Day on Torts

July 17, 2026

Developer’s failure to install proper erosion control created temporary nuisance.

Where a developer failed to install proper erosion control, causing recurring sediment runoff into a pond owned by a neighbor, the trial court’s ruling that the nuisance was temporary was affirmed.

In Lippert v. B&D Real Estate Properties, LLC, No. E2024-01676-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2026), the plaintiffs owned property next to a neighborhood being developed by the defendant. The plaintiffs land included a pond. While developing the neighborhood, the defendant failed to use proper erosion control measures, and the plaintiffs began experiencing runoff issues in their pond. Significant amounts of dirt and silt washed into the pond, and the water became discolored, especially after rain.

The plaintiffs first complained to the state in December 2016. In 2016 and 2017, the defendant took remedial measures that temporarily resolved the issues. As the defendant continued developing the neighborhood, though, it stopped responding to the plaintiffs’ concerns. The plaintiffs filed this complaint in March 2020.

July 16, 2026

Denial of continuance and dismissal of HCLA case pending for six years affirmed.

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

Where the plaintiffs submitted no medical evidence supporting their motion to continue the trial of their HCLA claim, and the case had been pending for more than six years, denial of the continuance and dismissal of the case was affirmed.

In Wilson v. Mickles, No. E2025-00349-COA-R3-CV (Tenn. Ct. App. Mar. 31, 2026), the plaintiffs filed a health care liability claim against the defendant based on alleged injuries the plaintiff wife suffered during a dental procedure. The complaint was filed in 2018, and the case was set for trial for November 2023. After several agreed continuances, the case was reset for trial for December 2024. In November, however, the plaintiffs filed a motion to continue the trial, stating that the plaintiff wife was having significant health problems. No medical evidence was attached to the motion.

The defendant opposed the continuance, pointing out that the plaintiff had requested a continuance before due to the same health issues. The defendant argued that the case had been pending for over six years, that it had been continued many times, and that there was no assurance that the plaintiff would be able to participate in a continued trial.

July 8, 2026

Amendment to name correct property owner in premises liability case did not relate back.

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

Where the plaintiff filed suit against the wrong corporate defendant and had no proof that the correct defendant had notice of the suit within the time constraints mandated by Tennessee Rule of Civil Procedure 15.03, the trial court should not have granted the plaintiff’s motion to amend and allowed the claim against the new defendant to relate back to the filing of the complaint.

In Coleman v. CBL & Associates, Inc., No. W2025-01080-COA-R9-CV (Tenn. Ct. App. April 1, 2026), the plaintiff had a car accident due to a sinkhole in the parking lot of a mall. The plaintiff filed a premises liability suit against CBL & Associates, Inc. (“Associates”), who he alleged owned the mall. In Associates’ answer, it denied owning the mall.

After the plaintiff had conducted written discovery, Associates filed a motion for summary judgment. Associates argued that it did not own the mall, but that the mall was actually owned by Old Hickory Mall Venture II, LLC. The plaintiff responded that Old Hickory Mall Venture was an alter ego of Associates, but on the morning of the summary judgment hearing, Associates noted for the first time the existence of a Delaware-based corporation, CBL & Associates Properties, Inc. (“Properties”). Associates argued that all references to CBL at the mall or on the mall website were to Properties, not Associates. Based on this information, the trial court granted summary judgment to Associates.

July 6, 2026

Tennessee was not proper venue where accident occurred and defendant lived out of state.

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

Where a car accident occurred in another state and the defendant lived in another state, venue was not proper in Shelby County, Tennessee.

In Tennessee Farmers Mutual Insurance Company v. Jones, No. W2024-01418-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2026), the plaintiff insurance company insured the truck and trailer that were involved in a car accident with the defendant. The car accident occurred in Mississippi, and the defendant lived in Mississippi.

The plaintiff insurance company filed suit in Shelby County, Tennessee, where the defendant worked and was served. The plaintiff filed a motion to dismiss for improper venue under Tennessee Rule of Civil Procedure 12.02(3), which the trial court granted, and the Court of Appeals affirmed.

June 26, 2026

Premises liability summary judgment based on superior knowledge of plaintiff vacated.

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

Summary judgment for the defendant store in a premises liability case was vacated where the trial court did not “engage in an analysis of foreseeability and the gravity of harm to determine whether a duty was owed.”

In Coblentz v. Tractor Supply Company, No. M2023-00249-COA-R3-CV (Tenn. Ct. App. Feb. 20, 2026), the plaintiff worked for a retailer who sold products in the defendant store. The plaintiff’s job included visiting various stores where his employer’s product was sold, and he typically visited each store every four to six weeks. While at a store, the plaintiff would look for any issues with the display and stock the product, among other responsibilities.

The display at defendant store was a track and hanger rack with barn door tracks. These displays had fallen and caused injuries in other stores, and the plaintiff’s employer had accordingly implemented a safety bar design to be added to the displays by the store chain. While the plaintiff was visiting the defendant store and standing near the display, a track fell on him, causing a head injury. Two store employees responded to the incident, and neither of them saw a safety bar on the floor.

June 24, 2026

Negligent hiring claim against broker of interstate transportation was not preempted by FAAA.

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

A negligent hiring claim against a logistics broker who hired a trucking company to perform the interstate transport of goods was not preempted by federal law.

