Court Rulings

CIVIL SERVICE – MUNICIPAL – WRITS – MANDAMUS: Where the city's civil service commission improperly awarded seniority credit to the score of a firefighter who had failed the promotional examination for fire captain, allowing him to post a passing score and receive the appointment, the remedy for the civil service commission's failure to properly award the seniority credit was not to order a new promotional examination, but rather to remand the cause to the civil service commission for the proper award of credit. A writ of mandamus compelling the appointment of a firefighter to the position of fire captain with back pay will not issue where the firefighter has not shown that he has a clear legal right to the appointment.

Pursuant to statute (§ 51-183c), a judge who has tried a case without a jury in which a new trial is granted, or in which the judgment is reversed by the Supreme Court, may not again try the case. The defendant property owner appealed from the trial court's judgment rendered following a hearing in damages that was held on remand in connection with the plaintiff conservation trust's claim that the defen- dant had wilfully violated a conservation easement in contravention of the statute (§ 52-560a [b]) prohibiting encroachment on such an ease- ment. After a trial to the court, which found that the defendant had violated the easement, the court ordered the defendant to restore the property to its prior condition in accordance with a plan proposed by the plaintiff's expert at a cost of approximately $100,000. The court also awarded the plaintiff $350,000 in punitive damages pursuant to § 52-560a (d), which permits damages of up to five times the cost of restoration, and ordered further hearings to address the specific manner and timing of implementation of the restoration plan. At a subsequent hearing, at which experts for both parties proposed differing courses of action to effectuate restoration, the trial court ordered a new restoration plan but did not take evidence as to the cost of the new restoration plan or revisit its punitive damages award. The defendant thereafter appealed, and this court concluded that, although the trial court had properly found that the defendant violated the easement and that the new restora- tion plan was authorized and supported by sufficient evidence, the trial court's punitive damages award under § 52-560a (d) lacked the requisite evidentiary foundation. Specifically, that award had been compliant with § 52-560a (d) at the time it was initially issued, as it was based on evidence that restoration costs would be approximately $100,000, but, when the trial court adopted the new restoration plan with no evidence of its cost, the ratio of

The plaintiff sought to recover damages from the defendant for breach of contract. Specifically, the plaintiff's complaint alleged that the defendant breached the parties' marital separation agreement by failing to disclose certain assets. Following a trial, the trial court rendered judgment in favor of the defendant, from which the plaintiff appealed to this court. On appeal, he claimed, inter alia, that the trial court erred by concluding that his action was barred by the applicable statute of limitations (§ 52- 576 [a]) and determining that it lacked continuing jurisdiction to enforce the parties' separation agreement. Held that the plaintiff's appeal was moot; because the plaintiff failed to challenge an independent ground for the court's adverse ruling, namely, the court's determination that the plaintiff's breach of contract claim failed on the merits due to insufficient evidence that the defendant had breached the separation agreement, even if this court agreed with the plaintiff's claim that his action was not barred by the statute of limitations, there would be no practical relief that could be afforded to the plaintiff because of his failure to challenge the trial court's finding on the merits. Argued October 21—officially released December 24, 2019

Trial court erred in determining plaintiff's case, alleging the defendant committed statutory violations under R.C. 1309.613, 1309.614, and 1309.616, to be moot where the defendant's unaccepted check for an amount exceeding statutory damages and dismissal of its own claims with prejudice did not afford the plaintiff full relief under her complaint and the remedies in R.C. 1309.625. Judgment reversed cause remanded.

