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Today's Opinions: May 19, 2005
Volume 11 — Number 095
Following this index are summaries of each case, including its name, first paragraph, author's name, and the names of attorneys for the parties of each opinion.
00 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
06 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility

TBA members can get the full-text versions of these opinions three ways detailed below. All methods require a TBA username and password. If you have forgotten your password or need to obtain a password, you can look it up on-line at http://www.tba.org/getpassword.mgi.

Here's how you can obtain full-text version. We recommend you download the Opinions to your computer and then open them from there. • Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer. • Do a key word search in the Search Link area of TBALink. This option will allow you to view and save a plain-text version of the opinion. • Browse the Opinion List area of TBALink. This option will allow you to download the original version of the opinion.

Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink


JOYCE L. ELKINS, ET AL. v. HAWKINS COUNTY, TENNESSEE

Court:TCA

Attorneys:                          

Jeffrey M. Ward and Thomas J. Garland, Jr., Greeneville, Tennessee,
for the appellant, Hawkins County, Tennessee.

Phillip L. Boyd, Rogersville, Tennessee, for the appellees, Joyce L.
Elkins and husband, Rondal Elkins.

Judge: SUSANO

First Paragraph:

Joyce L. Elkins ("the plaintiff") and her husband, Rondal Elkins ,
brought this action pursuant to the Governmental Tort Liability Act
("the GTLA"), Tenn. Code Ann. S 29-20-101, et seq., seeking damages
flowing from the injuries sustained by the plaintiff when she tripped
and fell as she entered a bathroom in the basement of the Hawkins
County Courthouse. She tripped on the threshold at the entrance to the
bathroom; her fall resulted in a broken hip. At the time of this
incident, the hallway adjacent to the bathroom was dimly lit. The
plaintiff and her husband allege that the county was negligent in
failing to correct or warn about the dangerous condition created by
the threshold and the deficient lighting in the hallway. Following a
bench trial, the court found that the condition created by the raised
threshold and the position of the lighting created a dangerous
condition. The court further found that this condition had existed for
a substantial period of time so as to place the county on notice of
its existence. The county appeals. We affirm.

http://www.tba.org/tba_files/TCA/2005/elkinsj51905.pdf

JULIE DUFF PETTY v. RANDY NEAL PETTY

Court:TCA

Attorneys:                          

Vivian Lea Crandall, Oak Ridge, Tennessee, for the Appellant, Randy
Neal Petty.

Larry Clayton Vaughan, Knoxville, Tennessee, for the Appellee, Julie
Duff Petty

Judge: LEE

First Paragraph:

In this divorce case, Mother was declared to be the primary
residential parent and Father's overnight co-parenting time was
required to be exercised at his parents' home with them present. This
restriction was prompted by presentation of evidence that Father had
viewed computer internet sites exhibiting material of a sexual nature
and had placed a personal advertisement on an internet site in an
apparent effort to attract sexual partners. Father appeals. Absent
proof that Father's actions presented any risk of harm to his
children, we modify the judgment of the trial court and the parenting
plan to delete the requirement that Father's overnight visitation be
supervised by his parents at their home. We further modify the
parenting plan to the extent that it does not require mutual
decision-making.

http://www.tba.org/tba_files/TCA/2005/pettyj51905.pdf

BILLY K. POMEROY v. ILLINOIS CENTRAL RAILROAD COMPANY

Court:TCA

Attorneys:                          

Harold W. McLeary, Jr., and W. Bradley Gilmer, Memphis, Tennessee, for
the appellant, Illinois Central Railroad Company.

M. Dykes Barber, Jr., Birmingham, Alabama, and Stephen R. Leffler,
Memphis, Tennessee, for the appellee, Billy K. Pomeroy.

