It is important to note, however, that not all negligence cases involve physical harm or death to an individual. Property damage, too, can be an element of damages in a negligence case. For example, there may be a separate claim for property damage in a motor vehicle accident case.

Some negligence cases pertain only claims involving property, however. Sometimes, these negligence claims are brought along with other allegations, such as a breach of contract claim. When this happens, the plaintiff may receive additional damages that would not otherwise be available (attorney fees, for instance, are not typically awarded in simple negligence cases under the so-called “American rule”).

Facts of the Case

In a recent case considered on appeal by the Court of Appeals of Tennessee at Nashville, the plaintiffs entered into an agreement with the defendant homebuilder, by virtue of which the defendant agreed to build a certain house for the plaintiffs and the plaintiffs agreed to pay a certain amount of money to the defendant. The home was built, and the plaintiffs moved into it in mid-2014. Unfortunately, there were numerous alleged problems with the construction of the house, resulting in the plaintiffs filing suit against the defendant, alleging, among other things, negligence in the construction process, breach of contract, and breach of warranty. Importantly, the parties had a written contract memorializing their agreement. This contract provided for attorney fees to the prevailing party in the event of a lawsuit.

After several years of litigation, the trial court granted judgment to the plaintiffs in the amount of $125,343 on their negligence and breach of contract claims. The plaintiffs then filed a motion asking the court to order the defendant to pay their attorney fees and certain discretionary costs associated with the litigation. The trial court granted the motion as to the discretionary costs but declined to grant attorney fees.

How the Court Resolved the Dispute

The court began by analyzing the defendant’s argument that the trial court had erred with regard to its damages award to the plaintiffs on their negligence and breach of contract claims. Concluding that the plaintiffs were entitled to damages based on the defendant’s breach of duty to them and that the amount awarded by the trial court was reasonable, the appellate court affirmed the lower court’s ruling on the issue of damages.

The court went on to reverse the lower court’s denial of the plaintiffs’ request for attorney fees, noting that the parties’ contract provided for attorney fees and other damages to the prevailing party in the event of a suit to enforce the agreement. Although the plaintiffs did not get everything they asked for in the lower court, the appellate tribunal explained that “prevailing parties” are those who succeed on a “significant claim” rather than on every allegation asserted.

To Schedule an Appointment with a Negligence Attorney in East Tennessee

Unfortunately, the awarding of attorney fees is usually limited to negligence cases in which there is a companion claim that provides for the payment of fees (such as the breach of contract claim here). Because we understand that it can be difficult for an injured person to pay attorney fees upfront, we structure our fee agreement in personal injury and wrongful death cases in a manner in which we only get paid if the case is ultimately successful. To learn more about our services in east Tennessee negligence cases, contact the Hartsoe Law Firm at (865) 804-1011.

In common parlance, “damages” means physical harm to a person or thing, thus impairing its value and/or usual function. If a car sustains “damages” in a collision, we think of this as meaning that there was an impact to the car that make it less useful (a smashed headlight and a damaged radiator due to a head-on collision, for instance) or less valuable (a $50,000 SUV may be worth only $10,000 in its post-crash condition).

However, there is a separate definition in the law for the word “damages,” namely the amount of money claimed or awarded in compensation for injuries suffered in an accident. This means that, when a jury awards “damages” of a certain amount, the court then directs the party against whom the award was made to pay that amount of money to the injured individual. It is important to note that, sometimes, there are limitations on the amount of money “damages” that can be awarded to the plaintiff in an East Tennessee personal injury case. One example is discussed in the case below.

Facts of the Case

The plaintiff in a recent case appealed to the state’s highest court was a woman who underwent a laparoscopic procedure in July 2005 to remove one of her kidneys after a potentially malignant mass was discovered. A certain medical device was used by the defendant surgeon during the procedure. During a gallbladder removal surgery performed by a different doctor in 2013, it was discovered that a portion of the device had been left inside the patient’s body some eight years earlier. Thereafter, the plaintiff (joined in the suit by her husband, who asserted a loss of consortium claim) filed suit in the Circuit Court for Davidson County, seeking compensation against the defendant surgeon (who performed the laparoscopic procedure in 2005), as well as several other medical providers, some of whom the plaintiffs alleged should have discovered the device inside the female plaintiff’s body during the course of their treatment of her for various conditions over the years.

The case was tried to a jury, which returned a verdict for the female plaintiff for $2,000,000 for pain and suffering plus $2,000,000 for loss of enjoyment of life and $500,000 to the male plaintiff for loss of consortium. Applying the statutory noneconomic damages cap codified at Tennessee Code Annotated § 29-39-102, the trial court awarded the plaintiffs a total of $1,250,000 ($750,000 to the female plaintiff and $500,000 to the male plaintiff). The Tennessee Court of Appeals affirmed.

The Court’s Decision in the Case

The Supreme Court of Tennessee accepted appellate review in order to decide whether Tennessee’s noneconomic damages cap applied separately to a spouse’s loss of consortium claim. Reversing the lower courts’ orders, the supreme court ruled that the language of Tennessee Code Annotated § 29-39-102 allowed both plaintiffs to recover only $750,000 in the aggregate for noneconomic damages. Thus, although the plaintiffs won their case in the trial court, the amount of money damages that they will ultimately receive will be limited under Tennessee law.

Interestingly, the supreme court deemed the plaintiffs’ arguments about the constitutionality of the statute in question to have been waived, insomuch as they were not properly presented below. It is possible that, at some future point, the court might revisit the issue of the statute’s constitutionality, which arguably could fail to pass constitutional muster with regards to the Takings Doctrine and/or other provisions.

Contact a Lawyer About an East Tennessee Personal Injury Case

If you need to speak to an experienced east Tennessee injury and wrongful death attorney about a medical malpractice claim, car wreck case, premises liability action, or other personal injury suit, please use the contact form on this website to contact the Hartsoe Law Firm. Alternatively, you can call us at (865) 804-1011 to schedule a free consultation in our offices or, if you prefer, in your home.

There is a limited time for filing a healthcare liability action, and much is to be done in anticipation of the filing of the actual complaint. Seeking legal counsel sooner rather than later can help ensure that all of the necessary steps are completed in a timely fashion.

Facts of the Case

In a recent healthcare liability and wrongful death case originating in the Tennessee Claims Commission, the plaintiffs were the parents of a stillborn infant who was delivered in December 2017 when the mother was at about 29 weeks’ gestation. The delivery occurred at a hospital owed by the defendant state. The plaintiffs’ suit sought to assert claims for negligence and medical malpractice against several resident physicians and physicians who were employed by the defendant state at the time of the delivery. No claim was presented for damages to the plaintiff mother.

After the claim was transferred to the Claims Commission for litigation, the defendant state filed a motion for summary judgment, asserting that the plaintiffs had failed to comply with both Tennessee Code Annotated 29-26-121(a)(2)(E) and the applicable statute of limitations. The Claims Commission denied the defendant state’s motion, prompting an appeal.

