TAM-BYTES

November 23, 2015

Vol. 18, No. 47
IN THIS WEEKS TAM-Bytes
Court of Appeals affirms grant of summary judgment in favor of
defendant in suit alleging negligent design by plaintiff who slipped
and fell at top of ice slide attraction that was feature of holidaythemed ice exhibit;
Court of Appeals, in issue of first impression, says that order on
dependency and neglect must be final and res judicata in order to
form basis for termination of parental rights on ground of persistence
of conditions; and
Court of Appeals says civil service board under home rule charter
form of government is not necessarily exempt from contested case
procedures of Uniform Administrative Procedures Act.

COURT OF APPEALS
TORTS: In negligence suit against Gaylord Entertainment Company and
International Special Attractions, Ltd. (ISA) by plaintiff who slipped and
fell at top of ice slide attraction that was feature of holiday-themed ice
exhibit, trial court properly granted defendants summary judgment;
plaintiffs assertion that attendant of Gaylord, who was responsible for all
operational aspects of Ice Exhibit, failed to instruct him on appropriate use
of slide had no bearing on whether ISA negligently designed slide, and by
demonstrating that sole assertion of negligence against ISA in plaintiffs
answers to interrogatories was not relevant to negligent design claim, ISA
met its initial burden of production on summary judgment; plaintiff failed to
meet its burden of production when it relied solely on American Society of
Testing Materials (ASTM) safety standards which applied to childrens
playground equipment and not to ice slide attraction. Hall v. Gaylord
Entertainment Co., 11/17/15, MS, Goldin, 13 pages.
http://www.tncourts.gov/sites/default/files/hallvgaylordent.opn_.pdf

TORTS: When City of Memphis (City) received numerous complaints

against plaintiff, Maintenance Manager at South Water Treatment Plant,
concerning racial discrimination against African Americans, defendant

provided City with affidavit describing certain instances of discrimination

by plaintiff in hiring process at plant, allegations prompted City to hire legal
counsel to conduct independent fact-finding investigation, City determined
that it had sufficient evidence to charge plaintiff with various violations of
City policies and work rules, plaintiff was terminated by City after predisciplinary hearings, Civil Service Commission set aside termination, and
chancery court affirmed Commissions decision, trial court properly granted
summary judgment in malicious prosecution action against defendant;
defendants mere provision of information to City, without more, was
insufficient to render him liable for malicious prosecution against plaintiff.
Thompson v. Hamm, 11/17/15, WS, Stafford, 11 pages.
http://www.tncourts.gov/sites/default/files/thompsonrandallopn.pdf

FAMILY LAW: In termination of parental rights case, order on

dependency and neglect must be final and res judicata in order to form
basis for termination of parental rights on ground of persistence of
conditions, and if order outlining conditions that led to removal of child,
i.e., dependency and neglect order, is pending appeal, that order is not res
judicata; until dependency and neglect order has reached its final
completion, either because there has been no appeal or through exhaustion
of all appellate remedies, prior order, which is not res judicata, cannot form
basis, standing alone, for termination of parental rights on any ground that
contemplates reliance on previous finding or order; in context of statutory
ground of abandonment, simply stating that parent has abandoned the
child is insufficient to support termination of parental rights, and same
reasoning applies to other grounds for termination of parental rights,
including severe child abuse; when statute provides several possible
definitions for ground, trial court must specify exact definition that it relies
upon in reaching its ultimate conclusion, and in absence of such specificity,
meaningful appellate review cannot be conducted. In re S.S.-G., 11/16/15,
WS at Nashville, Armstrong, 20 pages.
http://www.tncourts.gov/sites/default/files/inthematterofsophia_s-g.opn_.pdf

FAMILY LAW: In case in which father filed petition to reduce his child
support, and mother sought to have parties almost 18-year-old daughter
testify that she did not intend to exercise visitation with father to extent
previously ordered by court after she turned 18, trial court did not abuse
discretion in refusing to allow daughter to testify about her future intention
as to visitation with father when such testimony was speculative; trial court
did not abuse discretion by using number of days of parenting time
previously ordered with daughter in calculating child support instead of
zero. Carter v. Carter, 11/18/15, MS, Bennett, 7 pages.
http://www.tncourts.gov/sites/default/files/carterm.opn_1.pdf

