Can a Witness to Co-Worker’s Accident Bring a Retaliatory Discharge Claim After Being Fired Because He Was a Witness?

Posted on Aug 24 2014 9:05PM by Attorney, Jason A. Lee

The recent Tennessee Court of Appeals decision of Phillip Dean Patrick v. Nelson Global Products, Inc., No. E2013-02444-COA-R3-CV, 2014 WL 3763677 (Tenn. Ct. App. 2014) discussed whether a former employee can bring a retaliatory discharge claim against their employer for being terminated allegedly because he was a witness to a co-workers’ work related injury.  In this case, the plaintiff asserted that he was standing near a co-worker when the co-worker suffered a work related injury.  That co-worker filed a workers’ compensation claim.  Shortly thereafter the employer terminated the plaintiff (not the individual who was actually injured in the workers’ compensation injury incident).  The plaintiff asserts he was terminated because he was a witness to the co-worker’s work injury and that this was a substantial factor in his termination.  As a result, he brought a retaliatory discharge case against his employer.


The Tennessee Court of Appeals noted that in order to prevail on a retaliatory discharge claim in Tennessee, there are four essential elements.  These elements are as follows:


(1) that an employment-at-will relationship existed;

(2) that the employee was discharged;

(3) that the reason for the discharge was that the employee attempted to exercise a statutory or constitutional right, or for any other reason which violates a clear public policy evidenced by an unambiguous constitutional, statutory, or regulatory provision; and

(4) that a substantial factor in the employer's decision to discharge the employee was the employee's exercise of protected rights or compliance with clear public policy.


Patrick at 3 (Citing Tennessee Supreme Court decision Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422 (Tenn. 2011)).  The Court found that the plaintiff clearly could establish elements number one and two.  However, there were significant problems with plaintiff’s ability to establish elements nu...

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TAGS: Torts, Tennessee Workers Compensation, Employment Law Comments [0]

Volunteer Doctors who Provide Free Services Under the Volunteer Healthcare Services Act are Not Liable for Medical Malpractice Negligence in Tennessee

Posted on Aug 10 2014 8:53PM by Attorney, Jason A. Lee

The Volunteer Healthcare Services Act found in T.C.A. § 63-6-701 through 709 provides a certain level of immunity for volunteer physicians who provide healthcare in compliance with this statute.  Specifically, healthcare providers including physicians, surgeons, dentists, nurses, optometrists or “other practitioners of the healthcare discipline” who perform work for a “sponsoring organization” on a volunteer basis can be protected by the immunity provisions in this statute.


2014 Tennessee Statute Modification – Free Clinics Now Included:


In the 2014 Tennessee legislative session, this Act was amended in Public Chapter 575 in order to expand the amount of healthcare providers who receive protection under the act.  The bill summary provides a good explanation of this expansion as follows:


Under present law, no individual who is licensed, certified, or authorized by any board of the healing arts, who engages in the voluntary provision of health care services to any patient of a sponsoring organization is liable for any civil damages for any act or omission resulting from services rendered, unless the act or omission is a result of the individual's gross negligence or willful misconduct.

This bill extends the above immunity to services delivered at a free clinic.

This bill defines a "free clinic" as a not for profit, out-patient, non-hospital facility in which a health care provider engages in the voluntary provision of health care services to patients without charge to the recipient or a third party. "Voluntary provisions of health care services" is defined as providing health care services either without charge to the recipient or to a third party, or the recipient is charged on a sliding scale according to income.


Now, this protection extends to “free clinics” under the Act.  Prior to this legislative change, “free clinics” were not included in the protections afforded under these statutes.  “Free clinics” under the amended statute are defined in T.C.A. § 63-6-703 as:

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TAGS: Tennessee Medical Malpractice/Health Care Liability, Immunity Comments [0]

2014 Tennessee Legislature Makes Judgments Permanent if Injury or Death Caused by Criminal Conduct

Posted on Aug 3 2014 9:33PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Legislature made an interesting change to the typical rule in Tennessee that judgments are only good for ten years unless renewed (See T.C.A. § 28-3-110 and Tennessee Rule of Civil Procedure 69.04).  The Tennessee Legislature in the 2014 Tennessee legislative session passed Public Chapter No. 596 which was signed into law by Governor Bill Haslam on March 28, 2014.  This statute essentially allows a party to make a judgment permanent (as opposed to the current law where it expires after 10 years unless renewed) if the injury or death was caused by criminal conduct.  This act applies to any civil judgments that go into effect after July 1, 2014.  Additionally, there is actually a way for this act to apply to judgments entered before July 1, 2014, if a specific procedure is followed.


