News

Eastern Section Affirms Sizable Premise Liability Verdict

ERIC G. GLASGOW v. K-VA-T FOOD STORES, INC.
Court: TN Court of Appeals

Attorneys:

J. Eric Harrison and Jeffrey M. Cranford, Morristown, Tennessee, for the appellant, K-VA-T Food Stores, Inc.

Bryan L. Capps and Charmaine M. Nichols, Knoxville, Tennessee, for the appellee, Eric G. Glasgow.

Judge: MCCLARTY

This is an appeal from a jury verdict in a premises liability action in which the plaintiff filed suit against the defendant, alleging that he sustained injury while using the restroom in a grocery store operated by the defendant. The court denied the defendant’s request for a directed verdict and submitted the case to the jury, which awarded $350,000 in compensatory damages. Following the denial of post-trial motions, the court approved the verdict but reduced the award to conform to the amount of damages pled. The defendant appeals, claiming the reduced award is not supported by material evidence. We affirm.

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State Dems Want Hearing on Insurance Rates

Tennessee Democratic lawmakers are calling for a public hearing on the state’s decision to approve increases for some health insurance plans by as much as 62 percent. They say Insurance Commissioner Julie Mix McPeak has not done enough to show the increases are needed to keep the health insurance market afloat, Nashville Public Radio reports. McPeak blamed flaws in the Affordable Care Act for the increase. But Democrat Sen. Jeff Yarbro questioned why Tennessee is doing so much worse than everyone else. “Why are our rates going up higher and faster than every country — every other state in the country?” Some say it is because the state has not expanded its Medicaid program to include the sickest residents, leaving them in the general insurance pool.

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Court Solicits Comments on 2017 Rules Package

The Tennessee Supreme Court today published the annual package of recommendations from the Advisory Commission on Rules of Procedure and Evidence. Proposals include changing the place for filing a notice of appeal to the appellate clerk’s office, requiring payment of fees and taxes to the appellate court clerk at the time of initiation of an appeal, and changes to the Juvenile, Criminal and Evidence rules. Six TBA sections – Appellate Practice, Litigation, Tort and Insurance Law, Criminal Justice, Family Law and Juvenile and Children’s Law – will be asked to review the recommendations and propose comments on behalf of the association. Comments on the proposals are due Nov. 23.

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Insurance Commissioner: Health Exchange ‘Very Near Collapse’

Tennessee Insurance Commissioner Julie Mix McPeak proclaimed the state’s health exchange “very near collapse” yesterday after signing off on significant premium hikes in a bid to keep the platform viable. The rate approvals were necessary to ensure healthcare options in every part of Tennessee, McPeak said. Tennessee is seeing a steady decrease in the number of insurance companies selling plans on the federally run exchange, the Tennessean reports. In 2017, 57 of the state’s 95 counties will have only one insurance company serving their area.

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Nashville Attorney to Chair ABA Section

Sam H. Poteet Jr., a principal with Manier & Herod in Nashville, has been elected to a one-year term as chair of the American Bar Association Tort Trial and Insurance Practice Section (TIPS). He will begin serving his 2016-17 term at the conclusion of the ABA annual meeting in San Francisco, which starts today and runs through Aug. 9. TIPS unites plaintiff, defense, insurance and corporate counsel to advance the civil justice system. It has about 20,000 members and 31 general committees that focus on substantive and procedural matters in areas across the broad spectrum of civil law and practice.

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Eastern Section Affirms Summary Judgment in Head on Wreck Against Amnesic Plaintiff

CHRISTOPHER DENTON V. EDNA TAYLOR ET AL.
Court: TN Court of Appeals

Attorneys:

Valerie W. Epstein, Chattanooga, Tennessee, for appellant, Christopher Denton.

Douglas M. Campbell, Chattanooga, Tennessee, for appellee, Edna Taylor.

