Court reviews the judgment of a libel and false light invasion of privacy case

DANIEL B. EISENSTEIN v. WTVF-TV, NEWS CHANNEL 5 NETWORK, LLC ET AL. (Tenn. Ct. App. July 31, 2012)

The plaintiff, a public official, sued the defendants for libel and false light invasion of privacy. The defendants filed a motion for summary judgment based on the truth of the statements. The plaintiff sought to complete discovery before the motion was heard. The trial court granted the defendants’ motion and plaintiff appealed. We affirm the grant of summary judgment as to the libel claims, but reverse the grant of summary judgment as to some of the false light claims.

Opinion available at:
https://www.tba.org/sites/default/files/eisensteind_073112.pdf

Court reviews a motion for summary judgment in a medical malpractice case

WILLIAM MISE, ET. AL. V. METHODIST MEDICAL CENTER OF OAK RIDGE, ET. AL. (Tenn. Ct. App. April 23, 2012)

This is an appeal from the grant of summary judgment in a medical malpractice case. Virginia Mise was admitted to Methodist Medical Center of Oak Ridge following complaints of abdominal pain, nausea, and vomiting. She was diagnosed with chronic renal failure. Several days later, she died following a medical procedure.

Her sons filed suit, alleging that Virginia Mise’s treating physicians and nurses failed to comply with the requisite standard of care, causing her death. Methodist Medical Center of Oak Ridge and the treating physicians filed motions for summary judgment. The trial court granted the motions for summary judgment. We affirm the grant of the motions for summary judgment.

Opinion available at:
https://www.tba.org/sites/default/files/misew_042312.pdf

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

Court reviews whether trial court properly excluded expert testimony based on the locality rule in a medical malpractice case

TISH WALKER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF LISA JO ABBOTT v. DR. SHANT GARABEDIAN (Tenn. Ct. App. December 28, 2011)

This appeal concerns the application of the locality rule in a medical malpractice case. The trial court excluded the testimony of the plaintiff's medical expert, based on the locality rule. On this basis, the trial court granted summary judgment to the defendant physician. The plaintiff appeals. We vacate the order excluding the testimony of the plaintiff's expert and the grant of summary judgment, and remand for reconsideration in light of the Tennessee Supreme Court's recent decision Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011).

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/walkert_122811.pdf

Court reviews whether a construction company can be held liable to a driver who had an accident on a road on which the company performed work

JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC. (Tenn. Ct. App. December 20, 2011)

Plaintiff and others sustained injuries in a single car accident and sued defendant construction company and the Tennessee Department of Transportation, alleging that defendant construction company had recently completed work on that section of the highway where the accident occurred, and that a low point in the pavement caused plaintiff to lose control of his vehicle and wreck.

Defendant answered, stating that they had completed the required construction on that section of the highway, and the State had accepted its work pursuant to Tenn. Code Ann. section 12-4-501 et seq. which provides upon proper completion of the work the contractor "is discharged from all liability to any party". Defendant filed a Motion for Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that summary judgment for the defendant in this case was proper, and affirm the Judgment of the Trial Court.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/leej_122011.pdf

Court reviews whether the trial court properly ruled that defendant negated the element of proximate cause in an automobile accident case

TIMOTHY A. MOORE v. HUGH A. BUTLER, INDIVIDUALLY AND AS AGENT AND SERVANT OF ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND ANTHONY WOMMACK d/b/a WOMMACK TRUCKING, AND McCOY'S HEATING & AIR, INC. (Tenn. Ct. App. December 1, 2011)

This appeal involves summary judgment in a vehicular accident case. In a line of vehicles, the defendant service vehicle was first, followed by the plaintiff's tractor-trailer, and then by the co-defendant's tractor-trailer. The defendant's service vehicle allegedly made a left turn without braking or using a turn signal, forcing the plaintiff's tractor-trailer to brake quickly. This resulted in the co-defendant's tractor-trailer rear-ending the plaintiff's tractor-trailer.

