Category Archives: General

Retaliation under Title VII

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In Vance v. Ball State University, (June 24, 2013), the U.S. Supreme Court held that to prove a retaliation claim under Title VII, a plaintiff must show that the adverse action would not have occurred “but for” the employer’s improper retaliatory motive. The Court further held that to be considered a supervisor for purposes of workplace employer liability, the individual must have the power to hire, fire, fail to promote, reassign, or cause a significant change in benefits to the individual.

Recreational Use Statute

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In Wilson v. Dossett, 2013 Tenn.App. Lexis 389 (Tenn.Ct.App. June 13, 2013), the court addressed the applicability of TCA 70-7-102 to a case where the plaintiff suffered severe injuries in an accident while operating a motorcycle on a trail located on the defendant’s property.  The reviewing court held that TCA 70-7-102 protected the defendant from liability because the plaintiff was engaged in recreational activities on the defendant’s property.

TCA 70-7-102 provides:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

In Wilson, the plaintiff unsuccessfully argued that the statute did not apply where the landowner created or maintained the propertywhich in this instance, consisted of launch ramps on the premises used by riders to jump their motorcycles.  The plaintiff’s injuries occurred while jumping a series of ramps, possibly constructed or built by the defendant.

The Plaintiff also argued that the statute only applied to the State of Tennessee.  The Court rejected said argument.

The Court held that the activity of riding a motorcycle “constituted recreational activity under the statute.”

The Court concluded as follows:

The facts of this case are troubling in that a young man received a severe injury while engaged in a recreational activity. However, our General Assembly made the policy decision with respect to liability, as it has the authority to do, by enacting Tenn. Code Ann. § 70-7-101 et seq. to provide a defense for landowners in circumstances such as  these. Wilson availed himself of Dossett’s property for the recreational purpose of riding a motorcycle. This activity falls squarely within the parameters of the statute’s protection for landowners. Additionally, there was no gross negligence in this case that would serve to negate the affirmative defense available to Dossett. When viewing the facts in the light most favorable to Wilson, we conclude, as did the Trial Court, that summary judgment is appropriate in this case. We affirm the judgment of the Trial Court.

Trial Procedure in Tennessee

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An interesting case was decided by the Court of Appeals last week. Unfortunately, in Tennessee, there are not very many cases dealing with trial procedure and conduct.  When a case is decided that addresses such issues, trial lawyers take note.

In Ardry v. Home Depot USA, Inc., No. M2012-02667 (Tenn.Ct.App. July 10, 2013), the plaintiff was operating a bucket truck at a Home Depot.  An employee for Home Depot driving a heavy duty truck collided head on with the Plaintiff.  The jury returned a verdict in the amount of $809,241.24.  On appeal, the defendant made three arguments.  First, the defendant argued that the trial court failed to act as the 13th juror.  Second, the defendant argued that the plaintiffs’ attorney made improper comments and arguments to the jury.  And finally, the defendant argued that the jury award for loss of earning capacity was not supported by the evidence.

Addressing the first issue, the reviewing court noted that the trial court has a duty to “independently weight the evidence” and “decide whether the jury’s verdict is supported by the evidence.”  The Court cited a number of cases where the trial court failed to fulfill its role as thirteenth jury.  Basically, if the trial court simply defers to the jury, such action is improper.  For example, if the trial court indicates, “I’m not inclined to interfere with the verdict of the jury”, the court will not have fulfilled the duty of acting as the thirteenth juror.  In this case, the reviewing court held that the trial court acted properly.

With regard to the comments made by plaintiff’s counsel, a summary is as follows:

  1. Earning Capacity:  The plaintiffs’ attorney told the jury during closing argument to award between $643,000 and $698,000 for future earning capacity, stating that if the jury returned a verdict outside of that range, it might “cause problems in the future with your verdict, and I don’t want it to be destroyed.”  The reviewing court held that such comments were not inappropriate and did not affect the outcome of the trial.
  2. Personal Opinion:  When describing an expert witness, the plaintiffs’ attorney stated: “He seemed believable to me.”  Home Depot argued that said comment, and another comment concerning the plaintiffs, “vouched for the credibility” of the witnesses.  Home Depot, however, did not object to these comments during the trial.  Thus, the Court considered the “issue waived.”
  3. Attacks on the Defendant: When Home Depot Answered the Complaint at the beginning of the case, they denied liability.  Right before trial, they admitted liability.  During his closing argument, the plaintiffs’ attorney referenced the fact that Home Depot had changed its position.  The reviewing court dismissed Home Depot’s arguments because there was no objection at trial.
  4. Facts not in Evidence:  During his closing argument, plaintiffs’ counsel made comments about degenerative disk disease, and also gave an example of advice he had given a friend of his that was in a car wreck.  The reviewing court rejected Home Depot’s arguments because “there was medical expert testimony consistent with counsel’s statements concerning degenerative disc disease; and the anecdote concerning counsel’s friend was offered as an analogy, not as fact testimony.  In any event, Home Depot did not object to these comments during the trial, and we consider them to be waived.”

In conclusion, the reviewing court determined that the evidence was sufficient to support the verdict.


New Law: Punitive Damages

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Effective July 1, 2013, punitive damages may be awarded against a defendant based on vicarious liability only if the finder of fact determines by clear and convincing evidence that:
(1) the act/omission was done by a person employed in a management capacity while in the scope of employment;
(2) the defendant was reckless in hiring, retaining, supervising, or training, and said recklessness proximately caused the loss or injury; or,
(3) the defendant authorized, ratified, or approved the act or omission with knowledge or reckless disregard.

The exact language amending TCA 29-39-104 is as follows:


SECTION 1. Tennessee Code Annotated, Section 29-39-104, is amended by adding the following as a new subsection (g):

(g)(1) Notwithstanding subdivision (a)(9), punitive damages may be awarded against a defendant based on vicarious liability for the acts or omissions of an agent or employee only if the finder of fact determines by special verdict based on clear and convincing evidence that one or more of the following has occurred:

(A) The act or omission was committed by a person employed in a management capacity while that person was acting within the scope of employment;

(B) The defendant was reckless in hiring, retaining, supervising or training the agent or employee and that recklessness was the proximate cause of the act or omission that caused the loss or injury; or

(C) The defendant authorized, ratified or approved the act or omission with knowledge or conscious or reckless disregard that the act or omission may result in the loss or injury.

(2) Nothing in this subsection shall be construed to expand or increase the scope of vicarious liability or punitive damages liability under Tennessee law.

(3) For purposes of this subsection, “a person employed in a management capacity” means an employee with authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer’s business.

SECTION 2. This act shall take effect July 1, 2013, and shall apply to all actions accruing on or after that date, the public welfare requiring it.

Sudden Emergency Doctrine in Tennessee

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In Smith v. General Tire, 2013 Tenn.App. Lexis 364 (Tenn.Ct.App. May 30, 2013), the Tennessee Court of Appeals upheld summary judgment dismissing the plaintiff’s case where the defendant driver unexpectedly blacked out just prior to a collision. The defendant driver’s treating specialist opined that the defendant’s diabetic condition caused a “state of cognitive dysfunction” and that such condition was not foreseeable. Relying primarily on McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995), the Court affirmed the granting of summary judgment. McCall stands for the proposition that an unforeseeable sudden loss of consciousness or physical incapacity while driving is a defense to a negligence action. In any case involving this defense, the McCall case must be carefully examined.
If the trial court had refused to grant summary judgment, it seems unlikely that the decision would have been reversed (or even reviewed on interlocutory appeal) by the appellate court. Both sides had expert testimony, and there was some indication by the defendant that she had suffered episodes of “light-headedness” before the wreck. The question of whether the event was foreseeable is an objective, as opposed to subjective, determination.  Thus, such a determination would normally be a question for the jury. In this case, however, the trial court and reviewing court felt summary judgment was appropriate.

Joint and Several Liability in Tennessee

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Effective July 1, 2013, if multiple defendants are found liable in a civil action governed by comparative fault, each defendant is only liable for the percentage of fault allocated. No defendant will be held jointly liable for any damages; however, the doctrine of joint and several liability will still apply in civil conspiracy cases and in product liability actions based on strict liability and breach of warranty (among manufacturers).