Decision of the Court of Appeals

The Court of Appeals of Tennessee at Knoxville affirmed the Claims Commission’s denial of the defendant state’s motion for summary judgment. The appellate court phrased the issue as whether the Claims Commission erred in denying the defendant state’s motion for summary judgment on the ground that the medical records release provided by the plaintiffs allegedly failed to satisfy the requirements of § 29-26-121(a)(2)(E), thus rendering the defendant state unable to obtain medical records of the deceased infant.

In affirming the Claims Commission’s denial of summary judgment, the reviewing court rejected the defendant state’s argument that the plaintiffs’ case should be dismissed because they failed to provide a release for the plaintiff mother’s medical records (they only provided a release for the deceased infant’s records). According to the appellate tribunal, it would have been unreasonable to have placed a burden upon the plaintiffs to predict how a medical provider would identify and archive its records and/or to anticipate how a records custodian would respond to an otherwise properly executed medical authorization.

Schedule a Free Consultation with a Wrongful Death Attorney in Knoxville

Losing a loved one to an act of medical malpractice – especially when the loved one is a child – is tragic. The process of holding the negligent medical provider legally liable can be long and difficult. To talk to an experienced east Tennessee medical malpractice attorney about a potential medical negligence case, please call the Hartsoe Law Firm at (865) 804-1011. Our office also handles car and truck accidents, slip and fall cases, product liability claims, and cases involving elder abuse. There is no charge for the office visit; we do not expect a legal fee to be paid until your case is settled or a judgment is entered in your favor.

Accordingly, it is vitally important to talk to a lawyer as soon as you suspect that you or a family member has been harmed due to a healthcare professional’s error. Waiting too long can seriously jeopardize the outcome of your case, as untimely claims will be dismissed by the court.

Facts of the Case

In a recent appellate case, the plaintiff was the next of kin of a woman who died of acute respiratory failure after being a patient at the defendant hospital in January 2018. The plaintiff filed suit in the Circuit Court of Davidson County in May 2019, asserting a claim for healthcare liability pursuant to the Tennessee Health Care Liability Act, codified at Tennessee Code Annotated §§ 29-26-102 et seq. In his complaint, the plaintiff averred that the defendant was “both directly and vicariously liable” under the principles of respondeat superior for the acts and omissions of its employees and agents. A copy of the complaint was mailed to the defendant on December 21, 2018, along with the notice required under Tennessee Code Annotated § 29-26-121.

The defendant filed a motion to dismiss the plaintiff’s complaint against it, arguing that a principal could not be held vicariously liable for the actions of an employee or agent when the plaintiff’s direct claims against such employee or agent were procedurally barred by the statute of limitations. The plaintiff filed an interlocutory appeal.

Decision of the Court

The Court of Appeals of Tennessee at Nashville reversed the trial court’s decision. Phrasing the issue as whether the trial court properly granted the defendant’s motion to dismiss the plaintiff’s vicarious liability claims, the court turned to the provisions of the Act for instruction. Noting that Act specifically stated that the statutes of limitations or repose applicable to an action asserting a claim for health care liability were not to be shortened or lengthened thereunder, the court of appeals concluded that the trial court had erred in dismissing the plaintiff’s case as untimely.

In the court’s view, following the common law rule relied upon by the defendant would have effectively shortened the time for pre-suit resolution of claims for vicarious liability cases brought solely against a principal. Under the “trap” advocated by the defendant, a plaintiff who chose to sue a principal rather than its agents would have to give the principal pre-suit notice at least 60 days prior to the date upon which the statute of limitations applicable to the agent would expire, if the plaintiff was to benefit from the 120-day extension set forth in Tenn. Code Ann. § 29-26-121(c). Thus, the court concluded that, in health care liability cases in which a plaintiff chooses to sue only the principal, the provisions of the Act regarding pre-suit notice prevailed over any previously declared common law exception with respect to the tolling of the statute of limitations.

Schedule a Free Consultation with an Injury Attorney in East Tennessee

A medical malpractice case in east Tennessee requires special handling and care. Because of the many procedural requirements in such cases, it is very important that a person who has been the victim of medical negligence or a family who has lost a loved one due to a medical professional’s mistake speak with an attorney as soon as possible. To schedule an appointment with the Hartsoe Law Firm to discuss your Knoxville or Maryville medical negligence case, call us at (865) 804-1011. If you prefer, you can contact us through the “contact us” section of this website.

What may come as more of a surprise, however, is a situation in which the party moving for the dismissal of the plaintiff’s case is his or her own insurance company. This very thing happened in a recent case in which the plaintiff’s uninsured motorist insurance company filed a motion to dismiss his suit as untimely because of an alleged defect in the complaint – even though the complaint itself was timely-filed.

Facts of the Case

In a car accident case that recently made its way to the intermediate court of appeals, the plaintiff was a man who was involved in an automobile accident on December 2, 2017. He filed suit on November 30, 2018, seeking to recover monetary compensation for certain personal injuries that he suffered as a result of the wreck. The plaintiff served a copy of the complaint against his own uninsured motorist insurance carrier, who was an “unnamed defendant” to the suit.

In February 2019, the insurance carrier filed a motion to dismiss the plaintiff’s complaint on the ground that it did not comply with Tennessee Rule of Civil Procedure 11.01(a) insomuch as the plaintiff’s attorney did not sign the e-filed complaint. The insurance company filed another motion to dismiss a few months later, averring that the statute of limitations had run, and that the plaintiff’s complaint should be dismissed as untimely. The Circuit Court of Shelby County granted the insurance company’s motion and dismissed the plaintiff’s lawsuit. The plaintiff appealed.

The Court of Appeals Decision

The Court of Appeals of Tennessee at Jackson reversed the trial court’s dismissal of the plaintiff’s complaint. The court began by stating that the dispositive issue was whether the plaintiff’s complaint complied with Rule 11.01(a). Under the rule, every pleading is to be signed by at least one attorney of record, in that attorney’s individual name. In signing the pleading, the attorney is effectively making a statement that the pleading is filed in good faith.

Here, the complaint was signed “by permission” by another attorney who was a member of the plaintiff’s attorney’s law firm, rather than by the plaintiff’s attorney himself. Insomuch as there were no allegations that the plaintiff’s attorney did not give the other firm member his permission to sign the complaint, that the plaintiff’s attorney was not familiar with the contents of the complaint, or that the plaintiff’s attorney had not otherwise complied with the requirements of Rule 11, the appellate court found that the signature in question, although signed by another lawyer “by permission,” was sufficient to satisfy the rule.

Car Accident Attorney Offering Free Case Evaluations in Knoxville

If you have questions about your legal rights and need to speak to an east Tennessee car accident attorney, the Hartsoe Law Firm is here to help. To schedule an appointment, use the contact form on this website of call us at (865) 804-1011. As the case discussed above indicates, timeliness can be a crucial component of the process of seeking compensation following an automobile collision caused by another’s negligence, so please do not delay in seeking counsel about your situation.