The new T.C.A. § 28-3-110(B)(1) provides as follows:


(b)(1) Notwithstanding the provisions of subsection (a), there is no time within which a judgment or decree of a court of record entered on or after July 1, 2014, must be acted upon in the following circumstances:

(A) The judgment is for the injury or death of a person that resulted from the judgment debtor's criminal conduct; and

(B) The judgment debtor is convicted of a crim...

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TAGS: Post Judgment Motions, 2014 Tennessee Legislation, Statute of Limitations, Statute of Repose, Miscellaneous, Wrongful Death Comments [0]

Tennessee Supreme Court Recently Ruled that Trial Courts Must Explain The Basis for Ruling on a Motion for Summary Judgment Before it Invites or Requests Counsel to Draft the Order

Posted on Jul 28 2014 9:45PM by Attorney, Jason A. Lee

Analysis:  On July 15, 2014 the Tennessee Supreme Court provided an important new opinion that will modify the way many trial courts handle ruling on motions for summary judgment.  The case of Mary C. Smith v. UHS of Lakeside, Inc., No. W2011-02405-SC-R11-CV, 2014 WL 3429204 (Tenn. 2014), dealt with a situation where a trial court granted two motion for summary judgment on behalf of the defendants.  The details of this health care liability cause of action are not important to be able to evaluate the importance of this opinion.  The details of what happened at the motion for summary judgment rulings are, however, very important. 


After the trial court ruled on two motions for summary judgment the court then directed defense counsel to prepare the orders explaining the trial court’s ruling.  The Supreme Court discussed the trial court’s statements to counsel as follows: 


The trial court then observed that “the appellate court is going to want a rationale from our rulings.” Accordingly, the trial court stated, “As far as a basis for the ruling, I'm going to let you [Lakeside's counsel] make those.... And in the same way [p]laintiff's counsel can then, you were successful on EMTALA, outrageous conduct and the negligent infliction of emotional distress, the motions in which you were successful, you'll prepare the order and the rationale for the Court's ruling.”


Smith at 5.  At the second hearing the trial court once again ruled on the pending motion for summary judgment and stated:


I'm ruling now. I think I've heard ample discussion on this. And I'm directing the [d]efendant to prepare the order and to establish the rationale for the [c]ourt's ruling in quite specific detail, and let this go forward as quickly as possible to the [a]ppellate [c]ourt.


So basically at both hearings, the trial court did not provide detail about the basis or reasoning for its ruling on the motions for summary judgment.  It simply relied upon counsel to draft an order explaining the rationale for the trial court’s ruling.  The granting of the motions for summary judgment was therefore appealed and the appeal ultimately came to the Tenne...

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TAGS: Summary Judgment Comments [0]

Tennessee Passes “Employee Online Privacy Act of 2014” Preventing Employers from Obtaining Access to Personal Internet Accounts Like Facebook

Posted on Jul 20 2014 8:55PM by Attorney, Jason A. Lee

The Tennessee Legislature recently passed the Employee Online Privacy Act of 2014.  This is found in 2014 Public Chapter 826.   This new statute will be found in Title 50, Chapter 1 (T.C.A. § 50-1-??? – we do not know yet) and takes effect on January 1, 2015.  This new statute basically prevents an employer from taking any adverse employment action against an employee for failure to provide access to a “personal internet account” (which basically includes any type of internet account).  “Personal internet account” is defined as follows:


(5) "Personal Internet account":

(A) Means an online account that is used by an employee or applicant exclusively for personal communications unrelated to any business purpose of the employer; and includes any electronic medium or service where users may create, share or view content, including, emails, messages, instant messages, text messages, blogs, podcasts, photographs, videos or user-created profiles; and

(B) Does not include an account created, maintained, used, or accessed by an employee or applicant for business-related communications or for a business purpose of the employer.


