A federal judge in Chicago has agreed to allow a jury to consider whether airplane crash victims experience preimpact terror before their deaths.
Faced with no Illinois law directly on point, the federal court determined that the reasoning in Haley v.
Pan American World Airways, Inc., 746 F.2d 311, 314-15 (5th Cir. 1984), was persuasive. The Haley could found the courts of Louisiana would permit recovery for emotional distress “during a negligently produced ordeal”
Where defendant shared truthful information that was a matter of public record “concerning a matter of public significance,” summary judgment on plaintiffs’ claims for intentional and/or negligent infliction of emotional distress and invasion of privacy was affirmed.
In Adreacchio v. Hamilton, No. M2021-01021-COA-R3-CV, 2022 WL 2718659 (Tenn. Ct. App. July 13, 2022), plaintiffs’ son died and the local police department ruled the death a suicide. Plaintiffs believed the death was actually a homicide, and they went on a podcast and television series to discuss the death and investigation. Defendant was a private citizen who agreed with investigators that the death was a suicide, and he created a Facebook page “to counter plaintiffs’ assertions.” In the context of countering plaintiffs’ assertion that the death was a homicide, defendant shared autopsy photographs of the son as well as some of his text messages, both of which were public records released by the Mississippi Attorney General’s Office.
My newest article, ” A New Arrow in the Quiver to Fight Revenge Porn,” has been published in the May/June edition of Tennessee Bar Journal.
An excerpt:
Now, a new federal law effective October 1, 2022, expands the rights of revenge porn victims and certain others by creating a federal cause of action that includes adults harmed by such conduct. The Violence Against Women Act Reauthorization Act of 2022, signed into law on March 16, creates a new federal right of action for a “depicted individual” (regardless of gender) against one who, in or affecting interstate or foreign commerce, discloses the “intimate visual depiction” of the identifiable plaintiff without their consent. The legislation applies to adults and minors. Certain disclosures are not actionable, including but not limited to disclosure of “commercial pornographic content” unless produced “by force, fraud, misrepresentation, or coercion of the depicted individual.”
A plaintiff cannot bring a separate intentional infliction of emotional distress claim based on a work-related incident for which he has already pursued a workers’ compensation claim.
In Byrd v. Appalachian Electric Cooperative, No. E2017-01345-COA-R3-CV (Tenn. Ct. App. April 25, 2018), plaintiff alleged that an “interrogation” by his supervisors at work caused him chest pain, anxiety, and other symptoms. He averred that when he reported to work one morning, he was called to a meeting with two supervisors, who questioned him about his recent marriage to another employee’s relative. He stated that he was told he would have to either resign or be terminated per company policy, and that the meeting lasted three hours. At the end of the meeting, plaintiff alleged that one of the supervisor’s spoke with an attorney, who reviewed company policy and determined that there had been no policy violation, at which time plaintiff was allowed to return to work.
In Stinson v. Mensel, No. M2016-00624-COA-R3-CV (Tenn. Ct. App. July 12, 2017), a neighborly dispute about chickens turned into a suit and counter-suit for nuisance, intentional infliction of emotional distress, invasion of privacy and injunctive relief.
Plaintiffs owned land on which several neighbors had an easement for access to their properties. Defendants, two couples who used the easement to get to their homes, alleged that they had never met plaintiffs until the facts surrounding this case began. In 2008, plaintiff husband “came to believe that [one of defendant couples] had stolen some of his chickens that wandered over” to defendants’ property. Plaintiffs left a note in defendants’ mailbox accusing them of stealing the chickens, and plaintiffs subsequently began harassing defendants. Plaintiffs would put brush and fence posts on the easement, blocking passage on the easement. Plaintiffs dug a ditch on the easement which subsequently caused excessive erosion. Plaintiffs screamed at defendants, followed one defendant with a rock, erected a sign telling one couple to stay off plaintiffs’ side of the easement, and prevented defendants from performing maintenance on the easement. Ultimately, plaintiffs filed this suit, claiming that defendants “had caused the easement to be graded and bulldozed, encroached onto [plaintiffs’] property, and made verbal threats and used intimidation” against plaintiffs.
Defendants filed a counter-complaint, and the trial court ultimately dismissed all of plaintiffs’ claims and found that plaintiffs were liable to defendants for nuisance, invasion of privacy, and intentional infliction of emotional distress. Further, the trial court “enjoined [plaintiffs] from forever using, driving on, damaging, or interfering with [the easement], or the maintenance of the same.” The Court of Appeals affirmed the nuisance finding, but reversed on the invasion of privacy and emotional distress claims, and it modified the injunction against plaintiffs.
In a recent case where plaintiff was seeking damages for emotional injuries, the Court of Appeals affirmed summary judgment for defendant, holding that plaintiff could not recover for negligent infliction of emotional distress when the claim was based on the negligent destruction of property.
In Lane v. Estate of Leggett, No. M2016-00448-COA-R3-CV (Tenn. Ct. App. Mar. 29, 2017), plaintiff owned an antique and gift shop. Defendant was driving when he rear-ended the car in front of him, veered off the road, and ran into plaintiff’s store. During the accident, defendant hit a gas meter, causing a fire that completely destroyed plaintiff’s store and killed defendant. Plaintiff was not at the store when the accident occurred but arrived shortly after the fire began.
