TAM-BYTES March 3, 2014 Vol. 17, No.

9
2014 TAM CLE CALENDAR

May 2014 -- Onsite Events

2014 Tennessee Attorney Technology Conference, to be held in NASHVILLE on Friday, May 9. *Earn up to 7.5 hours of CLE, including 2 hours of DUAL CLE *This conference is ideal for all attorneys whether youre tech-savvy or new to cloud computing! FACULTY: Judge Thomas Brothers, Davidson County Circuit Court; William
Caldwell, Ortale, Kelley, Herbert & Crawford, Nashville; Kevin Levine, DeSalvo & Levine PLLC, Nashville; Caitlin Moon, C.MoonLaw, Franklin; and Clinton Sanko, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga

PROGRAM HIGHLIGHTS:
Most common cloud technologies serving lawyers How to develop a mobile law practice Effective use of technology in the courtroom Mechanics of document production Time and business management tips Practical applications of e-discovery Practical tips on how to request social media discovery Jury selection and trial presentation tools Protecting confidentiality of clients while going mobile Social media and content marketing for lawyers Technology and ethics in the practice of law

For more information or to register go to: www.mleesmith.com/tn-tech

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7th Annual Medical Malpractice Conference for Tennessee Attorneys, to be held in NASHVILLE on Friday, May 2. *Earn up to 7.5 hours of CLE, including 1 hour of DUAL CLE. FACULTY: Judge Ross Hicks, Brandon Bass, Brian Cummings, Clint Kelly, Dulin
Kelly, Chris Tardio, and Thomas A. Wiseman, III.

PROGRAM HIGHLIGHTS:
Admissibility of expert testimony Application of the pre-suit notice requirements How Shipley changed the playing field Telling a compelling story and developing cohesive themes Using todays technology to win your case Voir dire selecting the right jury The future of damages caps in Tennessee Review of recent medical malpractice appellate court cases A panel discussion of hot topics in healthcare liability actions Ethical issues in screening and choosing medical malpractice cases and clients For more information or to register go to: www.mleesmith.com/tn-med-mal

Audio Conferences
Ethics of Social Media: Dos and Donts for Attorneys, 60-minute webinar presented by Marcus Chatterton, Birmingham attorney with Balch & Bingham, on Thursday, March 25 at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of DUAL credit. Voir Dire: Tips and Techniques for Starting the Trial on the Right Path, 60minute webinar presented by Erik Heninger, Birmingham attorney with Heninger Garrison Davis, LLC, on Wednesday, March 26 at 2 p.m. (Central), 3 p.m. (Eastern). *Earn 1 hour of GENERAL credit. VA Pension: How to Use a Little-Known Benefit to Aid Your Clients, 60minute webinar presented by John Watts, Birmingham attorney, on Thursday, April 3 at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit.

Telephone Consumer Protection Act: New Rules on Computer Calls, 60minute webinar presented by Stan Herring, Birmingham attorney, on Thursday, April 10, at 10 a.m. (Central), 11 a.m. (Eastern). *Earn 1 hour of GENERAL credit.
For more information or to register, call (800) 727-5257 or visit us at www.mleesmith.com

IN THIS WEEKS TAM-Bytes In suit under Governmental Tort Liability Act, Court of Appeals reverses trial courts holding that school board had constructive notice of ice on sidewalk on which student slipped and fell; Court of Appeals, in case in which husband sought to reduce wife s transitional alimony, says lives with a third person language in TCA 36-5-121(g)(2) applies to any third person, including adult children; Court of Appeals says that Tennessees involuntary commitment statute does not include risk of damage to property as ground for commitment; and Court of Criminal Appeals, in issue of first impression, holds that service of convicted felon as grand jury foreman does not invalidate indictment brought against defendant. COURT OF APPEALS TORTS: In suit under Governmental Tort Liability Act in which plaintiff, high school student slipped on patch of ice on sidewalk at his public high school, trial court erred in holding that school board had constructive notice of ice on which student slipped and fell; evidence preponderated against trial courts finding that ice had been on sidewalk in question for two days and that schools plant manager could have and should have seen it and cleared it away. Traylor v. Shelby County Board of Education, 2/27/14, WS, Kirby, 16 pages.
http://www.tncourts.gov/sites/default/files/traylorgcopn.pdf