The plaintiff sought to recover damages from the defendant for, inter alia, negligence in connection with the defendant's construction of a bulkhead at a marina operated by M Co. on property owned by the plaintiff. Pursuant to a lease agreement between the plaintiff and M Co., M Co. was obligated to maintain the structural improvements at the marina. When the bulkhead began to deteriorate soon after its construction, the plaintiff commenced this action against the defendant, who then filed a motion to stay the action for arbitration pursuant to an arbitration clause in the construction contract between the defendant and M Co., of which the plaintiff was a third-party beneficiary. The trial court granted the motion and stayed the plaintiff's action pending arbitration. Thereafter, the plaintiff and the defendant entered into an agreement with an arbitrator to arbitrate their dispute. The arbitration agreement provided, inter alia, that the arbitration would proceed on an ad hoc basis, without an administering organization. In her award, the arbitrator found that the bulkhead was a total loss, that the defendant was negligent in constructing it and that his negligence proximately caused its failure. The arbitrator awarded the plaintiff $275,607 in damages. Thereafter, the defendant filed a demand for a trial de novo with the trial court, and the plaintiff filed an objection to that demand and an application to confirm the arbitration award. Following a hearing, the court denied the defendant's demand for a trial de novo and granted the plaintiff's application to confirm the award. On the defendant's appeal to this court, held: 1. This court declined to review the defendant's claims that the trial court should have vacated the arbitration award because the arbitrator failed to comply with the mandatory oath requirement of the applicable statute (§ 52-414 [d]) and the plaintiff failed to comply with the statute (§ 52- 421 [a]) that requires certain documents to be filed

summary judgment, Civ.R. 56, retaliation, genuine issue of material fact, Civ.R. 15(A), amended complaint

CIVIL - frivolous conduct R.C. 2323.51 Civ.R. 11 magistrate's decision Civ.R. 53 transcript clear error of law or other defect on its face factual determinations no evidentiary support harass or maliciously injure.

Racial discrimination disparate treatment disparate impact statistical evidence pretext. The trial court properly granted summary judgment in favor of defendant on plaintiff's disparate-treatment-discrimination claim where the undisputed evidence showed that plaintiff was replaced by an individual from the same class, and plaintiff failed to show that a similarly situated comparator from a nonprotected class was treated more favorably. Trial court properly granted summary judgment in favor of defendant on plaintiff's disparate-impact-discrimination claim where plaintiff failed to present significant statistical evidence of disparate effects caused by the adverse-employment action.

CIVIL - unemployment award manifest weight of the evidence reasonable assurance of continued employment existed where adjunct professor received reasonable assurance letter, was on the schedule for the following term, and the university had a long history of continuing employment for adjunct professors who received reasonable assurance letters R.C. 4141.29(I)(1).

R.C. 2711.01, arbitration, R.C. 2711.02, stay of trial pending arbitration, economic duress, procedural and substantive unconscionability. The trial court's grant of appellee's motion to stay the proceedings pending arbitration is supported by the record. Appellant has failed to demonstrate the presence of economic duress that would invalidate the enforceability of the arbitration agreement or that the agreement is unconscionable.

The common pleas court did not err by reversing a township board of zoning appeals' decision conditioning its approval of a conditional use permit on the permanent closure of one of two access points onto the applicant's property where the additional condition imposed by the board was arbitrary and unreasonable in that it had no relation to the requested expansion project.

Motion for summary judgment intentional infliction of emotional distress defamation disability discrimination motion to compel motion for sanctions motion to amend complaint. Judgment affirmed. The trial court's grant of defendants' motion for summary judgment was proper when there was no evidence in the record that defendants published plaintiff's medical record acted with extreme or outrageous conduct or discriminated against plaintiff. The trial court's denial of plaintiff's motion for sanctions, motion to compel, and motion to amend her complaint were not an abuse of discretion.

CIVIL - wrongful death summary judgment expert report ultimate issue Evid.R. 704 common knowledge of the jury speculative Evid.R. 702 inadmissible political subdivision school district employees exception to statutory immunity malicious purpose, in bad faith, or in a wanton or reckless manner.

The issue in this interlocutory appeal is whether an employer, who did not use an automated external defibrillator (AED) to assist an employee who suffered a non-work related medical emergency, can be liable for workers' compensation benefits. An employee collapsed at work because of a medical condition unrelated to her employment. The employer knew of the employee's need for immediate medical assistance. The employer had acquired an AED but did not use it to assist the employee while awaiting the arrival of emergency medical responders. Medical responders assisted the employee, but she suffered a brain injury because of oxygen deprivation. We hold that an injury that is caused by an employer's failure to provide reasonable medical assistance arises out of and in the course of employment when an employee becomes helpless at work because of illness or other cause unrelated to her employment, the employee needs medical assistance to prevent further injury, the employer knows of the employee's helplessness, and the employer can provide reasonable medical assistance but does not do so. Here, the employee's claim did not arise out of her employment because her employer provided reasonable medical assistance and had no statutory or common law duty to use its AED to assist the employee. Therefore, the employer is not liable for workers' compensation benefits. We reverse the trial court's denial of the employer's motion to dismiss and remand to the trial court for an order of dismissal.

