This is a good summary judgment ruling from the Davidson County Circuit Court in a slip and fall case. Boykin v. Moorehead Living Trust, 2015 WL 3455433 (Tenn. Ct. App., May 29, 2015). This case came out of Sixth Circuit in Davidson County Tennessee. The Court of Appeal affirmed summary judgment in favor of the property owner after plaintiff tripped and fell on a concrete landing pad in a parking lot. Read more
On December 1, 2015, several new amendments to the Federal Rules of Civil Procedure became effective. Among those amendments were notable changes to Federal Rule of Civil Procedure 26. For example, Rule 26(b)(1) now reads:
Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
In other words, information is discoverable if it is relevant to any party’s claim or defense and it is proportional to the needs of the case, which will be determined by consideration of the following six proportionality factors: 1) the importance of the issues at stake, 2) the amount in controversy, 3) the parties’ relative access to relevant information, 4) the parties’ resources, 5) the importance of discovery in resolving the issues, and 6) whether the burden or expense of the proposed discovery outweighs its likely benefit.
While it is unclear whether these factors are listed in order of importance or merely listed as considerations, the committee notes to the changes explained that “the change does not place on the party seeking discovery the burden of addressing all proportionality considerations.” Rather, “parties may begin discovery without a full appreciation of the factors that bear on proportionality.” However, regardless of whether all the factors must be considered or not, it appears the amended Federal Rule of Civil Procedure 26(b)(1) requires consideration of at least some of the proportionality factors in determining whether the discovery requested is proportional to the needs of the case.
Importantly, the addition of the proportionality factors should not change the existing responsibilities of the court and parties to consider proportionality; rather, the addition merely clarifies and brings together the specific set of factors the court is to consider in determining proportionality.
A new case filed June 15, 2015 in the Circuit Court of Appeals of Tennessee at Knoxville found that vomit on the floor of a Hardee’s restaurant for approximately three minutes was a sufficient length of time to charge defendant with constructive notice of the dangerous condition. The case at issue is styled Kyle Beverly, et al. v. Hardee’s Food Systems, LLC, No. E2014-02155-COA-R3-CV – FILED – June 15, 2015 (Tenn. Ct. App., April 14, 2015).
This appeal followed a successful summary judgment in the trial court, which found there was no evidence to support constructive knowledge on the part of the defendant. The videotape from Hardee’s showed two employees were busy serving customers during the three minute time period the condition existed before the fall. The trial court found (correctly in my opinion) the vomit did not existed on the floor long enough that the defendant, using ordinary care, should have discovered and corrected the unsafe condition.
Under Tennessee law, constructive notice is defined as “information or knowledge of a fact imputed by law to a person because he could have discovered the fact by proper diligence, and his situation was such as to cause upon him the duty of inquiring into it.” See Hawks v. City of West Moreland, 960 S.W.2d 10, 15 (Tenn. 1997). Plaintiff can prove constructive notice by presenting evidence that the condition existed for a length of time that the owner/occupier in the exercise of reasonable care, should have become aware of the condition.
In reversing the Trial Court below, the Court of Appeals found there was evidence in the record that “could potentially” establish constructive notice and, as a result, summary judgment was inappropriate. Specifically, the Court found that there were factual considerations that should have been considered, e.g., the nature of the business, the revolving number of patrons, and the nature of the danger, its location, and the foreseeable consequences. In considering these various factors, the Court found there were sufficient facts from which a reasonable jury could infer the condition existed for such a length of time that one exercising reasonable care would have discovered it.
Not all premise owners will be charged with constructive notice under the same circumstances presented by this case. The fact that Hardee’s is a fast food restaurant definitely played a role in the Court’s decision as to what would be a reasonable response of an employee. Nevertheless, this case reminds all premise owners of its responsibility to have periodic inspections. The frequency of the inspections needs to be tailored to the type of business operation. If you have questions or concerns regarding whether your business’ policies and procedures are adequate to prevent these types of claims, please do not hesitate to contact us directly.
The Tennessee Court of Appeals recently ruled on a curious case of slip-and-fall. In the case of Petros Goumas v. Jimmy Mayse, et al., the Tennessee Court of Appeals in Knoxville found that the Trial Court correctly granted summary judgments to the defendants. The plaintiff was the fiancé of the daughter of the defendants, Jimmy Mayse and wife, Barri Mayse. Goumas was staying with his future in-laws when he slipped on a rock and broke his arm. It was daylight and dry at the time of the accident. Goumas had worked on the property before and knew where the rock was located.