Judge: SUSANO

This case arises out of a head-on automobile accident that resulted in the death of Howard Taylor, the driver of one of the cars, and serious injuries to Christopher Denton (plaintiff), the other driver. Plaintiff brought this negligence action against the decedent’s widow, Edna Taylor, and his estate.1 There were no witnesses to the accident, and plaintiff has no memory of what happened. Some fifteen months after the complaint was filed, the sole remaining defendant, Edna Taylor, moved for summary judgment, arguing that plaintiff’s evidence was insufficient to establish causation. In support of the motion, defendant filed the affidavit of the officer who investigated the accident, in which he stated that he “wasn’t able to locate any roadway evidence that indicated the point of impact.” After a hearing on defendant’s motion, plaintiff filed a motion asking the trial court to grant him more time to obtain and file an accident reconstruction “report.” The court denied the motion and granted summary judgment on the ground that plaintiff provided no evidence establishing that the decedent’s negligence caused the accident. We affirm.

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Eastern Section Affirmed Slip/Fall Summary Judgment of Dismissal for Want of Actual or Constructive Notice

CARLA LANDRUM, ET AL. v. METHODIST MEDICAL CENTER, ET AL.
Court: TN Court of Appeals

Attorneys:

John D. Agee and Amanda I. Lowe, Clinton, Tennessee, for the appellants, Carla Landrum and Jerry Lee Landrum.

F. Michael Fitzpatrick and Rachel P. Hurt, Knoxville, Tennessee, for the appellees, Methodist Medical Center of Oak Ridge and Covenant Health.

Judge: MCCLARTY

This is a premises liability action in which the plaintiffs, a husband and wife, filed suit against the defendant hospital for personal injuries and other damages resulting from wife’s slip and fall. The trial court granted the defendant’s motion for summary judgment, holding that the plaintiffs failed to demonstrate defendant’s actual or constructive knowledge of the dangerous condition by failing to proffer material evidence establishing the cause, source, or duration of the dangerous condition. The plaintiffs appeal. We affirm the decision of the trial court.

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VW Settlement Gets Preliminary Court Approval

A federal judge gave preliminary approval today to a sweeping settlement between Volkswagen, U.S. regulators and owners of VW diesels who will receive thousands of dollars in compensation, the Tennessean reports. Judge Charles Breyer with the U.S. District Court for the Northern District of California, set the settlement in motion, allowing the automaker to begin collecting information from 475,000 consumers who bought cars that were rigged to cheat emissions standards. Final approval of the settlement could come at a hearing set for Oct. 18. .

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Computer Forensics for Lawyers

On Aug. 2, Lars Daniel with Guardian Digital Forensics in Raleigh will present a special CLE webcast on computer forensics. He will use real life examples to show how forensic artifacts recovered from computers are used in legal cases. Other topics will include best practices in data collection, understanding deleted data, challenging digital evidence and expert testimony. If you cannot join the webcast live, the program will be available on the website for up to one year. Learn more or register here.

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Mitchell: Frivolous Lawsuit Bill May Discourage Abuse Claims

Rep. Bo Mitchell, D-Nashville, has announced that he is filing legislation to repeal a new law that was intended to prevent frivolous lawsuits, Humphrey on the Hill reports. Mitchell argues that the law could be used to discourage sexual abuse claims. “Under this new law, should you sue the state and a state employee and lose, you could be forced to pay their attorney’s fees,” Mitchell said. “Not all lawsuits are successful, but that doesn’t mean that they are frivolous.”

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'Pokemon Go' Raising Thorny Legal Issues

Pokemon Go is taking the country by storm. But with imaginary characters waiting to be “caught” on both public and private property, the game is “raising legal issues and public safety concerns.” Press headlines indicate people are injuring themselves and others in pursuit of the game, while private property owners are dealing with players swarming their land. The game’s terms of service disclaim liability for property damage, personal injury or death occurring while playing but thorny legal issues no doubt await. The ABA Journal has links to several legal articles on the issue.

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Med Mal Dismissal Overturned Since Death of Counsel's Child 4 Days Prior to Filing is Extraordinary Cause (And in Other News, Water is Wet ...)

BETTY KIRBY v. SUMNER REGIONAL MEDICAL CENTER
Court: TN Court of Appeals

Attorneys:

Daniel Marshall, Nashville, Tennessee, for the appellant, Betty Kirby.

Christopher A. Vrettos, Nashville, Tennessee, for the appellee, Sumner Regional Medical Center.

Judge: MCCLARTY

This is a health care liability action. The plaintiff suffered permanent damage after receiving medical treatment from the defendant hospital. The plaintiff filed suit exactly one year after her hospital stay. The defendant hospital moved to dismiss, arguing that the plaintiff failed to comply with the pre-suit notice and good faith requirements applicable to health care liability actions. The plaintiff later argued that the failure to comply with the necessary requirements should be excused for extraordinary cause as evidenced by the passing of her legal counsel’s son four days prior to the filing of the complaint. The trial court granted summary judgment, finding that no extraordinary cause existed. The plaintiff appeals. We reverse the judgment of the trial court.

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Court: Bankruptcy No Shield for GM Ignition Switch Claims

The U.S. Second Circuit Court of Appeals today struck down bankruptcy decisions that shielded General Motors from liability related to ignition switch defects, Reuters reports. The court found that a 2009 sale of the automakers’ assets, which provided the company with legal cover, violated potential victims’ rights to due process. The ruling effectively rebuffs GM’s attempts to block hundreds of customer lawsuits over faulty ignition switches that led to criminal charges and prompted the recall of 2.6 million vehicles in 2014.

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Under Particular Facts, Premises Liability Action of Deceased Independent Security Guard After Gun Death Fails Against Apartment Complex Owner

THE ESTATE OF BLAKE B. CUNNINGHAM, BY AND THROUGH BARBARA CUNNINGHAM v. EPSTEIN ENTERPRISES LLC, ET AL.
With concurring opinion.
Court: TN Court of Appeals

Attorneys:

Linda Lynn Walls Holmes, Memphis, Tennessee, for the appellant, Barbara Cunningham.

Lacey L. Adair, Richard Glassman and Whitney Boshers Hayes, Memphis, Tennessee, for the appellees, Epstein Enterprises, LLC, and Louis and William Epstein, LP.

Judge: MCBRAYER

In this premises liability case, the plaintiff appeals from the trial court’s grant of summary judgment in favor of the defendants, the manager and owner of an apartment complex. The trial court concluded that the defendants owed no duty to a security guard, who was fatally shot while working at the apartment complex. Although a premises owner generally owes a duty to provide independent contractors with a safe workplace, under the facts of this case, we conclude that the defendants owed no duty to protect the security guard from the criminal acts that resulted in the loss of his life. Therefore, we affirm the grant of summary judgment in favor of the defendants. Additionally, we affirm the award of discretionary costs to the defendants.

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Concurring Opinion

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Tort Victims Not Allowed to Intervene Onto Tort Defendant's Wrongful Death Case Against Government

CHRISTOPHER J. WHITE, ET AL. v. LISA M. JOHNSON, ET AL. v. CITY OF MEMPHIS, TENNESSEE
Court: TN Court of Appeals

Attorneys:

Lenal Anderson Jr., Memphis, Tennessee, for the appellants, Christopher J. White, and Angelique Marie White.

Howard B. Manis and Andrew C. Clarke, Memphis, Tennessee, for the appellees, Lisa M. Johnson and Sherkita Lockhart.

Judge: STAFFORD

Intervening plaintiffs appeal from the dismissal of their petition to intervene in this wrongful death action. Discerning no error, we affirm.

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Parents Not Liable for Conduct of Adult Child Off Premises and When Not Entrusted Personal Property, per Court of Appeals

LLEN RIGGS v. RICHARD B. WRIGHT, ET AL.
Court: TN Court of Appeals

Attorneys:

C. Wesley Fowler and Jonathan O. Richardson, Memphis, Tennessee, for the appellant, Allen Riggs.

Bradford D. Box and J. Caleb Meriwether, Jackson, Tennessee, for the appellees, Larry F. Wright, Sr., and Marianne D. Wright.

Judge: STAFFORD

The plaintiff filed this case against an adult defendant and his parents, after the adult defendant allegedly attacked the plaintiff. The trial court granted parents’ motion to dismiss, concluding that no special relationship existed between the adult defendant and his parents that would confer a duty on parents to control the adult defendant, a guest in parents’ home. Discerning no error, we affirm.

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Dismissal of Suit After Stroke Affirmed by Appeals Court

JAMES BOSHEARS v. CLEAVE C. BROOKS
Court: TN Court of Appeals

Attorneys:

Timothy L. Baldridge, Knoxville, Tennessee, for the appellant, James Boshears.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellee, Cleave C. Brooks.