The plaintiff filed a personal injury lawsuit against the defendant tractor-trailer for rear-ending him, and against the defendant service vehicle that turned in front of him. The defendant service vehicle owner filed a motion for summary judgment. The trial court granted the motion, finding that the defendant service vehicle owner had negated the element of proximate cause. The defendant tractor-trailer owner appeals. We reverse under the summary judgment standard in Hannan v. Alltel Publ'g Co., 270 S.W.3d 1 (Tenn. 2008).

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

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

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

Court reviews a claim against an employer for retaliatory discharge

FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (Tenn. Ct. App. August 9, 2011)

Defendant allegedly suffered an on-the-job injury to his knees over the course of several years, and Plaintiffs paid workers' compensation benefits on his behalf. However, after Defendant was videotaped building a barn, his employment was terminated and suit was filed against him for fraud. Defendant then filed a counter-complaint alleging, among other things, retaliatory discharge. The trial court granted Plaintiffs' motion for summary judgment with regard to the retaliatory discharge claim, and we affirm and remand.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/federated_080911.pdf

Court reviews a wrongful death case involving a claim for negligent infliction of emotional distress

JERRY GARRISON, et al., v. ANDY E. BICKFORD, et al. (Tenn. Ct. App. July 29, 2011)

Plaintiffs brought this action for the wrongful death of their son, and also for their damages arising from "negligent infliction of emotional distress." State Farm Mutual Insurance Company filed a Motion for Partial Summary Judgment on the grounds that its policy afforded no coverage for a negligent infliction of emotional distress. The Trial Court overruled the Motion but proposed a Rule 9 appeal, which this Court granted. We reverse the Trial Court on this issue and grant the summary judgment motion.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/garrisonj_072911.pdf

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

Court Reviews a Summary Judgment Ruling in a Case in Which Defendant Negated the Damages Element

PAMELA CHAMPION, ET AL. v. CLC OF DYERSBURG, LLC, ET AL. (Tenn. Ct. App. February 22, 2011)

The trial court awarded Defendant summary judgment on the basis that Defendant had negated the element of damages in this personal injury action. We reverse and remand for further proceedings.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/championp_022211.pdf

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

Court Reviews the Validity and the Payment of a Hospital Lien

SHELBY COUNTY HEALTH CARE CORPORATION, D/B/A REGIONAL MEDICAL CENTER v. JOHN BAUMGARTNER, ELIZABETH BAUMGARTNER, A/K/A DARAY BAUMGARTNER, NATIONWIDE MUTUAL INSURANCE COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY (Tenn. Ct. App. January 26, 2011)

This appeal involves the impairment of a hospital lien. The individual defendant was treated at the plaintiff hospital for injuries sustained in an automobile accident caused by a third-party tortfeasor. The patient incurred substantial medical expenses. The hospital filed a hospital lien for the amount of the patient's medical expenses.

Subsequently, the patient received insurance proceeds from his own insurance company under his uninsured motorist coverage, and another payment from the tortfeasor's insurance company. Nothing was paid to the plaintiff hospital. The hospital filed this lawsuit against both insurance companies for impairment of its hospital lien. The parties filed motions for summary judgment.

The trial court granted in part the hospital's motion for summary judgment. Against the patient's own insurance company, the hospital was awarded one-third of the monies the patient received. Against the tortfeasor's insurance company, the hospital was awarded an amount equal to the policy coverage limit.

The hospital now appeals, arguing that it was entitled to recover from both insurance companies jointly the reasonable cost of the hospital services rendered to the patient. The insurance companies also appeal, arguing that there was no impairment of the lien and that, if there was impairment, the hospital's recovery should have been limited to one-third of the payments made to the patient. We affirm in part and reverse in part, finding that the hospital's lien was valid and was impaired, but that the hospital can recover only for the damages caused by the impairment of its lien.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/baumgartnerj_012611.pdf

Court Reviews a Summary Judgment Ruling in a Medical Battery Case

MARK W. URLAUB, as next of kin and Executor of the Estate of BERTHA WORLEY URLAUB v. SELECT SPECIALTY HOSPITAL-MEMPHIS, INC., ET AL. (Tenn. Ct. App. January 20, 2011)