GOVERNMENT: Even though City of Memphis is organized as home

rule charter form of government, Board of Administration of City of
Memphis Retirement System is not exempt from contested case procedures
of Uniform Administrative Procedures Act (UAPA); to extent Morris v.
City of Memphis Civil Service Commission, 35 TAM 6-7 (Tenn.App. 2009),
and Redmon v. City of Memphis, 35 TAM 15-19 (Tenn.App. 2010), hold
that any civil service board under home rule charter form of government is
exempt from contested case procedures of UAPA, they are overruled.
Marino v. Board of Administration City of Memphis Retirement System,
11/16/15, WS, Gibson, 9 pages.
http://www.tncourts.gov/sites/default/files/marinokenneth2opn.pdf

COURT OF CRIMINAL APPEALS

CRIMINAL LAW: Evidence was sufficient to convict defendant of DUI
when officers were justified in relying on statements of two eyewitnesses,
who described defendants erratic behavior, in addition to their own
physical observations of defendants demeanor and appearance officers
observed that defendant smelled of alcohol, his speech was slurred, his eyes
were bloodshot and watery, and he was unsteady on his feet and
defendants own admissions defendant admitted that he was driving his
truck at time of incident and that he had consumed alcohol earlier in day.
State v. Wells, 11/16/15, Jackson, Easter, 9 pages.
http://www.tncourts.gov/sites/default/files/wellsaustinopn_0.pdf

CRIMINAL PROCEDURE: Petitioner was in custody for purposes of

seeking post-conviction relief and although his sentence has expired,
conviction continued to impose restraint on his liberty when record reflects
that petitioner pled guilty to misdemeanor resisting arrest or stop and, as
result, conviction may be used against petitioner as basis to enhance any
subsequent sentence. Massengill v. State, 11/17/15, Knoxville,
Montgomery, 3 pages.
http://www.tncourts.gov/sites/default/files/massengillbrandonopn.pdf

COURT OF WORKERS COMPENSATION CLAIMS

WORKERS COMPENSATION: Following expedited order ruling that
employee suffered injury that did not arise primarily out of and in course
and scope of employment, employer filed motion to dismiss pursuant to
Rule 0800-02-21-.14(3) of Mediation and Hearing Procedures of Bureau of
Workers Compensation, employee failed to provide any medical evidence
of work-relatedness of her injury, employee remains unable to establish

likelihood that she will prevail at hearing on merits, and claim is dismissed
without prejudice; Rule .14(3) is alternate procedure as contemplated by
TCA 50-6-239(c)(1), and standards and procedures applied to motions to
dismiss or motions for summary judgment under Tennessee Rules of Civil
Procedure do not govern determination of Rule .14(3) motion; Rule .14(3)
provides procedural mechanism by which employer can force injured
worker to address evidentiary inadequacies that resulted in adverse decision
at Expedited Hearing; if, in response to employers Rule .14(3) motion,
injured worker does not resolve evidentiary inadequacies in his or her claim
or articulate clear intent to do so, court may dismiss injured workers claim.
Silas v. Brock Services, 7/8/15, Addington, 6 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1151&context=utk_workerscomp

WORKERS COMPENSATION: Following expedited order holding that

employees claim was noncompensable based on finding that special hazard
did not contribute to her fall, employer filed motion to dismiss pursuant to
Mediation and Hearing Procedure Rule 0800-02-21-.14(3), Rule .14(3)
motion forced employee to address evidentiary inadequacy by presenting
additional evidence to prove that special hazard caused her to fall,
employee failed to present or cite any additional proof, and claim is
dismissed without prejudice. Hobaugh-Mendez v.
Sunoco/Tigermarket/Southside Oil, 7/8/15, Baker, 8 pages.
http://trace.tennessee.edu/cgi/viewcontent.cgi?article=1156&context=utk_workerscomp

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