TORTS: In case in which Miller, former City Manager of Crossville, filed defamation action against councilman (Wyatt), based on Wyatts statement during city council meeting that Miller had been discharged from City Manager up here because of misappropriating funds and not following procedures, trial court properly granted Wyatt summary judgment based upon determination that allegedly defamatory statement arose from conduct of affairs of Crossville City Council and was, therefore, protected by legislative privilege; it was within trial courts discretion to allow summary judgment hearing to proceed as scheduled, despite Miller s argument that Wyatt had provided specific citations to record only two days before hearing. Miller v. Wyatt, 2/26/14, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/millerjeopn.pdf

DAMAGES: In case in which jury awarded plaintiff $5 million in punitive damages against assisted living facility (Americare), along with additional $15,000 in punitive damages against two other defendants, in connection with death of patient at Americare, which occurred prior to 10/11/11, evidence supported jurys finding that Americare acted recklessly or fraudulently in connection with patients death; because plaintiff is prohibited from recovering money damages in excess of amount sought in complaint plaintiffs complaint sought $3 million in punitive damages punitive damage award against Americare is reduced to $2,985,000 ($3 million asked for less $15,000 awards against other two defendants). Wilson v. Americare Systems Inc., 2/25/14, MS, Bennett, 13 pages.
http://www.tncourts.gov/sites/default/files/wilsonr.opn_.pdf

FAMILY LAW: In case in which parties were divorced in 5/11, wife was awarded transitional alimony for six years, and husband, in 9/23 one day after parties son (Ethan) turned 18 filed petition seeking to reduce his transitional alimony based on fact that Ethan was living with wife, trial court erred in granting husbands petition; wife rebutted statutory presumption that third person living with wife was either contributing to, or receiving contribution from, wife by showing that her financial situation had not significantly changed, and had actually deteriorated, since initial award of transitional alimony; wife demonstrated continuing need for alimony notwithstanding her willingness to allow her son to continue living with her and to support him after his 18th birthday; lives with a third person language in TCA 36-5121(g)(2) applies to any third person, including adult children. Hickman v. Hickman, 2/26/14, ES, Susano, 12 pages.
http://www.tncourts.gov/sites/default/files/hickmanrgtopn_0.pdf

FAMILY LAW: Trial court erred in ordering that 68-year-old army veteran (Hartman) be involuntarily hospitalized basing on finding that Hartman suffered from mental illness that rendered him unable to avoid severe impairment or injury from specific risks, when only evidence of actual risk was that others might easily be able to take financial advantage of his confusion or his trusting nature; it is not constitutionally or statutorily permissible to deprive individual of liberty when he poses no danger to others, and when only danger he poses to himself is danger to his own property or potential for financial loss; Tennessees involuntary commitment statute does not include risk of damage to property as ground for commitment. Director, TVHS, Murfreesboro Campus v. Hartman, 2/26/14, MS, Cottrell, 8 pages.
http://www.tncourts.gov/sites/default/files/hartmanl.opn_.pdf

PROPERTY: Owner of easement of way is entitled to make certain improvements to right of way related to its purpose, such as grading, graveling, and paving, but owner of easement cannot materially increase burden of it upon servient estate and may only make repairs and improvements that do not, in substance, affect its

character; owner of easement may not keep locked gate on property of servient easement, in derogation of property owners right to freely enter and leave their own property. Keenan v. Fodor, 2/26/14, MS, Cottrell, 14 pages. http://www.tncourts.gov/sites/default/files/keenanr.opn_.pdf CIVIL PROCEDURE: When plaintiff filed suit alleging, in part, that as result of defendants failure to properly treat surgical patient, plaintiff, who was working in emergency room suite of hospital, suffered injuries, defendant filed motion for summary judgment alleging that plaintiff had failed to comply with notice requirements of TCA 29-26-121 because plaintiff had filed her complaint less than 60 days after sending notice of intent to sue letter, plaintiff opposed motion for summary judgment arguing that defendant had waived defense of failure to comply with TCA 29-26-121 by not raising it in timely manner, and trial court granted defendant summary judgment as to plaintiffs claim for medical malpractice but not as to claims for ordinary negligence, defendant did not waive defense of failure to state claim upon which relief can be granted based upon plaintiffs failure to comply with TCA 29-26-121; pursuant to plain and unambiguous language of TRCP 12.08, defendant could have presented its defense of failure to state claim upon which relief can be granted in motion, in its answer, in amendment to its answer, in a later pleading, if one is permitted, or by motion for judgment on the pleadings or at the trial on the merits. Blankenship v. Anesthesiology Consultants Exchange P.C., 2/26/14, ES, Swiney, 5 pages.
http://www.tncourts.gov/sites/default/files/blankenshipkopn.pdf

