News

Criminal Charges Considered in Meningitis Case

No criminal charges have been filed so far in the fungal meningitis outbreak that killed more than a dozen in Tennessee. But Michigan's attorney general and Boston's federal prosecutor say they’re now sharing evidence from their separate investigations, NPR reports. A federal grand jury in Boston has been investigating the New England Compounding Center for more than a year now, and the FBI recently made a plea through its website, asking anyone who received a tainted steroid shot to describe where and how they received the injection and what their illnesses have been. The pair spoke about the progress of the case at a press conference yesterday. “It’s a very complex, wide-ranging investigation," U.S. Attorney Carmen Oritz said. "I believe it’s moving very steadily forward. But no charges have been filed, as of yet.”

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Self-Insurers Association Seeking Director

The Tennessee Self-Insurers Association is seeking an executive director. Duties include promoting improvements in workers’ compensation law, acting as a liaison with the state departments of Labor and Insurance, keeping members informed of relevant issues, and managing association operations. Applicants should have an understanding of workers’ compensation law as well as the legislative and regulatory environments in Tennessee. Download a job description. Resumes should be submitted to Board of Directors Chair Gary Eastes.

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State to Receive $12 Million in Pharmaceutical Settlement

Tennessee will receive more than $12 million as part of a multistate and federal settlement agreement resolving allegations that pharmaceutical manufacturer Johnson & Johnson used deceptive marking tactics to promote the sale of two of its drugs, Risperdal and Invega. According to a news release by the State Attorney General’s office, Johnson & Johnson and its subsidiary, Janssen Pharmaceuticals, will pay in excess of $1.2 billion. In addition, Janssen will plead guilty in federal court to a criminal misdemeanor charge of misbranding Risperdal in violation of the Food, Drug, and Cosmetic Act.

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Erie Insurance and the Horrible Terrible Very Bad Day--TCPA and Bad Faith Findings Upheld in Case Seemingly Destined for Supreme Court Review

JOHN RIAD V. ERIE INSURANCE EXCHANGE
Court: TN Court of Appeals

Attorneys:

Suzanne S. Cook, Johnson City, Tennessee, and S. Morris Hadden, Kingsport, Tennessee, for the appellant, Erie Insurance Exchange.

Joshua H. Jenne, Cleveland, Tennessee, for the appellee, John Riad.

Judge: MCCLARTY

This case concerns Erie’s refusal to pay insurance proceeds to Plaintiff, who filed suit, alleging claims of breach of contract, bad faith refusal to pay, and violations of the Tennessee Consumer Protection Act, codified at Tennessee Code Annotated section 47-18-101, et. seq. The case proceeded to jury trial. After denying a myriad of motions and reopening the proof to admit the insurance policy into evidence, the trial court submitted the case to the jury. The jury awarded Plaintiff compensatory and punitive damages and found that Erie’s failure to pay was in bad faith and in violation of the Tennessee Consumer Protection Act. The court assessed the statutory bad faith penalty and awarded treble damages and attorney fees. Erie appeals. We affirm the decision of the trial court.

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'Private' Tree Falling in Road Fails to Create Successful GTLA Claim Against City

SHANNON RALEY, INDIVIDUALLY AND AS NEXT OF KIN OF TIFFANY RALEY, DECEASED v. CITY OF KNOXVILLE
Court: TN Court of Appeals

Attorneys:

James K. Scott, Knoxville, Tennessee, for the appellant, Shannon Raley.

Ronald E. Mills, Deputy Law Director, Knoxville, Tennessee, for the appellee, City of Knoxville.

Judge: FRIERSON

This action presents the question of whether a claim properly may be brought against the City of Knoxville (“the City”) pursuant to the Governmental Tort Liability Act (“GTLA”) under circumstances where a tree located on the real property of a private landowner fell and caused the death of a motorist traveling on a city street. The trial court dismissed the claim, finding that the City maintained immunity pursuant to the GTLA and the public duty doctrine. Plaintiff appeals. We affirm the trial court’s dismissal of the claim.