Both the trial court and the court of appeals made quick work of dismissing this case on summary judgment. The court of appeals reiterated that liability in premise liability cases stem from superior knowledge of the condition of the premise. Under the circumstances of the case, the court found that plaintiff had as much knowledge of the condition of the premise as the owners. The court also restated two, long-standing principals in Tennessee. First, an individual has the duty to take care for his or her own safety. And second, negligence is not to be presumed by the mere happening of an injury or an accident.
Chief Judge Susano’s opinion does not necessarily present a novel legal precedent, but the facts of the case and the affirmation of some long-standing principals favorable to owners of property warrant some comment. Also, I can’t help but wonder whether Goumas wed the daughter of Jimmy Mayse. Sources confirm Goumas was forced to sue his future in-laws because the homeowners’ insurer denied coverage for the incident. So maybe the facts as presented do not tell the whole story. Rumor is Goumas and fiancé moved away from Tennessee to Elk River, Minnesota.
The doctrine of spoliation of evidence can cause major problems for both plaintiffs and defendants in civil litigation. Often times, months or years pass before the defendant is notified of a claim. As a result, defendants may have no notice that there is a duty to preserve evidence relevant to future litigation until after the evidence is discarded, lost or destroyed during the normal course of business. It is paramount, therefore, that businesses understand the rules associated with spoliation of evidence and adopt sound policies and procedures to (a) identify a potential claim; and (b) take reasonable steps to preserve evidence material to the claim.
As a general matter, spoliation of evidence permits a court to draw a negative inference against a party that has intentionally, and for improper purpose, destroyed, mutilated, lost, altered or concealed evidence. Bronson v. Umphries, 138 S.W.3d 844, 854 (Tenn. Ct. App. 2003); Leatherwood v. Wadley, 121 S.W.3d 682, 703 (Tenn. Ct. App. 2003); Foley v. St. Thomas Hospital, 906 S.W.2d 448, 453-54 (Tenn. Ct. App. 1995)). Federal courts in the Sixth Circuit also require some showing of intentional destruction of evidence before a spoliation sanction is appropriate. Atkins v. Wolever, 554 F.3d 65 (6th Cir. 2012); Beaven v. U.S. Dept. of J., 622 F.3d 540 (6th Cir. 2010).
However, amendments to the Tennessee Rules of Procedure, as well as several unreported Tennessee cases, began calling into question the type of proof required before a court may impose a spoliation sanction. Rule 37A.02 of the Tennessee Rules of Civil Procedure states that a sanction “… may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.” Tenn. R. Civ. Pro. 34A.02. There is no culpable mind state included in this rule. In Cincinnati Ins. Co. v. Mid-S. Drillers Supply, Inc., 2008 WL 220287 (Tenn. Ct. App., Jan. 25, 2008), the Tennessee Court of Appeals pointed out that “nowhere in Rule 34A does it state that a finding of intentional destruction of evidence is permitted before a trial can order sanctions under Rule 37.” Id. at *4. The court held “. . . the trial court has discretion to sanction a party by dismissal of its case where the party’s destruction of evidence severely prejudices an adverse party’s defense irrespective of whether the destruction was inadvertent or intentional.” Id. at *1.
But, following the Cincinnati case, the Court of Appeals has repeatedly held that the doctrine of spoliation only permits a court to draw a negative inference against a party who has intentionally, and for improper purpose, destroyed, mutilated, lost, altered, or concealed evidence. Fuller v. City of Memphis, 2012 WL 3201937, at *5 (Tenn. Ct. App., August 8, 2012); Hensley v. Duke, 2010 WL 845385, at *9 (Tenn. Ct. App., March 10, 2010); Kincade v. Jiffy Lube, 2008 WL 1970348, at *4 (Tenn. Ct. App., May 8, 2008). In Fuller v. City of Memphis, the court reiterated that the negative inference only arises “… when the spoliation occurs in circumstances indicating fraud and a desire to suppress the truth. It does not arise when the destruction was a matter of routine with no fraudulent intent.” Id. at *5.
Accordingly, although the current status quo appears to require a showing of intent, it is clear that trial courts have wide discretion in determining the appropriate sanction to be imposed for discovery violations and that such discretion will only be set aside on appeal when the court has misconstrued or misapplied the controlling legal principal. Mercer v. Vanderbilt University, Inc., 134 S.W.3d 121, 133 (Tenn. 2004). Hopefully, the Tennessee Supreme Court will clarify what standard applies in determining whether or not a spoliation sanction is appropriate. In the meantime, it is incredibly important for businesses to use due diligence to protect and preserve any evidence that may relate to civil litigation, including standardization of incident reports for all incidents involving injury on premises. It is equally important that any incident reports be communicated to the appropriate risk managers for evaluation and appropriate action.
If your business needs advise concerning risk management or evidence preservation, please do not hesitate to contact me.
