Day on Torts

June 1, 2022

Dismissal affirmed where plaintiff died days before complaint was filed in her name.

Where plaintiff died a few days before the complaint in her HCLA suit was filed, and the complaint was filed with her named as plaintiff, the complaint was a nullity that could not be corrected by amendment and dismissal of the case was affirmed.

In Owen v. Grinspun, No. M2021-00681-COA-R3-CV (Tenn. Ct. App. May 25, 2022), plaintiff wife had surgery in August 2019, and she later gave pre-suit notice to defendants of an HCLA claim based on injuries related to that surgery. After notice had been given, but a few days before the complaint was filed, plaintiff wife died. The complaint was nevertheless filed listing plaintiff wife as the sole plaintiff.

Defendants filed an answer and engaged in discovery. Plaintiff’s counsel thereafter filed a suggestion of plaintiff wife’s death on the record, and also filed a motion to substitute plaintiff’s husband as the plaintiff, which the trial court allowed. Later, however, defendants filed a motion to dismiss, asserting that “the original complaint was a nullity that did not serve to toll the statute of limitations and that the statute of limitations had now expired.” The trial court “reluctantly granted the motion” to dismiss, and this ruling was affirmed on appeal.

May 31, 2022

Dismissal affirmed where HCLA pre-suit notice was sent to wrong entity.

by The Law Offices of John Day, P.C.

Where an HCLA plaintiff sent pre-suit notice addressed to the wrong entity, summary judgment for defendant was affirmed, even though defendant was informed of the pending suit by the incorrect entity and was not prejudiced.

In Breithaupt v. Vanderbilt University Medical Center, No. M2021-00314-COA-R3-CV, 2022 WL 1633552 (Tenn. Ct. App. May 24, 2022), plaintiff suffered antibiotic tendonitis, a traumatic rupture to a tendon in her ankle, and chronic tendonitis after being prescribed medication for a cough that had an adverse reaction with the steroids she had been taking for years. The prescribing doctor worked at defendant VUMC, and plaintiff was not warned about the possible side effects of the medication by the doctor before taking it, despite having previously treated at defendant VUMC for ankle problems. Plaintiff thereafter filed this HCLA suit.

May 24, 2022

Chancery court lacked subject matter jurisdiction over defamation tort claims.

by The Law Offices of John Day, P.C.

Where the gravamen of plaintiff’s complaint was his tort claim for defamation seeking unliquidated damages, the chancery court did not have subject matter jurisdiction and the case should have been transferred to circuit court.

In Lowery v. Redmond, No. W2021-00611-COA-R3-CV (Tenn. Ct. App. May 23, 2022), plaintiff filed a petition in chancery court related to various allegedly defamatory statements made by defendants. Plaintiff alleged that defendants “defamed his character in an attempt to ensure that he would not succeed in his bid for election to public office, by distributing defamatory information about him to prospective voters.” Plaintiff’s complaint sought compensatory damages for defamation, false light invasion of privacy, and intentional infliction of emotional distress. It also sought punitive damages, injunctive relief, and a declaratory judgment that defendants had violated certain statutes.

May 19, 2022

Cases Pending Before the Tennessee Supreme Court – Updated

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court decided the “Home Rule” case yesterday, with three of five justices finding that the Tennessee Education Savings Account Pilot Program was not unconstitutional. Click here to find links to the majority and concurring/dissenting opinions.

The Court has accepted review of 27 other cases, 15 of them civil cases and 12 of them criminal cases. Seven of the civil cases involve tort issues, and civil procedure issues are present in two other cases.

The current status of all of the cases may be found on BirdDog Law, which has a free book, Status of Cases Pending Before the Tennessee Supreme Court, that allows you to stay up-to-date on pending cases that can affect your clients and your practice. BirdDog also provides free access to the rules of civil procedure, evidence, and much, much more.

May 18, 2022

Dismissal partially reversed based on fraudulent concealment.

by The Law Offices of John Day, P.C.

Where plaintiffs averred that defendant home builders affirmatively told plaintiffs that the utility penetrations in the crawl space of the newly built home purchased by plaintiffs in August 2017 had been sealed with foam, and plaintiffs did not learn until January 2018 after an inspection by a mold remediation company that this statement was untrue, plaintiffs’ claims related to the damage allegedly caused by this failure to seal should not have been dismissed based on the statute of limitations, as plaintiff had put forth enough evidence from which a trier of fact could have found that the statute of limitations on these claims was tolled by fraudulent concealment.

In Simpkins v. John Maher Builders, Inc., No. M2021-00487-COA-R3-CV, 2022 WL 1404357 (Tenn. Ct. App. May 4, 2022), plaintiffs filed this pro se action that revolved around a newly built home they bought in August 2017 that had allegedly developed severe mold issues. Plaintiff asserted various claims against defendants, including breach of contract, fraud, intentional misrepresentation, and negligence, all of which the trial court dismissed as untimely pursuant to the three-year statute of limitations applicable to claims of injuries to real property. (Tenn. Code Ann. § 28-3-105.) On appeal, dismissal was partially reversed.

