TAM-BYTES

December 19, 2016

Vol. 19, No. 51
TAM Webinars
Best and Worst of Witness Examinations, 60-minute audio conference
presented by Matt Glover, with Prince Glover & Hayes in Tuscaloosa, on
Thursday, February 2, at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
The Tennessee Attorneys Update on the Revised Uniform Fiduciary
Access to Digital Assets Act, 60-minute webinar presented by Rebecca
Blair, with The Blair Law Firm in Brentwood, on Thursday, February 16,
at 2 p.m. (Central), 3 p.m. (Eastern).
*Earn 1 hour of GENERAL credit
Healthcare Liability Cases in Tennessee: Notice and Certificate of
Good Faith, 60-minute webinar presented by Brandon Bass, with the Law
Offices of John Day in Brentwood, and Chris Tardio, with Gideon, Cooper
& Essary in Nashville, on Thursday, February 23, at 2 p.m. (Central), 3
p.m. (Eastern).
*Earn 1 hour of GENERAL credit

IN THIS WEEKS TAM-Bytes

Court of Appeals erred in not granting summary judgment in favor of
school district in suit by parents of 13-year-old special education
student who was sexually assaulted by another 13-year-old special
education student in school bathroom;
Court of Appeals holds county was immune in suit under
Governmental Tort Liability Act by special education assistant who
was injured when two middle school students were roughhousing in
school hallway and one was pushed into her;

 Court of Appeals, in two cases, affirms termination of mothers and

fathers parental rights to their child on ground of mental
incompetence; and
Court of Criminal Appeals reverses child abuse convictions based on
erroneous admission of hearsay statements of two assistants at
victims school when statements lacked spontaneity underlying
rationale for excited utterance exception to hearsay rule.

WORKERS COMP PANEL

WORKERS COMPENSATION: Evidence did not preponderate against
trial courts determination that employee was terminated for misconduct,
and hence, award of permanent disability benefits was subject to 1.5 times
impairment cap, when employee often could not be located and was not
where he said he would be and when employee disparaged employer in front
of suppliers; when employer acknowledged that there was no dispute
regarding compensability of injury and primary issue was whether employee
had meaningful return to work despite his termination, trial court correctly
concluded that employer was prevailing party on that issue and was entitled
to recover costs arising from that issue. Dyson-Kissner-Moran Corp. v.
Shavers, 12/16/16, Knoxville, Davis, 10 pages.
http://www.tncourts.gov/sites/default/files/20161216120614.pdf

CIVIL PROCEDURE: When employee was injured on 8/11/12 in course

of his employment, he returned to work at his pre-injury job after several
months of temporary disability, his position was later eliminated, he
remained with employer but was assigned to lower-paying job, he filed suit
for workers compensation benefits, trial court held that employee had
meaningful return to work and his award of permanent disability benefits
was limited to 1.5 times impairment rating, between trial and filing of trial
courts decision, employee returned to his previous job at wage higher than
his pre-injury wage, trial courts decision was not appealed, during months
after entry of judgment, employee was reassigned to lower paying position,
and he filed petition for reconsideration, and trial court held that employee
was entitled to reconsideration and awarded additional permanent
disability benefits in stipulated amount, facts and issues presented in
second litigation are different from those presented in first litigation and
collateral estoppel does not apply. Strawter v. Mueller Co., 12/16/16,
Knoxville, Davis, 11 pages.
http://www.tncourts.gov/sites/default/files/strawter.pdf

WORKERS COMP APPEALS BOARD

WORKERS COMPENSATION: Given ambiguity of drug test results
levels included in far-right columns on Quest Diagnostics form, which list
Initial Test Level and MS Confirm Test Level, indicate Acceptable
Range for each drug tested and not employees actual results, and on
second page of report, employees Urine Quantitative Results are listed
and indicate marijuana metabolites of 16 ng/ml in In Range column of
Results upon which trial court relied in reaching its decision, trial court
did not have enough information to reach its determination that employer
was not entitled to presumption of causation set forth in TCA 50-6110(c)(1); case is remanded for submission of additional evidence
concerning correct interpretation of drug screening results. Green v. Rogers
Group, 12/13/16, Hensley, 5 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1666&context=utk_workerscomp
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1606&context=utk_workerscomp

