News

In This Issue: A Twist on DUI, Family Law and Torts

You know how DUI works -- at least the kind involving alcohol, but what about when the driver is impaired by drugs? Circuit Judge Tom Wright and UT Law student Christopher Graham explain in the January Tennessee Bar Journal what's different about that and what you need to know. (You can also learn more on the same subject from this upcoming TBA CLE webcast.) TBJ family law columnist Marlene Eskind Moses covers employment benefits as separate property and John Day writes about unintended consequences in tort law (Breaking Bad fans will especially enjoy this take on it). Humor columnist Bill Haltom questions the legislature's interest in events on the campus of UT-Knoxville. Read the entire issue.

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Discrimination Suit Against Farmers Granted Class Action Status

A California federal judge certified a class action status to a discrimination suit in which a group of female current and former attorneys of Farmers Insurance claim the company paid men higher salaries. Lynne Coates, who had worked for Farmers for a total of nine years, filed the original complaint in which she alleged Farmers was paying less-experienced male employees a larger salary than her own. Twelve attorneys have joined the suit. Read more from the Insurance Journal.

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Court of Appeals Rejects 'Dangerous Breed' Dog Attack Theory

JAMES ANTHONY MOORE v. MICHAEL GAUT1
Court: TN Court of Appeals

Attorneys:

Robert L. Vogel, Knoxville, Tennessee, for the appellant, James Anthony Moore.

Stephanie L. Prager and Shelley S. Breeding, Knoxville, Tennessee, for the appellee, Michael Gaut.

Judge: SUSANO

Plaintiff James Anthony Moore was at Defendant Michael Gaut’s residence to do maintenance on his satellite dish when he was bitten by Defendant’s dog, a Great Dane. The dog was in Defendant’s fenced-in backyard, Plaintiff was on the other side of the fence, and the dog bit Plaintiff on his face. The trial court granted Defendant summary judgment based on its finding that there was no evidence that Plaintiff knew or should have known that the dog had any dangerous propensities. On appeal, Plaintiff argues that the large size of the Great Dane, a breed Plaintiff characterizes as being in a “suspect class,” should be enough, standing alone, to establish a genuine issue of material fact as to whether Plaintiff should have known the dog had dangerous propensities. We disagree and affirm the trial court’s judgment.

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Dismissal of Premises Liability Case Upheld by Court of Appeals

GARY LEE STEELE, ET AL. v. PRIMEHEALTH MEDICAL CENTER, P.C., ET AL.
Court: TN Court of Appeals

Attorneys:

Mark Anthony Lambert, Memphis, Tennessee, for the appellants, Gary Lee Steele and Judy Steele.

Russell B. Jordan, Dawn Davis Carson, and Hal Scot Spragins, Jr., Memphis, Tennessee, for the appellees, PrimeHealth Medical Center, P.C., and Olugbenga Fayele.1

Judge: GIBSON

This is a premises liability case. A delivery person fell on a sidewalk outside the place of business where he was delivering an order. He and his wife sued the business and its owner for negligence, claiming that the condition of the sidewalk was unreasonably dangerous. The trial court granted summary judgment to the defendants, concluding that the plaintiffs presented insufficient evidence to demonstrate that the sidewalk was unreasonably dangerous. For the following reasons, we affirm the decision of the trial court.

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West Section Wrestles with Collateral Source/Advance Payment Issues Involving Prisoner Injury

TERRY HOLLIDAY v. STATE OF TENNESSEE
Court: TN Court of Appeals

Attorneys:

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Eric A. Fuller, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of Tennessee.

Glenn K. Vines and Eric A. McEnerney, Memphis, Tennessee, for the appellee, Terry Holliday.

Judge: GOLDIN

This is an appeal by the State of Tennessee from the Tennessee Claims Commission’s award of a judgment against it. While he was an inmate in the State’s custody, Plaintiff sustained injuries when he fell out of a pickup truck that was being operated by a State employee. Plaintiff filed a complaint with the Claims Commission in which he alleged that the State’s negligence caused his injuries and sought damages for, among other things, the medical expenses that were incurred as a result of the fall. The State argued that it should receive a credit against any award of damages for the medical expenses Plaintiff incurred during his incarceration because it paid those expenses through its contracts with two private medical vendors. The Claims Commission disagreed and held that evidence of payments made by the medical vendors for Plaintiff’s treatment was barred by the collateral source rule. The Claims Commission awarded Plaintiff $125,000 in damages, which included damages for the medical expenses that he allegedly incurred. On appeal, we conclude that because the State was required by law to pay for all medical expenses Plaintiff incurred during his incarceration, the Claims Commission erred in considering the cost of the medical services provided to Plaintiff in calculating his damages. We therefore vacate the Claims Commission’s award of damages and remand this matter for a new trial on the issue of damages.

