A colleague of mine, Josh Offutt, tried an intriguing case of golf negligence this year. The case, Cook v. McKenzie, involved a golfer getting beaned in the skull by golf ball while he was on the practice green at Willow Creek Golf Club in Knoxville. The defendant, a sixty-year-old doctor from Knoxville, was chip balls onto the practice green from 25 to 50 yards away. According to testimony, Dr. McKenzie looked at the practice green before swinging his club and did not notice Cook until after he struck his ball. At that time, he noticed Cook wondering toward the pin. Dr. McKenzie yelled “heads up!” Unfortunately, Cook look up just in time to get hit square in the forehead by the incoming ball. He was knocked unconscious and suffered a minor head injury.
At trial, the defense elected not to call a “golf etiquette” expert, and instead, simply argued that Cook had a duty to look out for other golfers. After a day of proof, the jury quickly returned with its verdict, finding both parties equally at fault for not paying attention to their surroundings. As a result, under Tennessee’s comparative fault system, a defense verdict was entered and Cook took nothing. According to Mr. Offutt, none of the jurors were golfers. Still, in the end, this Knoxville jury got it right. All golfers have an equal responsibility to pay attention on course. Coming from a rookie golfer who makes regular use of mulligans, I feel better knowing I won’t lose my house over a wayward shot.
The Tennessee Court of Appeals has penned a new decision addressing the duty of a bar to protect its patrons from the foreseeable criminal acts of third parties. The case name is Nicole Goeser, et al., v. Live Holdings Corporation, et al., (No. M2012-01241-COA-R3-CV; September 4, 2013). This appeal came out of Judge Hamilton Gayden’s court in Nashville after granting summary judgment to the defendants. Continue reading
In the recent case of Greg Parker, et al. v. Holiday Hospitality Franchising, Inc., et al., the Tennessee Court of Appeals addressed liability for a premise owner arising out of the negligent work completed by an independent contractor. This case was appealed from the Circuit Court for Roane County following summary judgment in favor of the hotel.
Rule – a premise owner may not be liable for negligent construction of the premises unless he or she caused the condition or had some notice of the condition prior to the accident. Continue reading
Until recently, there was no duty in Tennessee to prevent patrons from driving drunk. However, a recent Court of Appeals decision calls into question whether premises owners have a duty to take action when a patron is obviously drunk and likely to leave the premises in a vehicle. See JOLYN CULLUM, ET. AL. v. JAN McCOOL, ET. AL. In this case, the defendant, McCool, entered Wal-Mart and attempted to buy prescription medication. The Wal-Mart employees refused to sell McCool prescription drugs because McCool was obviously inebriated. McCool then lost her cool, became belligerent, and was ordered her to leave the premises. She subsequently backed her car into an unsuspecting patron who was loading groceries into the back of her vehicle. Continue reading
Senate Bill 56 has been assigned Public Chapter 317 by the Secretary of State. The Act became official on April 29, 2013, and will be effective for all actions accruing on or after July 1, 2013. For those defending bars, restaurants, and premise owners at large, this Act overturns joint and several liability for intentional torts on premises. Here is a link to the Bill:
I have been reporting on some changes to tort reform in Tennessee that will positively affect Tennessee premise owners. Please see my prior post on this legislation for a more detailed discussion. In sum, House Bill 1099 overturns joint and several liability in several key situations. It recently passed the Tennessee House and is now on Governor Haslam’s desk for passage. Here is a link to the Bill Summary:
Unlike foreseeability in the context of duty, foreseeability in the context of proximate cause is a question of fact to be determined by the trier of fact. Id. (citing City of Elizabethton v. Sluder, 534 S.W.2d 115 (Tenn. 1976)). Additionally, in order to be entitled to summary judgment, the moving party must either (1) affirmatively negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving party cannot prove an essential element at trial. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). Under Hannan, it is not sufficient that a party moving for summary judgment assert that the nonmoving party “lacks evidence to prove an essential element of its claim.” Id. at 8. In this case, whether the hole or dip or depression, as it has been alternately characterized by the parties, in fact caused Ms. Dickerson to fall; whether the harm and injury to Ms. Dickerson were reasonably foreseeable; and whether the County’s conduct was a substantial factor in causing Ms. Dickerson’s injury are properly within the province of the finder of fact.
Jamie Dickson, et al. v. Rutherford Co., Tenn., Case No. M2012-01916-COA-R3-CV (April 11, 2013).
The Tennessee Legislature has proposed major reforms that will abrogate joint and several liability in several key areas. Senate Bill 56 breezed through the Senate (25 ayes to 7 nays) on February 11, 2013. House Bill 1099 is identical to Senate Bill 56 and is currently with the Calendar and Rules Committee awaiting a vote in the House. According to sources, House Bill 1099 is expected to be up for a vote within a week. Here are the links to SB 56 and HB 1099: Continue reading
Here’s an ABA article reporting on challenge to tort caps in TN. This article provides citation to case in Middle District as well as similar challenges in foreign jurisdictions.