Upon review of the definition of personal internet account would certainly include Email, Facebook and Twitter accounts.  The most common of the “personal internet account’s” that falls within this statute is likely Facebook so it would certainly apply to anyone who has a Facebook account with private settings (yet another reason to make sure that your Facebook account is set to “private” and not “public”)  Under this statute Tennessee employers are specifically prevented from the following:

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TAGS: Employment Law, Corporation/LLC Law Comments [0]

New Tennessee Statute Provides Immunity for Forcible Entry Into A Motor Vehicle to Remove Minor in Imminent Danger

Posted on Jul 13 2014 7:03PM by Attorney, Jason A. Lee

Analysis:  The Tennessee Legislature dealt with an interesting issue in the 2014 legislative session involving minor’s stuck in vehicles.  The legislature passed Public Chapter No. 788 and it took effect on July 1, 2014.  Apparently, there was some need to pass this statute although this statute really addresses a very rare circumstance.  It is of note, however, that this particular change in Tennessee law has received quite a bit of attention from the media even though there are other changes in the law that are much more substantial and significant but they receive no media attention. 


In summary this new statute basically provides immunity from civil liability for any damages resulting from forcible entry into a vehicle to remove a minor from the vehicle.  The person who removes the minor must have a good faith belief that forcible entry is necessary because the minor is in imminent danger of suffering harm.  There are also other requirements that are outlined in the statute and must be followed for this immunity to apply.  The new statute is found in T.C.A. § 29-34-209 and provides as follows:


(a) A person whose conduct conforms to the requirements of subsection (b) shall be immune from civil liability for any damage resulting from the forcible entry of a motor vehicle for the purpose of removing a minor from the vehicle.
(b) Subsection (a) applies if the person:
 (1) Determines the vehicle is locked or there is otherwise no reasonable method for the minor to exit the vehicle;
 (2) Has a good faith belief that forcible entry into the vehicle is necessary because the minor is in imminent danger of suffering harm if not immediately removed from  the vehicle and, based upon the circumstances known to the person at the time, the belief is a reasonable one;
 (3) Has contacted either the local law enforcement agency, the fire department or the 911 operator prior to forcibly entering the vehicle;
 (4) Places a notice on the vehicle's windshield with the person's contact information, the reason the entry was made, the location of the minor and that the  authorities have been notified;
 (5) Remains with the minor in a safe location, out of the elements but reasonably close to the vehicle until law enforcement, fire or other emergency responder  arrives; and
 (6) Used no more force to enter the vehicle and remove the child from the vehicle than is necessary under the circumstances.
(c) Nothing in this section shall affect the person's civil liability if the person attempts to render aid to the minor in addition to what is authorized by this section.


Obviously, it is likely a rare circumstance where this will occur (I am referring to the actual need for immunity to apply to protect someone from a lawsuit – I am aware that minors are sometimes left in vehicl...

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TAGS: Automobile/Motorcycle Liability, 2014 Tennessee Legislation, Defenses, Immunity Comments [0]

New Tennessee Law Clarifies that Red Light Violation Does Not Occur When Vehicle’s Front Tires Have Already Entered Intersection When Light Turns Red

Posted on Jul 6 2014 8:59PM by Attorney, Jason A. Lee

Analysis:  In the 2014 Tennessee Legislative session the Tennessee Legislature decided to clarify exactly what constitutes a red light violation in Tennessee.  The legislature amended T.C.A. § 55-8-110 which is the statute that discusses what traffic control signals mean for an intersection.  It defines and explains the meaning of the “green”, “yellow”, and “red” notifications on traffic signal devices.  The Tennessee Legislature passed Public Chapter No. 989 that added a new subsection (e) to T.C.A. § 55-8-110 as follows:


(e) It is not a violation of subdivision (a)(3), unless the front tires of a vehicle cross the stop line after the signal is red.


Subsection (a)(3) is the section that discusses the responsibilities of a driver when faced with a red light in Tennessee.  As a result of this change, it is not a red light violation unless the front tires of the vehicle cross the stop line after the signal is already red.  As a result, if the front tires are already beyond the traffic intersection line at the point when the light turns red, then it is not a red light violation under the newly amended T.C.A. § 55-8-110.  This law takes effect on July 1, 2014.


Obviously, this change in the law will come into play in automobile accident litigation across the state of Tennessee.  This new statute more clearly defines what it means to violate a red light and provides a definitive time period when a red light violation occurs (when the vehicle’s front tires cross the intersection line when the light is already red).  I am sure this statute will be heavily involved in litigated car accident cases across the State of Tennessee.  However, I think it is a beneficial clarification in the law to make a bright line test for when a red light violation occurs.  There is still plenty of room for disagreement as to whether the fr...