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Couple Files $7.5M Suit After Death of Son

Attorney T. Scott Jones filed a lawsuit on behalf of John and Candi Hall that seeks $7.5 million in damages following the 2014 shooting death of the couple’s son, Evan Hall, in West Knox County.  WBIR reports that the suit accuses Bailey's Sports Grille of illegally serving alcohol to the 19-year-old. The suit also names shooting suspect Jack Bush and his parents.

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Court Date Set for Franklin Man Accused of Fraud in Wellness Company

George David George, who is accused of devising a stock scheme and stealing millions of dollars from a Brentwood wellness company, is scheduled to appear in federal court on Jan. 12. The Franklin resident was charged with four felonies and is accused of collecting $2.25 million in investments from WellCity Foundation. "We don't subscribe to the notion that it was a Ponzi scheme," George's attorney Peter Strianse said. "The company provided real services, and was used by a lot of school districts and things like that. We insist it wasn't a facade." Read more from the Franklin Home Page.

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Court of Appeals Considers Gross Negligence in Storage Unit Flooding Matter

KENNETH KUHN, et al v. PAM PANTER dba VALLEY MINI STORAGE
Court: TN Court of Appeals

Attorneys:

Norris A. Kessler, Winchester, Tennessee, for the appellant, Valley Mini Storage.

Gerald L. Ewell, Tullahoma, Tennessee, for the appellees, Kenneth Kuhn and Teresa Kuhn.

Judge: ARMSTRONG

This is negligence case. Appellees rented a storage unit from Appellant. The storage unit flooded, and the flooding destroyed Appellees’ personal property. Appellees filed suit against Appellant in general sessions court, claiming negligence and gross negligence. Appellees prevailed in general sessions court, and Appellant appealed the case to the trial court. After a bench trial, the trial court found the exculpatory clause in the parties’ rental agreement was void. The trial court also found that the Appellant’s rental of the unit to the Appellees, despite its knowledge of the obvious condition of flooding and advertising its units as dry, constituted gross negligence. We affirm.

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Administrative Med Mal Scheme Discussed

The Medical Malpractice Study Committee of the Senate Commerce & Labor Committee met today to consider SB507 by Sen. Jack Johnson (HB546 by Rep. Glen Casada), which moves medical malpractice claims out of the court system into a Patients’ Compensation System, relieves physicians of personal malpractice liability, and sets up an independent medical review panel of physicians and medical experts to review plaintiffs' claims. Presenting the legislation were representatives of the group Patients For Fair Compensation. Those in opposition and raising concerns included the Tennessee Medical Association and State Volunteer Mutual Insurance Company. Legislators attending today’s meeting included Sen. Jack JohnsonSen. Mark GreenSen. Reginald TateRep. Glen CasadaRep. Dennis PowersRep. Joe PittsRep. David Shepard and Rep. Kelly Keisling. Check TBAImpact for updates on this issue.

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Traffic Cameras Support Summary Dismissal of Relight Case

VAAL HALL, BY AND THROUGH HIS CONSERVATOR, THERESA ANNE HALL, AND THERESA ANNE HALL, INDIVIDUALLY v. CHARLES L. OWENS JR., ET AL.
Court: TN Court of Appeals

Attorneys:

John Hamilton, Jackson, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the appellants, Vaal Hall and Theresa Anne Hall.

James C. Wright, Knoxville, Tennessee, for the appellees, Charles L. Owens, Jr., and Delta Beverage Group, Inc.

Judge: GOLDIN

This is an appeal from a trial court’s grant of summary judgment in a negligence case. Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff sued Defendant for injuries stemming from the accident, which he alleged was proximately caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was undisputed that the accident occurred after Plaintiff’s car entered an intersection and proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal facing him was red. It was further undisputed that the traffic signal facing Defendant was green as he proceeded into the intersection from the opposite direction in his truck. Traffic cameras installed at the intersection captured video footage of the collision, which was admitted as evidence. Based on the video footage and other undisputed evidence, the trial court determined that no reasonable juror could conclude that Plaintiff was less than 50% at fault. Plaintiff appealed. We affirm.

