutherford Boulevard in Murfreesboro. Her husband sued the city, claiming that the road was unsafe or dangerous and that the city had notice of the condition of the road. After a trial, the trial court found that the city did not have notice and that the road was not unsafe or dangerous. Ms. Alexander's husband appealed. We affirm the trial court's decision that the city had no notice of the condition.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/alexanderg_031511.pdf
Monday, March 14, 2011
Court Reviews a Wrongful Death Case Involving an Infant in the Custody of a DCS Placement Caretaker
IN RE: DEMITRUS M. T., A CHILD UNDER 18 YEARS OF AGE, ET AL. (Tenn. Ct. App. March 14, 2011)
This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room.
The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf
This is a wrongful death action filed in the Tennessee Claims Commission ("the Commission") by the parents and brother ("the Claimants") of six month old Demitrus M. T. ("the Infant" or "Demitrus"), individually and on behalf of Demitrus, after he drowned in a bathtub while in the care of Sherika Hamilton, a friend of the family identified in a Tennessee Department of Child Services ("DCS" or "the Department") safety plan as the "placement caretaker." There is no dispute that Hamilton left the Infant unattended in the bathtub while she was otherwise occupied in an adjacent room.
The primary disputes at trial before the Commissioner, and on appeal, are whether the Infant was in the "care, custody and control" of the Department so as to provide jurisdiction to the Commission; whether the Department's "Case Recordings," some of which were made more than a month after the event they purport to record, are inadmissible hearsay; and whether it was foreseeable to the Department that Hamilton would leave the helpless Infant unattended in a bathtub and let him drown. The Commission found that it had jurisdiction because the Department had control of the Infant even though it did not have custody, that the Case Recordings were admissible, and that the Department was not negligent because it could not have foreseen this tragic event. The Claimants appeal. We affirm in part, reverse in part, and vacate the dismissal on the merits.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/demitrust_031411.pdf
Court Reviews Whether a Patient was Competent When He Executed a Power-of-Attorney Document
MARTHA DUKE, As Next of Kin of William Jerry Duke, Deceased, and on behalf of the wrongful death beneficiaries of William Jerry Duke v. KINDRED HEALTHCARE OPERATING, INC., ET AL. (Tenn. Ct. App. March 14, 2011)
This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient's sister, who had presented a power of attorney document to the admissions staff that designated her as the patient's attorney-in-fact. The patient's representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants' motion to compel arbitration. We affirm and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dukem_031411.pdf
This appeal involves an arbitration agreement that was executed when a patient was admitted to a nursing home. The arbitration agreement was signed by the patient's sister, who had presented a power of attorney document to the admissions staff that designated her as the patient's attorney-in-fact. The patient's representative in this lawsuit contends that the patient was incompetent when he executed the power of attorney document, and therefore, the sister lacked authority to sign the arbitration agreement on his behalf. The trial court found by clear and convincing evidence that the patient was incompetent when he signed the document and denied the defendants' motion to compel arbitration. We affirm and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/dukem_031411.pdf
Friday, March 11, 2011
TWCA Reviews Whether an Employee’s Work-Related Injury Advanced His Pre-Existing Back Condition
WILLIAM DAVID MORGAN v. GOODYEAR TIRE & RUBBER COMPANY ET AL. (TWCA March 11, 2011)
In this workers' compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a pre-existing condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morganw_031111.pdf
In this workers' compensation appeal, the employee alleged a work-related incident aggravated a pre-existing back condition and that he required surgery as a result of the injury. His employer denied the claim, contending that the surgery was for treatment of a pre-existing condition and that the work related incident did not advance the pre-existing condition. The trial court found for the employee and awarded 20% permanent partial disability benefits. The employer appealed. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/morganw_031111.pdf
Thursday, March 10, 2011
TWCA Reviews Which Insurance Company is Liable for Covering Employee’s Treatment
JIMMY RANKIN v. EVERYBODY'S OIL CORPORATION d/b/a QUICK TIRE/TIRE BARN, ET AL. (TWCA March 10, 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.
