Penny White, Joe Riley and I will be hosting our annual three-city, 15-hour seminar program again the Fall. The program will be held in-person in Knoxville (Dec. 2-3), Nashville (Dec. 9-10), and Memphis (Dec. 16-17.
We will also be offering the same 15 hours of CLE via video. Those interested in remote learning can purchase all fifteen hours, individual hours, or bundles of hours.
Check out the Justice Programs website to learn more.
Where there was material evidence in the record to support the jury’s finding that plaintiff’s neighbor had not diverted water onto plaintiff’s property, the verdict for defendant on claims of nuisance and trespass was affirmed.
In Whitford v. Village Groomer & Animal Inn, Inc., No. M2020-00946-COA-R3-CV (Tenn. Ct. App. Sept. 17, 2021), plaintiff and defendant were neighbors. The southern property, which was owned by defendant, was “naturally situated a higher elevation than the northern section,” which was owned by plaintiff. The two properties were previously owned by a single owner, who had installed two storm drains on the northern property to divert surface water away from the property. He had also built a large shed on the southern property, which had three gutters that directed rainwater towards the northern section’s storm drains.
Plaintiff purchased the northern section of the property in 2002, and he built two buildings there to use in his veterinary business. One of the buildings was leased by defendant from 2002 to 2009. In 2007, defendant purchased the higher, southern section of the property. After the purchase, defendant “modified the existing shed,” and “some of the gutters on the new building directed rainwater toward the storm drains” on plaintiff’s property. Defendant also built three dog runs.
When defendant filed a petition to dismiss a defamation case under the Tennessee Public Participation Act (TPPA), and plaintiff failed to respond by “establish[ing] a prima facie case for each essential element of the claim in the legal action,” dismissal was affirmed. Further, exclusive jurisdiction of the appeal of the TPPA dismissal rested in the Court of Appeals. In Nandigam Neurology, PLC v. Beavers, No. M2020-00553-COA-R3-CV (Tenn. Ct. App. June 18, 2021), plaintiffs neurology clinic and neurologist filed this suit against defendant after defendant left a negative review of plaintiff doctor online. After non-suiting the first action, this case was filed in general sessions court, wherein plaintiffs alleged defamation and false light invasion of privacy. Defendant filed a petition to dismiss the case in its entirety, asserting first that plaintiffs failed to state a claim because they “failed to plead the substance of any statement over which they complained,” and that the statement “was not defamatory because it expressed only opinions and rhetorical hyperbole.” In addition, defendant argued that this case should be dismissed pursuant to the TPPA because the “review was a statement made in connection with a matter of public concern and that Plaintiffs’ lawsuit ‘qualifies as one filed in response to defendant’s exercise of the right to free speech.’” Defendant’s petition also asked that she be awarded costs, attorney’s fees, and sanctions pursuant to the TPPA. Defendant supported her petition with a personal affidavit stating that “her Yelp! review was based on her personal observations and that she had no reason to believe any of the statements in the review were false.”
Plaintiffs responded to the petition by arguing that Tenn. Code Ann. § 20-17-101 et. seq., known at the TPPA, could not apply here because it was a rule of civil procedure, which is not applicable in sessions court. Plaintiffs, however, “did not address the substance of Defendant’s argument nor did Plaintiffs offer any countervailing proof in response to Defendant’s affidavit.”
The general sessions court held a hearing on February 6, 2020, where plaintiffs continued to rely “solely on the theory that the TPPA is a rule of civil procedure that does not apply in general sessions court.” Six days after the hearing, plaintiffs filed a supplemental response where they argued for the first time that they “could prove a prima facie case for defamation and false light,” and they attached the doctor’s affidavit in support. The sessions judge ruled the following day, dismissing the claims pursuant to the TPPA and plaintiffs’ failure to respond to the petition to dismiss with any facts. The order, however, did not resolve defendant’s request for costs, attorney’s fees and sanctions.
Where plaintiff alleging defamation was a public figure but had pleaded in the complaint that defendants were “negligent and/or reckless in ascertaining the truth” of the statements, the trial court incorrectly granted judgment on the pleadings on the defamation and false light invasion of privacy claims. Further, where defendants had counterclaimed for trespass to chattels, conversion, negligence, and trespass, and the “countercomplaint [had] factual allegations to support the required elements” of those claims, dismissal was reversed. In Kauffman v. Forsythe, No. E2019-02196-COA-R3-CV (Tenn. Ct. App. May 25, 2021), plaintiff shot and injured defendant’s dog when it was on plaintiff’s property. According to plaintiff, the dog had cornered his cat and he feared for its safety. After this incident, the dog’s owner, Ms. Bishop, and an individual unrelated to the dog, Mr. Williams, posted negative opinions about plaintiff on social media.
Sometime after this incident, plaintiff ran for county commissioner. During the campaign, Ms. Bishop and Mr. Williams continued posting negative opinions and information about plaintiff. Ms. Bishop’s children’s grandfather, Mr. Forsythe, also posted negative comments about plaintiff on social media. Plaintiff lost the election.
Where plaintiffs filed an Tennesseee medical malpractice (HCLA) claim on behalf of their stillborn child and made no claims “for damages for harm or injury to Savannah Jackson (‘Mother’),” the HIPAA authorization form provided by plaintiffs that identified the stillborn child as the patient and released records in his name was proper, and the claims commission was correct to deny summary judgment to defendants. The fact that the health care providers did not have records under the child’s name and thus did not disclose any records in response to defendants’ request did not change that analysis. In Jackson v. State, No. E2020-01232-COA-R9-CV (Tenn. Ct. App. April 20, 2021), plaintiffs were the parents of a stillborn child. Plaintiffs sent proper pre-suit notice with a HIPAA authorization to defendant, and the authorization stated that the patient name was “Branson Vance Jackson,” the name of the deceased child. Plaintiff mother signed the authorization in her capacity as the mother, but no HIPAA authorization was sent regarding the mother’s files, as no “claim was presented for damages for harm or injury” to the mother.