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.
The facts are simple according to the opinion. Ben and Nicole Goeser started a karaoke business in Nashville. Hank Wise was a big fan of Nicole and, over time, developed an unhealthy crush. At some point, he asked an “inappropriate” question about the status of Nicole’s marriage, which got him deleted from Nicole’s Myspace page. At a subsequent event, Ben confronted Hank and asked him to kindly stay away from his wife. Hank attended two additional events without issue. Then, on a fateful Thursday night in 2009, Hank found Ben and Nicole at Johnny’s Bar and Grill located on the corner of Nolensville Road and Old Hickory Boulevard in Nashville. Nicole told the manager of Johnny’s Bar and Grill that Hank was making her “uncomfortable” and she wanted him to leave. When Hank was asked to leave, he stood up, unzipped his jacket, and shot Ben in the head several times. Ben died instantly.
As is often the case, this criminal act turned into a civil lawsuit against the owners of the bar under a theory that the premise owner had a duty to protect Ben from the foreseeable criminal act of Hank. Prior to trial, Judge Gayden dismissed the case on the grounds that the plaintiffs failed to demonstrate that the incident was foreseeable. The plaintiffs appealed arguing that the bar breached its duty by failing to have a trained security guard working on the night of the murder or to give their employees adequate training to protect their guests. The Court of Appeal affirmed Judge Gayden’s summary dismissal of the case. In doing so, the court summarized several important cases in Tennessee and made an important distinction between cases involving “general threats” and “specific threats” of criminal acts that could, in turn, give rise to a duty to protect patrons from the criminal acts of third parties.
The court categorized McClung v. Delta Square Ltd. as a “general threat” case. In McClung, a woman was abducted at gunpoint by a stranger in the parking lot of a Memphis shopping mall, and later raped and murdered. There was no evidence the mall owners knew the incident was about to occur. Still, the court in McClung found that there could be a duty owed if there was a general threat posed to patrons based on a variety of factors. The court adopted a “balancing approach” which seeks to balance the degree of foreseeability of harm to the plaintiff against the burden that would be imposed on the defendant if it were required to engage in an alternative course of conduct that could have prevented the harm. Here, the court articulated the following standard:
As a practical matter, the requisite degree of foreseeability essential to establish a duty to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of defendant’s premises. Courts must consider the location, nature, and extent of previous criminal activities and their similarity, proximity, or other relationship to the crime giving rise to the cause of action. To hold otherwise would impose an undue burden upon merchants.
Following its discussion of McClung, the court of appeals then turned to cases involving “specific threats” of criminal conduct. Here, the court states “[f]oreseeability may also arise from more specific knowledge, such as when an identifiable individual acts in such a way as to suggest criminal intentions or proclivities.” Here, the court cited the well-known case of Giggers v. Memphis Housing Authority, which involved a public housing tenant shooting and killing another tenant. The Giggers court found that that when an injury is not foreseeable, a criminal act by a third party constitutes “a superseding, intervening cause of harm, relieving the [defendant] of liability.” Id. at 367. However, because the shooter in Giggers had previously stabbed another tenant in his building, the court in Giggers found that the danger was foreseeable and that the defendant housing authority had a duty to take reasonable measures to protect its tenants from him. The court also cited Staples v. CBL & Associates, Inc. as an additional example of a case involving a specific threat.
Turning to the facts of the case, the court of appeals found that there was no evidence Johnny’s Bar and Grill was located in a high-crime area. The proof showed there had only been two prior fights at the bar before the incident in question. So, the “general threat” theory did not trigger a duty to provide more security. The court also found that there was no evidence Hank posed a “specific threat” that would have required Johnny’s Bar and Grill to act differently. There was no knowledge Hank was a criminal or prone to violence. None of Hank’s conduct leading up to the incident gave warning that he might act in a violent way. Even though Nicole asked an employee to have Hank removed, the court did not see this fact alone as sufficient to trigger a duty to protect other patrons from Hank.
I like this decision for a number of reasons. First, I appreciated the court making the distinction between “general threats” and “specific threats” that may give rise to a duty to act. Not every bar or restaurant is required to or needs to have security. This is a point often lost in this area of the law. In Tennessee, businesses are not to be regarded as the insurers of their patrons’ safety. So, unless you can point to prior criminal acts, the “general threat” theory should fail as a matter of law. Second, just because you ask a patron to leave the premises does not mean the business is on notice of a “specific threat” of a criminal action. This presupposes that individuals will act in violent and criminal ways when asked to leave the premise for whatever reason. Frankly, this is just not the case in most settings and holding otherwise would put too great a burden on business owners to hire and train additional staff to protect against random acts of violence.