The employee sustained a work-related injury in September 2007, but medical treatment was not offered by the employer at that time. He continued to work for several months despite his injury. In March 2008, his employer sent him to a physician. He was diagnosed with a significant spinal injury, which required surgical treatment and resulted in severe disability. His employer had changed its workers' compensation insurer in November 2007.
Employee's claim was settled, but the two insurers disagreed as to which was liable. The trial court found that the insurer at the time of the original injury was liable. That insurer has appealed, contending that the later insurer should be liable due to the gradual worsening of the employee's condition after November 2007. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rankinj_031011.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.
The employee sustained a work-related injury in September 2007, but medical treatment was not offered by the employer at that time. He continued to work for several months despite his injury. In March 2008, his employer sent him to a physician. He was diagnosed with a significant spinal injury, which required surgical treatment and resulted in severe disability. His employer had changed its workers' compensation insurer in November 2007.
Employee's claim was settled, but the two insurers disagreed as to which was liable. The trial court found that the insurer at the time of the original injury was liable. That insurer has appealed, contending that the later insurer should be liable due to the gradual worsening of the employee's condition after November 2007. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/rankinj_031011.pdf
TWCA Reconsiders an Employee's Earlier, Capped Settlement
MICHAEL DEVEREUX v. UNITED PARCEL SERVICE, INC. (TWCA March 8, 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.
The employee sought reconsideration of his earlier workers' compensation settlement, which had been "capped" pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/devereuxm_030811.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.
The employee sought reconsideration of his earlier workers' compensation settlement, which had been "capped" pursuant to Tennessee Code Annotated section 50-6-241(d). His employer asserted that he had been terminated for cause, and was therefore not eligible for reconsideration. The trial court found for the employee and awarded additional benefits. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/devereuxm_030811.pdf
Supreme Court Reviews Whether Employee's Accident Occurred within the Scope of His Employment
OMER LEE DIXON, JR. v. TRAVELERS INDEMNITY COMPANY (Tenn. March 3, 2011)
The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/dixono_030311.pdf
The primary issue presented in this appeal is whether an employee, who was injured when a tornado struck the tractor-trailer rig he was driving for his employer, has a compensable workers' compensation claim. The central dispute between the parties is whether the claim arose out of the employment relationship. After careful review, we conclude that the employee was injured when he was subjected to a hazard not common to the general public but peculiar to the nature of his employment and to the conditions under which his employment was required to be performed. Accordingly, the injury arose out of his employment. The trial court's judgment holding the employee's claim to be compensable and its award of benefits is affirmed.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/dixono_030311.pdf
Monday, March 7, 2011
TWCA Reviews Whether Employee's Neck Injury was Compensable
ROBIN BAKER v. A & L INDUSTRIAL CONSTRUCTION AND MAINTENANCE, INC. (TWCA March 7, 2011)
The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee's evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded benefits accordingly. The employer has appealed that finding. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/bakerr.pdf
The employee sustained a compensable injury to her left wrist. She alleged that she also sustained a neck injury as a result of the same incident. The employer denied the neck claim. The employee's evaluating physician expressed somewhat contradictory opinions regarding the causal relationship between the work incident and her neck injury. The trial court held that the employee had a compensable neck injury in addition to her wrist injury and awarded benefits accordingly. The employer has appealed that finding. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/bakerr.pdf
Friday, March 4, 2011
Court Reviews the Denial of a Motion to Amend a Complaint in an Automobile Accident Case
LAMAR REYNOLDS v. LOUIS R. TOGNETTI and WENDEE L. TOGNETTI (Tenn. Ct. App. March 4, 2011)
Before filing this personal injury action arising from an automobile accident, the plaintiff filed for Chapter 7 bankruptcy. Although the plaintiff's personal injury action accrued prior to his filing for bankruptcy, he omitted the potential claim from a schedule of assets in the bankruptcy petition. The plaintiff received a discharge in bankruptcy, and, shortly thereafter, filed the instant action.
