TAM Bytes, May 19th, 2014

TAM-BYTES
May 19, 2014
Vol. 17, No. 20
2014 TAM CLE CALENDAR

Webinars
“Common Probate Problems Facing Tennessee Attorneys,” 60-minute webinar
presented by Grayson Smith Cannon, Goodlettsville attorney, on Wednesday,
June 11, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Search and Seizure: History and Update on Fourth Amendment Law,” 60-
minute webinar presented by Lara McCauley Alvis, Birmingham attorney, on
Thursday, June 19, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Tennessee Workers’ Compensation: Are You Ready for the July 1
st
Changes?,”
60-minute webinar presented by Pele Houk Godkin, Nashville attorney, on Tuesday,
June 24, at 10 a.m. (Central), 11 a.m. (Eastern).
*Earn 1 hour of GENERAL credit.

“Preparing Clients for Depositions in Tennessee: A Step-by-Step Process,” 60-
minute webinar presented by Burke Keaty, Brentwood attorney, on Tuesday, June
24, at 2 p.m. (Central), 3 p.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 WEEK’S TAM-Bytes

 Court of Appeals, in suit by plaintiff who, while visiting cabin owned by
defendants, entered dark cabin and fell down steps, affirms summary judgment
in favor of defendants on basis that defendants had no duty to warn plaintiff of
existence of stairs;
 Court of Appeals, in suit by mother to modify trial court’s order naming father
as conservator over parties’ mentally disabled adult son (ward) and mandating
that mother’s visitation with ward be supervised, adopts modern rule that
defamatory speech may be enjoined after determination that speech is, in fact,
false, and upon condition that injunction be narrowly tailored to limit prohibited
speech to that which has been determined to be false;
 Court of Appeals rules that evidence did not preponderate against trial court’s
consideration of wife’s contributions to “wealth of the marriage” when it
determined that wife should be awarded larger share of equity in marital home
during divorce hearing; and
 Court of Criminal Appeals says amendment to TCA 37-13-107(c), which took
effect after dates on which defendant was alleged to have committed offenses –
aggravated assault by pregnant woman against fetus – and which would have
rendered defendant’s conduct non-criminal, may not be applied retroactively.


SUPREME COURT

PROFESSION OF LAW: Article VI of Supreme Court Rule 7 is amended to update
provisions governing appointment of investigatory committees and investigation
procedures set out in that Article VI. I n re Amendment to Supreme Court Rule 7,
Article VI , 5/15/14, Nashville, 4 pages.
http://www.tncourts.gov/sites/default/files/supreme_court_order_amending_sc_rule_7_article_vi_-_5-15-2014.pdf


WORKERS’ COMP PANEL

WORKERS’ COMPENSATION: When employee allegedly injured his left knee
while operating dock plate in preparation for loading truck, and trial court concluded
from testimony of employer’s witness, forensic engineer, that it was physically
impossible for dock plate to come up far enough to strike knee, evidence
preponderated against trial court’s finding that employee did not sustain his burden of
proof on issues of causation when parties agreed that dock plate malfunctioned on day
of accident, when employee’s testimony that plate struck his left knee, and his version
of events surrounding his injury, was corroborated by testimony of co-workers, and
when forensic engineer’s testimony showed that it was possible for plate to strike knee
of person operating release chain by himself. Merx v. Duro Standard Products Co.,
5/15/14, Jackson, Parish, 9 pages.
http://www.tncourts.gov/sites/default/files/merxopn.pdf

WORKERS’ COMPENSATION: When employee suffered work-related back
injury in 2007, employee underwent unauthorized back surgery after conservative
treatment failed to provide relief, employee’s workers’ compensation claim was
settled in 2009, settlement provided for “future medical benefits relating to back
injury” of 2007 while precluding future benefits for unauthorized medical care, and
employee sought authorization in 2011 for second surgery by authorized treating
surgeon, trial court properly concluded that surgery proposed by authorized physician
was related to back injury that employee sustained in 2007 work-related accident;
relationship between employee’s 2007 back injury and surgery that authorized
physician proposed is not severed by employee’s failure to seek authorization for and
approval of pre-settlement fusion surgery. Watson v. Parent Co., 5/14/14, Nashville,
Summers, 9 pages.
https://www.tba.org/sites/default/files/watsonj_051414.pdf