The reality is that, regardless of how strong the plaintiff’s case might be, recovering fair compensation in a personal injury or wrongful death case depends heavily on whether or not the negligent party was insured. Technically, the plaintiff can pursue collection on a judgment by attaching the defendant’s assets, garnishing his or her wages, and the like, but this is usually a very slow process and one that, at best, typically yields only a fraction of the amount of money to which the plaintiff was entitled.

Because of the power of the insurance company lobbyists, jurors rarely hear a word about insurance. The insurance company would much rather jurors believe that every penny of a judgment was coming out of the defendant’s pocket – the idea being that a lower judgment will result when a person, not a big insurance company, is paying the plaintiff what he or she is due. Sometimes, however, there are cases in which the insurance company is front and center in a lawsuit.

Facts of the Case

The plaintiff in a recent case filed in the United States District Court for the Eastern District of Tennessee was an insurance company that provided a $1 million renters insurance policy to the defendant, a woman who operated a daycare out of the insured premises. The insurance company sought a declaratory judgment that it had no duty to defend or indemnify the woman with regard to the alleged July 2018 wrongful death of 23-month-old twins, who drowned in a backyard swimming pool while in the woman’s care. The twins’ parents were also named as defendants in the insurance company’s cause of action, and they filed a counter-claim against the insurance company.

The parties filed various motions for judgment on the pleadings and/or for summary judgment.

The District Court’s Decision

The trial court denied the insurance company’s motion for summary judgment and granted the parents’ motions for judgment on the pleadings on their counterclaim and for partial summary judgment on the insurance company’s claims. Although the insurance company attempted to rely on a purported “childcare services exclusion” in the insurance policy in order to avoid the possibility of paying out a wrongful death claim brought by the parents for their children’s drownings, the federal district court found that “non-excluded risks” concurrently and substantially caused the twins’ deaths, thus triggering the insurance company’s duty to indemnify the defendant.

While the parents will still have to prove their wrongful death claim by a preponderance of the evidence, the fact that the insurance company will have to indemnify the defendant will make it much more likely that the parents will prevail in the case, either at trial or via a settlement.

Get Started on an East Tennessee Wrongful Death Claim

If you have lost a loved one to a swimming pool drowning or other act of homeowner negligence, you may be entitled to substantial money damages for your family member’s wrongful death. To learn more about how to assert your legal rights, contact the Hartsoe Law Firm via this website or by calling (865) 804-1011. Tennessee has a very short statute of limitations for negligence claims, so it’s important that you seek counsel immediately if you believe that you may have a wrongful death or personal injury claim.

As the case develops toward trial, it is possible that some defendants and/or legal theories may be eliminated through a process known as “summary judgment.” When a court grants summary judgment, it is essentially saying that a particular defendant is entitled to judgment as a matter of law on one or more of the claims asserted by the plaintiff. Summary judgment does not necessarily end the plaintiff’s case, however, as there may still be viable legal theories remaining against a defendant (or multiple defendants) that have not been dismissed from the case.

Facts of the Case

In a recent federal district court case, the plaintiffs sought to assert a product liability action against the defendants, whom they alleged negligently designed and/or manufactured a heated throw blanket that allegedly caused a fire in the plaintiffs’ home in 2018, resulting in both personal injuries and property damage. As evidence of their claim, the plaintiffs submitted video surveillance footage showing, first, a bright flash from an area around the blanket’s control, and, over five hours later, additional flashes, smoke, and, eventually, a fire. The manufacturing defendant filed a motion for summary judgment, asserting that the plaintiffs had abused the blanket by violating at least four warnings contained in the user manual that came with the product. The plaintiffs, in turn, insisted that the fire resulted from a defective control unit, not from any actions or inactions on their part. The manufacturing defendant filed a motion for summary judgment, which the plaintiffs opposed.

The District Court’s Decision

The United States District Court for the Middle District of Tennessee, Nashville Division, denied the manufacturing defendant’s motion for summary judgment. After viewing the evidence, facts, and inferences in the light most favorable to the plaintiff (as the party opposing the motion), the court found that there were genuine issues of material fact as to whether the blanket’s control was unreasonably dangerous or defective. The court based its opinion on various affidavits and deposition testimony, experts’ opinions, and physical evidence. This included both the surveillance video and the fire investigation report.

In the court’s opinion, there was “more than enough” evidence to establish a prima facie product liability claim. The court further opined that, based on the evidence submitted by the parties regarding summary judgment, a reasonable jury could determine that the defect or danger existed when the blanket left the manufacturing defendant’s control, rather than, as alleged by the manufacturing defendant, after the plaintiffs were in possession of it.

Talk to an East Tennessee Product Liability Lawyer

If you or a member of your family has been hurt by a product that you believe may have been negligently designed, manufactured, or marketed, you need to talk to an attorney who can explain your legal rights. At the Hartsoe Law Firm, we serve clients in and around Knoxville, Maryville, and elsewhere in east Tennessee as they go about holding the makers and sellers of unreasonably dangerous or defect products liable for the injuries they have inflicted. Call us at (865) 804-1011 to schedule a free consultation of your claim. Keep in mind that there are time limits that can restrict the time for filing a product liability claim, so please do not jeopardize your case by putting off this important phone call.

Unfortunately, evidence of the proper owner’s negligence can disappear quickly. The accident scene may change when an employee cleans up the spill in which the customer slipped and fell. Video surveillance may be “recorded over” if not preserved. Even information about eyewitnesses may be lost over time.

Because of the compelling need to avoid spoliation of the evidence in a slip and fall case, it is important that the plaintiff seek legal counsel in a timely fashion. This can also help avoid the running of the statute of limitations, which is quite short for such matters in Tennessee.

Facts of the Case

The plaintiff in a recent appellate court case arising in Shelby County was a woman who slipped in fell in standing water in a restroom on the defendant landowner’s property. The case was originally filed in the General Sessions Court of Shelby County and resulted in judgment for the defendant. The plaintiff appealed the case to the Circuit Court of Shelby County. The defendant then filed a motion for summary judgment. The circuit court granted the defendant’s motion, and the plaintiff appealed.

Decision of the Court

The Court of Appeals of Tennessee at Jackson vacated the circuit court’s order and remanded the case for further proceedings. The circuit court had sided with the defendant on its summary judgment motion after finding that the plaintiff had actual notice of the wet floor before she attempted to traverse it and that, therefore, she could not establish the element of duty in her negligence action against the defendant. The appeals court, however, concluded that reasonable minds could differ as to whether the plaintiff had been presented with a reasonable alternative to using the flooded restroom under the circumstances. In so holding, the court noted that the plaintiff had asserted that her need to use the restroom was “urgent.” In the court’s view, it was up to the jury to determine whether the plaintiff should have sought out an alternative restroom or whether she was held “captive” by the flooded restroom that she chose to use and in which she slipped and fell, causing injuries to her person.