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Middle Section Extends Employer's UM Coverage to Business Use of a Personally Owned Vehicle Under Texas Law

GUNNAR C. SKARBREVIK, ET AL. V. PERSONAL REPRESENTATIVE OF ESTATE OF CAROLYN E. BROWN

Court: TN Court of Appeals

Attorneys:

Alan Mark Sowell and William H. Tate, Nashville, Tennessee, for the appellant, Zurich North American Insurance Company.

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellees, Gunnar C. Skarbrevik and Linda Skarbrevik.

Judge: DINKINS

An employee, who was injured in an accident with an uninsured motorist while on company business and while driving an automobile owned by his wife, sought to recover for his injuries through the uninsured motorist provision of his employer’s business automobile policy. The insurer denied coverage, asserting that the policy only provided coverage for automobiles owned by the company. The trial court granted the employee’s motion for partial summary judgment, holding that an endorsement to the policy which added employees using non-company vehicles on company business to the liability coverage operated to make those employees “insured” for purposes of the uninsured motorist coverage. Insurer appeals; finding no error in the trial court’s interpretation of the policy, we affirm the judgment.

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Ice is Slippery — Plaintiff Loses Premises Claim

TONY HALL v. GAYLORD ENTERTAINMENT COMPANY, ET AL

Court: TN Court of Appeals

Attorneys:

Mark W. Honeycutt II, Nashville, Tennessee, for the appellant, Tony Hall.

R. Dale Bay, Nashville, Tennessee, for the appellee, International Special Attractions, Ltd.

Judge: GOLDIN

This is a negligence action. While attending a holiday-themed ice exhibit, the plaintiff slipped and fell at the top of an ice slide attraction that was a feature of the exhibit and sustained injuries to his arm. The plaintiff subsequently filed suit against the company that constructed the ice slide asserting various theories of negligence. After the company filed a motion for summary judgment in which it demonstrated that the plaintiff had not presented any evidence to support his claims, the plaintiff conceded that the company was entitled to summary judgment on all of his claims except those related to negligent design of the ice slide. In support of his assertion that the company breached a standard of care in designing the ice slide, the plaintiff relied solely on American Society of Testing Materials safety standards for children’s playground equipment. The trial court determined that because the standards were not applicable to the ice slide, the plaintiff failed to demonstrate how the company was negligent in designing the ice slide. The trial court granted the company’s motion for summary judgment. We affirm.

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CSX Seeks to Move Blount County Suit to Federal Court

CSX Transportation Inc. wants to transfer a class-action lawsuit from Blount County Circuit Court to federal court, The Daily Times reports. The class-action lawsuit was filed after a train derailment on July 2 that resulted in the evacuation of 5,000 Maryville residents. The suit seeks unspecified damages. CSX is facing three other lawsuits in the derailment.

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Middle Section Explores Negligent Entrustment and Negligent Supervision in ATV Accident

SARAH WARD, ET AL. v. SHELAENA WARD

Court: TN Court of Appeals

Attorneys:

Benjamin E. Winters, Nashville, Tennessee, for the appellant, Sarah Ward.

Daniel P. Berexa and Thomas I. Carlton, Jr., Nashville, Tennessee, for the appellee, Shelaena Ward.

Judge: DINKINS

After her daughter was injured in an ATV accident, Plaintiff filed suit against her daughter’s step-grandmother, in whose home the daughter was staying on the night of the accident and who owned the ATV, alleging numerous causes of action sounding in negligence. The trial court granted Defendant’s motion for summary judgment; Plaintiffs appeal as to the claims for negligent entrustment and negligent supervision. Finding no reversible error, we affirm the judgment.

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Knoxville Attorney Addresses Benefits Disputes in Editorial

Knoxville attorney Sam Doak of Arnett, Draper and Hagood writes in the Knoxville News Sentinel that Tennessee’s relatively new workers’ compensation law – effective July 1, 2014 – is causing some confusion when it comes to how medical and other temporary benefits are addressed. “The point is that the parties need to think ahead, be smart about what issues they dispute and be prepared to appear before a judge to justify their position with admissible evidence if they cannot reach a compromise,” Doak writes. 

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Supreme Court Denies Tire Company Dismissal Request

The Tennessee Supreme Court denied Bridgestone entities’ request to dismiss a case because of lost evidence and a request for summary judgment. The decision affirmed a trial court ruling in the case in which a woman’s car was totaled in an accident after it appeared that a tire may have failed and the wrecking service later destroyed her car. The Court also reviewed the defendants’ additional reasons for requesting summary judgment, conducting the analysis under the Court’s recent opinion in Rye v. Women’s Care Center of Memphis. Justice Gary R. Wade wrote a concurring opinion, in which he disagreed with the new summary judgment standard, but reached the same conclusion under a different analysis. Read the opinion authored by Justice Jeffrey S. Bivins.  