Procedural issue precludes recovery against UM carrier

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Suit against a UM carrier in Tennessee can be complicated.  In Liput v. Grinder, 38 TAM 24-5 (2/27/2013), the plaintiff was injured while walking in a parking lot on November 10, 2009, when he was struck by a car operated by the tortfeasor. On July 14, 2010, the tortfeasor died of unrelated causes. Just prior to the one year anniversary of the incident, the plaintiff filed suit, and attempted service on the deceased tortfeasor.  The tortfeasor was obviously not served with the lawsuit.  The UM insurer was served and filed an Answer.  Thereafter, the plaintiff apparently learned of the tortfeasor’s death and filed a suggestion of death on March 31, 2011. After filing the suggestion of death, nothing happened until the UM insurer filed a motion for summary judgment on November 18, 2011. The trial court ruled in favor of the UM insurer because a law suit was never properly commenced against the proper defendant.

The reviewing court upheld the trial court’s dismissal of the case.

After outlining the facts of the case, the Court discussed TCA 20-5-103, which tolls the statute of limitation for the period of time between the death of the tortfeasor and appointment of the representative of the estate, up to 6 months.  The plaintiff did not serve a personal representative, and it is unknown if one actually existed.

Interestingly, the UM statute seemingly almost allowed the plaintiff’s cause of action to survive.  A direct action is permitted against a UM carrier where a return of summons states the defendant is “not to be found.”  For whatever reason, in this case, the summons was never returned to the Clerk of Court.  Whether or not the Court would have allowed the case to proceed as a direct action against the UM carrier if the return of summons had been filed with the Clerk is unknown; though the Court seems to give the argument a fair amount of weight.

And finally, the Court rejected the plaintiff’s contention that the UM insurer waived its argument with regard to service by failing to raise the defect as an affirmative defense.  The Court noted that other cases have not imposed such a requirement; and further noted that there was no evidence to suggest that the UM carrier knew of the tortfeasor’s death.

The harsh result reached in this case is unfortunate considering the facts.

Interestingly, the tortfeasor’s liability insurer settled the case for policy limits with the plaintiff about 3 weeks after the insured had died, but prior to the plaintiff filing the lawsuit.   Under the Tennessee UM statute, such a settlement would require the UM carrier to either allow the settlement and proceed to arbitration, or front the money to preserve the right to a jury trial.  I can’t help but think that the UM statute was not complied with in this case.  If there was compliance with the UM statute, it’s hard to imagine practically and legally how the UM carrier would have been able to get the case dismissed.

Recent Retaliatory Discharge Decision

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In Ferguson v. Middle Tennessee State University, 38 TAM 24-4 (3/28/2013), the reviewing court reversed a $3 million jury verdict in favor of the plaintiff on a retaliatory discharge claim, holding that “general corporate knowledge” is not sufficient for a claim of retaliation for engaging in protected activity. The Court held that a plaintiff in a retaliation claim is required to show that the individual who took the adverse job action against the plaintiff had knowledge of the plaintiff’s protected activity at the time of the adverse employment decision.

What happens in a Georgia case if the plaintiff settles with one or more defendants before trial?

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O.C.G.A. § 51-12-33 (d) (1) states that the “negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty.”  The statute does not address whether the amount of any settlement is admissible or whether the remaining defendants get any credit for settlement funds paid by a settling nonparty.  Prior to the 2005 “tort reform” bill, which amended O.C.G.A. § 51-12-33, adopted apportionment of damages in all tort cases and abolished joint and several liability, it was the law in Georgia that, “[a] plaintiff is entitled to a full, but single, satisfaction of his total harm. Consequently, where one or more tortfeasors enter a settlement with a plaintiff, a remaining tortfeasor may be entitled to a set off of payments previously made, to prevent double recovery,” Brewer v. Insight Tech., Inc., 301 Ga. App. 694, 700-701 (2009).

It is extremely doubtful whether this long-standing principal of law in Georgia has survived the “tort reform” legislation. Surprisingly, there has been no appellate decision yet directly overruling this line of cases.  The Court of Appeals came close, however, in Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012), where one of the issues was whether the defendant had to produce evidence of negligence and causation on the part of a nonparty before the jury can even consider apportioning fault to that nonparty under O.C.G.A. § 51-12-33(d)(1).  The Court held that:

“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’” (Emphasis supplied)  315 Ga. App. at 559.