Speak to a Premises Liability Attorney in Knoxville

Cases alleging that a slip and fall accident was the result of a business owner’s negligence can be difficult to win. This does not mean that such cases are impossible, only that it is very important that the injured individual seek an attorney’s services as soon as possible so that evidence of the landowner’s negligence may be property preserved. Otherwise, the proof needed in order to prevail in the case can easily slip away, making it extremely difficult for the plaintiff to win at trial. For an appointment to discuss a possible trip and fall case with an attorney experienced in such matters, call the Hartsoe Law Firm at (865) 804-1011 or contact us through this website.

Tennessee has some of the shortest statutes of limitations in the country when it comes to lawsuits for, for instance, automobile accidents caused by negligence. Generally speaking, a person hurt by another’s negligence in a Knoxville car accident has just one short year to file a claim, or else his or her right to seek compensation is forfeited.

Of course, the one-year filing period is only a guideline. As the case discussed below indicates, there may occasionally be exceptions to the general rule, as circumstances can occasionally extend (or, sometimes, reduce) the limitations period, so it is very important to talk to a lawyer if you or someone in your family has been involved in a motor vehicle collision.

Facts of the Case

In a recent appeals court case, the plaintiff and the defendant were motorists who were involved in a traffic accident in Roane County, Tennessee, in September 2017. In April 2019, the plaintiff filed suit against the defendant in Davidson County Circuit Court; the case was removed to federal district court and then remanded to circuit court. It was later transferred, by an agreement of the parties concerning proper venue, to Roane County Circuit Court.

The defendant filed an answer in which he pled the statute of limitations as a defense. Thereafter, he filed a motion for summary judgment, seeking dismissal of the plaintiff’s case against him on the basis that it was time-barred. The trial court denied the defendant’s motion, and he appealed.

The Appellate Court’s Opinion

The Court of Appeals of Tennessee at Knoxville affirmed the lower court’s order denying summary judgment to the defendant. In so holding, the appeals court agreed with the lower tribunal that, under the particular circumstances presented in the case at bar, the plaintiff’s cause of action was not time-barred because of an exception to the one-year statute of limitations that would normally have applied. More specifically, under Tennessee Code Annotated § 28-3-104(a)(1), the statute of limitations was extended to two years when criminal charges were brought against a person who allegedly caused or contributed to the plaintiff’s injuries. Under this exception, the charges must have been brought by a law enforcement officer, a district attorney general, or a grand jury, and the suit in which the extension was to apply was brought by a person injured by the defendant in the criminal case.

Here, the investigating officer (a state trooper) issued a traffic citation to the defendant, citing him for failure to exercise due care. The defendant did not contest the citation and paid a fine to the court in which the citation was issued. Although the defendant argued that the citation did not constitute a “criminal charge or prosecution” within the meaning of the statute, the appellate court disagreed, ruling that, under the exception to Tennessee’s general rule for the statute of limitations in a car accident case, the plaintiff’s claim was timely filed.

Call an East Tennessee Car Accident Lawyer

It is very important to note that the case discussed above hinged on the particular facts involved in the dispute at hand. Any extension of the statute of limitations by a Tennessee court is extremely rare and certainly should not be counted on in a given case. If you or someone in your family has been hurt in a car accident, please do not wait until the “last minute” to seek legal advice. By doing so, you risk having your case dismissed on grounds that it is untimely filed. For an appointment to discuss your situation, call the Hartsoe Law Firm today at (865) 804-1011 or use the contact form on this website.

Generally, the argument is that the employee in question acted reasonably under the circumstances presented and that the plaintiff was the one at fault. However, this is not always the government’s strategy.

A recent case against a large county school system was the “exception that proves the rule,” so to speak. In this case, the governmental entity insisted that its employee’s conduct was so egregious as to not be considered negligence, thus removing the case from the statute under which the injured party pursued compensation.

Facts of the Case

In an appellate court case appealed from the Circuit Court for Shelby County, the plaintiff was the parent and next friend of a minor child who received significant injuries to his skull and brain as a result of an incident in which a teacher (an employee of the defendant school system) threw a shot put and hit him in the head during track and field tryouts at a middle school. The plaintiff’s lawsuit sought to recover monetary damages for the child’s injuries, including pain and suffering, loss of enjoyment of life, mental anguish, and medical expenses exceeding $60,000. At trial, the defendant moved for involuntary dismissal under Tennessee Rule of Civil Procedure 41.02(2), claiming that the plaintiff’s negligence claim had failed because the proof showed that the teacher’s actions were intentional, reckless, or grossly negligent and that the defendant school system was thus immune from liability under the Tennessee Governmental Tort Liability Act.

The trial court denied the motion, eventually entering an order finding that the teacher was acting within the scope of his employment at the time of the incident and that he had acted negligently in injuring the student. The court also found that the defendant was vicariously liable for the teacher’s negligence under the Act and that the plaintiffs were entitled to $200,000 in compensatory damages. The defendant appealed.

Decision of the Court

The Tennessee Court of Appeals affirmed the lower court’s ruling. While governmental entities such as the defendant generally enjoy immunity from liability, the case at bar fell squarely within the exception to the rule carved out by the Act. Under the Act, a governmental entity’s immunity is removed for injuries that are proximately caused by the negligent act or omission of an employee acting within the scope of his or her employment. While governmental immunity was not removed for intentional torts such as assault and battery, the court disagreed with the defendant’s argument that the teacher had acted intentionally in injuring the student.

The court so held based on the testimony of the teacher, who took responsibility for the accident but insisted that he did not hurt the child on purpose. Rather, he had made several efforts to avoid harm, such as moving the students back from the area in which he was throwing; ultimately, of course, those efforts had failed, and the child had been hurt. Given the teacher’s lack of experience and training in this particular area, the court found that his efforts were not a gross deviation from the standard of care of a person in his circumstances.

Schedule a Legal Consultation with a Personal Injury Lawyer in East Tennessee

The Hartsoe Law Firm is here to help with wrongful death and personal injury cases throughout the Knoxville and Maryville area. If you have been hurt by another’s negligence in Knox or Blount County (or in the surrounding area), call us at (865) 804-1011 for a free case evaluation.

If a party lacks standing, there is no reason for the case to move forward. The courts are busy enough without entertaining cases that would clearly be a waste of judicial economy.

Of course, opinions can vary on the issue of standing, just as they can on many other issues that arise during the litigation process. Like other decisions involving whether a case should move forward, there is the possibility of an appeal if one party is disgruntled with the trial court’s ruling on standing.

