Court reviews a medical negligence case involving injuries sustained during laser eye surgery

LEON DICKSON, SR. v. SIDNEY H. KRIGER, M.D. (Tenn. Ct. App. February 10, 2012)



This appeal arises from injuries Plaintiff sustained after undergoing laser corrective eye surgery. Plaintiff filed a complaint against Defendant alleging medical negligence. Subsequently, Defendant filed an amended answer alleging, inter alia, the affirmative defense of comparative fault.

Plaintiff filed a motion to strike portions of Defendant's amended answer, and following a hearing on the motion, Defendant agreed to the entry of a consent order waiving the defense of comparative fault.

Thereafter, Plaintiff filed motions in limine to preclude the testimony of two of Defendant's experts. Plaintiff argued that, because Defendant waived comparative fault, he could not use the causation testimony of the two experts to shift blame away from himself unless he first plead comparative fault under Rule 8.03 of the Tennessee Rules of Civil Procedure.

The trial court denied both motions. We granted permission for interlocutory appeal. We affirm in part, reverse in part, and remand for further proceedings.


Opinion available at:

http://www.tba2.org/tba_files/TCA/2012/dicksonl_021012.pdf

Court Reviews a Finding of No Fault in a Case Involving a Motor Vehicle Accident

BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T (TN) v. SHUNDRA Y. YOUNG and MAUREEN F. KINSELLA (Tenn. Ct. App. June 21, 2011)

Plaintiff sued Defendants for damages arising from a motor vehicle accident. The trial court struck, from Defendants' answers, allegations regarding the comparative fault of an unidentified nonparty. However, the trial court allowed references to such nonparty at trial, and the jury assigned no fault to Defendants. Finding no error in the trial court's allowance, we affirm the judgment of the trial court.

Opinion available here:
http://www.tba2.org/tba_files/TCA/2011/bellsouth_062111.pdf

Court Reviews the issue of Negligence in a Wrongful Death Case

JAMES ANTONY WILSON, SR. v. EAST TENNESSEE HUMAN RESOURCE AGENCY, INC. (Tenn. Ct. App. April 29, 2011)



James Antony Wilson, Sr. sued East Tennessee Human Resource Agency, Inc. ("ETHRA") individually, and as next friend and Personal Representative of the Estate of Callie Irene Wilson, on behalf of himself and all wrongful death beneficiaries of Callie Irene Wilson, Deceased. This suit involves a fall and injuries suffered by Callie Irene Wilson ("Callie Wilson") while ETHRA was in the process of transporting Callie Wilson to a dialysis appointment, and her death resulting from these injuries.

After a trial, the Trial Court entered its order on July 29, 2010 finding and holding, inter alia, that the ETHRA driver acted appropriately and was not negligent. Mr. Wilson appeals to this Court. We find that the evidence in the record on appeal preponderates against the Trial Court's finding that ETHRA's employee, Mr. Clabo, was not negligent. We reverse, and remand this case to the Trial Court for a determination of comparative fault and damages. 


Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2011/wilsonj_042911.pdf

Court Reviews the Appropriation of Fault in a Case Involving a Bicycle Accident

ROBERT D. GRAY v. ANDY B. ROTEN, II and GARY B. ROTEN (Tenn. Ct. App. January 18, 2011)

This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee's truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee.

On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court's finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/grayr_011811.pdf

Court upholds lower court verdict and judgment award

ROBERT NICELY v. BERKLINE, LLC. (Tenn. Ct. App. July 7, 2009)

Robert Nicely ("Plaintiff") was employed as a truck driver for Evinco Professional Services, Inc. ("Evinco"). Evinco contracted with Blue Mountain Trucking Corporation for the delivery of various goods. In March 2004, Plaintiff was injured while unloading furniture that had been loaded onto his truck by employees of Berkline, LLC. Plaintiff sued Berkline, LLC, ("Defendant") for personal injuries. Defendant filed a motion for summary judgment claiming that an employment agreement signed by Plaintiff barred this lawsuit. The Trial Court disagreed and allowed the case to go to the jury. The jury returned a verdict for Plaintiff in the amount of $500,000. Because the jury found Plaintiff 20 percent at fault for his own injuries, the judgment was reduced to $400,000. Defendant thereafter filed a motion for a new trial or for a remittitur, both of which the Trial Court denied. Defendant appeals. Finding no error, we affirm the judgment of the Trial Court.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/nicelyr_070709.pdf

TCA examines issues regarding the Govenrmental Tort Liability Act

RONALD TIMMONS v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE (Tenn. Ct. App. June 15, 2009)

Plaintiff filed this Governmental Tort Liability Act action against the Metropolitan Government of Nashville and Davidson County for injuries sustained during his arrest for driving under the influence following a vehicular accident. Plaintiff contends the police officers who arrested him were negligent in failing to recognize that he was not intoxicated but in diabetic shock, in failing to recognize that he could be restrained and handcuffed while standing, instead of in the prone position, and that he sustained a spiral, comminuted fracture of the humerus while an officer was pulling his right arm behind his back in an effort to cuff his hands.