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Does a Statute Create a Private Cause of Action? Middle Section Says 'Not This Time'

TERESA POWELL HUDSON, INDIVIDUALLY AND AS SURVIVING SPOUSE AND EXECUTRIX OF THE ESTATE OF ROBERT MELVIN HUDSON, DECEASED V. TOWN OF JASPER
Court: TN Court of Appeals

Attorneys:

Ronald D. Wells and Stacy Lynn Archer, Chattanooga, Tennessee, for the appellant, Town of Jasper.

Jennifer H. Lawrence and David H. Lawrence, Chattanooga, Tennessee, for the appellee, Teresa Powell Hudson, Individually and as Surviving Spouse and Executrix of the Estate of Robert Melvin Hudson, Deceased.

Judge: CLEMENT

This is a wrongful death action against the Town of Jasper. The surviving spouse of the decedent, who died of complications resulting from a myocardial infarction, alleges that the town was negligent and negligent per se by failing to register its three automated external defibrillators with the emergency communications district dispatch as required by Tennessee Code Annotated §68-140-703 and that such negligence contributed to the decedent’s injuries and death. The town filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted on the basis the statute did not create a private right of action; the trial court denied the motion to dismiss but granted a Tenn. R. App. P. 9 interlocutory appeal. We have determined there is no express language creating a private right of action in the statute, and, looking to the statutory structure and legislative history of the statute, we have also determined the legislature did not intend to create a private right of action by implication. Therefore, we reverse and remand with instructions to grant the motion to dismiss the complaint for failure to state a claim upon which relief can be granted and enter judgment accordingly.

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Court Grants Review of New Civil Case

The Tennessee Supreme Court has agreed to hear a civil case regarding an Anderson County employee who was injured at work and raised a claim against the county’s liability coverage provider, Tennessee Risk Management Trust. TRMT filed for summary judgment on the theory that the employee was excluded from uninsured coverage under the coverage agreement with the county. The Raybin Perky Hot List has a summary and forecast of the case.

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Post-nup Can Waive Wrongful Death Proceeds, Per Western Section

Gary Rickman v. Virginia Rickman, et al
Court: TN Court of Appeals

Attorneys:

Trenena G. Wilcher and Eric J. Burch, Manchester, Tennessee, for the appellant, Virginia Rickman.

Darren V. Berg, Knoxville, Tennessee, for the appellees, Gary Rickman, William Rickman, Jr., Gary Rickman, Jr., Tony Childers, and Chris Childers.

Judge: STAFFORD

This case concerns whether the widow of a deceased man may share in the wrongful death settlement obtained by his personal representative. We conclude that the postnuptial agreement entered into by the widow prevents her from benefitting from the wrongful death settlement. Affirmed and remanded.

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Deadline Set for Filing Meningitis Claims

A federal judge in Massachusetts has set Jan. 15, 2014, as the deadline for filing claims in the bankruptcy case against the New England Compounding Center. The order, signed by U.S. Bankruptcy Judge Henry Boroff, includes detailed instructions on the information victims or their survivors must provide to have their claims considered. Tennessee attorneys representing victims of the nationwide fungal meningitis outbreak said they were pleased that the order provides additional time to file a claim, The Tennessean reports. They note, however, that the deadline applies only to claims against the center. Claims filed against other entities such as hospitals and clinics are subject to a one-year limit in state law.

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Middle Section Remands Mal Pros Verdict for Improper Procedure Evaluating Punitive Damage Award

JAMES L. MASSINGILLE v. G. WAYNE VANDAGRIFF
Court: TN Court of Appeals

Attorneys:

Gerald. L. Ewell, Jr., Tullahoma, Tennessee, for the appellant, G. Wayne Vandagriff.

D. Andrew Saulters, Nashville, Tennessee, for the appellee, James L. Massingille.

Judge: DINKINS

In this malicious prosecution action, the jury awarded the plaintiff compensatory damages and punitive damages. The trial court affirmed the punitive damages award; the court suggested a remittitur of the compensatory damages award, which the plaintiff accepted under protest. The defendant appeals the finding of liability, the award of damages, the admission of evidence, and the procedure followed by the court in affirming the punitive damages award; the plaintiff appeals the remittitur of the compensatory damages award. Finding that the court erred when it failed to follow the appropriate procedures in affirming the punitive damages award, we vacate the award and remand the case for further proceedings; in all other respects the judgment of the trial court is affirmed.