Facts of the Case

In a recent state supreme court case, the plaintiffs included not only several district attorneys general suing in their official capacities on behalf of various political subdivisions of the State of Tennessee but also two unnamed infants (“Baby Doe #1 and Baby Doe #2) who were born in east Tennessee and allegedly suffered neonatal abstinence syndrome because of their mothers’ usage of opioids during pregnancy. Several pharmaceutical companies were named as defendants in the lawsuit, which asserted claims under the Tennessee Drug Dealer Liability Act (codified at Tennessee Code Annotated §§ 29-38-101 to -116) as well as claims based on the defendants’ alleged involvement in “fueling addiction to prescription opioid medications,” which in turn allegedly led to the over-prescription, over-distribution, and diversion of originally legal medications into the illegal street drug market.

The defendants moved for dismissal of the plaintiffs’ complaint on the grounds that the attorneys general lacked standing to sue and that the complaint failed to state a claim for relief. The trial court granted the motion, but the intermediate appellate court reversed. This led to an additional appeal to the state’s highest court.

The Court’s Decision

The Tennessee Supreme Court reversed the intermediate appellate court’s decision, holding that, although the attorneys general lacked standing to sue under the Act because they were not included thereunder as parties who could sue, the babies did have standing and had stated a case against the drug companies under the Act. In so holding, the court pointed out that, at the current stage of the litigation, the court had a duty to accept all of the babies’ allegations as true when determining whether they had stated a viable cause of action. Should the matter proceed to a jury trial on remand, the babies would have the burden of proving, by clear and convincing evidence, that the defendants had participated in the illegal drug market in order for their case to be successful.

Schedule a Legal Consultation

If you have been hurt by a dangerous or defective product, including medical devices and pharmaceutical products, you may have the right to pursue compensation for losses such as pain and suffering, medical expenses, disability, and lost wages. At the Hartsoe Law Firm, we can help you determine the likelihood of success of a case against a particular maker, seller, or marketer of the product that caused your injury. To schedule a free consultation of your Knoxville product liability case, call us at (865) 804-1011 or contact us through this website.

In other words, the plaintiff’s fault is to be “compared” to that of the defendant. If the defendant is not found to be more at fault than the plaintiff, then the plaintiff’s case fails. (Tennessee is a “modified” comparative negligence state; in some states, the outcome of a case involving two equally negligent parties could differ.)

This idea seems simple enough, at least when there are only one plaintiff and one defendant. However, there are many cases in which this is not so; when there are multiple defendants, for instance, the jury must determine not only the relative fault between the plaintiff and the defendants but also compare the fault of the defendants among them so that, if the plaintiff prevails in the suit, the amount due him or her from each defendant can be determined.

Facts of the Case

In a recent malpractice case appealed from the Circuit Court of Benton County, the plaintiff sought to recover reasonable monetary compensation after she was allegedly hurt by an act of professional malpractice. According to the plaintiff’s original complaint, her injuries occurred after the defendant pharmacy dispensed the wrong medication. However, the pharmacy answered the plaintiff’s complaint by averring that the plaintiff’s treating physician had also breached his duty of care to the plaintiff and that non-party comparative fault should be assessed against him. Thereafter, the plaintiff amended her complaint to include a claim against the physician.

Ultimately, the trial court granted summary judgment to the physician, and he sought sanctions against the pharmacy on the grounds that the pharmacy’s certificate of good faith was supported by an incompetent expert witness. The trial court denied relief to the physician.

What the Reviewing Court Decided

The Court of Appeals of Tennessee at Jackson affirmed the lower court’s ruling. Although the pharmacy did not rely on the same expert’s opinion at the summary judgment stage of the litigation as with regard to the certificate of good faith, the appellate court disagreed with the physician’s assertion that this was an admission as to the witness’s inability to opine on the applicable standard of care. The court also pointed out that a party had a right to act in good faith prior to filing suit, even without all of the proof that would eventually be necessary to prove that party’s case at trial. The court then noted that it was the trial court, not the parties themselves (nor their attorneys), that ultimately decided the competence of expert witnesses.

The plaintiff settled her case with the pharmacy prior to trial and did not oppose the granting of summary judgment to the physician.

Do You Need to Get an Attorney’s Advice in an Injury or Death Case?

Medical malpractice cases are hard. Doctors and other healthcare professionals fight any finding of fault on their part, not just because of the financial consequences of a verdict (in truth, that money is usually paid out by insurance companies, not by the doctors or hospitals themselves) but because of the possible negative effect on a professional reputation. For those seeking to assert their legal rights regarding compensation, it pays to have skilled representation and to have it as early as possible in the litigation process. The Hartsoe Law Firm would be glad to answer your medical malpractice claim questions. Just call us at (865) 804-1011 to schedule a free consultation (or use the contact form on this website, if you prefer.)

This may seem like a straightforward question, but it can be a more complex issue than one might imagine. This is especially true in cases involving persons who have passed away.

Determining who has standing to sue on behalf of a person who, had he or she lived, had the right to bring a lawsuit against an allegedly negligent individual can be a matter of statutory law in some cases. It may also be resolved based on prior case law in some situations.

Facts of the Case

The plaintiff in a recent appellate case was the mother of a young man who was hurt in a multi-vehicle car accident in 2017. The son died the following year, but his death was not related to the accident. The mother, who was driving the car in which the son was riding at the time of the accident, filed suit against the allegedly at-fault defendant driver. According to the styling of her complaint, the mother sued both “individually and as the surviving mother and next of kin” of the deceased son.

The Circuit Court of Fayette County partially dismissed the plaintiff’s complaint, agreeing with the defendant that the mother’s commencement of the suit as to the son’s claims was a nullity.

The Appellate Court’s Decision

The Court of Appeals of Tennessee at Jackson reversed the circuit court’s partial dismissal of the plaintiff’s suit. There were two primary issues for the court’s consideration on appeal: 1) whether the trial court’s order constituted a final judgment in light of the mother’s voluntary dismissal of her individual claims and 2) whether the trial court acted in error in granting the defendant’s motion to dismiss the mother’s claims on behalf of her son.

With regard to the issue of whether the judgment in question was a final, appealable judgment, the court noted that, although the dismissal order may not have been final at the time it was entered, it became a final judgment when the remaining claims (brought by the mother on her own behalf) were dismissed. Because of the mother’s voluntary dismissal of her own claims, the order dismissing her claims on behalf of her son was ripe for appeal, according to the court on appeal.

As to the other issue – the propriety of the trial court’s dismissal of the right of action that had belonged to the son – the court also agreed with the mother. In so holding, the court found that the defendant had mischaracterized the nature of the plaintiff’s complaint. The defendant insisted that the action was a nullity because it was “brought in the name of a deceased person,” but the appellate court pointed out that the complaint was not filed in the name of the deceased son. The appellate court then referred to Tennessee Code Annotated §§ 20-5-102, -106 for the proposition that the death of a party did not cause the abatement of a cause of action. Under the relevant statutes and prior Tennessee case law, this right of action passed to the decedent’s next of kin, here his mother, the plaintiff.

