News

Premises Liability Still Requires at Least Constructive Notice

VALERIE MILLER v. JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT, ET AL.
Court: TN Court of Appeals

Attorneys:

Christopher L. Taylor, Memphis, Tennessee, for the appellant, Valerie Miller.

Patrick W. Rogers, Jackson, Tennessee, for the appellees, Jackson-Madison County General Hospital District and West Tennessee Healthcare, Inc.

Judge: GOLDIN

This is a case, brought pursuant to the Tennessee Governmental Tort Liability Act, involving a plaintiff who was injured when she slipped and fell in a municipal hospital owned and operated by the defendant. The plaintiff alleged that she suffered injuries after slipping in water that was on the hospital's floor. Following a bench trial, the trial court found that the defendant had no actual or constructive notice of the water and entered judgment in its favor. The plaintiff appealed. We affirm.

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CBA: Lawyers Should Not Contact Bus Families for 30 Days

The Chattanooga Bar Association (CBA) is calling on lawyers not to contact families of the Woodmore Elementary School bus tragedy for 30 days from the date of the crash. CBA Executive Director Lynda Minks Hood tells Chattanoogan.com that the Rules of Professional Conduct “explicitly prohibit direct unsolicited contact from a lawyer or an intermediary within 30 days” of an event like the school bus crash. Exceptions are made when a lawyer has a family, close personal, or prior professional relationship with the victim and the victim’s family, she says. The paper reports that five lawsuits related to the crash already have been filed in Circuit Court.

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Workers’ Comp Court Adopts New Rules

The Tennessee Court of Workers’ Compensation recently issued new rules governing deadlines for filing wage statements, medical records and interrogatories as well as responding to requests for expedited hearings; filing of documents previously filed with a mediator; obligations on the party opposing a request for expedited hearing; use of e-signatures; and use of causation letters.

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State Seeking Workers’ Comp. Judge

The State of Tennessee Bureau of Workers’ Compensation is seeking a workers’ compensation judge in West Tennessee. The successful candidate will be appointed to an initial term that will run through June 30, 2019, and then be eligible to serve an additional three full terms. Applicants must have a valid, active Tennessee law license, be at least 30 years old and have at least five years of experience in Tennessee workers’ compensation matters. Send the required application and attachments to Janie.L.Dorris@tn.gov by Jan. 6. For more information about the position contact Bureau of Workers’ Compensation Administrator Abbie Hudgens.

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TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit help4tn.org.

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Legislation Would End All Medical Malpractice Suits

The Georgia-based nonprofit advocacy group Patients for Fair Compensation again this year plans to seek legislation that would ban all malpractice suits in the state, the Nashville Post reports. The group’s proposal will be introduced by Sen. Jack Johnson and Rep. Glen Casada, both Republicans from Franklin. The proposed plan would create a patients’ compensation system funded by annual fees charged to doctors. Instead of filing a lawsuit, an aggrieved patient would apply for compensation to an administrative law judge who would assess the claim. The bill, which surfaced last year for the first time, is opposed by a number of legislators and the Tennessee Medical Association.

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Jury: TennCare Provider Violated Dental Company’s Rights

A Nashville jury has unanimously found that DentaQuest, the insurance company administering TennCare’s dental program, violated the First Amendment rights of Snodgrass-King Pediatric Dental Associates when it excluded the company from the state Medicaid network. Lawyers for Snodgrass-King argued that the company was discriminated against based on a speech delivered by one of its dentists, who had been critical of DentaQuest’s administration of the program. The jury awarded Snodgrass-King $7.4 million in compensatory damages and $14.8 million in punitive damages. DentaQuest said it would seek further legal review of the jury’s decision. The Nashville Post has more on the case.

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Employer of Drugged Employee Sent Home Did Not Negligently Entrust Employee's Car to Him

CHRISTOPHER DYLAN THOMPSON v. BEST BUY STORES, L.P.
Court: TN Court of Appeals

Attorneys:

Kent T. Jones, Chattanooga, Tennessee, for the appellant, Christopher Dylan Thompson.

