Day on Torts

The statute of repose for defective improvements to real property did not apply where defendants were the property owners of the pipe culvert at issue in the case.

In Clayton v. Dixon, No. M2021-00521-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff property owner sued defendants, who owned the adjacent property, “for damages allegedly caused by the installation of a pipe culvert.” Plaintiff asserted that the pipe culvert was improperly installed in 2011 and caused flooding on his property.

Plaintiff filed suit in 2019 for negligence, nuisance, and trespass. The parties entered into a settlement agreement whereby defendants installed a larger pipe, but plaintiff refused to dismiss the suit after this pipe installation. Defendants then filed a motion to dismiss as well as a counterclaim seeking specific enforcement of the settlement agreement. The parties then filed cross-motions for summary judgment, with plaintiff arguing that he was entitled to summary judgment because defendants had “violated the codes when they installed the pipe culvert,” and defendants asserting that plaintiff’s claim was barred by the statute of repose. The trial court found that “the statute of repose for defective improvements to real estate barred [plaintiff’s] action” and granted summary judgment to defendants. On appeal, summary judgment was reversed.

In an HCLA case where plaintiff named a physician employed by a governmental entity as a defendant but did not name the governmental entity, dismissal was affirmed. Further, plaintiff’s motion to amend to name the governmental entity was properly denied as futile where plaintiff did not give pre-suit notice to the governmental entity and, therefore, the claim against the governmental entity would be time-barred even if it related back to the filing of the complaint.

In Fisher v. Smith, No. W2022-00779-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff’s HCLA claim arose from an abdominal surgery she had at a hospital in March 2020. Dr. Smith was the surgeon and was an employee of West Tennessee Medical Group (WTMG), which was a governmental entity. Until a year before the surgery at issue, Dr. Smith had been an employee of Jackson Surgical Associates, P.A. (JSA), but in March 2019 WTMG acquired JSA, thereafter operating the practice as Jackson Surgical Associates with no P.A. as part of the name.

In February 2021, plaintiffs sent pre-suit notice to Dr. Smith, JSA, the surgical center and the hospital, and amended pre-suit notices were sent to the same entities on March 1, 2021. No pre-suit notice was sent to WTMG. Dr. Smith, JSA, and the hospital responded to their notices “by informing the [plaintiffs] that Dr. Smith was employed by WTMG and not JSA and that WTMG was a governmental entity.” When plaintiffs filed their suit in June 2021, however, they named Dr. Smith and JSA as defendants.