TAM-BYTES

December 5, 2016
Vol. 19, No. 49
TAM Webinars
Best and Worst of Witness Examinations, 60-minute audio conference
presented by Matt Glover, with Prince Glover & Hayes in Tuscaloosa, on
Thursday, February 2, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
The Tennessee Attorneys Update on the Revised Uniform Fiduciary
Access to Digital Assets Act, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, February 16,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Healthcare Liability Cases in Tennessee: Notice and Certificate of
Good Faith, 60-minute webinar presented by Brandon Bass, with the Law
Offices of John Day in Brentwood, and Chris Tardio, with Gideon, Cooper
& Essary in Nashville, on Thursday, February 23, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit

IN THIS WEEKS TAM-Bytes

Court of Appeals, in suit by parents of 13-year-old student who
slipped and fell while using bleacher seats in gym as steps, affirms
trial courts finding that students negligence was more than 50%,
thereby precluding his recovery against school;
Court of Appeals, in two cases, reverses trial courts denial of petition,
filed by foster parents, to terminate mothers parental rights to two
children when proof showed that mother committed severe child
abuse against another child based on that childs severe malnutrition;
In termination of parental rights case, Court of Appeals says evidence
preponderated against trial courts finding that mother had not

substantially complied with permanency plans when trial court based

its finding on fact that outcome and goals of plans were not reached,
rather than on mothers efforts to comply;
When Department of Correction determined that inmates were
prohibited from possessing hotspots, small electric heating
appliances, and six inmates, in separate cases, filed claims for
compensation, Court of Appeals says interference with prisoners right
to possess personal property does not amount to deprivation of
property if prisoner is afforded right to maintain ownership of property
and opportunity to exercise some control over disposition of it; and
Court of Criminal Appeals rules trial judge did not err by failing to
exclude defendants statements to law enforcement officials when
statements were made during initial investigatory process, well before
charges were filed.

WORKERS COMP PANEL

WORKERS COMPENSATION: When employer filed petition to
determine extent of any permanent vocational disability causally related to
5/7/12 injury and whether Second Injury Fund was liable for all or part of
employees disability, evidence preponderated against trial courts finding
that only 35% of employees permanent and total disability was attributable
to 2012 injury when before 2012 work incident, employee was performing
his job with no limitations, after surgery for 2012 injury, employee was
unable to return to work or do chores around house, he continued to have
pain, experienced loss of strength and motion in shoulder, and had to modify
how he used his left hand, and doctor concluded that 2012 injury
permanently advanced and aggravated pre-existing non-symptomatic
osteoarthritic condition into panful and disabling condition that necessitated
total shoulder replacement. United Parcel Service v. Wyrick, 11/30/16,
Knoxville, Lee, 10 pages.
http://www.tncourts.gov/sites/default/files/wyrickj.pdf

COURT OF APPEALS
TORTS: When plaintiff filed suit against physician who examined plaintiff
five days after injury to her shoulder, as well as facility where physician
practiced, plaintiff alleged that defendant physician failed to properly
diagnose fracture dislocation in her shoulder, causing delay in appropriate
treatment, and plaintiffs subsequent treating physician opined in his

deposition and via affidavit that if plaintiffs injury had been diagnosed
earlier, plaintiff would likely have avoided extensive surgical procedure,
resultant infection stemming from such surgery, and residual impairment to
her shoulder, trial court erred in excluding this testimony as speculative and
in granting defendant physician and hospital summary judgment; trial court
erred in ruling that subsequent physicians testimony was speculative and
inadmissible simply because he did not expressly state that he was not
referring to time period during plaintiffs five-day delay in seeking medical
treatment. Holmes v. Christ Community Health Services Inc., 11/29/16,
Jackson, Frierson, 16 pages.
http://www.tncourts.gov/sites/default/files/holmesdopn.pdf

TORTS: Plaintiffs complaint against chiropractor states two claims;

complaint states claim that arises from chiropractors jumping on plaintiffs
back while providing treatment to her, and this claim fits within definition of
healthcare liability action, and hence, plaintiff was required to comply with
Health Care Liability Acts (HCLAs) procedural requirement in advancing
this claim; complaint states claim that arises from chiropractor hitting
plaintiff in back with medical folder as she was leaving treatment room, and
construing complaint liberally, presuming all factual allegations to be true,
and giving plaintiff benefit of all reasonable inferences, it is not apparent
from face of complaint that this second claim was healthcare liability action
governed by HCLA, and hence, second claim was not subject to dismissal
based on plaintiffs failure to comply with HCLA at this stage of
proceedings. Lacy v. Mitchell, 11/30/16, Nashville, Goldin, 8 pages.
http://www.tncourts.gov/sites/default/files/lacy.deborah_v._mitchellk.opn_.pdf