COURT OF APPEALS

TORTS: In case in which plaintiff who, while visiting cabin owned by plaintiff’s aunt
and uncle (defendants), entered dark cabin and fell down steps, trial court properly
granted defendants summary judgment; plaintiff pointed to no facts which would tend
to show that stairs she fell down constituted latent or hidden danger, and hence,
defendants had no duty to warn plaintiff of existence of stairs; plaintiff’s failure to
turn on any lights, coupled with her willingness to step into unfamiliar area, is such
radical departure from reasonable conduct under circumstances that defendants could
not have reasonably foreseen that conduct and its consequences. Smith v. Stanley,
5/12/14, ES, Swiney, 11 pages
http://www.tncourts.gov/sites/default/files/smithdropn.pdf

EMPLOYMENT: Trial court properly granted defendants summary judgment
dismissing suit by plaintiff, licensed doctor of osteopathy, who lost his job at state
psychiatric hospital in reduction in force (RIF), alleging that his termination was result
of complaints he made about facility; defendants presented evidence that plaintiff’s
position was eliminated because he was least qualified doctor on staff, thereby shifting
burden to plaintiff to show some causal relationship between his reporting of
problems at hospital in 2005 and his job loss in 2009; plaintiff failed to produce any
evidence from which reasonable person could infer existence of connection between
inclusion in RIF and reports. Morson v. Tennessee Department of Mental Health &
Developmental Disabilities, 5/14/14, MS, Bennett, 10 pages.
http://www.tncourts.gov/sites/default/files/morsonp.opn_.pdf

FAMILY LAW: When mother sought modification of trial court’s previous order
naming father as conservator over parties’ mentally disabled adult son (ward) and
mandating that mother’s visitations with son be supervised, and trial court enjoined
mother from making any further allegations of sexual abuse against ward by his older
brother and enjoined mother from discussing, with ward, any purported sexual abuse
by his older brother, injunction did not constitute prior restraint on mother’s free
speech; modern rule is adopted – defamatory speech may be enjoined after
determination that speech is, in fact, false, and upon condition that injunction be
narrowly tailored to limit prohibited speech to that which has been determined to be
false; because of mother’s behavior during pendency of litigation, trial court preserved
ward’s best interest by granting mother eight hours of supervised visitation and
allowing father to record mother’s telephone conversations with ward, which father
deems to be harmful or in violation of court orders. I n re Conservatorship of Turner,
5/9/14, WS at Nashville, Stafford, 37 pages.
http://www.tncourts.gov/sites/default/files/inreturnerj.opn_.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s finding that
material change in circumstances necessitated change in child’s primary residential
parent to father from mother when mother’s behavior progressively deteriorated while
she resided with her parents (grandparents), and increasingly hostile environment in
which child lived and interference with father’s ability to parent child was material
change in circumstances that was not reasonably anticipated and which affected
child’s well-being in meaningful way; although mother previously served as child’s
primary caregiver for number of years, mother’s ability to parent child by herself
without interference from grandparents and to facilitate and encourage close and
continuing parent-child relationship between child and father is severely lacking.
Dickerson v. Cantrell, 5/16/14, ES, McClarty, 12 pages.
http://www.tncourts.gov/sites/default/files/cantrellopn2.pdf

FAMILY LAW: Evidence did not preponderate against trial court’s consideration of
wife’s contributions to “wealth of the marriage” when it determined that wife should
be awarded larger share of equity in marital home during divorce hearing – wife’s
contributions of separate property to marriage, i.e., $80,000 and $39,000, played
major role in parties’ accumulation of net marital estate of $139,420; evidence did not
preponderate against trial court’s decision to award wife $50,000 “off the top of the
value of the [marital] home based on … Wife’s separate property contribution.”
Hoggatt v. Hoggatt, 5/12/14, ES, Susano, dissent by Swiney, 18 pages.
http://www.tncourts.gov/sites/default/files/hoggattdropn.pdf
http://www.tncourts.gov/sites/default/files/hoggattdropndissenting.pdf


COURT OF CRIMINAL APPEALS

CRIMINAL LAW: In case in which defendant was charged with two counts of
aggravated assault for conduct resulting in serious bodily injury to fetus or that
involved use of deadly weapon and resulted in bodily injury to fetus against her
daughter, born on 8/15/11, for actions defendant took during her pregnancy,
amendment to TCA 37-13-107(c), which took effect after dates on which defendant
was alleged to have committed offenses and which would have rendered defendant’s
conduct non-criminal, may not be applied retroactively; there is nothing in text of
amendment to indicate that legislature intended it to be applied retroactively. State v.
Condry, 5/13/14, Knoxville, Bivins, McMullen concurred in result, 5 pages.
http://www.tncourts.gov/sites/default/files/condrysopn.pdf