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Middle Section Affirms Dismissal via Summary Judgment in Defamation Case Against Chattanooga Congressman and GOP

MARK A. WINSLOW v. JOHN BRUCE SALTSMAN, JR., ET AL.
Court: TN Court of Appeals

Attorneys:

W. Gary Blackburn, Bryant Kroll and Raymond Throckmorton, III, Nashville, Tennessee, for the appellant, Mark A. Winslow.

Paul C. Ney, Jr., Nashville, Tennessee, for the appellee, John Bruce Saltsman, Jr. 2 Richard E. Spicer, Brent S. Usery, and Lance W. Thompson, Nashville, Tennessee, for the appellee, Charles J. Fleischman. Herbert H. Slatery, III, Attorney General and Reporter; Joseph F. Whalen, Acting Solicitor General; and William J. Marett, Jr., Senior Counsel, for the Tennessee Attorney General.

Judge: DINKINS

Mark Winslow brought suit against Charles Fleischmann and his campaign advertising consultant, John Saltsman, to recover for allegedly false and defamatory statements made in the course of Mr. Fleishman’s campaign for election to the United States Congress, and related contractual claims. Mr. Fleishman and Mr. Saltsman moved for summary judgment on the grounds that the statements were not false or capable of defamatory meaning or published with actual malice, and that they took no action to induce a breach of contract or otherwise interfere with the relationship between Mr. Winslow and the Tennessee Republican Party. Mr. Winslow did not contest the grant of summary judgment on the contract claims; the trial court granted the motion as to the defamation and false light claims, holding that there was no evidence from which to infer malice, that the statements were not defamatory or capable of a defamatory meaning, and that any statements upon which the action was based which related to Mr. Winslow were either true or substantially true and, therefore, not actionable. Mr. Winslow appeals. Because Mr. Fleishman and Mr. Saltsman demonstrated that the undisputed facts negate the element of actual malice which is essential to the defamation and false light claims, we affirm the trial court’s grant of summary judgment.

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There will be no Ruling Impacting the Collateral Source Rule on Connection with Hall v Holland

Despite extensive interest and briefing, the Supreme Court declines to accept a certified question related to the scope of its earlier decision about reasonableness of medical expenses in the hospital lien context.

The Court had been asked by the U S District Court in Memphis to answer the following certified question of law:
Is the decision in West limited to the Hospital Lien Act or is it also applicable to personal injury actions directly against the allegedtortfeasor?

Upon thorough review, the Court found that the certified question is not one which will be determinative of the cause as is required of certified questions and declined the opportunity to respond.

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Court Vacates Decision on Constitutionality of Cap

The Tennessee Supreme Court has set aside a Hamilton County trial court ruling that said a state law capping non-economic damages in certain personal injury cases is unconstitutional. The court wrote in its order that the issues were not “ripe” for constitutional consideration at this point, because there has not yet been a final decision in the case nor any award of non-economic damages in excess of the statutory cap.

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Governor Names Members to Law-Related Bodies

Tennessee Gov. Bill Haslam has announced a series of appointments to state boards and commissions, including several law-related bodies, WRCBTV.com reports. Among the appointments are Chris Hodges of Nashville and Ward Phillips of Knoxville to the Board of Judicial Conduct; Niesha Wolfe of Clarksville and Mary Wagner of Memphis to the Post-Conviction Defender Oversight Commission; and Jason Denton of Lebanon, Lynn Lawyer of Nashville and Jerry Mayo of Brentwood to the Advisory Council on Workers' Compensation.

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ESPN Star Seeks $75M in Peephole Suit

Former ESPN personality Erin Andrews is seeking $75 million in a lawsuit tied to an incident where she says a stalker filmed her through a peephole in a Nashville hotel, new court documents say. The Tennessean reports that Andrews’ Nashville attorney, Randall Kinnard, filed a revised version of her lawsuit earlier this week in Davidson County Circuit Court. The previous lawsuit sought $10 million for similar claims.

