LORI GREGORY, IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES BALLENTINE v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY (Tenn. Ct. App. October 29, 2012)
This is a negligence claim under Tennessee’s Governmental Tort Liability Act. The decedent was involved in a serious vehicular accident. A witness called the defendant municipality’s 911 emergency communications center for help. The 911 responders went to the accident scene and transported the decedent to a local hospital, where he died.
The decedent’s mother filed this lawsuit against the municipality, alleging that the 911 operator was negligent in failing to summon emergency personnel from a neighboring county, because those responders were closer to the scene of the accident and could have provided aid to the decedent sooner. The municipality filed a motion for judgment on the pleadings, arguing inter alia that it owed no duty to summon aid outside of its jurisdiction. The trial court granted the motion, and the plaintiff now appeals. We affirm.
Opinion available at:
https://www.tba.org/sites/default/files/gregoryl_102912.pdf
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Showing posts with label Negligence. Show all posts
Showing posts with label Negligence. Show all posts
Monday, October 29, 2012
Wednesday, October 24, 2012
Court reviews whether an auto insurance policy covers damages resulting from a car owner's independent acts of negligence in a case involving a car accident
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL. v. SOUTHERN TRUST INSURANCE COMPANY (Tenn. Ct. App. October 24, 2012)
This is a dispute between insurance companies over coverage related to a car accident. We conclude that the trial court erred in finding that the driver’s auto policy covered damages resulting from the independent acts of negligence of the car owner.
Opinion available at:
https://www.tba.org/sites/default/files/statefarm_102412.pdf
This is a dispute between insurance companies over coverage related to a car accident. We conclude that the trial court erred in finding that the driver’s auto policy covered damages resulting from the independent acts of negligence of the car owner.
Opinion available at:
https://www.tba.org/sites/default/files/statefarm_102412.pdf
Monday, April 30, 2012
Court reviews the limitation of liability in an insurance policy in a case involving a city volunteer
PAUL VINCENT GIANNINI v. AMANDA PROFFITT (Tenn. Ct. App. April 27, 2012)
This appeal involves a limitation of liability in an insurance policy. The plaintiff was working in a volunteer capacity for the city. While doing so, the plaintiff sustained injuries in an accident caused by the negligence of the defendant. The plaintiff’s medical expenses were paid through the city’s on-the-job-injury program. The plaintiff had uninsured motorist coverage under his insurance policy with the appellee insurance company.
The appellee insurance company denied the plaintiff’s claim based on language in the policy reducing the insurance company’s liability by sums paid under laws similar to workers’ compensation laws. The insurance company asserted that the city’s on-the-job-injury program was similar to workers’ compensation.
The plaintiff filed this lawsuit, and the plaintiff and the insurance company filed cross-motions for summary judgment on the issue of coverage. The trial court granted summary judgment in favor of the insurance company, finding that the plaintiff’s benefits under the city’s on-the-job-injury program were similar to workers’ compensation. The plaintiff now appeals. We affirm the grant of summary judgment, for the reason stated by the trial court.
Opinion available at:
https://www.tba.org/sites/default/files/gianninip_042712.pdf
This appeal involves a limitation of liability in an insurance policy. The plaintiff was working in a volunteer capacity for the city. While doing so, the plaintiff sustained injuries in an accident caused by the negligence of the defendant. The plaintiff’s medical expenses were paid through the city’s on-the-job-injury program. The plaintiff had uninsured motorist coverage under his insurance policy with the appellee insurance company.
The appellee insurance company denied the plaintiff’s claim based on language in the policy reducing the insurance company’s liability by sums paid under laws similar to workers’ compensation laws. The insurance company asserted that the city’s on-the-job-injury program was similar to workers’ compensation.
The plaintiff filed this lawsuit, and the plaintiff and the insurance company filed cross-motions for summary judgment on the issue of coverage. The trial court granted summary judgment in favor of the insurance company, finding that the plaintiff’s benefits under the city’s on-the-job-injury program were similar to workers’ compensation. The plaintiff now appeals. We affirm the grant of summary judgment, for the reason stated by the trial court.
Opinion available at:
https://www.tba.org/sites/default/files/gianninip_042712.pdf
Wednesday, January 4, 2012
TN Supreme Court reviews whether the statute of limitations bars negligence and strict liability claims in a products liability case
MICHAEL LIND v. BEAMAN DODGE, INC., d/b/a BEAMAN DODGE CHRYSLER JEEP ET AL. (Tenn. December 15, 2011)
The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer.
Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal.
This Court granted the seller's application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. Because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.