Plaintiff brought suit against the defendant’s estate for negligence resulting in property damage and emotional injuries (the property damage claim was dismissed under the doctrine of prior suit pending, as a case had already been filed by the relevant insurance company). The complaint stated that “as a result of observing the fire and the circumstances surrounding the same, including having narrowly escaped being present when the incident occurred, the Plaintiff has been caused severe mental and emotional injuries and has had to seek the assistance of a psychologist and psychiatrist…and has been diagnosed with Post Traumatic Stress Disorder and Anxiety.” Defendant moved for summary judgment on the claims for emotional injuries, asserting that plaintiff was claiming negligent infliction of emotional distress, and that such a claim “is not a cause of action intended to permit recovery for emotional distress arising in connection with property damage.” The trial court granted summary judgment, and the Court of Appeals affirmed.
In Goetz v. Autin, No. W2015-00063-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2016), plaintiff filed a rather unclear complaint that appeared to assert four causes of action: (1) defamation, (2) malicious prosecution, (3) abuse of process and (4) intentional infliction of emotional distress. The trial court dismissed the entire complaint for failure to state a claim, and the Court of Appeals affirmed.
Plaintiffs factual allegations were essentially that defendants “made defamatory statements to [his] family members, neighbors and friends, subjecting [him] to contempt and ridicule and threatening his job[;]” that defendants filed suit against plaintiff on May 12, 2010 with “no reasonable basis” for the action and with an “ulterior motive;” that defendants “committed an act in the use of process other than such as would be proper in the regular prosecution of the charges alleged[;]” that defendants eventually voluntarily dismissed their claims; that the lawsuit contained false statements about plaintiff; and that plaintiff suffered “severe physical and emotional injury” due to the defendant’s lawsuit and statements. Based on these facts, the Court of Appeals affirmed the ruling that the complaint failed to state a claim for the causes of action pursued by plaintiff.
On the abuse of process claim, the Court noted that “a plaintiff must allege the existence of an ulterior motive and an act in the use of process other than such as would be proper in the regular prosecution of the charge.” Moreover, “[t]he mere initiation of a lawsuit, though accompanied by a malicious ulterior motive, does not constitute an abuse of process.” (internal citation omitted). Instead, a “plaintiff must allege some misuse of process after the initiation of the lawsuit.” Here, the complaint failed to allege that defendants did anything more than file the “original processes of the court.” Since the institution of a lawsuit alone is not enough to support an abuse of process claim, plaintiff’s complaint failed to state a claim for this cause of action.
Erin Andrews won a jury verdict yesterday in Nashville for $55,000,000 in her case against the company that owned and managed a local hotel. What happens next?
This week, the Tennessee Supreme Court overruled Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), “return[ing] to a summary judgment standard consistent with Rule 56 of the Federal Rules of Civil Procedure.”
In Rye v. Women’s Care Center of Memphis, PLLC, No. W2013-00804-R11-CV (Oct. 26, 2015), plaintiff had Rh negative blood, and defendant failed to test and subsequently treat her with a specific injection during her third pregnancy. Because she was not treated, plaintiff became Rh-sensitized. The record contained extensive testimony regarding the risks to plaintiff and to any future pregnancies. Essentially, regarding future children, the evidence showed that if several contingencies occurred—“a future pregnancy, an Rh positive fetus, antibodies crossing the placenta—it [was] undisputed that the unborn fetus would face a number of risks, ranging from mild to severe.” Because plaintiff and her husband were Catholic, they asserted that they were limited in what steps they could take to avoid future pregnancies. Regarding the harm or risks to plaintiff herself, plaintiff’s own expert testified that the risk to her was that if she had an emergency situation and needed blood, the transfusion process could be longer because finding a match for sensitized blood could take more time.
Plaintiffs’ complaint asserted causes of action for health care liability, negligent infliction of emotional distress (NIED) for both plaintiff and her husband, and disruption of family planning. Defendants moved for summary judgment, arguing that the plaintiffs had “no existing actual injuries or damages resulting from the deviation,” that plaintiffs had “failed to allege future injuries to a reasonable medical certainty,” and that plaintiffs did not properly support their NIED claims. The trial court granted summary judgment as to all claims “for future damages to [plaintiff] arising from blood transfusions or future pregnancies,” finding that those damages had “yet to be sustained” and were speculative. The trial court also granted summary judgment on husband’s NIED claim, as he had not suffered physical injury and had not offered the required expert proof for an emotional distress action. Finally, the trial court granted summary judgment as to plaintiff’s “independent cause of action for disruption of family planning,” finding that Tennessee did not recognize such a claim. The court, however, denied summary judgment on plaintiff wife’s NIED claim, ruling that there was a genuine issue of material fact as to whether the change in her blood constituted a physical injury and also holding that she would be allowed to present evidence regarding how her family plans had changed as an element of her damages.
A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.
Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”
Day on Torts