Day on Torts

May 11, 2022

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

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.”

May 3, 2022

County not immune from suit where sheriff’s deputy failed to investigate death threats.

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

Where plaintiff alleged that an investigator recklessly failed to investigate criminal threats made by her husband, despite the husband having a known history of violence, dismissal based on the GTLA was vacated.

In Haynes v. Perry County, Tennessee, No. M2020-01448-COA-R3-CV, 2022 WL 1210462 (Tenn. Ct. App. April 25, 2022), plaintiff was shot multiple times by her estranged husband in August 2018. The husband had a known history of violence, including being convicted of murdering his first wife. Plaintiff had accused husband of domestic violence and gotten an order of protection in June 2018, although she later dropped the order, and had moved in with a friend to attempt to get away. In the months preceding the shooting, plaintiff’s car was set on fire, and husband was under investigation for the crime.

April 25, 2022

More On Powers of Attorney, Arbitration Agreements, and Wrongful Death

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

Where the person who executed an arbitration agreement in connection with decedent’s admission to a nursing home had a power of attorney for decedent, but that power of attorney did not mention the ability to make health care decisions, the arbitration agreement was unenforceable. Further, decedent’s wrongful death beneficiaries would not have been bound by the arbitration agreement even if it were enforceable.

In Williams v. Smyrna Residential, LLC, No. M2021-00927-COA-R3-CV (Tenn. Ct. App. April 8 2022), plaintiff was the son of decedent, who died while he was a resident at defendant assisted living center. Plaintiff filed this wrongful death action on behalf of decedent’s wrongful death beneficiaries. In response to the complaint, defendant filed a motion to compel arbitration. According to defendant, decedent’s daughter had executed an arbitration agreement on decedent’s behalf when decedent was admitted to the facility. At the time, the daughter was the named attorney-in-fact in decedent’s durable power of attorney (POA). Plaintiff argued that the arbitration agreement was not enforceable because the POA did not mention the authority to make health care decisions, and the trial court agreed, denying the motion to compel arbitration. On appeal, this ruling was affirmed.

April 22, 2022

“Pending Cases” Updated with New Tennessee Supreme Court Opinion

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

There are eighteen civil and ten criminal cases pending before the Tennessee Supreme Court. Do you know which cases will impact your current and future clients?

“Pending Cases Before the Tennessee Supreme Court” is our e-book which contains a list of, and important information about, every case accepted for review by the Tennessee Supreme Court. By scanning the Table of Contents, you can quickly determine if a case in your office may be impacted by an upcoming decision of the Court. You can also see the status of the case (where it is in the briefing process, whether oral argument has been scheduled, etc.)

On Wednesday the Court decided State v. Moon, a criminal case that addressed speedy trial and impeachment issues. Our e-book was updated within twenty-four hours. Click here for our updated summary of Moon.

April 21, 2022

Reckless infliction of emotional distress plaintiffs was not within the reasonably foreseeable scope of the alleged tort.

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

Where the school secretary sued the employer of a school bus driver for reckless infliction of emotional distress after the driver caused a school bus accident killing six children, and the secretary alleged that the employer ignored multiple warnings regarding the driver’s unsafe practices, the Court of Appeals ruled that the claim against defendant employer should have been dismissed because “the secretary [was] not a person who falls within the reasonably foreseeable scope of the particular substantial and unjustifiable risk consciously disregarded by the employer and, therefore, [could not] recover under a reckless infliction of emotional distress claim.”

In Bibbs v. Durham School Services, L.P., No. E2020-00688-COA-R10-CV, 2022 WL 1042733 (Tenn. Ct App. April 7, 2022), plaintiff was the school secretary at an elementary school, and defendant was the employer of school bus drivers for that school. In November 2016, school bus driver Johntony Walker lost control of the bus he was driving and had an accident, killing six children and injuring many others. Plaintiff alleged that defendant had ignored numerous warnings about Walker’s dangerous driving practices, including over one thousand notifications from the monitoring software that Walker was speeding while driving the bus; Walker being at fault for two accidents in a 34-day period just a few months before this accident; knowledge that Walker would “slam on his brakes to make the children hit their heads;” video of Walker talking on the phone with a headset while driving; evidence that Walker had fallen asleep while driving twice; evidence that Walker would intentionally swerve the school bus; and evidence from just five days before the crash showing that Walker had twenty-five speeding incidents, including five times when he was exceeding the speed limit by at least twenty miles per hour.

Plaintiff asserted multiple claims in her complaint, but the only claim at issue on appeal was her claim for reckless infliction of emotional distress. Defendant had filed a motion to dismiss, which the trial court denied, ruling that plaintiff had satisfied the elements of that claim. On appeal, the Court of Appeals ruled that dismissal should have been granted.

April 18, 2022

New Decision Discussing Alter Ego-Law in Tennessee

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

A new decision of the Tennessee Court of Appeals, Southern Steel & Concrete, Inc. v. Southern Steel & Construction, Inc., No. W2020-00475-COA-R3-CV (Tenn. Ct. App. Apr. 14, 2022), summarizes Tennessee’s law on alter ego issues.

Here is some key language from the opinion (all of the language in bold is quoted from the opinion):

In Oceanics Schools, Inc. v. Barbour, 112 S.W.3d 135, 145 (Tenn. Ct. App. 2003),this Court provided a “blueprint of factors” to be considered when addressing an alter ego issue. Boles v. Nat’l Dev. Co. Inc., 175 S.W.3d 226, 245 (Tenn. Ct. App. 2005). We explained that blueprint as follows:

April 15, 2022

GTLA Attorney’s Fees Provision Permitting Award Against Plaintiff Deemed Constitutional

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

A provision of the GTLA allowing for the recovery of attorney’s fees by a governmental employee who was the prevailing party in a GTLA suit was constitutional and did not deprive plaintiff of her right to access the courts.

In Taylor v. Miriam’s Promise, No. M2020-01509-COA-R3-CV, 2022 WL 1040371 (Tenn. Ct. App. April 7, 2022, plaintiff filed suit against twelve defendants after she placed her child for adoption at birth but subsequently changed her mind. Two of these defendants were Kellye Reid, a licensed social worker, and Cookeville Regional Medical Center (CRMC), the employer of Ms. Reid. Plaintiff alleged that Ms. Reid had her “execute legal documents while under the influence of medication and falsely led [plaintiff] to believe that she could change her mind,” and that CRMC was vicariously liable for Ms. Reid’s actions.

April 6, 2022

Judgment for damages void where defendant was not served with amended omplaint.

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

Where plaintiff had previously gotten a default judgment as to defendant’s liability in a car accident case, and plaintiff had subsequently filed an amended complaint seeking increased damages but defendant was not served with the amended complaint, the Court of Appeals affirmed the ruling that the judgment based on the amended complaint was void and plaintiff had not proven “exceptional circumstances to deprive the defendant of Rule 60 relief.”

In Higgins v. McCord, No. M2021-00789-COA-R3-CV (Tenn. Ct. App. April 1, 2022), plaintiff filed this negligence suit against defendant after the two were involved in a car accident. Plaintiff’s initial complaint was filed in May 2009 and sought $1 million in compensatory damages and $1 million in punitive damages. Defendant was served with this complaint but never filed an answer or other responsive pleading, and a default judgment as to liability only was entered in December 2009.