The State sent the HIPAA authorization to four medical providers who were sent notice and identified by plaintiff, and none of the providers produced any medical records in response to the request. Two providers specifically responded that they had no record of a patient with that name or date of birth on file.
Where plaintiff alleged negligence per se and invasion of privacy based on the unauthorized access and disclosure of her medical records, but she failed to allege in her complaint that the disclosure was made by an employee or agent of defendant or “otherwise explain how [defendant] could be liable for the actions” of another legal entity, and she failed to address an independent ground for dismissal in her appeal, dismissal was affirmed.
In Prewitt v. Saint Thomas Health, No. M2020-00858-COA-R3-CV (Tenn. Ct. App. April 14, 2021), plaintiff filed a pro se complaint against defendant Saint Thomas Health asserting claims for negligence per se and invasion of privacy. Plaintiff’s complaint alleged that she was treated and gave birth at a hospital owned and operated by defendant, and that the father of the child subsequently obtained information about the child’s birth from the hospital. Specifically, the complaint read: “[T]he plaintiff received documents that included the date of her Cesarean section that took place at Defendant Saint Thomas’ hospital. The information had apparently been disseminated and obtained by a violent and abusive man.”
Where an HCLA plaintiff sent pre-suit notice to twenty-one healthcare providers but failed to provide HIPAA authorizations for at least nineteen of those providers, dismissal was affirmed. In Shaw v. Gross, No. W2019-01448-COA-R3-CV (Tenn. Ct. App. April 13, 2021), plaintiff filed suit as the administrator of the decedent’s estate after decedent died of sepsis. Decedent had presented at defendant hospital and been treated by defendant doctor before being released with a dehydration diagnosis, but he returned to defendant hospital the next day and was diagnosed with sepsis, which eventually led to his death.
Before filing her complaint, plaintiff sent pre-suit notice to defendant hospital, defendant doctor, and nineteen other medical providers. After an initial grant of summary judgment, appeal, and remand, defendants filed motions to dismiss on the basis that plaintiff’s HIPAA authorizations sent with her pre-suit notice were incomplete, and that the HIPAA authorizations did not allow defendants to obtain records from the nineteen other providers that were sent notice. After the motion to dismiss was filed, plaintiff amended her complaint, alleging that “all doctors and providers to include Dr. Gross only saw and treated Decedent at Methodist Hospital.” The trial court granted the motion to dismiss, finding that plaintiff had failed to comply with the pre-suit notice requirements and thus was not entitled to the 120-day extension of the statute of limitations, making her complaint untimely, and the Court of Appeals affirmed.
Where a car accident plaintiff filed suit against the other driver’s insurance company within the statute of limitations, but failed to add the other driver as a party until two days after the statute of limitations had run, dismissal was affirmed. In Haywood v. Trexis Insurance Corp., No. W2020-00418-COA-R3-CV (Tenn. Ct. App. April 12, 2021), plaintiff was in a car accident with defendant driver on October 9, 2018. Plaintiff filed a civil warrant in general sessions court against defendant insurance company, who insured defendant driver, in July 2019. On October 11, 2019, plaintiff added defendant driver through an amended civil warrant. Defendants filed a joint motion to dismiss, arguing that the insurance company “was an improper party to the action because Tennessee is not a ‘direct action’ state,” and that “the statute of limitations for personal injury actions barred [plaintiff’s] suit against [the driver].” The trial court granted the motion to dismiss, and plaintiff appealed to the circuit court, where the case was dismissed again. On appeal, dismissal was affirmed.
Ford Motor Company can be required to face a product liability suit in a state where the plaintiff, a resident of the state, was injured even though the vehicle involved in the crash was not manufactured or originally sold in the state.
Ford Motor Co. v. Montana Eighth Judicial District and Ford Motor Co. v. Bandemer were consolidated in a March 25, 2021 opinion by the SCOTUS.
The 8-0 opinion of the court found that Ford had the requisite minimum contacts with the forum states even though the vehicles involved were not manufactured or sold there. Instead, the court found that Ford’s advertising, marketing, servicing, selling, etc. activities in the state where the wreck occurred were sufficient to permit it to be sued in the state.
Although plaintiff styled his case as a false imprisonment claim based on a two-hour hold in a hospital related to a mental health evaluation, the Court of Appeals affirmed the ruling that the case actually fell within the HCLA and was thus subject to dismissal for failure to provide pre-suit notice and/or a certificate of good faith.
In Weakley v. Franklin Woods Community Hospital, No. E2020-00591-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2020), plaintiff went to the defendant hospital the day after a car accident seeking medical treatment. According to plaintiff, a “community navigator” at the hospital asked him if he had ever had suicidal thoughts, and he told her that he had experienced such thoughts twenty years earlier. Thereafter, a nurse entered plaintiff’s room and told him that “she was compelled by state law and hospital policy to administer a mental health assessment.” When she asked plaintiff if he had experienced suicidal thoughts, he said no, but she said she wanted to admit him to the hospital, which he declined. Plaintiff alleged that he was then given insulin and fluids, but when he tried to leave the hospital after treatment, “he was stopped by an unidentified nurse who stated that a hold had been placed on [plaintiff] until he spoke with a psychologist.” A physician’s assistant later came into plaintiff’s room, telling him he had been placed on a hold and was not permitted to leave until he saw a behavioral specialist. Plaintiff averred that he later told this physician’s assistant that he wished to call the police department to report a claim of false imprisonment, and that he was then allowed to leave the hospital.
Day on Torts