Plaintiff filed this medical battery suit on behalf of his deceased mother and named as defendants the nephrologist who ordered an allegedly unauthorized hemodialysis procedure, another treating physician, and the hospital where she was treated. The trial court granted summary judgment to the treating physician who did not order the procedure and to the hospital. Plaintiff appeals. We find that both of these defendants were entitled to summary judgment and therefore affirm the trial court's decision.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/urlaubm_012011.pdf

Court Reviews A Case Involving an Employee’s Accident on a Railroad

CLAYTON WARD v. ILLINOIS CENTRAL RAILROAD COMPANY (Tenn. Ct. App. January 20, 2011)

Plaintiff, a railroad employee, filed this lawsuit pursuant to the Federal Employers' Liability Act, alleging that his left ankle injury was caused by his working conditions. The railroad filed a motion for summary judgment based upon the three-year statute of limitations. The trial court denied the motion for summary judgment but subsequently granted the railroad's motion for permission to seek an interlocutory appeal. We granted the railroad's application for an interlocutory appeal and now affirm the trial court's decision to deny the motion for summary judgment.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/wardc_012011.pdf

Court Reviews Whether Plaintiff Received Sufficient Time to Procure Representation and Expert Testimony in a Medical Malpractice Case

KATHY D. PARTEE V. JAIME VASQUEZ, M.D. (Tenn. Ct. App. January 6, 2011)

A woman who suffered prolonged bleeding, pain and disabling injury after gynecological surgery filed a pro se malpractice suit against the doctor who performed the surgery.

The defendant filed a motion for summary judgment, accompanied by an affidavit in which he testified that in his treatment of the plaintiff he complied at all times with the relevant standard of acceptable professional practice. Unfortunately for the plaintiff, she was unable to find an expert witness to controvert that affidavit.

The trial court granted the plaintiff several continuances to give her the opportunity to procure representation and expert testimony, but when she was unable to do so, the trial court granted the defendant's motion. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/parteek_010611.pdf

TWCA Reviews Whether Employee's Re-Injury was a Natural Consequence of His Prior Compensable Knee Injuries

FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, ET AL. v. WILLIAM R. HILL, ET AL. (TWCA December 21, 2010)

Pursuant to Tennessee Supreme Court Rule 51, this workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law.

Employee suffered work-related injuries to his knees prior to 2003 and underwent numerous surgeries. He entered into two settlements that obligated Employer to pay all future medical expenses arising from those injuries. In 2004, Employee fell at home and reinjured his right knee. He sought workers' compensation benefits, claiming that the 2004 injury was a natural consequence of his prior compensable knee injuries. The trial court granted summary judgment to Employer, finding that Employee's injury was not a natural consequence of the prior on-the-job knee injuries.

We affirm the judgment as to Employee's claims for permanent partial disability benefits, and certain temporary total disability benefits. We reverse as to Employee's claims for medical benefits and certain temporary total disability benefits because there are disputed material facts that could allow Employee to prove his 2004 injury was a natural consequence of his prior compensable knee injuries. We affirm the trial court's dismissal of several collateral issues raised by employee.

Opinion available at:
http://www.tba2.org/tba_files/TSC_WCP/2010/hillw_122110.pdf

Court Reviews a Wrongful Death Case, and Issues Regarding Immunity, Against the Memphis Housing Authority

CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING AUTHORITY, ET AL. (Tenn. Ct. App. December 14, 2010)

This is the second appeal of this wrongful death action, arising from a fatal shooting of a tenant at a Memphis public housing property. This Court granted Appellant, Memphis Housing Authority's, Tenn. R. App. P. 9 interlocutory appeal to address the trial court's denial of summary judgment in favor of the Appellant.

Finding that Appellees' "failure to evict" claim is preempted by 47 U.S.C. section 1437, and that Appellant retains its sovereign immunity under the discretionary function exception to the Tennessee Governmental Tort Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant. Reversed and remanded.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2010/giggersc_121410.pdf

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