CIVIL PROCEDURE: When tree on state property fell on claimants car on 12/24/09, claimant filed timely written notice of his claim on 12/17/10 against State of Tennessee with Division of Claims Administration (DCA), DCA transferred claim to Claims Commission on 3/17/11, claimant filed complaint with Claims Commission on 4/14/11, State filed answer denying liability, State filed motion on 9/18/12 to amend answer to include allegation of comparative fault against City of Clarksville (City), motion to amend was granted on 10/5/12, claimant filed and later withdrew amended complaint in Clams Commission adding City, claimant filed suit against City in circuit court on 11/26/12, and claim against State was transferred to circuit court for consolidation with claim against City, trial court erred in granting Citys motion to dismiss; notice of claim is original compl aint under TCA 20-1-119, which provides that when defendant named in original complaint (or amended complaint) names person who may be liable to plaintiff, plaintiff then has 90 days to file suit against those persons; TCA 20-1-119(g) states that it shall neither shorten nor lengthen applicable statute of limitation for any cause of action, so if requirements of TCA 20-1-119 are met, statute of limitation in Tennessee Governmental Tort Liability Act can be extended. Moreno v. City of Clarksville, 2/25/14, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/morenor.opn_.pdf

GOVERNMENT: Substantial and material evidence supported decision of Civil Service Commission terminating employment of petitioner, state trooper, when, in addition to criminal charges filed against him for child abuse and filing false police report and publicity related to those charges, petitioners termination was based upon his dishonesty in his statements to sheriffs department and his prior disciplinary history. Norfolk v. Tennessee Civil Service Commission, 2/26/14, MS, Bennett, 14 pages.
http://www.tncourts.gov/sites/default/files/norfolkm.opn_.pdf

COURT OF CRIMINAL APPEALS CRIMINAL PROCEDURE: In case in which defendant was convicted of second degree murder after being indicted by grand jury, service of convicted felon as grand jury foreman did not invalidate indictment brought against defendant; status of grand jury foreman as convicted felon does not relate to power of court to hear and decide case, and indictment itself did not fail to charge offense; in any event, historic doctrine of aider by verdict stands for proposition that any defects in indictment are cured if jury reaches verdict. State v. Lopez, 2/24/14, Nashville, Glenn, 11 pages.
http://www.tncourts.gov/sites/default/files/lopezleonelopn.pdf

CRIMINAL PROCEDURE: State is not required to provide defendant with criminal records or prior arrest histories for all of states witnesses. State v. Roberts, 2/25/14, Nashville, Wedemeyer, 14 pages.
http://www.tncourts.gov/sites/default/files/robertsdkopn.pdf

SIXTH CIRCUIT COURT OF APPEALS INSURANCE: When fire damaged insureds house, insured filed claim with insurer, insurer asked insured and her husband to answer questions about claim under oath, insured responded that she and her husband would submit to examinations only if insurer first showed them its investigative files, insurer refused to turn over files, insurer gave insured 10 days to schedule examination and warned her that, if she did not submit to examination, insurer would deny claim, insured never responded to insurers last letter, and insured filed suit seeking payment on her claim, district court properly granted insurer summary judgment; Tennessee law confirms that insurer may deny claim when policyholder refuses to participate in examination under oath, and because insured refused to submit to examination, insurer had no obligation to pay claim. Lester v. Allstate Property & Casualty Insurance Co., 2/24/14, Sutton, 4 pages, Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0037p-06.pdf

ATTORNEY GENERAL OPINION GOVERNMENT: Students have very low expectation of privacy in their assigned school lockers; principal or superintendent may not delegate his or her authority to school employee to order search of students or students property on school grounds. Attorney General Opinion 14-21, 2/24/14, 6 pages.
http://www.tn.gov/attorneygeneral/op/2014/op14-21.pdf

If you would like a copy of the full text of any of these opinions, simply click on the link provided or, if no link is provided, you may respond to this e-mail or call us at (615) 661-0248 in order to request a copy. You 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