Following a bench trial, the trial court found the officers were negligent in the manner in which they assessed the threat posed by Plaintiff and were negligent in the decision to handcuff him in the prone position, which caused his injuries. The trial court, therefore, held the Metropolitan Government liable for the officers negligence, assessed 100% of the fault to the officers, and awarded Plaintiff $140,000 in damages. On appeal, the Metropolitan Government insists it is immune from liability because the officers' actions were not the result of negligence but, it contends, the officers consciously and volitionally used an excessive amount of force that constituted the intentional tort of battery. Alternatively, the Government contends, if it is liable under a negligence theory, the trial court erred by apportioning no fault to Plaintiff.

We have determined the evidence does not preponderate against the trial court's findings that Plaintiff's injuries resulted from the officers' negligent acts and omissions, that the Metropolitan Government is liable for the officers' negligence, that Plaintiff was not contributorily negligent, and that Plaintiff is entitled to recover damages in the amount of $140,000. Accordingly, we affirm the trial court in all respects.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/timmonsr_061609.pdf

Court reviews the standards for allowing a party to amend a claim or answer

ROBERT DANIELS and PEGGY DANIELS, v. MICHAEL D. WRAY (Tenn. Ct. App. May 21, 2009)

Plaintiff filed this action for damages for injuries sustained in an automobile accident. Defendant answered, denying liability, and subsequently filed a Tenn. R. Civ. P. 15 to amend and make claim for personal injuries and property damage as a result of the accident. The Trial Court allowed the amendment as to property damages, but refused to allow defendant to assert the claim for personal injuries on the grounds inter alia that the statute of limitations had run on the personal injury claim prior to the filing of the Motion to Amend. The property damage claim was settled, but the refusal to allow the amendment has been appealed to this Court. We hold that the Trial Court abused its discretion in refusing to allow the amendment.

The Full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/danielsr_05209.pdf

The court here reviewed the standards for reversing a trial court for abuse of discretion for disallowing a party to amend its answer and make a counterclaim. the factors to be considered when deciding whether to allow a party to amend its claim include, "undue delay in filing, lack of notice to the opposing party, bad faith of the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Id. (citations omitted). The court here found that the factors the trial court relied on--undue delay and prejudice to the opposing parties--were not supported by the record. Therefore the trial court had abused its discretion and the case was remanded for further proceedings.

TCA examines the issue of superceding cause in wrongful death action

DORIS G. HOWELL, as Next of Kin and as Guardian of JESSIE J. WILLIAMS, a minor child of GINGER WILLIAMS, deceased, ET AL. v. DAVID M. TURNER, M.D., ET AL. (Tenn. Ct. App. May 21, 2009)

This appeal arises out of the death of Ginger Williams after she sought medical treatment from the various Defendants. After the jury returned a verdict in favor of Plaintiff, Defendant Doctor moved for a judgment notwithstanding the verdict, asserting that the doctrine of an independent, intervening cause precluded his liability. We affirm the trial court's decision to deny Defendant's motion.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/howelld_052109.pdf

TCA affirms dismissal because there was no offer of proof

HOPE DENTON v. JAMES G. HAGGARD (Tenn. Ct. App. May 20, 2009)

Evidence of defendant's prior traffic violations was excluded by the trial court in an automobile accident case. Plaintiff appealed. We affirm due to plaintiff's failure to make an offer of proof.

At trial the jury found both parties equally at fault and the case was dismissed. The Plaintiff moved for a new trial which was denied. Plaintiff appealed based on disallowed evidence of defendant's driving record. TCA finds that no offer of proof was made, thus the issue of excluded evidence is waived.

The full text of this appeal may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/dentonh_052109.pdf

Court finds defendant did not have constructive notice of dangerous condition

LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC.(Tenn. Ct. App. May 20, 2009)

This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat.

The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf

Court affirms city's immunity was not waived under Governmental Tort Liability Act

GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL. (Tenn. Ct. App. May 19, 2009)

This case arises from the death of a graduate student near the University of Memphis. while crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both the decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault for the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.

"In its answer to the suit filed by Plaintiffs, the City asserted several affirmative defenses, including that it was immune from suit pursuant to the Governmental Tort Liability Act (GTLA) and the comparative fault of the driver. City failed to assert that the decedent or the University of Memphis were comparatively negligent. The parties stipulated that pursuant to Tennessee Code Annotated section 29-20-37 the City of Memphis is not subject to trial by jury for actions brought under the GTLA. The City moved to amend its original answer to plead the comparative fault of the University of Memphis which the trial court denied. the City also filed a post-trial motion to amend its original answer seeking to include the comparative fault of the decedent. Because it was found that the fault of the decedent was at issue during pre-trial discovery and was tried by the parties without objection, the trial court granted this motion to amend pusuant to Tennessee Rule of Civil Procedure 15.02" Id.