After the defendants moved for summary judgment, the plaintiff moved to amend his complaint in order to add the bankruptcy Trustee as a party. The trial court did not rule on the plaintiff's motion to amend, and instead granted the defendants summary judgment, finding that the plaintiff lacked standing and was judicially estopped from pursuing his personal injury claim. On appeal, we conclude that the trial court erred when it failed to rule on the plaintiff's motion to amend his complaint prior to adjudicating the defendants' summary judgment motion.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/reynoldsl_030411.pdf
Before filing this personal injury action arising from an automobile accident, the plaintiff filed for Chapter 7 bankruptcy. Although the plaintiff's personal injury action accrued prior to his filing for bankruptcy, he omitted the potential claim from a schedule of assets in the bankruptcy petition. The plaintiff received a discharge in bankruptcy, and, shortly thereafter, filed the instant action.
After the defendants moved for summary judgment, the plaintiff moved to amend his complaint in order to add the bankruptcy Trustee as a party. The trial court did not rule on the plaintiff's motion to amend, and instead granted the defendants summary judgment, finding that the plaintiff lacked standing and was judicially estopped from pursuing his personal injury claim. On appeal, we conclude that the trial court erred when it failed to rule on the plaintiff's motion to amend his complaint prior to adjudicating the defendants' summary judgment motion.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/reynoldsl_030411.pdf
Thursday, March 3, 2011
TWCA Reviews Insurer Liability in a Case in Which Employer had Two Workers' Comp Policies at the Time of Employee's Injury
BUILDERS MUTUAL INSURANCE COMPANY v. S & W BUILDERS, INC. ET AL. (TWCA March 3, 2011)
In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury.
The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf
In this workers' compensation action, the trial court held that the employee sustained a compensable injury to his neck. The trial court found that the employee had a 30% impairment as a result of the injury and awarded 75% permanent partial disability to the body as a whole. The employer had two policies of workers' compensation insurance in effect on the date of the injury.
The trial court held each insurer liable for one-half of the benefits paid to the employee. One of the insurers has appealed, contending that the evidence preponderates against the finding that the employee sustained a compensable injury and that it erred in its apportionment of liability. We affirm the judgment.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/buildersmutual_030311.pdf
TWCA Reviews a Motion to Compel an Employer to Provide Medical Treatment where the Settlement included a Waiver of the Right to Future Treatment
ANNE MARIE SMITH v. INTEX ENTERPRISES, LLC (TWCA March 3, 2011)
The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf
The employee filed a motion to compel her employer to provide medical treatment pursuant to a court-approved settlement concerning a claim for an injury sustained in 2002. Her employer opposed the motion, contending that any medical treatment sought by the employee was due to a separate injury sustained in 2004. In the settlement of the 2004 claim, the employee had waived her right to future medical treatment. The trial court granted the employee's motion, and her employer has appealed. We conclude that the employee's claim for medical treatment is not ripe for judicial resolution, and vacate the trial court's order.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/smitha_030711.pdf
Wednesday, March 2, 2011
TBA Today: No mandatory mediation for workers' comp appeals
The Tennessee Supreme Court today issued an order revoking TN. Sup. Ct. R. 37, a provisional rule that required mediation of workers compensation appeals. The TBA submitted a comment in February supporting the repeal because the process was seen as having little value.
http://www.tba2.org/tbatoday/news/2011/workercompmediation_030211.pdf
http://www.tba2.org/tbatoday/news/2011/workercompmediation_030211.pdf
TWCA Reviews a Finding of Permanent Total Disability
JACQUELINE MORAN v. CUMBERLAND COUNTY MEDICAL CENTER, ET AL. (TWCA March 2, 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.
The employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.
The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.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.