CRIMINAL PROCEDURE: Even when arrestee is to be eventually released on his
own recognizance, arrestee is still subject to normal booking procedure following
arrest, as there is still legitimate law enforcement interest in doing such things as
making record of arrest, obtaining basic biographical information, taking fingerprints,
and photographing arrestee; inventory search “in accordance with routine
administrative procedures” involved in booking and processing arrestee through
detention facility is well-recognized exception to warrant requirement. State v.
J ohnson, 5/15/14, Nashville, Bivins, 17 pages.
http://www.tncourts.gov/sites/default/files/johnsonjopn_0.pdf

CRIMNAL PROCEDURE: In case in which defendant was indicted for first degree
premeditated murder, attempted first degree murder, carjacking, aggravated assault,
employing firearm during commission of dangerous felony, and felony evading arrest,
defense counsel filed motion asking that defendant be allowed to present expert proof
of mental disease or defect to show that he could not form requisite state of
premeditation – proffered testimony of psychologist was that while defendant’s
“psychological problems coupled with the stressors at that point impacted, eroded his
capacity to premeditate,” defendant’s capacity to do so was not “completely eroded” –
and state objected to introduction of this evidence, trial court erred in denying state’s
motion to bar testimony when proffered evidence was inadmissible; expert testimony
regarding defendant’s mental state is relevant and admissible only to establish that, at
time of crimes, defendant lacked capacity to premeditate; psychologist’s testimony
was neither relevant nor admissible at defendant’s trial. State v. Chaney, 5/14/14,
Jackson, Glenn, 14 pages.
http://www.tncourts.gov/sites/default/files/chaneytrayopn.pdf

CRIMINAL PROCEDURE: Officer had reasonable suspicion to stop defendant’s
vehicle when office observed vehicle, during early morning hours, cross fog line two
times, once to right and another to left, as vehicle was traveling on interstate and
interstate exit ramp. State v. Quinn, 5/14/14, Nashville, Walker, 4 pages.
http://www.tncourts.gov/sites/default/files/quin1.pdf

EVIDENCE: In DUI cases, State v. Sensing, 843 SW2d 412 (Tenn. 1992),
contemplates that officer certified to perform breath test will testify that TBI certified
testing instrument and regularly tested it for accuracy, and state may introduce these
certification and maintenance records through testimony of police officer – these
documents are self-authenticating under TRE 902(4) and admissible hearsay under
TRE 803(8). State v. Doyle, 5/13/14, Nashville, Walker, 5 pages.
http://www.tncourts.gov/sites/default/files/doyleje.pdf

CRIMINAL PROCEDURE: Trial court properly concluded that appellee could not
be bail bondsman because of previous conviction for felony assault; if legislature
determines that convicted felons should be eligible to act as bail bondsman, then
legislature can enact legislation to allow such occurrence. State v. Baltimore, 5/13/14,
Jackson, Smith, 6 pages.
http://www.tncourts.gov/sites/default/files/baltimorelarryopn.pdf


SIXTH CIRCUIT COURT OF APPEALS

EMPLOYMENT: District court erred in granting summary judgment to defendant,
provider of healthcare and living assistance for developmentally disabled individuals,
in suit by plaintiff, staff caregiver, who filed suit under Tennessee’s whistleblower
statute and common law claiming that defendant wrongfully terminated her for
refusing to participate in and refusing to remain silent about defendant’s alleged
illegal activity; plaintiff established prima facie case of retaliatory discharge under
both Tennessee Public Protection Act and common law when she maintained that
because patient’s Staffing Plan – which was derived from her “Individual Support
Plan” (ISP) – ordered 24-hour nursing care, and because defendant instructed plaintiff
to remove patient from its facility for four hours without nurse, that order violated
patient’s Staffing Plan, which in turn violated law; district court erroneously
disregarded plaintiff’s evidence and failed to draw all justifiable inferences in her
favor when determining whether plaintiff could have reasonably believed that ISP or
Staffing Plan required that nurse be present when non-nursing staff like plaintiff were
to be alone with patient while away from defendant’s facility. Epperson v. Resource
Healthcare of America I nc., 5/20/14, Griffin, 11 pages, N/Pub.
http://www.ca6.uscourts.gov/opinions.pdf/14a0374n-06.pdf



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the full text of any state appellate court decision by accessing the state’s web site
by clicking here: http://www.tncourts.gov