Majority opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_121511.pdf
Justice Clark's concurring opinion is available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_CON_121511.pdf
The plaintiff, who had purchased a truck from an automobile dealership, filed a products liability suit in 2007 against not only the manufacturer, but also the dealership, as seller. Later, the plaintiff entered a voluntary nonsuit as to the seller and proceeded only against the manufacturer.
Over one year after the order granting nonsuit, the manufacturer declared bankruptcy, and, in 2009, the plaintiff again sued the seller, alleging both negligence and strict liability in tort. The seller filed a motion to dismiss, contending that the suit was barred by the statute of limitations. The trial court denied the motion but granted an interlocutory appeal. The Court of Appeals denied the appeal.
This Court granted the seller's application for permission to appeal to consider the application of the saving statute to these unique circumstances. We hold that the plaintiff may proceed under the strict liability claim because that cause of action did not accrue until the manufacturer was judicially declared insolvent. Because, however, the second suit alleged acts of negligence on the part of the seller, an exception to the statutory rule prohibiting products liability suits against sellers, and could have been brought in 2007, the statute of limitations is a bar to recovery under that theory. The judgment of the trial court is, therefore, affirmed in part and reversed in part, and the cause is remanded for trial.
Majority opinion available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_121511.pdf
Justice Clark's concurring opinion is available at:
http://www.tba2.org/tba_files/TSC/2011/lindm_CON_121511.pdf
Saturday, November 19, 2011
Court reviews a jury's allocation of fault and jury instructions in a case involving an injury that occurred at a construction site
BENJAMIN INDOCCIO v. M&A BUILDERS, LLC, ET AL. (Tenn. Ct. App. November 15, 2011)
This appeal arises from injuries Plaintiff sustained after falling down a staircase while working on the construction of a home. Plaintiff filed a negligence action against the general contractor and the subcontractor responsible for the construction of the custom staircase. The matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen percent at fault.
After his motion for new trial was denied, Plaintiff filed this appeal. Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor's employees used marijuana while working on the construction of the staircase, and erred by excluding evidence of misdemeanor convictions and probation violations of one of the subcontractor's employees. Plaintiff also asserts that the trial court erroneously instructed the jury regarding notice, negligence, and foreseeability.
After thoroughly reviewing the record, we find that the trial court did not abuse its discretion by excluding the evidence of alleged marijuana use or the evidence of misdemeanor convictions and probation violations. Similarly, we find that the jury instructions on notice, negligence, and foreseeability were proper. Accordingly, we affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/indocciob_111511.pdf
This appeal arises from injuries Plaintiff sustained after falling down a staircase while working on the construction of a home. Plaintiff filed a negligence action against the general contractor and the subcontractor responsible for the construction of the custom staircase. The matter was tried before a jury, and the jury returned a verdict finding Plaintiff fifty percent at fault, the subcontractor thirty-five percent at fault, and the general contractor fifteen percent at fault.
After his motion for new trial was denied, Plaintiff filed this appeal. Plaintiff asserts that the trial court erred by excluding evidence that the subcontractor's employees used marijuana while working on the construction of the staircase, and erred by excluding evidence of misdemeanor convictions and probation violations of one of the subcontractor's employees. Plaintiff also asserts that the trial court erroneously instructed the jury regarding notice, negligence, and foreseeability.
After thoroughly reviewing the record, we find that the trial court did not abuse its discretion by excluding the evidence of alleged marijuana use or the evidence of misdemeanor convictions and probation violations. Similarly, we find that the jury instructions on notice, negligence, and foreseeability were proper. Accordingly, we affirm the judgment of the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/indocciob_111511.pdf
Tuesday, September 27, 2011
Court reviews a motor vehicle accident case involving a professional driver hired to perform at an exhibition
GINNY BETH KING, ET AL. v. FLOWMASTER, INC. (Tenn. Ct. App. September 27, 2011)
Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment.
We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/KingG_092711.pdf
Flowmaster invited a professional driver to attend an exhibition in which such driver allegedly lost control of his vehicle, killing or injuring many spectators. The plaintiffs sued numerous defendants, including Flowmaster, and the trial court granted Flowmaster's motion for summary judgment.