The employee injured her back while discharging her duties in the housekeeping department of her employer in October 2003. After treatment in the emergency room, she received conservative treatment from her physicians. She was released by her physician and returned to work. In February 2005, she was terminated by her employer. She continued to receive medical treatment for her back. In 2006, her physician recommended surgery, which was performed in December 2007. The trial court found that the employee was permanently and totally disabled as a result of her injury.
The employer has appealed, contending that the employee had a meaningful return to work and that the award should be limited to two and one-half times her medical impairment ruling pursuant to Tennessee Code Annotated section 50-6-241(a)(1). The employer also contends that the evidence preponderates against the trial court's finding that the employee was permanently and totally disabled. We affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2011/moranj_030811.pdf
Court Reviews Whether City of Lebanon had Constructive Notice of a Dangerous Park Swing
CHARLES JUSTIN WRIGHT, BY NEXT FRIEND AND MOTHER, KAREN PRYOR v. CITY OF LEBANON, TENNESSEE (Tenn. Ct. App. March 2, 2011)
In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf
In a Governmental Tort Liability Act ("GTLA") action, the City of Lebanon appeals the trial court's decision to hold it liable for an accident that occurred on a swing in a city park. The City asserts that the court erred in failing to find that the swing was in a dangerous or defective condition or that the City had notice of such a condition. Additionally, the City insists that any defective condition was latent and governmental immunity was therefore not removed under the GTLA. The City also challenges the trial court's denial of its motion for involuntary dismissal, its characterization of the case as "hybrid" in nature, its reliance on the doctrine of res ipsa loquitur in establishing negligence, and its admission of the plaintiff's expert testimony. We conclude that the swing was in a dangerous or defective condition, which was not latent, and that the City had constructive notice of that condition. We find against the City on its remaining issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wrightc_030211.pdf
Court Reviews a Finding Against Plaintiff in a Medical Malpractice Case
JAMIE RANDOLPH, on behalf of her deceased mother, CAROLYN RANDOLPH v. GIANFRANCO MEDURI, M.D., ET AL. (Tenn. Ct. App. March 2, 2011)
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
This appeal arises out of an action to hold UT Medical Group, Inc. vicariously liable for the alleged negligence of its employees. In 1997, the original plaintiff filed an amended complaint for medical malpractice and wrongful death which specifically named two doctors as employees of the defendant who negligently caused the death of a patient. As trial approached, a substitute plaintiff attempted to add new allegations concerning the negligence of a third doctor. The trial court denied the motion to amend and later granted a motion in limine to exclude evidence concerning the alleged negligence of the third doctor as beyond the scope of the 1997 amended complaint. The plaintiff consequently was unable to offer expert testimony at trial to prove an employee of the defendant negligently caused the patient's death, and the trial court granted judgment in favor of the defendant. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/randolphj_030211.pdf
Tuesday, March 1, 2011
Court Reviews Whether Defendants had Notice of a Defective or Dangerous Condition in a Case Involving a Tanning Bed Accident
AVIE ALEANE HARDING ET AL. v. DONOVAN ENTERPRISES, INC. D/B/A CAPTAIN VIDEO & TANNING (Tenn. Ct. App. March 1, 2011)
A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.pdf
A patron of a tanning salon and her husband filed this action seeking to recover damages for injuries the patron sustained when the lid of a tanning bed fell on her head as she was attempting to exit the tanning bed. The plaintiffs allege that the owner and operator of the tanning salon acted negligently by failing to properly maintain or inspect the tanning bed she used, which caused the lid of the tanning bed to become too heavy for the patron to lift and safely exit, and by failing to have a way for a patron to call for help from within the tanning room in the event of an emergency. The trial court summarily dismissed the complaint finding, inter alia, the plaintiffs cannot demonstrate essential elements of a prima facie case, specifically that a defective condition existed or that the defendants had actual or constructive notice of any alleged defective or dangerous condition of the premises. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/hardinga_030111.pdf
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