Plaintiff in the Court of Claims entitled to damages for unlawful contract termination at state university because of improper tenure review process caused by Provost's blatant refusal to abide by university rules or employment contract provisions. Plainitff retained a continued right to employment at university once the terminal year per the contract is triggered by a valid negative tenure decision process. Judgment reversed and matter remanded for a determination of plaintiff's damages.

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, ("the peer review statute"), to claim privilege and exclude evidence that an employee was threatened with dismissal or retaliation if the employee refused to change their story or alter documents in order to cover up possible negligent conduct. We find and hold that the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was intended to allow a healthcare provider to attempt without fear of adverse consequences to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order of the Circuit Court for Washington County ("the Trial Court") excluding the testimony of defendants' employee pursuant to the peer review privilege contained in Tenn. Code Ann. § 68-11-272 and remand this case for further proceedings consistent with this Opinion.

Workers' Compensation Act whether, after her employer admitted medical compensability for certain injuries via a Form 60, an employee met her burden to show causation for other medical conditions arising from the same accident but for which the employer did not admit liability whether the Industrial Commission's erroneous application of the 'Parsons presumption' requires the award of benefits to be set aside and remanded to the Commission.

NEGLIGENCE – NEW TRIAL – R.C. 2307.23 – EMPTY-CHAIR DEFENSE: In a wrongful-death action brought by the surviving spouse of a utility worker who died when a rotted utility pole collapsed on him, the trial court did not err in denying the pole inspection company's motion for judgment as a matter of law based upon assumption of the risk: The inspection company cannot invoke the inherently-dangerous-activity exception under Eicher v. U.S. Steel Corp., 32 Ohio St.3d 248, 512 N.E.2d 1165 (1987), because the company did not own or control the premises where the utility worker was injured, the utility worker was not an independent contractor, and the underground rot on a utility pole is not the kind of danger inherent in utility work, such that it cannot be eliminated. The trial court erred in prohibiting defendant pole inspection company from arguing the empty-chair defense with respect to the deceased's employer, and the trial court erred in denying the company's requests to include the employer on the jury interrogatories and verdict form: The plain language of R.C. 2307.23 allows a jury to apportion fault to an employer, even if that employer is immune from suit under the workers' compensation statutes, and the trial court's error is not harmless where reasonable minds could differ as to whether the deceased employer's actions proximately caused the employee's death.

A 62-year-old former employee of the Macon County School System sued the Board of Education on the grounds of age discrimination and retaliation under the Tennessee Human Rights Act. She alleged that her supervisor, the school principal, made age related discriminatory remarks and demoted her after she complained about a co worker's repeated, sexually explicit comments. In its answer, the Board of Education contended that the re-assignment was a lateral transfer and was justified by nondiscriminatory reasons. The trial court summarily dismissed the complaint finding, inter alia, that Plaintiff failed to establish a prima facie case of age discrimination or retaliation, and that the Board produced undisputed evidence of legitimate, nondiscriminatory reasons for transferring Plaintiff. We respectfully disagree, having concluded that Plaintiff identified and produced evidence to establish a prima facie case for both claims and to create a genuine issue of fact concerning whether the Board's stated reasons are pretexts for discriminatory or retaliatory animus. For these reasons, the Board was not entitled to summary judgment. Accordingly, we reverse and remand for further proceedings.

R.C.2744 Immunity Negligent Hiring: Supervision and Retention of Employees

In this appeal, the plaintiffs alleged that the defendants conspired to prevent new cars sold in Canada from being imported into Tennessee and the rest of the United States in violation of Tennessee's antitrust and consumer protection laws. The plaintiffs contended that new car prices in Canada are significantly lower than prices for the same cars in the United States and that the effect of the conspiracy was to restrict competition and maintain significantly higher prices. The trial court approved a settlement agreement and dismissed the case with prejudice against certain defendants. The plaintiffs appeal. We affirm.