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Claims Commission's Dismissal of Med Mal Case Vacated by Eastern Section

MELISSA BROOKE HALEY, ET AL. v. STATE OF TENNESSEE
Court: TN Court of Appeals

Attorneys:

Olen G. Haynes, Sr., Johnson City, Tennessee, for the appellants, Melissa Brooke Haley, personally and for the use and benefit of her daughter, Starla Brooke Joanne Haley.

Joshua R. Walker, Associate General Counsel, The University of Tennessee, Knoxville, Tennessee, for the appellee, State of Tennessee.

Judge: MCCLARTY

This is a medical malpractice case. The plaintiff filed a claim with the Division of Claims Administration, as the resident physician alleged to have engaged in negligence was purportedly connected to a University of Tennessee training program at Erlanger Hospital in Chattanooga, Tennessee. The State moved the Commissioner to dismiss the plaintiff’s action for failure to comply with the requirements set out in Tennessee Code Annotated section 29-26-121(a). The Commissioner reluctantly agreed with the State’s position. We hold that the plaintiff complied with section 121(a)’s notice requirement by complying with the claim notice requirements of Tennessee Code Annotated section 9-8-402. We further hold that section 121 does not mandate dismissal with prejudice for noncompliance with its terms, and that the plaintiff’s failure to provide all the items denoted in section 121(a) does not warrant dismissal with prejudice under the facts of this case. We vacate the dismissal order and remand for further proceedings.

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Pharmacy Negligence Case Fails in Light of Missing Causation Proof

KAY F. FRITZ v. CVS CORPORATION D/B/A CVS PHARMACY, INC.
Court: TN Court of Appeals

Attorneys:

Kay F. Fritz, Chattanooga, Tennessee, Pro se appellant.

G. Michael Luhowiak, Daniel M. Stefaniuk, and William J. Rieder, Chattanooga, Tennessee, for the appellee, CVS Corporation d/b/a CVS Pharmacy, Inc.

Judge: SWINEY

Kay F. Fritz (“Plaintiff”) sued CVS Corporation d/b/a CVS Pharmacy, Inc. (“Defendant”) alleging that Defendant had improperly filled a prescription for Plaintiff causing Plaintiff damages. Defendant filed a motion for involuntary dismissal or in the alternative for summary judgment. After a hearing, the Trial Court granted Defendant summary judgment after finding that Plaintiff was unable to prove an essential element of her claim, i.e., causation. Plaintiff appeals to this Court. We affirm.

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If a Tree Falls ...

RONALD D. GRAHAM, ET. AL. V. BRADLEY COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Michael E. Jenne, Cleveland, Tennessee, for the appellants, Ronald D. Graham and Winifred Marie Graham.

Thomas E. LeQuire, Cleveland, Tennessee, and Courtney E. Smith, Nashville, Tennessee, for the appellee, Bradley County, Tennessee.

Judge: MCCLARTY

This is a negligence case in which the Grahams were severely injured when the top portion of a tree collapsed, hitting their car while they were driving in Cleveland, Tennessee. Plaintiffs filed suit against the County, alleging that the County’s failure to maintain and inspect its roadways caused the accident. The County alleged that it could not be held liable pursuant to the Tennessee Governmental Tort Liability Act, codified at Tennessee Code Annotated section 29-10-101, et. seq. Following a trial, the trial court dismissed the complaint. The Grahams appeal. We affirm the decision of the trial court.

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Western Section Reverses Slip Fall Summary Dismissal

RICK P. NEWMAN v. THE KROGER COMPANY
Court: TN Court of Appeals

Attorneys:

Bruce D. Brooke, Memphis, Tennessee, for the appellant, Rick P. Newman.

Betty Ann Milligan, Bradford J. Spicer, Memphis, Tennessee, for the appellee, The Kroger Company.

Judge: HIGHERS

This is a slip and fall case. Plaintiff sued The Kroger Company after he fell in a puddle of water near a freezer at a local Kroger store. The trial court granted Kroger’s motion for summary judgment, but failed to include findings indicating the reason for its decision. We find that summary judgment was inappropriate and therefore reverse the trial court’s decision and remand for further proceedings.

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Defense Verdict is Affirmed Where Surgeon Delegates Sponge Count

ESTATE OF CLYDE DEUEL v. THE SURGICAL CLINIC, PLLC
Court: TN Court of Appeals

Attorneys:

H. Anthony Duncan, Nashville, Tennessee, for the appellant, Lorraine Deuel, individually and as Adm’x of the Estate of Clyde Deuel

Clarence James Gideon, Heather Piper, Nashville, Tennessee, for the appellee, The Surgical Clinic, PLLC.

Judge: COTTRELL

A surgeon left a sponge in the abdomen of a patient, closing the incision after receiving assurances from two operating room nurses that all the surgical sponges used in the operation had been fully accounted for. A second surgery was required to remove the sponge from the patient’s body. The patient died of unrelated causes seven months later. The patient’s widow filed a medical malpractice complaint against the surgeon and argued that the evidence of negligence was so plain that she could be excused from the normal requirement of producing expert testimony to prove that medical malpractice had occurred. The defendant surgeon presented expert testimony during trial to prove that the surgical standard of care entitled him to rely on the accuracy of the sponge count provided by his nurses. The jury returned a verdict for the defendant surgeon. The plaintiff argues on appeal that the trial court committed reversible error by allowing the use of expert testimony in a case that is based on the common knowledge exception and res ipsa loquitur. We affirm.

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Learn About Comparative Fault, Cemetery Law

John Paul Nefflen writes about comparative fault in audit malpractice cases in this issue of the Tennessee Bar Journal.  Also, Don Paine explains "cemetery law" -- and a surprising situation involving the body of a former Tennessee Supreme Court justice.

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2014 Rules Package Published for Comment

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include new authority for appellate courts to suspend rules; requirements for electronic copies of transcripts; specification of the color of applications; responses and amici in TRAP 9 and 11 matters; and refinement of criminal contempt provisions. Four TBA sections -- Appellate Practice, Litigation, Tort and Insurance Law and Criminal Justice -- will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 27. 

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Conclusory Summary Judgment Order Remanded by Western Section for Findings of Fact and Conclusions of Law in Dog Attack Case

EDWARD RAGLAND, ET AL. v. ROY MORRISON
Court: TN Court of Appeals

Attorneys:

Lewis K. Garrison, Memphis, Tennessee, for the appellant, Edward Ragland.

Jeremy M. Thomas, Osceola, Arkansas, for the appellee, Roy Morrison.

Judge: STAFFORD

This appeal arises from the grant of summary judgment in favor of Appellee. Appellants claimed that Appellee was liable for injuries caused by dogs that Appellee allegedly owned and allowed to run loose in the Appellants’ neighborhood. The trial court’s order fails to state the legal ground upon which the court granted the motion for summary judgment. Further, there is no indication in the record of the trial court’s reason(s) for granting the motion. Because Tennessee Rule of Civil Procedure 56.04 mandates inclusion of the trial court’s legal ground in the order on the motion for summary judgment, we vacate and remand.

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GTLA Win by a Whisker is Upheld by Eastern Section in Premises Case

MARGIE R. HUSKEY ET AL. v. RHEA COUNTY, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Arthur F. Knight, III, and Jonathan Swann Taylor, Knoxville, Tennessee, for the appellant, Rhea County, Tennessee.

Howard L. Upchurch, Pikeville, Tennessee, for the appellees, Margie R. Huskey and Norman Huskey.

Judge: FRIERSON

In this negligence action, the trial court, following a bench trial, found the defendant 51% at fault and the plaintiff 49% at fault for a severe injury plaintiff, Margie R. Huskey, suffered to her left arm at the Rhea County Convenience Center. The trial court assessed total compensatory damages at $298,376.65, which it reduced by 49%, awarding $152,172.09 to Ms. Huskey. The court further assessed damages of $25,000.00 for loss of consortium in favor of plaintiff, Norman Huskey, which it likewise reduced by 49%, awarding $12,750.00. The County raises three issues on appeal: (1) whether the trial court erred by finding the County liable for negligence; (2) whether the injured plaintiff was at least 50% at fault and therefore barred from recovery; and (3) whether the damages awarded were excessive. Discerning no error, we affirm.

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Judge Sets Deadline in Life Care Centers Lawsuit

Federal prosecutors won't know until next spring if a massive whistle-blower Medicare fraud lawsuit against Life Care Centers of America can proceed to trial. The case was filed in 2008 and merged with a similar 2012 lawsuit, which involves allegations that the company provided unnecessary, often harmful, therapies to patients in its assisted living facilities to maximize Medicare billings. The Chattanooga Times Free Press has more about the case and the Cleveland, Tenn., based company.

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Supreme Court Reverses Court of Appeals and Reinstates 6.6M Judgment Against Ford Motor

AUNDREY MEALS EX REL. WILLIAM MEALS v. FORD MOTOR COMPANY
Court: TN Supreme Court

Attorneys:

J. Houston Gordon and Amber Nicole Griffin Shaw, Covington, Tennessee, for the appellant, Aundrey Meals, as Natural Parent, Guardian, and Next Friend of William Meals.

Lawrence C. Mann, Troy, Michigan (at trial); Sandra Giannone Ezell and Michelle B. Scarponi, Richmond, Virginia (at trial); John Randolph Bibb, Jr. and Ryan Nelson Clark, Nashville, Tennessee (at trial and on appeal); Robert Francis Chapski, Nashville, Tennessee (on appeal); and Christopher T. Handman and Sean M. Marotta, Washington, D.C. (on appeal), for the appellee, Ford Motor Company.

Judge: LEE

A six-year-old boy’s spine was fractured in a car wreck when the force of the impact caused him to jackknife over his lap seatbelt and pushed the seatbelt into his stomach and against his spine. The child’s mother filed suit on his behalf against Ford Motor Company (“Ford”), alleging that the defective design of the seatbelt and Ford’s failure to warn of a potential danger caused the child’s permanent paralysis and other enhanced injuries. A jury returned a $43.8 million verdict for compensatory damages, finding Ford to be 15% at fault and two non-parties 85% at fault. Ford’s share of the verdict, based on its degree of fault, was $6,570,000. The jury awarded no punitive damages. Ford moved for a new trial, arguing that the verdict was excessive. The trial court denied the motion for new trial and affirmed the verdict in its capacity as thirteenth juror. The Court of Appeals, in a divided opinion, ruled that the verdict was excessive and remanded to the trial court with a suggestion of remittitur from $43.8 million to $12.9 million, a 70.55% reduction. The suggested remittitur, if the plaintiff accepted it, would reduce Ford’s share of the verdict to $1,935,000. Meals ex rel. Meals v. Ford Motor Co., No. W2010-01493-COA-R3-CV, 2012 WL 1264454, at *18- 21 (Tenn. Ct. App. Apr. 13, 2012). We hold that the Court of Appeals had the authority to suggest a remittitur even though Ford did not request a remittitur. We further hold that the Court of Appeals erred in remitting the verdict to $12.9 million. Having taken the strongest legitimate view of all the material evidence in favor of the verdict, assuming the truth of all that supports it, allowing all reasonable inferences, and discarding any to the contrary, we hold that the jury’s verdict was supported by material evidence and was within the range of reasonableness. The judgment of the Court of Appeals is reversed and the jury’s verdict is reinstated.

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Lack of Certificate of Good Faith Dooms Death Suit Against Nursing Home

SHEILA DUNLAP v. LAUREL MANOR HEALTH CARE, INC.
Court: TN Court of Appeals

Attorneys:

Lyle H. Moe, Maryville, Tennessee, for the appellant, Sheila Dunlap, individually and as personal representative of the estate of Victoria Adkins.