Judge: FARMER

First Paragraph:

Plaintiff, a switchman/brakeman for Illinois Central Railroad Company,
filed a claim for damages arising from injuries allegedly caused by
the railroad's failure to maintain a track switch. The jury allocated
100% fault to the railroad and awarded Plaintiff $500,000 in damages.
The trial court denied the railroad's motion for a directed verdict,
remittitur, or new trial. We affirm.

http://www.tba.org/tba_files/TCA/2005/pomeroyb51905.pdf

WILLIAM TASSELL, ET AL. v. U.S. BANK, INC.

Court:TCA

Attorneys:                          

John S. Anderson, Rogersville, Tennessee, for the Appellants William
and Shirley Tassell.

Jason S. Mangrum and Scott G. Lauck, Nashville, Tennessee, for the
Appellee U.S. Bank, Inc.

Judge: SWINEY

First Paragraph:

William and Shirley Tassell's ("Plaintiffs") purchase of a house in
1998 was financed through U.S. Bank, Inc. (the "Bank"). After
Plaintiffs fell behind in their payments, the Bank filed a detainer
warrant and began the foreclosure process. Plaintiffs claim they made
a payment bringing their mortgage current and they made this payment
one day before their house was to be sold at foreclosure. Plaintiffs
claim the Bank, nevertheless, proceeded with the foreclosure sale
thereby forcing them to file this lawsuit seeking to have the
foreclosure set aside. The Trial Court denied Plaintiffs' request for
a temporary restraining order and refused to interfere with the
foreclosure proceedings, noting that no valid appeal had been taken in
the detainer action. Plaintiffs appeal. We dismiss this appeal because
there is no final appealable judgment as required by Tenn. R. App. P.
3(a).

http://www.tba.org/tba_files/TCA/2005/tassellw51905.pdf

MYRNA WHITE, ET AL. v. TUCKER SMITH, ET AL.

Court:TCA

Attorneys:                          

B. Prince Miller, Jr., Cleveland, Tennessee, for the Appellants Tucker
and Lisa Smith.

James F. Logan, Jr., Cleveland, Tennessee, for the Appellees Myrna and
James White.

Judge: SWINEY

First Paragraph:

Myrna G. White ("Ms. White") was taking a walk on a public road when
she was bitten by a dog allegedly owned by Tucker and Lisa Smith
("Defendants"). Ms. White and her husband, James T. White ("Mr.
White"), filed this suit alleging several causes of action, including
negligence per se. The negligence per se claim was predicated upon a
violation of Tenn. Code Ann. S 44-8-408, which makes it unlawful for a
dog owner to allow his or her dog to run at large. After a trial, the
Trial Court made several factual findings which established negligence
byDefendants. However, the Trial Court went on to conclude that
pursuant to Tenn. Code Ann. S 44-8-408, Defendants were liable to
Plaintiffs because their dog was at large when it attacked Ms. White,
regardless of whether Defendants were negligent or had exercised
reasonable care. Plaintiffs established that Defendants were negligent
by allowing their dog to run at large from time to time. Therefore, we
affirm the judgment of the Trial Court and decline to decide whether a
dog owner may be held strictly liable for a violation of Tenn. Code
Ann. S 44-8-408 without any finding of negligence.

http://www.tba.org/tba_files/TCA/2005/whitem51905.pdf

JANET BLAIR WILLSON v. PAUL R. WOHLFORD

Court:TCA

Attorneys:                          

Jerrold L. Becker, Knoxville, Tennessee, for the Appellant, Janet
Blair Willson.

Thomas L. Kilday, Greeneville, Tennessee, for the Appellee, Paul R.
Wohlford.

Judge: LEE

First Paragraph:

The dispositive issue in this legal malpractice case is whether the
trial court erred in granting the Defendant summary judgment on the
grounds that the applicable statute of limitations, Tenn. Code Ann. S
28-3-104(a)(2), had run and therefore the complaint was time-barred.
We hold that the Plaintiff suffered a legally cognizable injury and
that she knew or should have known that her injury was caused by the
Defendant's alleged negligence more than one year prior to her filing
of the complaint in this action. We therefore affirm the judgment of
the trial court.

http://www.tba.org/tba_files/TCA/2005/willsonj51905.pdf

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