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Efforts to Allow Opt-out of Workers’ Comp Still Alive in Tennessee

Some of the country’s largest companies are proposing a radical idea: let businesses opt out of state workers’ compensation laws so they can write their own rules for taking care of injured workers. In an article out today, Pro Publica looks at the issue and how the concept is working in Texas and Oklahoma, which both have passed laws allowing such waivers. Similar proposals are under consideration in Tennessee and South Carolina.

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Eastern Section Dismisses Death Action vs State for Road Design and Signage

MARK THOMAS CHURCH ET AL. v. CHARLES BLALOCK & SONS, INC. ET AL.
Court: TN Court of Appeals

Attorneys:

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; and Dawn Jordan, Senior Counsel, Office of Attorney General; Nashville, Tennessee, for the appellee, State of Tennessee.

Gary E. Brewer and Steven W. Terry, Morristown, Tennessee, for the appellee, Mark Thomas Church. Edward R. Sempkowski, Morristown, Tennessee, for the appellee, Sherry Carlson, Administratrix of Estate of Patricia Ann Lunsford.

Judge: FRIERSON

This action stems from a motor vehicle accident resulting in two fatalities that occurred at the intersection of the newly constructed State Route 91 and Old State Route 91 in Johnson County, Tennessee. Alleging that the design and construction of the intersection were negligent, the plaintiffs filed suit in the Johnson County Circuit Court against Johnson County and the general contractor who constructed the intersection. The plaintiffs also filed claims against the Tennessee Department of Transportation with the Tennessee Claims Commission, asserting that the intersection constituted a dangerous condition on a roadway. The claims filed with the Claims Commission were transferred to Johnson County Circuit Court, and all claims were subsequently consolidated in this action. Johnson County and the general contractor were later dismissed as defendants, such that the trial proceeded regarding the claims against the State only. Following a bench trial, the court granted judgment to the plaintiffs, determining the State to be 53% at fault and the deceased driver to be 47% at fault. The court awarded damages accordingly. The State timely appealed.1 We conclude that the evidence preponderates against the trial court’s determination that the intersection constituted a dangerous condition on the roadway or that the risk involved was foreseeable. We therefore reverse the trial court’s judgment.

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Defamation Case by Congregant Against Church is Dismissed on Pleadings

AUSTIN DAVIS v. COVENANT PRESBYTERIAN CHURCH OF NASHVILLE, ET AL.
Court: TN Court of Appeals

Attorneys:

Thomas M. Donnell, Jr., Autumn L. Gentry, and Kelly M. Telfeyan, Nashville, Tennessee, for the appellant, Stewart James (Jim) Bachmann, Jr.

Austin Davis, Nashville, Tennessee, Pro Se.

Judge: BENNETT

A former church member brought suit against the pastor and other defendants not involved in this appeal. The trial court dismissed all of the plaintiff’s claims against the pastor with the exception of the causes of action for defamation and outrageous conduct. We have concluded that the plaintiff’s complaint does not make out claims for defamation or outrageous conduct. The decision of the trial court is, therefore, reversed and remanded with instructions to dismiss the complaint in in its entirety.

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Supreme Court Holds that Pre-suit Notice and Good Faith Certificate Essential in Action Against Social Worker

ADAM ELLITHORPE ET AL. V. JANET WEISMARK
Court: TN Supreme Court

Attorneys:

John F. Floyd and Daniel C. Todd, Nashville, Tennessee, for the appellant, Janet Weismark.

Connie Reguli, Brentwood, Tennessee, for the appellees, Adam Ellithorpe, Ashley Ellithorpe, and M.L. (a minor). Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Alexander S. Rieger and Paul Jordan Scott, Assistant Attorneys General, for the intervenor, State of Tennessee.

Judge: CLARK

We granted review in this health care liability action to decide whether the trial court erred by failing to apply this Court’s analysis in Estate of French v. Stratford House, 333 S.W.3d 546 (Tenn. 2011), in determining whether it was necessary for plaintiffs to provide pre-suit notice and a certificate of good faith under the Tennessee Health Care Liability Act (“THCLA”), Tenn. Code Ann. § 29-26-101 et seq. We hold that the Tennessee Civil Justice Act of 2011, which amended the THCLA, statutorily abrogated our decision in Estate of French by providing that “[a]ny such civil action or claim is subject to [the THCLA] regardless of any other claims, causes of action, or theories of liability alleged in the complaint.” Because it is undisputed that the plaintiffs in this case failed to provide pre-suit notice or file a certificate of good faith, the judgment of the Court of Appeals is reversed and the judgment of the trial court dismissing the plaintiffs’ complaint with prejudice is reinstated.

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