To Talk to a Car Accident Lawyer in Knoxville

Being involved in a car wreck can be devastating to an individual or family. In addition to the pain and suffering of the injuries sustained in the crash, the stress and financial strain of missed work, medical bills, and other expenses caused by the collision can take a heavy toll. If you have been hurt in a crash and need to talk to an experienced car accident attorney, call the Hartsoe Law Firm at (865) 804-1011. We handle cases throughout the greater Knoxville and east Tennessee areas.

Although the case may not be styled in the case of “insured versus insurer,” the reality is that the insurance company is the real defendant in the case because it is the party who will be paying out any monies awarded to the plaintiff. It is possible that the insurance company may eventually recoup some of these funds from the party that caused the crash, but a full recovery is unlikely.

Therefore, the insurance company effectively stands in the shoes of the at-fault, uninsured motorist during the litigation of the case and may assert the same types of defenses that the motorist could have asserted had he or she been present at trial. Of course, the insurance company may have a few defenses of its own, in addition.

Facts of the Case

In a recent appellate court case, the plaintiff was a man who was seriously injured in a motor vehicle accident in 2008. According to both the plaintiff and a witness to the accident, an unknown driver caused the crash and then left the scene. The plaintiff’s brother was the owner of the car that he was driving at the time of the accident. The brother’s vehicle was covered by a policy of uninsured motorist (UM) coverage in the amount of $50,000. In addition, the plaintiff had UM coverage with the defendant insurance company in the amount of $500,000.

The plaintiff settled with the brother’s UM carrier for policy limits. He then filed a “John Doe” lawsuit, seeking to recover UM benefits from the defendant insurer. Settlement negotiations failed, and the case proceeded to a jury trial, which resulted in a verdict in the plaintiff’s favor in the amount of $275,000. After the entry of judgment upon the jury’s verdict, the plaintiff filed a post-trial motion for prejudgment interest. The trial court denied the plaintiff’s motion, and he appealed.

Decision of the Appellate Tribunal

The Tennessee Court of Appeals vacated the trial court’s order denying the plaintiff’s request for prejudgment interest, holding that the lower tribunal acted in error in holding that such relief was precluded under the plaintiff’s UM policy. The appellate court then remanded the case to the trial court with instructions to consider whether prejudgment interest was necessary and equitable under the specific facts of the case. In so holding, the court of appeals found that the language of the plaintiff’s UM insurance policy was sufficiently broad to include the prejudgment interest sought by the plaintiff.

Get Advice About a Knoxville Car Accident

If you have been hurt in a wreck caused by a negligent, uninsured, or underinsured motorist and need to talk to a knowledgeable car accident attorney about your case, please call the Hartsoe Law Firm at (865) 804-1011 or use the contact form on this website. We will be glad to explain the process of pursuing maximum UM benefits from your insurance company. In the meantime, please remember that you and your insurance company are not “on the same side” of a UM coverage case, so do not give a statement without speaking to an attorney first.

It happens under the guise of “signing some papers” during admission into a Knoxville nursing home, convalescent center, hospital, or other medical center. The patient or his or her family member often has no idea of the ramifications of signing the pile of complex documents that are shoved in front of them during what is probably one of the most difficult days of their life.

Fortunately, not all such attempts to thwart the legal process are successful. In some cases, the court system refuses to grant the health care provider’s request to send the case to an arbitrator rather than have it rightfully proceed through the litigation process.

Facts of the Case

In a recently released opinion from a federal district court, the plaintiff was the mother of a man who allegedly died due to the mistreatment of the defendants, a nursing and rehabilitation facility and others. According to the plaintiff, she took the decedent to the defendant facility in late 2017. The decedent apparently resided there for about a year and a half. After being transferred to a hospital and then to another health care center, the decedent died in August 2019. According to the plaintiff, the decedent suffered physical injuries (including pressure sores), pain and suffering, and mental anguish while in the defendant facility’s care; the plaintiff further averred that the decedent’s injuries were the proximate result of the defendant’s negligence in caring for the decedent.

The plaintiff’s lawsuit included claims for “survival and wrongful death” on behalf of herself and other wrongful death beneficiaries. She sought compensation pursuant to the Tennessee Healthcare Liability Act, codified at Tennessee Code Annotated §§ 29-26-101, et seq and/or the provisions of Tennessee negligence law. The facility filed a motion to compel arbitration of the plaintiff’s claims; it also sought a stay of the case pending resolution of said arbitration.

The Court’s Decision

The United States District Court for the Western District of Tennessee, Western Division, denied the facility’s motion to compel arbitration. According to the court, the plaintiff did not have the legal authority to enter into the agreement to arbitrate on behalf of the decedent, nor could the facility bind the decedent to the agreement as a third-party beneficiary of the contract. Likewise, the court found that the plaintiff did not enter into an agreement to arbitrate in her personal capacity.

In so holding, the court noted that, under the Tennessee Heath Care Decisions Act, signing an agreement to arbitrate was a heath care decision. Under T.C.A. § 68-11-1806, a surrogate could only make such a decision on a patient’s behalf if the patient had been determined by a designated physician to lack capacity. Here, the decedent’s doctor did make such a decision, but the date of his signature was illegible. Because the court was not convinced that the doctor signed the surrogate form on a date prior to the plaintiff’s signing of the agreement to arbitrate, it found that the facility had failed to meet its burden of showing that the plaintiff had the authority to form a contract on the decedent’s behalf.

Insomuch as the plaintiff signed the relevant document only on the decedent’s behalf, the court also opined that no agreement to arbitrate had been formed on behalf of the plaintiff with regard to her individual claims.

Schedule a Consultation About a Nursing Home Abuse Case

If you believe that you or a loved one may have a nursing home abuse claim against a health care facility in the Knoxville area, please call the Hartsoe Law Firm at (865) 804-1011 and ask for an appointment to come in and discuss your situation. We handle cases throughout east Tennessee, including Maryville, Alcoa, Farragut, Seymour, Powell, Karns, Oak Ridge, Clinton, and the surrounding area.

Failure to file the appropriate paperwork in a timely fashion can mean the end of the plaintiff’s case – and his or her chance of receiving fair compensation for a serious injury. Thus, it is very important that the injured person consult an east Tennessee personal injury attorney who can help him or her comply with all of the procedural requirements of the case.

Facts of the Case

In a recent case, the plaintiffs were a married couple who sought to recover monetary compensation for the alleged negligence of the defendants, an advanced practice nurse and a medical clinic. The plaintiffs began their case by filing a complaint in the Circuit Court of Shelby County on February 24, 2017. Summons were issued to the defendants at the time of the filing of the plaintiff’s suit, but they were returned without having been served. On September 5, 2017, alias summons were issued. These were served on the defendants on December 6, 2017, which was some 92 days after the complaint had been filed.

On November 2, 2018, the defendants filed a motion to dismiss the plaintiffs’ complaint on the grounds that the suit had been untimely. According to the defendants, the plaintiffs were not entitled to rely upon the original date that their suit was filed to toll the statute of limitations because the alias summons had not been served upon the defendants within 90 days of its issuance as is generally required under Tennessee law. The trial court agreed and ruled in the defendants’ favor. The plaintiffs appealed.