COURT OF APPEALS
TORTS: When 13-year-old special education student was sexually
assaulted by another 13-year-old special education student in bathroom at
Union City Middle School and students parents filed suit against Union
City School District (UCSD), trial court erred in failing to grant UCSD
summary judgment because, giving every reasonable inference in favor of
plaintiffs, evidence did not support finding that sexual assault against student
was foreseeable; mothers letter to principal did not provide USCD notice
that student had been either victim of sexual assault at school, or was likely
to be victim of sexual assault by other student, or any other student, as
sexual assault is very different in nature from bullying and other behavior
complained of in letter. K.G.R. ex rel. Riffe v. Union City School District,
12/14/16, Jackson, Armstrong, 9 pages.
http://www.tncourts.gov/sites/default/files/kgropn.pdf

TORTS: In suit under Governmental Tort Liability Act by plaintiff, special

education assistant, who was injured at work when two middle school
students were roughhousing in school hallway and one was pushed into her,
causing her to fall, in which plaintiff argued that hallway monitoring policy
was not implemented or followed and that failure to follow established
policy was operational act for which immunity from suit has been removed,

trial court did not err in rendering judgment in favor of defendants; plaintiff
did not establish violation of policy, and in absence of such proof, countys
immunity was not abrogated. Guthrie v. Rutherford County, 12/15/16,
Nashville, Dinkins, 10 pages.
http://www.tncourts.gov/sites/default/files/guthri.linda_.opn_.pdf

EVIDENCE: When plaintiff fell while traversing down step that provided
access to area of attic in defendants home that plaintiff was viewing as
prospective buyer, plaintiff filed premises liability suit against defendants,
and jury returned verdict in favor of defendants, finding that they were not at
fault for plaintiffs injuries, trial court did not abuse discretion by concluding
that probative value of surveillance video was not substantially outweighed
by danger of unfair prejudice when, in light of plaintiffs testimony about
her physical limitations, video evidence of her walking in heels and climbing
in and out of large vehicle was relevant to issues at trial. Woodgett v.
Vaughan, 12/13/16, Nashville, Gibson, 9 pages.
http://www.tncourts.gov/sites/default/files/woodgett.charlesan.opn_.pdf

FAMILY LAW: Evidence supported termination of mothers parental

rights to her child on ground of mental incompetence when mothers IQ is
66, her psychological report indicates that she is very limited
intellectually, several expert witnesses testified that mother should not be
unsupervised with children as she requires prompting and is unable to retain
information (even short-term) concerning proper parenting skills, and
perhaps most troubling, mother has pattern of making dangerous decisions in
meeting men and moving them into her apartment without understanding
that these decisions threaten not only her own safety, but also childrens
safety. In re LaTrianna W., 12/15/16, Knoxville, Armstrong, 17 pages.
http://www.tncourts.gov/sites/default/files/in_the_matter_of_latrianna_w._et_al_opn.pdf

FAMILY LAW: Evidence supported termination of fathers parental rights

to his child on ground of mental incompetence when father is intellectually
disabled and suffers from psychotic disorder, depressive disorder, and
anxiety disorder, father was described as childlike, and father testified that
he experienced hallucinations, but only when he is unable to take his
medication father explained that he physically abused child because
medication he was prescribed at that time did not work. In re LaTrianna
W., 12/9/16, Knoxville, McClarty, 10 pages.
http://www.tncourts.gov/sites/default/files/latriannaopn.pdf

FAMILY LAW: Evidence did not preponderate against trial courts

decision to grant grandmother visitation with child when child lived in

grandmothers home for 2.5 years, after mother, father, and child moved out
of grandmothers home, mother denied grandmother visitation with child,
mother failed to rebut presumption that denial of visitation may result in
irreparable harm to child, grandmother and child had significant existing
relationship, and visitation with grandmother was in childs best interest.
Chamberlain v. Brown, 12/19/16, Knoxville, Swiney, 13 pages.
http://www.tncourts.gov/sites/default/files/chamberlainmopn.pdf

COURT OF CRIMINAL APPEALS

EVIDENCE: In case in which defendant was convicted of two counts of
child abuse of his 5-year-old son, because trial judge erred in admitting, as
excited utterances, hearsay statements of two assistants at victims school
both individuals testified that victim told them that defendant had hit him,
causing his injuries defendants convictions are reversed, and case is
remanded for new trial; because there was no evidence to indicate that
victim was under stress or excitement at time he made statements,
statements lack spontaneity that underlies rationale for excited utterance
exception to hearsay rule victims conduct was more consistent with
making deliberate decision to disclose information to trusted adult; while
there was evidence aside from improperly admitted excited utterances to
support conviction, only direct evidence at trial that defendant hit victim
came from statements that were improperly admitted as excited utterances.
State v. Bishop, 12/16/16, Nashville, Williams, 21 pages.
http://www.tncourts.gov/sites/default/files/bishoptimothyandrew.pdf

