Day on Torts

May 4, 2022

Revenge Porn

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.

April 1, 2022

Insufficient certificate of good faith leads to summary judgment for defendant.

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

Where plaintiff filed an exhibit with its HCLA complaint that did not comply with the certificate of good faith requirements, summary judgment for defendant should have been granted.

In Estate of Blankenship v. Bradley Healthcare and Rehabilitation Center, No. E2021-00714-COA-R10-CV, 2022 WL 951256 (Tenn. Ct. App. Mar. 30, 2022), plaintiff filed this HCLA suit alleging that decedent died while a resident of defendant nursing home due to defendant’s negligence. Plaintiff’s complaint stated that Exhibit 7 to the complaint satisfied the HCLA certificate of good faith requirement. Exhibit 7 was a “one-paragraph letter” from a nurse practitioner (NP) which stated that the NP was competent as an expert under the HCLA, that she had “reviewed the medical issues,” and that she had “determined that violations of the standards of care occurred during [decedent’s] residency” at defendant nursing home.

March 29, 2022

Summary judgment vacated due to insufficient reasoning in trial court order.

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

Where the trial court did not provide sufficient reasoning for its grant of summary judgment in a misrepresentation case, summary judgment was vacated and the case was remanded to the trial court.

In Smith v. Walker, No. W2021-00241-COA-R3-CV (Tenn. Ct. App. Mar. 22, 2022), plaintiffs purchased a home from defendants. Shortly after the purchase, plaintiffs discovered the home was contaminated with mold, and they filed this action asserting claims for breach of contract, negligence, gross negligence, negligent misrepresentation, and intentional misrepresentation.