Professional Documents
Culture Documents
November 7, 2016
Vol. 19, No. 45
IN THIS WEEKS TAM-Bytes
Supreme Court adopts good-faith exception to exclusionary rule set
out by U.S. Supreme Court in Davis v. United States;
Supreme Court adopts set of plain language forms and instructions for
use in uncontested divorces between parties with minor children;
Workers Comp Appeals Board affirms order for medical benefits
when trial court found that opinions of utilization review physicians
did not overcome statutory presumption of correctness applicable to
opinion of authorized physician;
Court of Appeals affirms summary judgment in favor of defendant
hospital in suit by patient with mental disorder who was admitted and
then attempted to leave hospital against medical advice and was injured
when she fell or dropped herself to ground in emergency exit stairway;
Court of Appeals, in reversing summary judgment in favor of
defendant in suit by plaintiff, defendants son, who was helping
defendant wax RV when ladder fell with plaintiff on it, says that
defendant assumed duty to stabilize and secure ladder while
plaintiff was on it and that question of whether defendant breached
that duty was for trier of fact;
In split decision, Court of Appeals reverses jurys award of no
damages in rear-end collision when award failed to consider
aggravation of pre-existing condition and failed to compensate for
expenses which were not refuted by proof;
Court of Appeals affirms dismissal of will contest when
contestants would not benefit from previous will, but encourages
Tennessee Supreme Court to examine practical application of
Cowan and Jennings;
Court of Appeals says compensation limits on guardian ad litem fees set
forth in Supreme Court Rule 13 do not necessarily apply when parent
has been found to be financially able to defray a portion or all of the
cost of the childs representation; and
SUPREME COURT
CRIMINAL PROCEDURE: Deputy had probable cause to believe that
defendant was driving while intoxicated at time of accident in which two
people were killed, and thus, implied consent statute was triggered;
warrantless blood draw violated defendants right to be free from
unreasonable searches and seizures; good-faith exception to exclusionary
rule, articulated by U.S. Supreme Court in Davis v. United States, is adopted
in Tennessee, and, as result, any evidence derived from testing defendants
blood need not be suppressed because warrantless blood draw was obtained
in objectively reasonable and good-faith reliance on binding precedent. State
v. Reynolds, 11/3/16, Knoxville, Clark, dissent by Lee, 3-1, 40 pages.
http://www.tncourts.gov/sites/default/files/reynoldsc.corr_.opn_.pdf
http://www.tncourts.gov/sites/default/files/reynoldscorrin.dis_.opn_.pdf
FAMILY LAW: Supreme Court adopts set of plain language forms and
instructions for use in uncontested divorces between parties with minor
children; Supreme Court approves forms as universally acceptable and
legally sufficient for use in all Tennessee courts effective 1/1/17. In re
Petition of Access to Justice Commission for Adoption of Universally
Acceptable & Legally Sufficient Forms & Instructions -- Plain Language
Forms for Uncontested Divorces with Minor Children, 10/31/16,
Nashville, 42 pages.
http://www.tncourts.gov/sites/default/files/order__appendix_-_sct_r52_amended-adm2015-01485.pdf
COURT OF APPEALS
TORTS: When plaintiff was transported to defendant hospital complaining
of dizziness, nausea, chest pain, and headache, plaintiff had previously been
diagnosed with bipolar disorder and obsessive compulsive disorder and was
taking psychiatric medication at time, plaintiff was admitted to hospital,
plaintiff communicated on next day that she wished to leave, patient refused
to remain in hospital or sign AMA (against medical advice) form, as she was
walking down emergency exit stairway, plaintiff either fell or dropped
herself to ground, plaintiff sustained thoracic and lumbar burst fractures in
fall, and plaintiff filed suit against defendant hospital alleging negligence
and malpractice, trial court properly granted defendant hospital summary
judgment; once plaintiff terminated treatment and decided to leave against
medical advice, her status as patient of hospital ceased as well as hospitals
general duty of care to her as patient; hospital did not have any duty to
detain plaintiff when no certificate of need had been properly signed.
Collins v. HCA Health Services of Tennessee Inc., 10/28/16, Nashville,
Stafford, 15 pages.
http://www.tncourts.gov/sites/default/files/collinsb.opn_.pdf
TORTS: Trial court did not err in determining, based on plaintiffs failure to
substantially comply with TCA 29-26-121(a)(2)(E) requiring provision of
HIPAA medical authorization with pre-suit notice in healthcare action, that
TORTS: When plaintiff was helping his father (defendant) wax defendants
recreational vehicle (RV), plaintiff worked on ladder in reaching high places
on RV, ladder fell with plaintiff on it, causing injury, and plaintiff filed suit
alleging that defendant breached his duty to exercise reasonable care in
securing and stabilizing ladder, trial court erred in granting defendant summary
judgment; defendant assumed duty to stabilize and secure ladder while plaintiff
was working on it when defendant would hold ladder at times to ensure
plaintiff was working safely, ground on which ladder was standing was not
level, and defendant was aware of dangers of working on ladder alone; it was
foreseeable that ladder might fall and cause injury to plaintiff in absence of
someone holding and securing it, and alternative conduct that would have
prevented harm holding ladder on sloping ground was not overly
burdensome; defendant had duty to exercise due care under circumstances, and
question of whether he breached that duty is one for trier of fact to determine.
Hoynacki v. Hoynacki, 10/31/16, Knoxville, Susano, 13 pages.
http://www.tncourts.gov/sites/default/files/hoynacki_v_hoynacki.pdf
ESTATES & TRUSTS: Trial court properly dismissed will contest for lack
of standing because contestants would not benefit if testators will was set
aside when contestants were excluded from 2012 will, testators last will,
which appears to be valid on its face and is not challenged as being
improperly executed; Tennessee Supreme Court is free to revisit its rulings
in Cowan v. Walker, 96 SW 967 (Tenn. 1906), and Jennings v. Bridgeford,
403 SW2d 289 (Tenn. 1966), and examination is encouraged of their
practical application what stops wrongdoer, who procures will by either
undue influence or other fraudulent means, from procuring second will in
order to insulate last will from review by courts? In re Estate of Brock,
11/3/16, Knoxville, Gibson, 10 pages.
http://www.tncourts.gov/sites/default/files/estateofjdonbrockopn.pdf
greater than the total amount which appointed counsel or the guardian ad
litem has claimed and has been reimbursed pursuant to Tennessee Supreme
Court Rule 13, then any such excess funds shall be paid to the appointed
attorney such statutory requirement would be unnecessary if fees were
limited by Supreme Court Rule 13. In re Jackson H., 10/28/16, Nashville,
McBrayer, 12 pages.
http://www.tncourts.gov/sites/default/files/inrejackson.opn_.pdf
FAMILY LAW: In case in which parties never married but had two
children together, parties modified, by agreed order, existing parenting
plan for children, modification continued mother as childrens primary
residential parent, short time later, father learned that mother worked in
Nevada as prostitute, father filed motion seeking emergency temporary
custody order and temporary restraining order, and juvenile court
designated father as childrens primary residential parent, holding that
mothers occupation as prostitute amounted to material change in
circumstances, evidence preponderated against finding that father
established that mothers work as licensed prostitute met legal standard for
a material change in circumstances when father failed to establish that
children were affected by mothers past employment as prostitute at time
of hearing, mother was no longer working as prostitute, rather, she was
employed as social worker; evidence did not preponderate against juvenile
courts finding that mothers hostility toward father and his new wife
constituted material change in circumstances when trial court noted several
examples of how mothers hostility affected children, but juvenile court
abused discretion by designating father as childs primary residential
parent when both parents at times acted in manner that failed to put
childrens interests first, juvenile court failed to take into account fathers
significant child support and medical arrearages of $10,027, and father
admitted to using illegal drugs in family home while children were present;
judgment designating father as primary residential parent is reversed, and
mother is designated as childrens primary residential parent. C.W.H. v.
L.A.S., 10/31/16, Knoxville, Susano, 26 pages.
http://www.tncourts.gov/sites/default/files/c.w.h.__v._l.pdf
TRIAL COURTS
CIVIL PROCEDURE: Defendant is ordered to arrange for its custodial
agent, Logic Force Consulting, LLC, to make available, at time convenient
to plaintiff and its counsel, devices listed in attachment to subpoena duces
tecum served on Logic Force, for inspection, testing, and other functions
listed in TRCP 34; same arrangement shall be made as to information, data,
and electronically stored information on devices to inspect, copy, list or
sample; custodial role of Logic Force does not involve expertise and relates
If you would like a copy of the full text of any of these opinions, simply
click on the link provided or, if no link is provided, you may respond to
this e-mail or call us at (615) 661-0248 in order to request a copy. You
may also view and download the full text of any state appellate court
decision by accessing the states web site by clicking here:
http://www.tncourts.gov