TORTS: When 13-year-old student slipped off bleacher seats at middle

school and injured his leg when he was using bleacher seats in gym as steps
and when childs parents filed suit against school for negligence, school
rebutted presumption under Rule of Sevens that student did not have
capacity to be negligent based on his age; preponderance of evidence
established that students negligence was more than 50%, and pursuant to
doctrine of comparative negligence, student is precluded from recovering
any damages; preponderance of evidence supports trial courts judgment that
school is not liable for negligently supervising student when he fell and hurt
his leg. Crockett v. Sumner County Board of Education, 11/30/16,
Nashville, Bennett, 12 pages.
http://www.tncourts.gov/sites/default/files/crockettdonald.opn_.pdf

FAMILY LAW: Evidence preponderated against trial courts denial of

petition, filed by foster parents, to terminate mothers parental rights to her

son (Chance) when proof showed that mother committed severe child abuse
against Chance based on his severe malnutrition; it was not necessary for
foster parents to prove that mother knowingly caused harm to Chance in
order to support severe child abuse ground for termination expert
testimony established that mothers actions of neglect toward Chance
resulting in severe malnutrition could reasonably be expected to produce
severe developmental delay or intellectual disability in Chance; evidence
preponderated against trial courts determination that foster parents failed to
prove that termination of mothers rights to Chance was in his best interest
when, although Chance and his two siblings had been living with mother for
two years prior to trial without suffering any ill effects and children are
bonded to mother, mothers 10-year history of repeatedly abusing and
neglecting child in question and his siblings is very troubling, mother
continues to deny any fault for Chances failure to thrive and insists that she
fed him appropriately during six months after his birth, mother has long
history of complying with requirements of child welfare agencies when
necessary in order to regain or retain custody of her children before
returning to her abusive husband, her illicit drug use, and her patterns of
abuse and neglect of her children when child welfare agency is no longer
involved, and there was no evidence in record of any recent drug screens
administered to mother to corroborate her claimed sobriety; case is
remanded to trial court for enforcement of termination of mothers parental
rights to Chance and determination regarding foster parents petition for
adoption. In re Chance D., 11/30/16, Knoxville, Frierson, partial dissent by
Stafford, 34 pages.
http://www.tncourts.gov/sites/default/files/chance_d._opinion_-_final.pdf
http://www.tncourts.gov/sites/default/files/inrechanceddis.pdf

FAMILY LAW: Evidence preponderated against trial courts denial of

petition, filed by foster parents, to terminate mothers parental rights to her
daughter (Gabriella) when proof showed that mother committed severe child
abuse against her son (Chance) based on Chances severe malnutrition;
evidence preponderated against trial courts determination that foster parents
failed to prove that termination of mothers rights to Gabriella was in
Gabriellas best interest when, although Gabriella and her two siblings had
been living with mother for two years prior to trial without suffering any ill
effects and children are bonded to mother, mothers 10-year history of
repeatedly abusing and neglecting Chance and his two siblings is very
troubling, mother continues to deny any fault for Chances failure to thrive
and insists that she fed Chance appropriately during six months after his
birth, mother has long history of complying with requirements of child

welfare agencies when necessary in order to regain or retain custody of her

children before returning to her abusive husband, her illicit drug use, and her
patterns of abuse and neglect of her children when child welfare agency is
no longer involved, and there was no evidence in record of any recent drug
screens administered to mother to corroborate her claimed sobriety; case is
remanded to trial court for enforcement of termination of mothers parental
rights to Gabriella and determination regarding foster parents petition for
adoption. In re Gabriella D., 11/30/16, Knoxville, Frierson, partial dissent
by Stafford, 35 pages.
http://www.tncourts.gov/sites/default/files/gabriella_d._opinion.pdf
http://www.tncourts.gov/sites/default/files/inregabrielladdis.pdf