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TAGS: Uninsured Motorist, Automobile/Motorcycle Liability, 2014 Tennessee Legislation, Defenses Comments [1]

Tennessee Adds Five Year Statute of Repose for Attorney and Accountant Malpractice Claims

Posted on Jun 29 2014 9:22PM by Attorney, Jason A. Lee

Analysis:  The Tennessee legislature recently passed a law that now provides a five year statute of repose for any malpractice claims against accountants or attorneys.  The Tennessee Legislature in the 2014 Tennessee Legislative Session passed Public Chapter No. 618 making this change to existing Tennessee law.  This statute takes effect July 1, 2014 and applies to all acts or omissions of malpractice by accountants or attorneys that occur on or after July 1, 2014. 


T.C.A. § 28-3-104 is modified to add a new subsection (c).  The new subsection in the statute provides as follows:


(c)(1) Actions and suits against licensed public accountants, certified public accountants, or attorneys for malpractice shall be commenced within one (1) year after the cause of action accrued, whether the action or suit is grounded or based in contract or tort.

(2) In no event shall any action or suit against a licensed public accountant, certified public accountant or attorney be brought more than five (5) years after the date on which the act or omission occurred, except where there is fraudulent concealment on the part of the defendant, in which case the action or suit shall be commenced within one (1) year after discovery that the cause of action exists.


As you can see, there is still a one year statute of limitations for suits against accountants and attorneys for malpractice from the date the cause of action accrued (the discovery rule applies in Tennessee to these causes of action so that can extend the statute of limitations well beyond 1 year from the actual act or omission).  However, the new five year statute of repose is now found in subsection (c)(2) which basically provides that once five years passes from the date of the act or omission which constituted malpractice, no claim can be brought against the accountant or attorney. 

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TAGS: 2014 Tennessee Legislation, Defenses, Torts, Statute of Limitations, Statute of Repose Comments [0]

Tennessee Nurse Practitioners Are Now Exempt from Subpoena to Trial

Posted on Jun 16 2014 8:35PM by Attorney, Jason A. Lee

Analysis:  T.C.A. § 24-9-101 provides a list of individuals who are exempt from subpoena to trial in Tennessee.  These individuals are still subject to give a deposition by subpoena but they cannot be subpoenaed to trial.  Tennessee Public Chapter No. 590, was passed in the 2014 Tennessee Legislative session and it added “advanced practice nurses”, commonly referred to as “nurse practitioners” to the list of those who are exempt from subpoena to trial.  As a result, T.C.A. § 24-9-101 now provides the following list of individuals who are exempt from subpoena to trial:


(a) Deponents exempt from subpoena to trial but subject to subpoena to a deposition are:

(1) An officer of the United States;

(2) An officer of this state;

(3) An officer of any court or municipality within the state;

(4) The clerk of any court of record other than that in which the suit is pending;

(5) A member of the general assembly while in session, or clerk or officer thereof;

(6) A practicing physician, physician assistant, advanced practice nurse, psychologist, senior psychological examiner, chiropractor, dentist or attorney;

(7) A jailer or keeper of a public prison in any county other than that in which the suit is pending; and

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TAGS: Discovery Comments [0]

Tennessee Removes Sovereign Immunity for Claims Against Tennessee Governmental Entities Under the Uniformed Services Employment and Reemployment Rights Act

Posted on Jun 8 2014 6:36PM by Attorney, Jason A. Lee

Analysis:  I am working on several blog posts to try to update everyone on important Tennessee Legislative changes that came out of the 2014 Tennessee Legislative session.  These posts will touch on various topics and will be published over the next few months.  One change from the recent session is the removal of sovereign immunity for Tennessee governmental entities for claims against those entities under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  The Uniformed Services Employment and Reemployment Rights Act is found in 38 USC §§ 4301-4334.  Basically, this federal legislation strengthens military veteran’s reemployment rights when they are required to serve in a war.  This has always been an important principle to protect in America and has been protected by numerous statutes over the years.  Basically, soldiers who fight in wars for this country should not lose their jobs because they had to fight in a war.


Under Tennessee law, however, governmental entities are provided with sovereign immunity under many circumstances.  Specifically, T.C.A. § 29-20-201(a) is one of the statutes (there are others) that addresses sovereign immunity and provides as follows:


(a) Except as may be otherwise provided in this chapter, all governmental entities shall be immune from suit for any injury which may result from the activities of such governmental entities wherein such governmental entities are engaged in the exercise and discharge of any of their functions, governmental or proprietary.