"Subsequently the trial court entered its findings of facts and conclusions of law. First, it held that the GTLA did not waive the City's governmental immunity. In addition, the trial court determined that the Plaintiffs failed to prove that the City was negligent because there was insufficient evidence 1) that the City breached it's duty of care, 2) that "but for" the City's action or inaction the decedent's injuries would not have occurred, and 3) that the City's action or inaction was the legal cause of the decedent's injuries. The trial court also opined that the City had shown by a preponderance of the evidence that both the driver of the vehicle and the decedent were negligent and found that each were 50% at fault for the accident." Id.

"Under Tennessee Code Annotated section 29-20-201, government entities are immune from liability unless a plaintiff demonstrates that his claim is one of the specific causes of action for which the legislature removes immunity. Here Plaintiffs specifically allege that the City is liable pursuant to GTLA Section 203, which removes governmental immunity for "any injury caused by a defective, unsafe, or dangerous condition of any sgtreet, alley, sidewalk, of highway." TCA section 29-20-203(a) (2000). The trial court held and the Court of Appeals affirmed that the section of roadway at issue was not in a defective, unsafe, or dangerous condition on the date of the accident, therefore the City had not breached it's duty of care." Id.

The full text of this opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf

A concurring opinion may be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf

Court reviews finding of comparative fault in premises liability case.

WILLIAM W. REED v. BILL MCDANIEL and AHMAD ELSEBAE (Tenn. Ct. App. February 23, 2010)

This is a premises liability case. Plaintiff/Appellant sustained injuries after a fall through the second-story floor of a water-damaged building. The trial court granted summary judgment in favor of the Defendants/Appellees, finding that the danger was open and obvious, that Defendants/Appellees had warned of the danger, and that Plaintiff/Appellant was at least 50% at fault for his own injuries, thus negating his negligence claim under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). Finding no error, we affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/reedw_022310.pdf

TCA reverses lower court and dismisses slip and fall suit

LEITHA C. PERKINS and ROBERT L. PERKINS v. BIG LOTS STORES, INC. (Tenn. Ct. App September 16, 2008).

This is a slip-and-fall case. The plaintiff tripped on a floor mat and fell as she was entering the defendant's store. A store security video showed that the corner of the floor mat was overturned by another customer twenty-one seconds before the plaintiff fell. At the time that the corner of the mat became furled, the assistant store manager was at the service desk several feet from the entrance. He denied seeing the overturned mat. The plaintiff sued the store, alleging negligence in allowing a dangerous condition to persist and in failing to warn the plaintiff of it. After the trial, the jury found that the defendant store was eighty percent at fault and that the plaintiff was twenty percent at fault. The defendant store filed a motion for a new trial, alleging juror misconduct based on comments by jurors to the attorneys. The store also contended that the evidence showed that it did not have actual or constructive notice that the corner of the mat had become folded over. Finally, the store maintained that no reasonable jury could find that the plaintiff was less than fifty percent at fault for her own injuries. The trial court denied the motion and the defendant appeals. We reverse, finding no material evidence to support the jury's verdict, and dismiss the case.

The full text of this opinion may be found at the TBA website.
http://www.tba2.org/tba_files/TCA/2009/perkinsl_052009.pdf

TCA affirms City of Memphis Immunity in Pedestrian – Vehicle Crosswalk Incident

GARY L. WATTS AND JANET WATTS, Parents And Next Friends of CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL. (Tenn. Ct. App. May 6, 2009).

This case arises from the death of a graduate student near the University of Memphis. While crossing the street, decedent was struck by a vehicle. Decedent's parents, on his behalf, have sued the City of Memphis, pursuant to the Governmental Tort Liability Act, alleging that the City negligently maintained the defective, unsafe, or dangerous street that decedent was crossing. The trial court held that Plaintiffs failed to prove that the Governmental Tort Liability Act waived the City of Memphis' immunity from suit or that the City of Memphis was negligent. In addition, the court found that both decedent and the driver of the automobile that struck decedent were negligent and were each 50% at fault of the accident. We affirm on the basis that Plaintiffs failed to prove that the street was a defective, unsafe, or dangerous condition for which the City's immunity was waived.

The full text of this opinion is available at the TBA website: http://www.tba2.org/tba_files/TCA/2009/wattsg_050609.pdf

KIRBY Concurring
http://www.tba2.org/tba_files/TCA/2009/wattsg_con_050609.pdf