In Montgomery v. Caribe Transportation II LLC, 2026 U.S. LEXIS 2036, — U.S. — (May 14, 2026), the plaintiff was a truck driver who was injured when his truck was struck by another truck that was hauling a load of plastic pots through Illinois. The truck that injured plaintiff was being operated by Caribe Transport. The defendant at issue in this appeal was the transportation broker who hired Caribe Transport and coordinated the shipment.

The plaintiff filed a negligent hiring claim against the transportation broker, arguing that due to Caribe Transport’s safety rating from the Federal Motor Carrier Safety Administration, the broker “knew (or should have known) that choosing Caribe Transport to transport goods was reasonably likely to result in crashes that would injure others.” The district court and Seventh Circuit held that the Federal Aviation Administration Authorization Act (“FAAA”) preempted the plaintiff’s negligent hiring claim, but the United States Supreme Court reversed.

June 24, 2026

Case management order established written permission to file amended answer.

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

A personal injury plaintiff was allowed to amend his complaint and assert a claim against a new defendant well after the statute of limitations ran when the original defendant had written consent to file a new answer, and that new answer included allegations against the new defendant.

In Johnson v. Airtight Resources Inc., No. M2023-01336-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2026) (memorandum opinion), the plaintiff filed a personal injury action against Airtight after he fell through a second floor garage door at his mother’s home. Airtight answered the complaint by alleging that an unknown defendant fraudulently obtained a permit to do the door work in its name.

In May 2021, well after the one-year statute of limitations had run, the parties held a case management conference. During that conference, an order was drafted indicating that Airtight intended to file an amended answer naming Phillip Taylor (“Taylor”) as a responsible party. Counsel for all parties signed this order, and soon thereafter the amended answer was filed. Within five days, the plaintiff filed an amended complaint adding Taylor as a defendant. Taylor filed a motion to dismiss, arguing that Airtight did not have permission to file an amended pleading, and therefore the statutory grace period for adding a new party under Tenn. Code Ann. § 20-1-119 was not triggered. The trial court agreed and granted dismissal, but the Court of Appeals reversed.

June 22, 2026

Plaintiff not entitled to pursue claim directly against UM insurance carrier.

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

In a car accident case, where the plaintiff’s summons to the other driver was returned with a note from the process server stating that the defendant was “avoiding service/said he would not cooperate,” the plaintiff was not entitled to proceed directly against her uninsured motorist insurance carrier.

In Urquia v. Seal, No. W2024-01842-COA-R3-CV (Tenn. Ct. App. Feb. 27, 2026), the plaintiff filed a personal injury suit against the defendant following a car accident. The summons to the defendant was returned, stamped “NOT TO BE FOUND AFTER DILIGENT SEARCH AND INQUIRY.” In addition to this stamp, the process server hand wrote on the summons that the defendant was “avoiding service/ said he would not cooperate.”

The plaintiff did not make any further attempt to serve the defendant. When the one-year statute of limitations on the plaintiff’s claim against the defendant ran, the plaintiff’s uninsured motorist insurance carrier filed a motion for summary judgment, asserting that the plaintiff was “unable to proceed against it directly as the uninsured motorist insurance carrier because the action had not been properly commenced against the uninsured motorist.” After a hearing, the trial court granted summary judgment to the insurance company, and the Court of Appeals affirmed.

June 18, 2026

HCLA dismissal based on insufficient HIPAA authorizations affirmed.

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

Where a HIPAA authorization only allowed the healthcare professionals to release records, not to obtain them, the Plaintiff had failed to substantially comply with the HCLA and dismissal was affirmed.

In Moxley v. AMISUB SHF Inc. d/b/a Saint Francis Hospital, No. W2025-00443-COA-R3-CV (Tenn. Ct. App. Mar. 13, 2026) (memorandum opinion), the plaintiff filed a health care liability suit against the defendants based on alleged medical negligence during her cancer treatment. The plaintiff had sent pre-suit notice to twelve possible defendants, but the HIPAA authorizations included with those pre-suit notices only stated that the receiving entity could release records to certain other entities. The HIPAA authorizations did not contain any language “stating that [the defendants] could ‘obtain’ any medical records.”

The defendants filed a motion to dismiss, asserting that the plaintiff failed to comply with the HCLA requirements found in Tenn. Code Ann. § 29-26-121. On this third appeal in this case, the Court of Appeals affirmed dismissal based on the insufficient HIPAA authorizations.

June 16, 2026

TPPA petition denied where business letter was not protected by First Amendment.

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

An email from a music publisher to a license company requesting that royalties from certain songs be credited to the publisher did not fall within the protections of the U.S. Constitution, and the Tennessee Public Protection Act therefore did not apply.

In 4U2ASKY Entertainment, Inc. v. Offor, No. M2023-00238-COA-R3-CV (Tenn. Ct. App. Mar. 9, 2026), the plaintiff music publisher sued the defendant musician for breach of contract. After lengthy litigation, the musician eventually filed for bankruptcy, which prompted the negotiation of an agreed order stating that the publisher had all right and title to music created by the musician from August 18, 2015, through December 15, 2017.

The publisher subsequently sent a letter to a licensing company stating that it owned “100%…rights in the songs written…, performed, etc., of Blessing Offor…” The publisher attached the agreed order to this letter. The musician, however, provided the licensing company a list of the songs that were actually included within the time limitations of the agreed order. The licensing company wrote back to the publisher expressing concerns with its earlier communication and stating that only the songs identified by the musician would be transferred to the publisher’s ownership.