May 13, 2022

Expert Needed for Legal Malpractice Case to Survive

by The Law Offices of John Day, P.C.

Where plaintiff submitted no expert proof to support his legal malpractice claim, summary judgment for defendant was affirmed.

In Guo v. Rogers, No. M2020-01209-COA-R3-CV, 2022 WL 1220917 (Tenn. Ct. App. April 26, 2022), plaintiff was represented by defendant attorney in an underlying case in which plaintiff asserted several claims, including malicious prosecution. Plaintiff’s primary complaint here was that “Defendant failed to bring to the attention of the trial judge in that matter…evidence that a criminal charge against Plaintiff had been dismissed and judicially expunged.” The trial court in the underlying case granted the opposing party summary judgment based on several legal grounds, including that while expungement by executive order was a favorable outcome for purposes of a malicious prosecution claim, plaintiff had failed to show that a judicial expungement should be treated in the same way. Plaintiff thereafter filed this pro se legal malpractice claim against defendant.

May 12, 2022

Calculating Post-Judgment Interest on Tennessee Judgments

by The Law Offices of John Day, P.C.

When calculating post-judgment interest, the statutory rate in effect when the judgment is entered applies for the entire time period between entry of the judgment and its payment.

In Coffey v. Coffey, No. E2021-00433-COA-R3-CV, 2022 WL 1085039 (Tenn. Ct. App. April 11, 2022), plaintiff had won a large judgment against defendant based on breach of fiduciary duty and conversion. Defendant appealed the judgment, but it was affirmed by the Court of Appeals and the Supreme Court denied review. The case then went back to the trial court for calculation of post-judgment interest.

The trial court used the interest rate calculated by the Administrative Office of the Courts based on Tenn. Code Ann. § 47-14-121 for January 13, 2020, the day the judgment was entered. The court applied that rate as the post-judgment interest rate for the entire period at issue, which was January 13, 2020 through April 26, 2021. In this appeal, defendant argued that a different interest rate should have been used for a portion of this time period, as the statutory interest rate fluctuated, but the Court of Appeals rejected this argument and affirmed the trial court’s calculation.

May 11, 2022

Wrong defendants in certificate of good faith caption should have resulted in dismissal.

by The Law Offices of John Day, P.C.

Where an HCLA certificate of good faith filed with the Claims Commission named the wrong defendants, dismissal should have been granted.

In Gilbert v. State, No. E2021-00881-COA-R9-CV, 2022 WL 1117453 (Tenn. Ct. App. April 14, 2022), plaintiff filed an HCLA claim against several defendants, including the State of Tennessee as the employer of Dr. Landry, who was allegedly negligent. Plaintiff filed his HCLA complaint against the non-State employees in circuit court, and he filed his complaint against the State with the Division of Claims and Risk Management. Plaintiff attached a certificate of good faith to each complaint pursuant to Tenn. Code Ann. § 29-26-122(a). On the certificate of good faith filed with the Claims Commission case, the heading correctly said it was filed “IN THE CLAIMS COMMISSION FOR THE STATE OF TENNESSEE,” but the parties listed in the caption were the non-State parties. In fact, “[n]othing in [Plaintiff’s] certificate of good faith filed in the Claims Commission identifie[d] the State or Dr. Landry.”

May 10, 2022

Landlord not liable for tenant’s pit bull biting guest after landlord ordered the dog removed and issued tenant an eviction notice.

by The Law Offices of John Day, P.C.

Where a landlord had told a tenant to immediately remove a pit bull who had bitten someone, had no notice that the pit bull had returned, and had given the tenant 30-day notice of eviction after the first biting incident, the landlord did not breach any duty owed to the guest of the tenant who was subsequently bitten by the pit bull after the tenant allowed it to return to the property.

In Harrill v. PI Tennessee, LLC, No. M2021-00424-COA-R3-CV, 2022 WL 1222318 (Tenn. Ct. App. April 26, 2022), defendant landlord owned and operated a mobile home park, and Gina Branch leased one of the mobile homes. The lease agreement prohibited Branch from keeping a pit bull or other dog over thirty pounds at the property. From March 2015 to February 2016, Branch’s son lived with Branch and kept his pit bull in the home. In March 2016, defendant sent Branch a letter stating that the pit bull was not allowed and that if the pit bull returned to the property, she would be evicted without notice.

Almost two years later, in January 2018, Branch’s son and his girlfriend were visiting the property and brought the pit bull, and during the visit the pit bull bit the girlfriend. Defendant learned of this attack on January 10, 2018 and immediately ordered Branch to have the dog removed from the property. Defendant also served Branch with a 30-day eviction notice. After that time, defendant did not see the dog or receive any reports of the dog being at the property. On January 31, Branch allowed the dog to return and kept him inside. Plaintiff came to the property to help Branch pack and move, and while plaintiff was inside the home, the dog bit her.

May 4, 2022

Revenge Porn

by The Law Offices of John Day, P.C.

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.”