FAMILY LAW: Evidence preponderated against trial courts denial of

petition, filed by foster parents, to terminate mothers parental rights to her
son (Jude) when proof showed that mother committed severe child abuse
against another son (Chance) based on Chances severe malnutrition;
evidence preponderated against trial courts determination that foster parents
failed to prove that termination of mothers rights to Jude was in Judes best
interest when, although Jude and his two siblings had been living with
mother for two years prior to trial without suffering any ill effects and
children are bonded to mother, mothers 10-year history of repeatedly
abusing and neglecting Chance and his two siblings is very troubling,
mother continues to deny any fault for Chances failure to thrive and insists
that she fed Chance appropriately during six months after his birth, mother
has long history of complying with requirements of child welfare agencies
when necessary in order to regain or retain custody of her children before
returning to her abusive husband, her illicit drug use, and her patterns of
abuse and neglect of her children when child welfare agency is no longer
involved, and there was no evidence in record of any recent drug screens
administered to mother to corroborate her claimed sobriety; case is
remanded to trial court for enforcement of termination of mothers parental
rights to Jude and determination regarding foster parents petition for
adoption. In re Jude D., 11/30/16, Knoxville, Frierson, partial dissent by
Stafford, 35 pages.
http://www.tncourts.gov/sites/default/files/jude_d._opinion.pdf
http://www.tncourts.gov/sites/default/files/inrejudeddis.pdf

FAMILY LAW: In termination of parental rights case, evidence

preponderated against trial courts determination that mother had not
substantially complied with permanency plans when trial court based its
finding on fact that outcome and goals of plans were not reached, rather than
on mothers efforts to comply outcome achievement is not measure of

compliance; although mother failed to comply with some requirements of

permanency plans, her relapse did not undo all of her previous and
subsequent attempts to substantially comply with requirements of
permanency plans; evidence was sufficient to terminate mothers parental
rights to her four children on grounds of abandonment due to willful failure
to support and persistence of conditions. In re Eddie F., 12/2/16, Knoxville,
Gibson, 12 pages.
http://www.tncourts.gov/sites/default/files/eddiefopn.pdf

FAMILY LAW: Trial court did not abuse discretion in adopting parenting
schedule that permits mother unsupervised overnight weekend visits with
child twice per month and on alternating holidays when trial court was
particularly concerned with, and put much weight on, mothers lack of
veracity to court and to father regarding extent of her mental health issues
and possibility that she would not be forthcoming in future if her ability to
parent child was impaired; trial courts modification of parenting schedule
did not severely or inappropriately limit mothers parenting time. In re
Emily M., 11/30/16, Nashville, Dinkins, 14 pages.
http://www.tncourts.gov/sites/default/files/inreemily.opn_.pdf

CIVIL PROCEDURE: When plaintiff filed motion to enforce settlement

agreement, trial court properly ruled that defendants insistence that order
dismissing case expressly state that dismissal was with prejudice did not
constitute counter-offer, but instead was acceptance of terms of contract;
trial court did not err in declining to award plaintiff attorney fees when
plaintiff did not claim that defendant committed tort, only that she breached
parties oral settlement agreement, without allegation of tort, independent
tort theory cannot apply to support award of attorney fees, and plaintiff
asserts no other exception to American Rule that would justify award of
attorney fees. Grace v. Grace, 11/29/16, Jackson, Stafford, 11 pages.
http://www.tncourts.gov/sites/default/files/gracetimopn.pdf

GOVERNMENT: After Tennessee Department of Correction made

determination that inmates were prohibited from possessing small electric
heating appliances known as hotspots, six inmates (plaintiffs), in six
separate cases, filed claims with Claims Commission (Commission) seeking
compensation for loss of hotspots under Takings Clauses of both Tennessee
and U.S. Constitutions, Commission dismissed plaintiffs claim on ground
that it did not have subject matter jurisdiction over takings claims involving
only personal property, and plaintiffs argued that definition of private
property was unconstitutional under U.S. Supreme Courts decision in
Horne v. Department of Agriculture, 135 SCt 2419 (2015), which held that

government is required to pay just compensation under Takings Clause

when it physically takes possession of either real or personal property,
plaintiffs would not be entitled to compensation even if their constitutional
challenge to statute was successful given fact that right to possess personal
property is one of rights that is curtailed when person is incarcerated;
interference with prisoners right to possess personal property does not
amount to deprivation of property if prisoner is afforded right to maintain
ownership of property and opportunity to exercise some control over
disposition of property although TDOC prohibited plaintiffs from
possessing hotspots after 7/30/14, it recognized plaintiffs ownership
interests in hotspots by allowing them to choose how to dispose of hotspots.
Bates v. State, 12/1/16, Knoxville, Clement, 9 pages.
http://www.tncourts.gov/sites/default/files/batesj_-_opn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL PROCEDURE: In aggravated robbery case, trial judge did
not err by failing to exclude defendants statements to law enforcement
officials when statements were not made during course of plea negotiations
but were made during initial investigatory process, well before charges were
filed; protections of TRE 410 do not encompass statements made during
preliminary investigation process. State v. Hughes, 11/29/16, Nashville,
Witt, Easter not participating, 7 pages.
http://www.tncourts.gov/sites/default/files/hugheswillieleejropn.pdf