K. Stephen Powers and Travis B. Holly, Chattanooga, Tennessee, for the appellee, Best Buy Stores, L.P.

Judge: SUSANO

Plaintiff Christopher Dylan Thompson ingested several doses of a liquid form of a drug, which he says was estazolam, before reporting to work for his employer, defendant Best Buy Stores, L.P. At work, he appeared tired and slow, and a manager told him to clock out and end his shift early. On his way home, plaintiff was involved in a car accident. He brought this negligent entrustment action, alleging that defendant breached a duty by not stopping him from leaving his place of employment in his own vehicle. The trial court granted defendant summary judgment, holding defendant “had no duty to prevent [plaintiff] from leaving the premises driving his own vehicle,” and relying on Lett v. Collis Foods, Inc., 60 S.W.3d 95 (Tenn. Ct. App. 2001), a factually similar case decided by this Court. We affirm.

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$3M Awarded in Rolling Stone Defamation Suit

Federal jurors on Monday awarded $3 million in damages to a former University of Virginia administrator who claimed she was defamed by a Rolling Stone gang rape article that was later retracted. The jurors found reporter Sabrina Rubin Erdely liable for $2 million and the magazine liable for $1 million, according to the ABA Journal. Former UVA administrator Nicole Eramo claimed the article wrongly portrayed her as unresponsive to the campus rape claim. She had sought $7.5 million in damages.

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Judge Blocks Nursing Home Arbitration Rule

A federal district court judge yesterday blocked implementation of a new rule prohibiting federal funds from going to nursing homes that require residents to sign binding arbitration agreements. Judge Michael P. Mills found that the Centers for Medicare & Medicaid Services, which issued the rule in September, did not have authority to enact the mandate without statutory authority. The challenge to the rule was brought by various nursing home groups, including the American Health Care Association. The ABA Journal has more on the story and the opinion.

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Lawmaker to Try Again on ‘MaKayla’s Law’

State Sen. Sara Kyle, D-Memphis, says lawmakers should reexamine gun safety in the wake of deaths like MaKayla Dyer, a Jefferson County girl killed last year by her 11-year-old neighbor, reportedly because she refused to show him a puppy. Kyle says she will again attempt to get penalties in place for adults who do not secure their guns and a child gains access to the weapon and shoots someone. These cases are “often 100 percent preventable had the guns been stored safely. Safe storage does save lives,” Kyle said. In Dyer’s case, the young shooter was able to get his father’s shotgun from a closet, Nashville Public Radio reports.

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Court to Hear 5 Cases in Jackson This Week

The Tennessee Supreme Court will hear oral arguments in five cases when it meets this week in Jackson. The Nov. 2 docket involves (1) a death penalty appeal that looks at whether statements to police and witnesses should have been excluded; (2) a case testing whether a trial court has jurisdiction to hear a motion for the return of property after a judgment has finalized; (3) a case testing whether a repairman’s lien may be enforced in any way other than by attachment of the lien to the subject property; (4) a disciplinary matter that looks at whether a trial court’s affirmation of a BPR recommendation imposing a suspension, fine and community service was appropriate; and (5) a workers’ compensation case involving the death of an employee who overdosed on oxycodone he was prescribed for his workplace injury. Read more about these cases and get details on the court's schedule.

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Workers’ Compensation Court Holding Listening Sessions

The Tennessee Court of Workers’ Compensation Claims will hold a series of listening sessions across the state for members of the bar and public to weigh in on the new court system and to suggest areas for improvement. Chief Judge Kenneth M. Switzer and Brian Holmes, director of Mediation and Ombudsmen Services of Tennessee, will host sessions in Murfreesboro on Nov. 15, Jackson on Nov. 29, Memphis on Nov. 30, Nashville on Dec. 1, Chattanooga on Dec. 7, Cookeville on Dec. 9, Kingsport on Dec. 13 and Knoxville on Dec. 14. Those unable to attend in person may submit written comments. The March issue of the Tennessee Bar Journal looked at the new court.

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ABA Group to Publish Trump Libel Article

The ABA Forum on Communications Law will publish an article calling Republican presidential nominee Donald Trump a “libel bully” after all, despite reservations about partisan language from ABA officials, the ABA Journal reports. On Friday, the ABA reiterated what it has said since the incident, that it did not refuse to publish article and was not afraid of being sued. It did acknowledge that it suggested edits that “were in keeping with the ABA’s commitment to non-partisanship,” but said it was the author, First Amendment lawyer Susan Seager, who decided to withdraw the article. Seager now has resubmitted the article and it has been accepted for publication.

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CORRECTED LINK: Summary Judgment Based on Comparative Fault is Reversed and Remanded

VICKI MATHERNE, ET AL. v. JERRY WEST, ET AL.
Court: TN Court of Appeals

Attorneys:

Timothy J. Gudmundson, Knoxville, Tennessee, for the appellants, Vicki Matherne and Rodney Matherne, individually and on behalf of Samuel Troxclair.

Kenneth W. Ward, Knoxville, Tennessee, for the appellees, Jerry West, Carolyn West, and American Patriot Getaways, LLC.

Judge: SWINEY

This appeal concerns premises liability in a slip and fall case. Vicki Matherne and Rodney Matherne ("Plaintiffs") sued Jerry West and Carolyn West ("the Wests"), owners of a vacation cabin rented by the Mathernes, and American Patriot Getaways ("APG"), which managed the cabin, (collectively, "Defendants") after Mrs. Matherne injured herself falling off an elevated parking level at the cabin. Defendants filed a motion for summary judgment. The Circuit Court for Sevier County ("the Trial Court") granted Defendants' motion, finding that any hazardous condition was open and obvious and that Mrs. Matherne was at least 50% at fault. Plaintiffs appeal to this Court. We hold that there are genuine disputed issues of material fact regarding what Defendants could or should have done to prevent the risk of a fall from the elevated parking level and whether Mrs. Matherne was at least 50% at fault. Therefore, the Trial Court erred in granting Defendants' motion for summary judgment. We reverse the judgment of the Trial Court and remand this case for further proceedings.

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A Divided Supreme Court Holds that Self Insured Rental Vehicle can be an Uninsured Motor Vehicle for UM Law Purposes, Reversing Intermediate Court

EDWARD MARTIN V. GREGORY POWERS ET AL.

With Dissenting Opinion by Kirby

Court: TN Supreme Court

Attorneys:
Patrick Shea Callahan, Cookeville, Tennessee (on appeal), and Matthew C. Hardin, Nashville, Tennessee (at trial), for the appellant, Edward Martin.
W. Bryan Brooks and Amy V. Peters (on appeal), and Benjamin J. Miller (at trial and on appeal), Nashville, Tennessee, for the appellee, IDS Property Casualty Insurance Company.

Judge: BIVINS

This case arises out of an incident in which the Defendant, Gregory Powers, drove a car he had rented from Enterprise Rent-A-Car ("Enterprise") into the Plaintiff, Edward Martin. The Plaintiff sued the Defendant, the Defendant's automobile liability insurer, and Enterprise. Additionally, the Plaintiff provided notice of the lawsuit to his own automobile liability insurance carrier, IDS Property Casualty Insurance Company ("IDS"), in order to recover through the uninsured motorist coverage provision of the Plaintiff's policy ("the Policy"). IDS denied coverage and moved for summary judgment, arguing that the rental car ("the Rental Car") did not qualify as an "uninsured motor vehicle" under the Policy. The trial court granted IDS's motion, and the Court of Appeals affirmed. We granted review to determine whether the Rental Car qualified as an "uninsured motor vehicle" under the Policy. We hold that the Rental Car was an "uninsured motor vehicle" under the Policy. Accordingly, we reverse the grant of summary judgment to IDS and remand this matter for further proceedings.

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Some VW Owners Slam Emissions Deal

Several angry Volkswagen owners told a federal judge yesterday that a proposed $10 billion settlement does not adequately compensate them for the automaker’s emissions cheating scandal. One owner, for example, demanded the full purchase price of his car as well as part of his registration fee, the Associated Press reports. The settlement calls for the car maker to spend up to $10 billion to buy back or repair about 475,000 Volkswagens and Audi vehicles with 2-liter diesel engines and pay owners an additional $5,100 to $10,000 each. The deal also requires the company to pay $4.7 billion for environmental mitigation and to promote zero-emissions vehicles. The Memphis Daily News has the story.

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Case Studies in Captive Insurance

Did you miss the TBA CLE course on captive insurance earlier this month? If so, you can watch a webcast of the session for up to a year. Watch as Andrew Rhea and Benjamin Whitehouse provide a brief overview of the field of captive insurance and use real life examples to illustrate how businesses conduct feasibility studies to determine how to structure a captive.

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Learn More about New FAA Drone Rules

Did you miss the Oct. 6 TBA CLE webcast with James Mackler talking about new drone laws set by the FAA? Good news! The video is available for one year on the TBA website. The session covers the use of drones in business, government and by hobbyists, as well as the unique regulatory environment related to each. The course also looks at state laws, privacy and trespass issues, liability and insurance issues and current litigation.

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TDLA Names 2016 Award Recipients

The Tennessee Defense Lawyers Association (TDLA) recognized 2016 award recipients at its recent 50th Anniversary Celebration & Annual Meeting. The group named Michael L. Haynie as its inaugural Defense Lawyer of the Year. Haynie is a principal with Manier & Herod practicing workers’ compensation law. He has drafted legislation for the association, including a bill this year to modify the Drug-Free Workplace Program. In addition, the group presented Nancy Steer with Leitner, Williams, Dooley & Napolitan with its “Rising Star Award.” She is an associate in the firm’s Nashville office focusing on general civil litigation.

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Memphis Lawyer Kim Schuerman Smith Dies

Memphis lawyer Kimberly Schuerman Smith died today (Oct. 4). She was 52. A 1990 graduate of the Cecil C. Humphreys School of Law, Smith practiced law with Schuerman Smith & Associates PLLC. "She was a trailblazer,” former law partner Kreis White recalled. “She was a first chair female insurance defense lawyer long before many women tried many jury cases." Visitation will be Thursday at Collierville Funeral Home from 5 to 8 p.m. The funeral service will be at Collierville First Baptist Church at 2 p.m. Friday. In lieu of flowers the family suggests donations be made to St. Jude Children's Research Hospital.

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Supreme Court Relaxes Collateral Estoppel Privity Requirement

MS. BOWEN EX REL. JOHN DOE, “N” v. WILLIAM E. ARNOLD, JR. ET AL.
Court: TN Supreme Court

Attorneys:

Cary M. Kellar and Lance W. Thompson, Nashville, Tennessee, for the appellant, William Edward Arnold.

Luvell L. Glanton and Herron T. Bond, Nashville, Tennessee, for the appellees, Ms. Bowen and John Doe N.

Judge: CLARK

The determinative question in this appeal is whether the trial court erred in ruling that a person convicted of rape and aggravated sexual battery is collaterally estopped in a subsequent civil lawsuit filed by the victim of the criminal offenses from relitigating the issue of whether he raped and sexually battered the victim. The trial court applied collateral estoppel, explaining that, although the victim was not a party to the criminal prosecution, the victim was in privity with the State, which satisfied the party mutuality requirement necessary for collateral estoppel to apply. The trial court therefore granted the plaintiffs partial summary judgment but permitted the defendant to seek an interlocutory appeal pursuant to Tennessee Rule of Appellate Procedure 9. After the Court of Appeals declined to accept the interlocutory appeal, the defendant filed an application for permission to appeal in this Court, which we granted. We hereby abolish the strict party mutuality requirement for offensive and defensive collateral estoppel and adopt sections 29 and 85 of the Restatement (Second) of Judgments as the guidelines for courts to follow when determining whether nonmutual collateral estoppel applies. Having applied these guidelines to the undisputed facts in this appeal, we affirm the trial court‘s decision granting partial summary judgment to the plaintiffs and remand this matter to the trial court for further proceedings consistent with this decision.

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Government Reaches Settlement in Suits Against Life Care, Preston

The Chattanoogan reports that the federal government has reached a settlement in the False Claims Act case against Cleveland Tenn.-based Life Care Centers, as well as in a separate suit against company chairman Forrest Preston. Claims in the case, in which the private nursing home company was accused of overbilling the government, amount to $1.8 billion. The separate suit against Preston alleges that he “unjustly enriched” himself through unfounded claims for government reimbursement. Life Care owns facilites in 28 states, including 20 locations in Tennessee.
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HHS Prohibits Forced Arbitration by Nursing Homes

The federal Department of Health and Human Services today issued a new rule that will prohibit long-term care facilities that accept Medicare or Medicaid from forcing residents into arbitration. Nursing homes and patients can still enter into arbitration if they choose, but contracts may not be written to automatically compel both parties into arbitration. The rule is part of a major revamp of consumer protections at long-term care facilities, Consumerist reports. The rule will go into effect Nov. 28 and have no effect on the “enforceability of existing pre-dispute arbitration agreements” according to the Centers for Medicare & Medicaid Services.

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Muslim Officer Wins $100K for Wrongful Firing

De’Ossie Dingus, a Tennessee Highway Patrol trooper who was fired after being labeled a potential jihadist, has won a $100,000 damage award from the state. U.S. District Judge Tena Campbell ordered the state to pay Dingus after he was treated as a threat, subjected to humiliating circumstances and wrongfully terminated because of his faith. The Sixth Circuit U.S. Court of Appeals ruled earlier this year that the case was so egregious it did not require a traditional proof of psychological harm to have damages awarded. That ruling led to this week’s award, Knoxnews reports.

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