The Appeals’ Court Decision

The Court of Appeals of Tennessee at Jackson vacated the lower court’s order in the defendants’ favor and remanded the case with instructions to rule upon a motion filed by the plaintiffs in the trial court seeking an enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02. In so doing, the appellate court noted that the lower tribunal had stated that it was “unaware” of any basis for expanding the time for service of process of the plaintiffs’ complaint against the defendant; however, the appellate court pointed out that there had been a motion pending before the lower court seeking an enlargement of time under the rule when it granted the defendants’ motion to dismiss. According to the reviewing court, Rule 6.02 “expressly contemplate[d]” a request for an enlargement of time “even after the expiration of the specified period” that an act would otherwise have been permitted if the moving party’s failure to act in a timely fashion was due to excusable neglect.

The appellate court acknowledged that there were other issues raised on appeal (such as whether the time for effecting service had actually elapsed and whether the defendants were entitled to rely on the service of process defense) but opined that, because the trial court’s written order contained no specific rulings on these issues, they were not appropriate for consideration on appeal. On remand, the trial court was directed to adjudicate the plaintiffs’ motion for an enlargement of time.

Speak to an Attorney About an Injury Case

The timely filing of a claim – and the effective service of process of the plaintiff’s complaint – are crucial in an east Tennessee personal injury case. If you have been hurt by another’s negligence or careless, you need to seek legal counsel as soon as possible so that the necessary court filings can be processed in a timely fashion. For an appointment to discuss your case with a helpful medical malpractice attorney, call the Hartsoe Law Firm at (865) 804-1011.

When someone is hurt or passes away because of a healthcare practitioner’s mistake, the individual or the family of a deceased patient may be able to seek monetary compensation via an east Tennessee medical malpractice lawsuit. Time of the essence in a medical negligence case, as there are strict deadlines for filing a claim.

The first step in a malpractice case is usually to retain a qualified medical expert to examine the patient’s medical records. If that professional is of the opinion that the would-be defendant breached the applicable standard of care, the next step is filing suit in the appropriate court.

Facts of the Case

In a recent case arising in the Circuit Court for Hamblen County, the plaintiff was the husband of a woman who died from an undiagnosed aortic dissection in early 2013. The plaintiff filed suit, asserting a medical malpractice claim against the defendant cardiologist. The case was tried to a jury, which entered a defense verdict. The plaintiff moved for a new trial on the basis that, during his testimony at trial, the defendant had shifted the blame for the decedent’s death onto a non-party, even though he had not pled comparative fault in his pleadings. The case proceeded to a second trial, which found in the plaintiff’s favor. The defendant sought appellate review, arguing that he had not attempted to shift the blame onto a non-party as the trial court had found before ordering the retrial.

The Court’s Decision on Appeal

The Court of Appeals of Tennessee at Knoxville affirmed the judgment of the trial court. The defendant argued that, although he did testify at the first trial that the nurses on duty never notified him of the decedent’s ongoing chest pain, this was not an attempt to shift the blame for the decedent’s death onto a non-party. In ruling in the plaintiff’s favor on appeal, the court acknowledged that there had been a factual dispute at trial regarding whether the defendant had been advised that the decedent was experiencing pain after he had left the hospital for the day. According the defendant, a nurse had called him but only to ask if he had any orders for medication “in case” the decedent needed it. The nurse, on the other hand, testified that she had told the defendant “in no uncertain terms” that the decedent was continuing to experience chest pain.

According to the court, when the defendant testified, point-blank, that he was never notified of the decedent’s pain and that, had it been so notified, he would have re-evaluated her, he was attempting to shift blame onto the nurse. Because he had not pleaded comparative fault against any other medical providers in his answer to the plaintiff’s complaint, the court found that the trial court had acted appropriately in granting a new trial to the plaintiff following the jury’s verdict in the defendant’s favor.

Consult a Medical Negligence Attorney

Losing a loved one because of a negligent physician can be one of the most painful things that a family can experience. Unless the careless doctor is held accountable for his or her actions, it is quite possible that similar mistakes will be made in the future, causing untold pain and heartache to other patients and their families. If you have questions about the procedure for filing an east Tennessee medical malpractice lawsuit against a doctor, nurse, or hospital that has caused injury or death to you or a loved one, call the Hartsoe Law Firm at (865) 804-1011, or contact us through this website. We handle cases in Knoxville, Maryville, and the surrounding area, and we look forward to serving your family during this difficult time.

The patient or family member often has no idea that, by signing these admission papers, he or she is giving up the right to have a future personal injury or wrongful death case decided by a judge or jury. Instead, if a claim arises, the case will proceed in front of an arbitrator.

Arbitrators tend to be much more conservative in their awards – if they even agree that there was negligent or wrongful conduct on behalf of the nursing home or its employees – thus potentially saving the potential defendant and its insurance company a considerable amount of money in some cases. Fortunately, not every such “agreement” to arbitration is upheld in court.

Facts of the Case

The plaintiff in a recent case arising in the Circuit Court for Gibson County was the daughter of a woman who allegedly died as a result of the negligence of the defendant nursing home. After the plaintiff filed her wrongful death action against the defendant, the defendant sought to compel arbitration of the plaintiff’s claim. In its motion to compel, the defendant relied upon paperwork that the plaintiff had signed when the decedent had been admitted to the defendant’s care. According to the plaintiff, the decedent had been mentally incompetent at the time of her admission, and the decedent had not given the plaintiff power of attorney to act on her behalf.

The trial court denied the defendant’s motion to compel arbitration. The defendant appealed.

The Appellate Tribunal’s Decision

The Court of Appeals of Tennessee at Jackson affirmed the circuit court’s denial of the defendant’s motion to compel arbitration. The court began its analysis by explaining that its review of a lower court’s ruling on a motion to compel arbitration was de novo on the record with a presumption of correctness. Only if the evidence preponderated against the lower court’s ruling would its decision be disturbed on appeal. For evidence to “preponderate” in such a situation, the evidence would have to support a different finding of fact with greater convincing effect.

The defendant argued that the enforceability of the arbitration agreement should have been decided by an arbitrator rather than by the court and that, in any event, the record supported a finding that the plaintiff had either actual or apparent authority to sign the agreement to arbitrate on behalf of the decedent. The appellate court disagreed with these contentions, concluding that the plaintiff had neither actual nor apparent authority to sign the arbitration agreement. Accordingly, the appeals tribunal held that the plaintiff’s case could proceed in a court of law rather than in front of an arbitrator.

