Court reviews whether the trial court properly dismissed an uninsured motorist claim

SHAVON HURT v. JOHN DOE, ET AL. (Tenn. Ct. App. January 17, 2012)

Plaintiff filed a personal injury action arising out of a pedestrian-vehicle collision, naming as defendant the owner of the car that allegedly struck the plaintiff. After discovery, plaintiff amended the complaint to add "John Doe/Jane Doe" as a defendant and served process on her uninsured motorist carrier. Plaintiff subsequently settled with the named defendant and dismissed the action against that defendant; the uninsured motorist insurance carrier then filed a motion to dismiss the uninsured motorist claim. The trial court granted the motion, holding that, in light of the settlement, the uninsured motorist claim no longer existed and dismissed the case. We find that the court erred in dismissing the case.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2012/hurts_011712.pdf

'Due care' law went into effect July 1

A new state law that will levy penalties for failure to "exercise due care" while driving a motor vehicle went into effect July 1. According to the bill's sponsor, the law also makes it easier for those injured, or the survivors of those killed, to prevail in civil lawsuits by "making it clear that the law requires people in a car to exercise proper driving restraint around people on a bicycle and pedestrians."

The Murfreesboro Post has the full story, which you can read here: 'Sorry I Didn’t See You' is no longer a legal excuse

Court Reviews Apportionment of Fault in a Wrongful Death Case Against the City of Clinton

CURTIS ROBIN RUSSELL, ET AL. v. ANDERSON COUNTY, ET AL. (Tenn. Ct. App. February 11, 2011)

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection.

The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. section 29-20-101 et seq., against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell and Dorothy Louise Russell as next of kin of the decedent, their son Curtis Tyler Russell. The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City.

On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/russellc_021111.pdf

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 reviews summary judgment ruling in a collision between an automobile and a pedestrian

DANNY J. PHILLIPS v. WILLIAM T. MULLINS (Tenn. Ct. App. April 26, 2010)

Danny J. Phillips ("Plaintiff") sued William T. Mullins ("Defendant") after a truck driven by Defendant struck and injured Plaintiff who was riding a bicycle. Defendant moved for summary judgment. After a hearing, the Trial Court entered an order granting Defendant summary judgment. Plaintiff appeals to this Court. We reverse the grant of summary judgment finding that there are disputed issues of material fact which preclude summary judgment.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/phillipsd_042610.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 dismissal of case without prejudice due to noncompliance of Plaintiff with court orders

MIN GONG v. IDA L. POYNTER (Tenn. Ct. App. February 1, 2010)

Min Gong ("the plaintiff") filed this action against Ida L. Poynter ("the defendant") for injuries she sustained when, as a pedestrian on the sidewalk, she was struck by an automobile driven by the defendant, all as alleged in her filing. The "complaint" was filed pro se in the form of a long letter with approximately 200 pages of accompanying documents.

The defendant served written discovery on the plaintiff consisting of six interrogatories and one document request. The plaintiff submitted an unsworn response in which she objected to answering the defendant's discovery on the grounds that "individuals" are not subject to written discovery and that the information requested was protected by the attorney-client privilege or the work product doctrine. The defendant filed a motion to compel which the trial court granted after a hearing held on January 29, 2009. The order, filed January 29, 2009, compelled "the Plaintiff [to] submit written responses to Defendant's discovery within thirty (30) days from the date of this Order or Plaintiff's suit will be dismissed."

The plaintiff did not appear at the January 29, 2009, hearing, but did file several "motions" of her own. In addition, she sent written notification that she had scheduled the matter for a four-hour trial on April 2, 2009. As to the motion to compel, the plaintiff asserted that the defendant had misinterpreted "Rule 33 of the Tennessee Rules of Civil Procedure" and that it is not applicable to individuals. Counsel for the defendant filed an affidavit on March 11, 2009, stating that the plaintiff had not complied with the order and that the plaintiff, as late as March 9, 2009, continued to resist discovery on the grounds previously stated by her. On March 25, 2009, the trial court entered an order dismissing the case "without prejudice." The plaintiff appeals. We affirm.

Opinion can be found at:
http://www.tba2.org/tba_files/TCA/2010/poynterl_020110.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