CRIMINAL PROCEDURE: In lieu of identifying enumerated dangerous

felony in indictment count charging defendant with employing firearm
during commission of dangerous felony, indictment must charge separately
at least one enumerated dangerous felony in order to provide defendant with
adequate notice of charged offense. State v. Ayers, 12/13/16, Jackson,
Montgomery, 18 pages.
http://www.tncourts.gov/sites/default/files/ayersangelaopn_0.pdf

CRIMINAL PROCEDURE: In case in which defendant was indicted on

multiple counts of especially aggravated kidnapping and one count of
aggravated burglary, indictment charging defendant with employing firearm
during commission of dangerous felony was not defective for failing to
name underlying dangerous felony; although count in indictment for
employing firearm during commission of dangerous felony did not state
underlying felony, defendant knew that possible underlying dangerous

felonies were to be tried in same trial as firearm charge, and hence, he was
not surprised at having to make defense against possible underlying felonies
of especially aggravated kidnapping and aggravated burglary; because TCA
39-17-1324(c) prohibited especially aggravated kidnapping from serving as
underlying felony, trial judge properly instructed jury that in order to find
defendant guilty of employing firearm during commission of dangerous
felony, it had to find him guilty of aggravated burglary. State v. Dobson,
12/13/16, Nashville, Ogle, 22 pages.
http://www.tncourts.gov/sites/default/files/dobson_mark_brianopn.pdf

CRIMINAL PROCEDURE: Local Rule 7.03 of 30th Judicial District

(Shelby County), which requires all bonding companies doing business in
Shelby County to deposit $75,000 with criminal court clerk as security for
bonds written, applies to all bonding companies practicing before courts of
record in Shelby County with criminal jurisdiction and not only to those
filing petitions 3/1/15 or later. In re A-River City Bail Bond Inc., 12/12/16,
Jackson, Woodall, 16 pages.
http://www.tncourts.gov/sites/default/files/a-rivercityopn.pdf

CRIMINAL SENTENCING: In case in which defendant entered no

contest plea to two counts of vehicular homicide as result of reckless
conduct, trial judge erred in denying defendants request for judicial
diversion; because trial court unduly considered irrelevant facts concerning
death of victims and facts not supported by proof concerning defendants
prescription drug usage to support three factors on which it relied to deny
defendant judicial diversion, trial courts judgment is reversed, and case is
remanded for entry of order placing defendant on judicial diversion. State v.
Claffey, 12/14/16, Jackson, Holloway, 12 pages.
http://www.tncourts.gov/sites/default/files/claffeysherryannopn.pdf

COURT OF WORKERS COMP CLAIMS

WORKERS COMPENSATION: Weeks that injured employee was on
medical leave or dealing with her daughters passing should not be included
in calculation of her average weekly wage; calculation of employees total
gross wages should not include per diem payment. Sirkin v. Trans Carriers
Inc., 9/19/16, Memphis, Umsted, 15 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1550&context=utk_workerscomp

WORKERS COMPENSATION: Although employer must provide

employee temporary disability and medical benefits, it is unclear whether

payment will be forthcoming, as employer did not have workers

compensation insurance at time of accident, but under TCA 50-6-802(e)(1),
Bureau of Workers Compensation has discretion to pay limited temporary
disability and medical benefits to employees who have established medical
causation of their injury and meet criteria set out in statute; employee meets
all of criteria to qualify as eligible employee under statute. Gray v. Daffy
Duck Learning Akademy, 9/20/16, Memphis, Umsted, 11 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1547&context=utk_workerscomp

WORKERS COMPENSATION: When employee and co-worker reached

roof by ladder, workers determined they needed some supplies from truck,
employee went to retrieve them, employee testified that he remembered
seeing ladder as he walked toward it, next thing employee remembered was
co-worker assisting him as he lay on ground, his face was bleeding and his
back and groin areas hurt, employee thought he suffered seizure and had no
remembrance of how he came to be laying in driveway, and employee
testified that ladder was still standing where they placed it when they
climbed onto roof, employee failed to come forward with sufficient evidence
from which to conclude he is likely to prevail at hearing on merits that he
suffered injury arising primarily out of and in course and scope of his
employment; employees fall can only be characterized as idiopathic
because there is no explanation for it; employee claims to have suffered
epileptic seizure and fell from roof, but even that explanation is pure
speculation, as there is no evidence of what actually happened. Palmer v.
Hardy, 9/21/16, Kingsport, Addington, 9 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1545&context=utk_workerscomp

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http://www.tncourts.gov