Judge: SWINEY

This appeal arises from a negligence case brought after an automobile accident. James Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks was negligent in operating his vehicle. Brooks asserted that he suffered a stroke immediately prior to the accident, that he lost consciousness, and that, consequently, he could not be found negligent. The case was tried to a jury. The jury found that Brooks was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the Trial Court erred in charging the jury with sudden emergency when comparative fault was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the jury on both sudden emergency and loss of consciousness. We affirm the judgment of the Trial Court.

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New Litigation Courses Now Available Online

Online CLE programs offering insight into a range of litigation matters are now available online. Sessions cover med-mal updates, third party reviews, the ethical use of social media and effective deposition strategies. Check these courses out at the links above.

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Disability Rights Tennessee Wants to Hear From You!

Disability Rights Tennessee has launched a survey aimed at gathering information from people with disabilities, family members, service providers and professionals to help shape the work of the organization.

The organization is looking for as much information as possible, so please feel free to share the survey with partners, colleagues and friends, so that an accurate picture of the needs of those with disabilities in the State of Tennessee can be compiled. Take the survey now. The deadline to respond is July 11.

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Tennessee Eligible for $55M from VW Settlement

Volkswagen will pay $570 million to compensate American consumers and buy back or fix falsely-marketed diesel vehicles, the Tennessee Attorney General announced today. Under the deal, car owners in Tennessee will be eligible to receive $12.6 million. Volkswagen also will spend $2.7 billion on programs to reduce nitrogen oxide, $2 billion to develop zero-emission cars and $20 million to compensate states for their legal costs and pay for future investigations into emissions violations. The settlement ends a multistate action brought by 43 state attorneys general on grounds that Volkswagen sold more than 570,000 diesel vehicles in the United States with devices intended to circumvent emissions standards. Learn more about submitting a claim.

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Med Mal Suit Fails on Expert Proof and Causation; Summary Judgment is Affirmed

AMANDA GILREATH, ET AL. v. CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY, ET AL.
Court: TN Court of Appeals

Attorneys:

Jimmy W. Bilbo and Brent McIntosh, Cleveland, Tennessee, for the appellants, Amanda Gilreath and Jason Gilreath.

Arthur P. Brock and Drew H. Reynolds, Chattanooga, Tennessee, for the appellee, Chattanooga-Hamilton County Hospital Authority, individually and d/b/a Erlanger Health System.

Judge: MCCLARTY

This is a medical malpractice action1 in which the plaintiffs filed suit against the defendant hospital. The defendant hospital requested summary judgment. The trial court granted summary judgment and dismissed the action. We affirm.

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'Valid Excuse' for Violating Safety Rule Falls Short in Work Comp Appeal

DAMON HAWKS V. LISA CHRISTIAN, ET AL.
Court: TN Workers Comp Appeals

Attorneys:

Michael L. Haynie, Nashville, Tennessee, for the appellants, Eric Christian, Lisa Christian, Christian Construction, Inc., and Auto Owners Insurance Company.

Matt McFarland, Nashville, Tennessee, for the appellee, Damon Hawks.

Judge: COTTRELL

In this workers' compensation case, the employee sustained an injury in the course of his employment when he fell off a roof. His employer denied the employee's claim for workers' compensation benefits pursuant to Tennessee Code Annotated section 50-6-110 because the employee failed to use a required safety appliance. The trial court found that the employee provided a valid excuse for failing to wear the required equipment and awarded benefits. The employer has appealed. Pursuant to Tennessee Supreme Court Rule 51, the 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. We reverse the judgment of the trial court.

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Judge Seeks to Dismiss Baptist Healing's Pensions Suit

Federal Magistrate Judge Joe Brown is recommending that Baptist Healing Trust's suit against Pension Benefits Guaranty Corp. be dismissed, noting that 2,000 Baptist Healing pensioners will have have no recourse to recover their pensions if the case proceeds. Baptist Healing, which sold most of its assets to Ascension Health, claims the hospital is exempt from federal regulation because the Employment Retirement Income Security Act contains an exemption for "church plans.” Read more from the Nashville Post

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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Former UT Football Player Sues SEC, NCAA

The Tennessean reports that former University of Tennessee football player O.J. Owens is suing the Southeastern Conference and the NCAA in an effort to recoup unspecified damages for the effects of head trauma he experienced during his college career. His suit is one of 10 filed in the past two months by Chicago-based law firm Edelson on behalf of former college football players. UT is not named as a defendant in the suit. 

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