We affirm the trial court's finding that Flowmaster was not a member of a joint venture. However, we find that Flowmaster failed to negate the duty element of the plaintiffs' negligence claim, and that genuine issues of material fact exist as to whether Flowmaster "engaged" in an ultrahazardous activity or "participated" in a "drag race," and we remand on these issues.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/KingG_092711.pdf
Friday, August 26, 2011
Court reviews whether an attorney's failure to substitute a party for the deceased plaintiff in an automobile accident case was excusable neglect
THOMAS PAUL SCOTT v. JAMES KEVIN ROBERSON (Tenn. Ct. App. August 25, 2011)
Plaintiff injured in automobile accident died while his negligence action was pending. Plaintiff's counsel filed a suggestion of death but neglected to move to substitute a party for the deceased plaintiff within 90 days, as required by Tenn. R. Civ. P. 25.01(1). Defendants filed motions for summary judgment, which led plaintiff's estate to file a motion to enlarge time within which to move to substitute pursuant to Tenn. R. Civ. P. 6.02.
The trial court determined that plaintiff's counsel's neglect in moving to substitute within 90 days was not excusable and granted defendants' motions, dismissing the action. On appeal we affirm the trial court's judgment because we cannot conclude that the trial court abused its discretion in ruling the neglect was not excusable.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/scottt_082511.pdf
Plaintiff injured in automobile accident died while his negligence action was pending. Plaintiff's counsel filed a suggestion of death but neglected to move to substitute a party for the deceased plaintiff within 90 days, as required by Tenn. R. Civ. P. 25.01(1). Defendants filed motions for summary judgment, which led plaintiff's estate to file a motion to enlarge time within which to move to substitute pursuant to Tenn. R. Civ. P. 6.02.
The trial court determined that plaintiff's counsel's neglect in moving to substitute within 90 days was not excusable and granted defendants' motions, dismissing the action. On appeal we affirm the trial court's judgment because we cannot conclude that the trial court abused its discretion in ruling the neglect was not excusable.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/scottt_082511.pdf
Tuesday, August 23, 2011
Court reviews whether a claim against an assisted living facility was a negligence or a medical malpractice claim.
CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL. (Tenn. Ct. App. August 23, 2011)
The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.
The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.
Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.
We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.
We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf
The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.
The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.
Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.
We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.
We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf
Friday, July 29, 2011
Court reviews a negligence case involving multiple continuances and a subsequent ruling against the Plaintiff based on comparative fault
FREDDIE DAVIS v. SHELBY COUNTY GOVERNMENT (Tenn. Ct. App. July 29, 2011)
This is a negligence action. Plaintiff/Appellant asserts that Defendant/Appellee is liable for personal injuries he allegedly sustained when he fell while walking down the steps at the Shelby County courthouse. Due to Appellant's incarceration, the trial court granted three continuances; however, Appellant's request for a fourth continuance was denied.
Following a hearing, the trial court found that Appellant had failed to meet his burden to show negligence on the part of the Appellee, and further concluded that, if there was negligence in the case, Appellant was at least fifty percent at fault so as to bar recovery. Appellant appeals both the denial of his fourth motion for a continuance and the trial court's ruling in favor of Appellee. Finding no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/davisf_072911.pdf
This is a negligence action. Plaintiff/Appellant asserts that Defendant/Appellee is liable for personal injuries he allegedly sustained when he fell while walking down the steps at the Shelby County courthouse. Due to Appellant's incarceration, the trial court granted three continuances; however, Appellant's request for a fourth continuance was denied.
Following a hearing, the trial court found that Appellant had failed to meet his burden to show negligence on the part of the Appellee, and further concluded that, if there was negligence in the case, Appellant was at least fifty percent at fault so as to bar recovery. Appellant appeals both the denial of his fourth motion for a continuance and the trial court's ruling in favor of Appellee. Finding no error, we affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/davisf_072911.pdf
Thursday, June 9, 2011
Court Reviews a Motion to Dismiss for Failure to State a Claim in a Case Involving a Hospital
MCCALL BRISTER v. HCA HEALTH SERVICES OF TENNESSEE, ET AL. (Tenn. Ct. App. June 9, 2011)
This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf
This is an appeal from the trial court's grant of a hospital's motion to dismiss for failure to state a claim upon which relief can be granted. The trial court determined that plaintiff's claim sounded in medical malpractice and dismissed plaintiff's claim for failure to comply with the written notice and certificate of good faith requirements of the Tennessee Medical Malpractice Act. Finding that Plaintiff's complaint states claim for ordinary negligence and premises liability, we reverse the trial court and remand the case for further proceedings.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/bristerm_060911.pdf
Saturday, April 30, 2011
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
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
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
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
Monday, January 31, 2011
Court Reviews Whether Bank Created or Maintained a Dangerous Condition that Led to Plaintiff's Fall into Curbside Shrubbery
KATHY YOUNG ET AL. v. FIRST BANK OF TENNESSEE (Tenn. Ct. App. January 31, 2011)
Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf
Kathy Young ("the plaintiff") stepped backward onto an elevated curb as she opened the driver's door of her vehicle to leave the parking lot of First Bank of Tennessee. She was injured when she tripped over the curb and fell into the shrubbery that bordered the parking lot. She and her husband filed this action alleging that First Bank was negligent in creating or maintaining a dangerous condition. First Bank filed a motion for summary judgment which the trial court granted. The plaintiff appeals. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/youngk_013111.pdf
Wednesday, January 26, 2011
TN Supreme Court Reviews Whether Claims Brought in a Wrongful Death Suit Were Based Upon Medical Malpractice or Ordinary Negligence
ESTATE OF MARTHA S. FRENCH v. STRATFORD HOUSE ET AL. (Tenn. January 26, 2011)
The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.