(b)(1) The general assembly finds and declares that the services of governmental entity boards, commissions, authorities and other governing agencies are critical to the efficient conduct and management of the public affairs of the citizens of this state. Complete and absolute immunity is req...

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TAGS: GTLA, Employment Law, Immunity Comments [0]

Is One-Sided Contract Requiring Arbitration by One Party, but Not the Other, Enforceable in Tennessee?

Posted on Jun 1 2014 8:42PM by Attorney, Jason A. Lee

Analysis:  A recent Tennessee Court of Appeals decision discussed the viability of a contract that had a one-sided arbitration provision.  The Tennessee Court of Appeals decision of Richard A. Berent v. CMH Homes, Inc., 2014 WL 813874 (Tenn. Ct. App. 2014) dealt with an arbitration agreement that required the purchaser of a manufactured mobile home to submit virtually all of the buyer’s potential claims to arbitration.  On the other hand, the same contract provided certain exceptions to the “mandatory” arbitration that exclusively benefited the mobile home manufacturer.  The effective result was that the purchaser of the mobile home had to submit virtually all of his claims to arbitration whereas the seller of the manufactured mobile home could pursue judicial relief for many claims.


As a result, the question before the Court was whether this arbitration requirement was unconscionable and therefore unenforceable under Tennessee law.  Previously in Taylor v. Butler, 142 S.W.3d 277 (Tenn. 2004) the Tennessee Supreme Court held that an arbitration agreement was unconscionable when it reserves the “right to a judicial forum for the defendants while requiring the plaintiff to submit all claims to arbitration.”  Taylor at 280.  In the Berent case the Tennessee Court of Appeals applied the Taylor reasoning and found that this arbitration agreement was unconscionable.  As a result, this Tennessee Court of Appeals decision reaffirmed the applicability of the Taylor decision finding that it is improper in Tennessee for any arbitration agreement to selectively decide that one party has access to a judicial remedy while the other party only has access to an arbitration remedy. 


Interestingly, the defendants in this case attacked the viability of the Supreme Court’s holding in Taylor from 2004.  The defendants asserted in this case that Taylor is no longer in the legal majority across the country and that this decision should be overruled (in fact they assert this holding is only accepted in a “small minority” of jurisdictions).  Obviously, the Tennessee Court of Appeals declined to overrule a Tennessee Supreme Court decision and specifically stated that such an issue must be directed to...

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TAGS: Defenses, Breach of Contract, Arbitration, Contracts Comments [0]

When is a National Organization Responsible for the Sexual Abuse of a Minor that Occurs at a Local Chapter in Tennessee?

Posted on May 18 2014 10:14PM by Attorney, Jason A. Lee

Analysis:  A very interesting Tennessee Court of Appeals decision was recently decided on an issue that often comes up in sexual abuse cases.  The question is whether a national organization or entity can be held responsible for actions that occurred by the local organization or their members or volunteers.  The Tennessee Court of Appeals decision of Ms. B., individually and on behalf of minor child, John Doe, “N” v. Boys and Girls Club of Middle Tennessee, et al, No. M-2013-00812-COA-R3-CV, 2014 WL 890892 (Tenn. Ct. App. 2014) involved a lawsuit that was filed for the alleged sexual abuse of a minor child by a volunteer associated with the local Boys and Girls Club of Middle Tennessee.  The national entity, Boys and Girls Club of America, was also sued in this case.  The trial court granted the national entity’s motion for summary judgment and that ruling was appealed to the Tennessee Court of Appeals. 


The question before the Tennessee Court of Appeals was whether the national Boys and Girls Club of America had a legal responsibility to the minor child in this context.  The court noted that it is well settled in Tennessee that “there is no duty to protect others against risks of harm by third parties.”  Ms. B. at 4.  However, the court went on to state that, “an exception arises, however, when a special relationship exists between the defendant and either the person at risk or the actor who is the source of the risk or danger.”  Ms. B. at 4.  Further, “[i]f an individual stands in a special relationship to another individual who is the source of the danger or who is foreseeably at risk from the danger, then the individual assumes an affirmative duty to exercise reasonable care to either control the danger or protect the vulnerable.”  Ms. B. at 4. 


The Tennessee Court of Appeals in this case framed the specific issue in dispute as follows:


The question of whether a duty should be imposed on BBBSA to take reasonable measures to prevent sexual abuse of children participating in programs offered b...

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TAGS: Torts, Corporation/LLC Law, Miscellaneous Comments [0]
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