Marc A. Sorin, Memphis, Tennessee, for the appellee, Laurel Manor Health Care, Inc.

Judge: SUSANO

Sheila Dunlap (“plaintiff”) brought this action alleging liability for the wrongful death of her daughter (“deceased”) on the part of the nursing home operated by Laurel Manor Health Care, Inc. (“defendant”) where deceased was living. Although the allegations of the complaint were couched in terms of ordinary negligence, the trial court determined that the cause of action was one for medical malpractice. The court dismissed the complaint for failure to comply with Tenn. Code Ann. § 29-26-122, which requires the filing a certificate of good faith with a medical malpractice complaint. We hold that the plaintiff’s claims that the nursing home failed to properly administer medication and a medical device prescribed by a physician, and failed to monitor the medical condition of the deceased at all times prior to her death, sound in medical malpractice. Consequently, we affirm the judgment of the trial court.

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Exclusion of Claim for Unlisted Driver Enforced by Eastern Section

KELLY WEED v. FIRST ACCEPTANCE INSURANCE COMPANY OF TENNESSEE, INC.
Court: TN Court of Appeals

Attorneys:

George R. Garrison, Sevierville, Tennessee, for the appellant, Kelly Weed.

Louis Andrew McElroy, II, and Rachel E. Sanders, Knoxville, Tennessee, for the appellee, First Acceptance Insurance Company of Tennessee, Inc.

Judge: SUSANO

This appeal involves the interpretation of an exclusionary clause in an automobile casualty insurance policy. The policy excluded coverage for a loss resulting from an accident occurring while the vehicle was being driven by an unlisted driver who “is a regular or frequent operator of” an insured vehicle. Caleb Jenkins, who was not listed in the policy as a “driver,” was involved in an accident while driving the vehicle of Kelly Weed (“Insured”). Insured brought suit after First Acceptance Insurance Company of Tennessee, Inc., (“Insurer”) denied her claim. Insurer moved for summary judgment, alleging that Jenkins was a regular and frequent operator of Insured’s vehicle. Based on Insured’s statement that Jenkins was a “fairly regular” driver of her vehicle who had been driving it once or twice a week for six months, the trial court denied coverage and granted Insurer summary judgment. We affirm the trial court’s judgment that the policy excluded coverage because Insured’s admission establishes that Jenkins was a “regular or frequent operator” of her vehicle.

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Eastern Section Reversed Summary Judgment Against Plaintiff in Premises Case

GREG PARKER, ET. AL. V. HOLIDAY HOSPITALITY FRANCHISING, INC., ET. AL.
Court: TN Court of Appeals

Attorneys:

William Richard Baker, Jr., Knoxville, Tennessee, for the appellants, Greg Parker and Diane Parker.

Andrew J. Lewis and Brian H. Trammell, Knoxville, Tennessee, for the appellee, Shashi Patel, individually and d/b/a S.P. Partnership d/b/a Holiday Inn Express.

Judge: MCCLARTY

This is a premises liability case in which Plaintiffs alleged that a shower bench in Hotel collapsed, causing Husband to fall and sustain injuries. Plaintiffs filed suit against Defendant, claiming negligence. Defendant filed a motion for summary judgment, asserting that he did not install the bench and did not have actual or constructive notice of the independent contractor’s negligent installation of the bench. The trial court granted the motion for summary judgment and dismissed the case. Plaintiffs appeal. We reverse the decision of the trial court and remand for further proceedings.

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Tennessee Workers’ Compensation Payments Decline

Tennessee is one of 22 states where both workers’ compensation payments and costs to employers decreased in 2011, according to a new report from the National Academy of Social Insurance. According to the report, the state’s employers paid $783.7 million in workers’ compensation benefits, down 0.1 percent from 2010. By contrast, workers’ compensation payments rose 3.5 percent and costs to employers rose 7.1 percent nationwide during 2011. The report also estimated that 125.8 million workers are now covered by workers’ compensation protection – up 1.1 percent from 2010. The Memphis Daily News has more.

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