For Advice About a Nursing Home Abuse Case

The decision to place a loved one in a nursing home or assisted living center is always a difficult one. Such a decision requires a patient’s family to place a great deal of trust in those who own the nursing facility, as well as those who work directly with the patients. When that trust is broken, it can leave a family devastated and looking for answers to a great many questions. To talk to an attorney about pursing litigation against a nursing facility whose negligence or abuse you believe may have led to a loved one’s injury or wrongful death, call the Hartsoe Law Firm today at (865) 804-1011.

Securing service of process and answering discovery requests is also required, and many cases require the plaintiff to respond to various motions, including summary judgment motions seeking dismissal of the case. Of course, each case is unique and must be addressed on its own merits.

In some cases, a plaintiff may even have to go through the appellate process before having an opportunity to have his or her day in court. In a recent case, the plaintiff actually had his case go up on appeal twice during the pre-trial phase of the litigation.

Facts of the Case

In a recent case, the plaintiff was a long-distance truck driver who sought to assert a personal injury action against a second truck driver, whom the plaintiff alleged caused a crash in which the plaintiff was injured in 2011. The plaintiff’s wife joined in the action to assert a claim for loss of consortium. The second truck driver’s employer was also named in the suit as a defendant, with the plaintiffs seeking to hold the employer vicariously liable for the second truck driver’s alleged negligence. Although process was issued for both defendants when the plaintiffs’ suit was filed in 2012, only the defendant employer was served, as the plaintiffs were unable to obtain service of process on the second truck driver.

In 2013, the plaintiffs voluntarily dismissed their claim against the second truck driver but continued their action against the defendant employer. In 2015, the defendant employer filed a motion for summary judgment. This motion was granted by the trial court, but that decision was reversed on appeal. After the case was remanded following the appeal, the plaintiffs filed a voluntary dismissal of their case, which they had filed in the Henderson County Circuit Court, and commenced a new cause of action against the defendant employer in the Wilson County Circuit Court. The defendant employer again sought summary judgment, this time on the grounds that it could no longer be held vicariously liable for the second truck driver’s actions because the plaintiffs cause of action against him was barred before the plaintiffs filed their new action against the defendant employer. The trial court denied the motion, and the defendant employer appealed.

The Reviewing Court’s Decision

The Tennessee Court of Appeals framed the issue as “whether a common-law exception to the vicarious liability doctrine prevents a plaintiff from benefiting from the savings statute.” Answering the question in the negative, the court held that, in the particular case at bar, the plaintiffs’ case was “saved” because 1) the plaintiffs’ first action was instituted before their right of action against the second truck (i.e., the employee) was extinguished by operation of law and 2) the plaintiffs’ second complaint was timely filed pursuant to the Tennessee savings statute codified at Tennessee Code Annotated § 28-1-105.

In so holding, the court noted that a recent case upon which the defendant relied had held that a plaintiff’s vicarious liability claim against an employer such as the defendant herein failed in situations in which the plaintiff’s claim against the agent was procedurally barred by operation of law before the plaintiff asserted his or her vicarious liability action. Such was not the case here, in the court’s view, as the plaintiffs had already sued the defendant employer when their claim against the second truck driver had been extinguished. Although the defendant employer argued that the holding of the case upon which it relied should be extended to a situation involving a non-suit of a vicarious liability claim and a refiling under the saving statute, the reviewing court declined to so hold.

Have Questions for an East Tennessee Attorney?

Negligent truck drivers and trucking outfits can cause serious personal injury and/or wrongful death to other motorists, pedestrians, and passengers. When this happens, the injured parties (and the families of those who perish) have a right to seek fair compensation in a court of law. To talk to an experienced Knoxville truck accident attorney about your case, call the Hartsoe Law Firm today at (865) 804-1011. We handle cases throughout east Tennessee, including Maryville, Sevierville, Oak Ridge, and the Smoky Mountains.

In addition to the filing of the complaint with the clerk of the court in the county in which jurisdiction is pled, the plaintiff must also file serve a copy of the complaint on the defendant(s) in the case. Generally speaking, this can be done one of two ways: by local sheriff deputies or by a private process server.

There are procedural rules, applicable in East Tennessee personal injury and other civil cases, including time limitations on both the filing of the complaint and the perfecting of service of process, that must be followed. Failure to follow these rules or meet these deadlines can be very detrimental to the plaintiff’s legal rights.

Facts of the Case

In a recent case considered by the Court of Appeals of Tennessee at Knoxville was the widow of a man who allegedly died due to the negligence of the defendant medical providers. The plaintiff filed her healthcare liability lawsuit against the defendants in the Circuit Court for Knox County in January 2018. Rather than have service of process proceed as usual through the local sheriff’s office, however, the plaintiff’s attorney chose to personally serve the defendants’ registered agent for service of process with copies of the pleadings. This service of process took place 89 days after the plaintiff filed her complaint, and return of the summons was made about seven months after the filing of the complaint.

In June 2018, the defendants filed an answer to the plaintiff’s complaint, denying liability as to the underlying cause of action and asserting as an affirmative defense a denial that they had been properly serviced with process. The plaintiff filed a motion to strike the defendants’ affirmative defense, asserting that it had not been sufficiently pled in light of Tennessee Rule of Civil Procedure 8.03. Thereafter, the defendants filed a motion to dismiss the plaintiff’s case pursuant to Tennessee Rules of Civil Procedure 4.01(3) and 12.02(4)-(5) on the grounds of the plaintiff’s alleged intentional delay of process, insufficient service of process, and insufficient process. The Trial Court denied the plaintiff’s motion to strike the affirmative defense and granted the defendants’ motion to dismiss. The plaintiff appealed.

Decision of the Court

The appellate court affirmed in part and reversed in part. The court agreed that the trial court had acted properly in denying the plaintiff’s motion to strike, but ruled that a reversible error had occurred with regard to the granting of the defendants’ motion to dismiss. In agreeing with the plaintiff that the trial court should not have granted the defendant’s motion to dismiss her complaint due to insufficient service of process, the reviewing court first pointed out that the burden was on the defendants to prove that the plaintiff’s delay in completing service of process was intentional, and the trial court’s judicial notice of matters such as the proximity of the registered agent for service of process to the courthouse or the approximate amount of time it would have taken for service to occur by mail failed to satisfy the defendants’ burden.

The court went on to opine that, because the defendants had not shown an intentional delay in service of process by the plaintiff, the plaintiff was not obligated to present proof that the delay was not intentional. The inferences in favor of the parties being equal, the defendants had not met their burden, and it was thus error for the trial court to grant their motion to dismiss.

Speak to Counsel About Your Injury or Death Case

Knowing, understanding, and following the procedural rules of litigation, especially those involving deadlines and filing requirements, are crucial in a negligence case. If you have lost someone in your family due to another’s careless behavior, or if you have been hurt by an act of negligence or malpractice, the Hartsoe Law Firm is here to help. For an appointment, call us at (865) 804-1011. Please do not wait until the last minute to seek legal advice about your case; the investigation of an injury or wrongful death case can be a time-consuming process – and one that should not be rushed, if the plaintiff’s case is ultimately to be successful.