The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.
We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf
The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act.
The trial court granted the defendants' motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix's application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals.
We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals' reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.
Opinion available at:
http://www.tba2.org/tba_files/TSC/2011/frenchm_012611.pdf
KOCH dissenting
http://www.tba2.org/tba_files/TSC/2011/frenchm_DIS_012611.pdf
Tuesday, December 14, 2010
Court Reviews a Case Involving an Automobile Accident between Plaintiff and a Police Officer
TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE (Tenn. Ct. App. December 14, 2010)
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff's vehicle. Plaintiff filed a negligence action against Defendant Madden and against the City of Memphis pursuant to the Governmental Tort Liability Act.
In his complaint, Plaintiff asserted Memphis City police negligently pursued Defendant Madden, and that this negligence proximately caused Plaintiff's injuries. The trial court found Plaintiff's injuries were caused solely by the acts of Defendant Madden and entered judgment in favor of the City of Memphis. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/hamptont_121410.pdf
Wednesday, December 8, 2010
Court Reviews Whether Plaintiffs Can Recover Damages from a Police Department and the Prior Operator of a Car in an Accident in which Neither Party was Directly Involved
SANDRA NEWMAN ET AL. v. RUBYE J. JARRELL ET AL. (Tenn. Ct. App. December 8, 2010)
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
The plaintiffs were injured in a car accident in which their car collided with a stolen car. They sued the City of Murfreesboro and its police department, arguing that the stolen car was being pursued by the police immediately prior to the accident. The plaintiffs also sued the person who was using the car with its owner's permission prior to the theft, arguing that he had acted negligently in leaving the keys in the car. The trial court granted summary judgment in favor of all of the defendants.
With respect to the city and its police department, we affirm. With respect to the user of the offending car prior to its theft, we reverse and remand.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/newmans_120810.pdf
Tuesday, November 23, 2010
Court Reviews a Jury’s Determination of Allocation of Fault in an Automobile Accident Case
LIMMIE R. WALLS v. BOBBY G. HOPKINS (Tenn. Ct. App. November 23, 2010)
This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion.
On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/wallsl_112310.pdf
This tort action arises out of a two-vehicle accident. Plaintiff sued defendant under a negligence theory and sought damages. After a jury trial, the jury equally allocated fault between plaintiff and defendant. Plaintiff filed a motion for a new trial, and the trial court denied the motion.
On appeal, plaintiff argues that the jury's verdict is not supported by material evidence and that the trial court erred in permitting testimony regarding plaintiff's intention to use a shortcut. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/wallsl_112310.pdf
Friday, November 12, 2010
Court Reviews Whether a Case was Medical Malpractice or Common Law Negligence
KATRINA MARTINS, ET AL. v. WILLIAMSON MEDICAL CENTER (Tenn. Ct. App. November 12, 2010)
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Katrina B. Martins and her husband filed suit against Williamson Medical Center for injuries sustained when Ms. Martins fell in her hospital room. The trial court held that the complaint stated a claim based on medical malpractice and dismissed the lawsuit for failure to comply with the Tennessee Medical Malpractice Act. Plaintiffs appeal, asserting that the complaint sounded in common law negligence. We affirm.
Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/martinsk_111210.pdf
Thursday, October 28, 2010
TN Supreme Court reviews whether the trial court properly dismissed a medical malpractice suit involving negligent prescription of drugs.
LOU ELLA SHERRILL ET AL. v. BOB T. SOUDER, M.D. ET AL. (Tenn. October 28, 2010)
This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.
The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf
This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed.
The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.
Opinion may be found at:
http://www.tba2.org/tba_files/TSC/2010/sherrilll_102810.pdf
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