CRIMINAL PROCEDURE: Pursuant to TCA 40-35-201(b), in non-capital

cases, trial court may not instruct jury on possible penalties for charged
offense or any lesser included offenses; although trial court erred by
instructing prospective jury pool that counts one (charging defendant with
aggravated child neglect) and two (charging defendant with criminally
negligent homicide) would merge into single conviction if guilty verdicts
were returned on both counts, error was harmless when evidence of
defendants guilt was overwhelming, other than one misstatement regarding
merger made during voir dire, trial court made no further comments about
defendants potential sentencing exposure, and trial court instructed jury on
essential elements of charged offenses, all appropriate lesser included
offenses, and on order of consideration principles. State v. Pamblanco,
11/29/16, Nashville, Thomas, 15 pages.
http://www.tncourts.gov/sites/default/files/pamblanconicoleopn.pdf

SIXTH CIRCUIT COURT OF APEALS

TORTS: When plaintiffs husband died in car accident after he lost control
of his 2012 Ford Focus, plaintiff, passenger in car, was seriously injured,
and plaintiff filed diversity action alleging that Ford Motor Company (Ford),
manufacturer of car, was responsible for accident because it equipped car
with defective Electronic Power Assisted Steering (EPAS) system that
caused loss of control, district court, in granting Fords motion to dismiss,
demanded too much of plaintiff under Iqbal and Twombly pleading
requirements; plaintiff plausibly alleged that defect in 2012 Ford Focuss
EPAS system was substantial factor in bringing about accident; Tennessee
Products Liability Act creates cause of action for strict liability, negligence,
breach of warranty, and misrepresentation claims raised in plaintiffs
amended complaint; there is no rule or policy that should relieve Ford of
liability if it equipped plaintiffs Focus with defective EPAS system; that
this accident could have reasonably been foreseen by person of ordinary
intelligence and prudence is apparent from defect in EPAS system. Jackson
v. Ford Motor Co., 11/29/16, Moore, 8 pages, Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0279p-06.pdf

COMMERCIAL LAW: In suit by borrower against lender and loan

servicer seeking declaratory judgment that these entities lacked standing to
foreclose on borrowers home, there was no tenable basis for declaratory
judgment claim when borrower did not allege any facts to suggest that
defendant lender was not holder in possession of note at time of foreclosure;
original lender endorsed note in blank, thus making it bearer paper under
Tennessee law; at some point, original lender transferred note to defendant
lender, and once in possession of note, defendant lender owned
corresponding security instrument deed of trust and had right to enforce
terms of indebtedness; Tennessee law dictates that, regardless of validity of
deed assignment, when note passed to defendant lender, deed of trust
automatically passed with it. Jones v. Select Portfolio Servicing Inc.,
11/28/16, Cook, 13 pages, N/Pub.
http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0626n-06.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: When employee was diagnosed with
bilateral carpal tunnel syndrome (CTS), parties submitted two medical
causation opinions from treating doctor, while first opinion indicated that

injury arose primarily out of work, second opinion, based on ergonomic

study of employees job, determined that CTS was not work related, and
employee disputed content and conclusions of report, employee did not
come forward with sufficient evidence from which to conclude that she is
likely to prevail at hearing on merits; employee may have valid concerns
over accuracy or applicability of report, but neither employee nor court has
medical qualifications to revise doctors medical opinion for him, and absent
contrary medical opinion, employee cannot establish causation. Adams v.
Verizon Wireless, 8/18/16, Murfreesboro, Tipps, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1518&context=utk_workerscomp

WORKERS COMPENSATION: Employee provided notice as required

by TCA 50-6-201(a)(1) when Onin, staffing agency, hired and paid
employee, employee worked at Tachi-S and his day-to-day activities were
subject to direct supervision of Tachi-S employees, Tachi-S was, therefore,
employees co-employer at time of his alleged injury, employee provided
actual notice to Tachi-S through his night manager on date of alleged injury,
and night manager had actual or apparent authority to accept notice on
behalf of Tachi-S. Tomlinson v. Onin Staffing LLC, 8/30/16, Murfreesboro,
Durham, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1575&context=utk_workerscomp

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may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov