By The Law Offices of John Day, P.C. on Aug 25, 2021 06:56 am
Where the jury found the defendant not liable but also added a statement to the verdict that the defendant and others in the industry should look into safer practices, the verdict for defendant was affirmed. In Chase v. Ober Gatlinburg, Inc., No. E2020-00649-COA-R3-CV (Tenn. Ct. App. Aug. 20, 2021), plaintiff filed this negligence suit against defendant ski resort after being injured in a snowboarding accident. According to plaintiff, she attempted to avoid a collision with another skier and fell, sliding into “one of the posts in a fence marking the edge of the ski slope.” While the post furthest uphill was padded, the lower post that plaintiff fell into was a square 4×4 with no padding. Plaintiff asserted that the use of square, unpadded posts constituted negligence on defendant’s part. At trial, defendant presented testimony from an expert on ski area operations, safety, and risk management. The expert stated that “Defendant’s fencing practices were consistent with, or exceeded, the general practices in the ski resort industry,” and he presented photos of at least three other resorts that used similar fencing. While the jury was deliberating, it asked if could make a comment in addition to the reading of the verdict, which the trial court allowed after no objections from either sides’ counsel. The jury ultimately returned a verdict finding that defendant was not at fault, but added as a comment: “We, the jury, are in one accord that Ober and the ski industry should look into using materials for posts with rounded corners or more padding.” On appeal, the defense verdict was affirmed. Continue reading
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By The Law Offices of John Day, P.C. on Aug 25, 2021 05:51 am
Where plaintiff filed a legal malpractice action in federal court within the one-year statute of limitations, but then waited more than one year after dismissal of that federal case to file this claim for legal malpractice, dismissal based on the statute of limitations was affirmed. In Tolson v. Herbison, No. M2020-01362-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2021), plaintiff retained defendant to represent him in post-conviction matters related to plaintiff’s previous conviction for first-degree murder. The trial court denied post-conviction relief, which the Court of Appeals affirmed, and the Tennessee Supreme Court denied certiorari. On May 23, 2013, plaintiff filed a complaint with the Tennessee Board of Professional Responsibility asserting that defendant failed to notify him of the denial of certiorari and failed to correspond with him, and that “as a result of [defendant’s] alleged errors, [plaintiff’s] writ of habeas corpus was denied as time-barred.” When plaintiff completed this complaint, he signed a disclaimer noting that legal malpractice claims are subject to a statute of limitations. Plaintiff filed a legal malpractice claim in federal court on October 18, 2013, which the district court dismissed. The Sixth Circuit affirmed dismissal on October 6, 2016. Plaintiff then filed this case in Davidson County Circuit Court in July 2018, which the trial court dismissed as time-barred, and the Court of Appeals affirmed. Continue reading
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