“Thus, under this State’s statutory scheme, the effect of a successful nonparty defense is the reduction of the plaintiff’s potential award and the defendant’s possible liability.  As with other affirmative defenses, Defendants have the burden at trial to prove the defense of nonparty fault. Cf. Hodge v. SADA Enterprises, 217 Ga. App. 688, 691 (2) (458 SE2d 876) (1995) (indicating that a defendant has the burden at trial to prove affirmative defenses of contributory and comparative negligence).”  315 Ga. App. at 556.

Then the Court considered whether defendants who settled with the plaintiff before trial should automatically be included on the verdict form for purposes of apportioning fault, and concluded that:

“ . . . when OCGA § 51-12-33 (d) (1) is read together with OCGA § 51-12-33 (c), a defending party still must show that a settled entity “contributed to the alleged injury or damages” before its fault can be assessed by a trier of fact. Otherwise, there would be no basis for the apportionment of fault between the settled entity and the defendant. See McReynolds v. Krebs, 307 Ga. App. 330, 334 (1), 335 (3) (705 SE2d 214) (2010) (rejecting defendant’s contention that trier of fact should have apportioned damages between her and a settled party where the defendant presented no evidence on which apportionment of liability could be based and thus waived any issue with regard to the verdict form). We therefore decline to interpret OCGA § 51-12-33 (d) (1) as requiring a trier of fact to automatically consider the potential fault of a settled entity.”  315 Ga. at 558-559.

Under the statutory scheme created by OCGA § 51-12-33, and following the logic of Union Carbide Corp., neither fact of settlement nor the amount of any settlement should be admissible at trial in Georgia, nor should the remaining defendant or defendants get any credit for settlement money the plaintiff was fortunate enough to obtain from a settling nonparty prior to trial. 

Apportionment of Damages in Georgia – The Good, The Bad & the Ugly

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Trial lawyers in Tennessee have now had over twenty years of experience with allocation of fault and the resulting apportionment of damages in tort cases since McIntyre v. Balentine, 833 S.W.2d 52 (1992).   The lessons learned can be helpful to in Georgia where the courts are struggling with interpretation and implementation of O.C.G.A. § 51-12-33, which was radically amended in 2005.  It has taken years for the Tennessee appellate courts to work through the plethora of issues raised by allocation of fault, and it will take years for Georgia courts to do likewise.

Hubert Hamilton recently presented a paper on apportionment of damages under O.C.G.A. § 51-12-33 at the Georgia Trial Lawyers Annual Convention and Seminar, in Atlanta, during the trucking session on May 17, 2013, entitled Apportionment of Damages – The Good, the Bad and the Ugly (A Conversation with an Empty Chair).

The major problem faced in Georgia is the lack of any equivalent to T.C.A. § 20-1-119 which allows a plaintiff 90 days to either amend and add to the lawsuit a nonparty alleged to have been at fault, or to institute a separate lawsuit against such person, even if the statute of limitations has run, after the defendant “alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery”

In cases filed in Georgia, however, “negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault,” O.C.G.A. § 51-12-33(d) (1), even if the statute of limitations has run, and there is no provision in the statute for adding the nonparty to the lawsuit. 

This presents plaintiffs and their attorneys with a number of problems, particularly if suit is not filed early enough to identify any nonparties alleged to be at fault before the statute of limitations runs.   Then decisions have to be made as to whether to add such nonparties to the lawsuit (or to file a separate lawsuit).  Discovery must be pursued aggressively.  Scheduling orders can help, as well as motions for summary judgment seeking to eliminate allocation of fault to nonparties for which there is no competent evidence of fault.  See Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559 (2012), where the Court held that:

“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’”

The jury must be told that if they find the plaintiff 50% or more at fault, the plaintiff will recover nothing, Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677 (2009).  Fault be allocated to a nonparty who is immune from suit, Barnett v. Farmer, 308 Ga. App. 358 (2011).   An admission against interest is admissible to prove nonparty fault, Woods v. Allied Van Lines, Inc., 316 Ga. App. 548 (2012).  But O.C.G.A. § 51-12-33 does not affect vicarious liability situations, PN Express, Inc. v. Zegel, 304 Ga. App. 672 (2010).

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