Day on Torts

June 23, 2025

Plaintiff could not use reckless misconduct special duty exception in GTLA case.

The special duty exception to GTLA immunity did not apply where the police department in question owed a duty to investigate a crime to the public at large, and the plaintiff could not use the reckless misconduct special duty exception because the GTLA does not remove immunity for recklessness.

In Franklin v. City of Memphis, Tennessee, No. W2023-01142-COA-R3-CV (Tenn. Ct. App. May 14, 2025), the plaintiff was kidnapped and raped at gunpoint. She reported the crime to the local police immediately, but the plaintiff alleged that in the following months the police failed to investigate and pursue the case diligently. The plaintiff asserted in her complaint that the police had information pointing to the perpetrator but failed to make an arrest, and that they failed to process her rape kit in an expedited matter. When the rape kit was processed, the perpetrator was identified and arrested, but by that time he had already kidnapped and murdered another woman.

The plaintiff filed this claim under the Governmental Tort Liability Act (“GTLA”), asserting that the defendant city was liable for the police department’s negligence. The city moved for dismissal, which the trial court granted pursuant to the public duty doctrine of the GTLA. Dismissal was affirmed on appeal.

June 20, 2025

Dog Bite Statute does not always abrogate common law negligence claim

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

A Tennessee dog bite victim who cannot make a successful claim under the Tennessee Dog Bit Statute may not be precluded from pursuing a common law negligence claim.

In Hudson v. Gravette, No. M2022-01787-COA-R3-CV (Tenn. Ct. App. May 8, 2025), the plaintiff was an employee at a dog boarding kennel. The defendants owned two English bulldogs that were often boarded at the kennel. In fact, between May 2018 and February 2019, the dogs were at the kennel almost 50% of the time.

On the day of the incident, the plaintiff was the first employee to arrive at the kennel, and she let all the dogs out in groups. When she released the defendants’ dogs, one began nipping at her ankle, causing her to fall. Both dogs then attacked her for five to ten minutes. The plaintiff required emergency surgery, and she suffered from continued painful nerve damage and post-traumatic stress.

June 18, 2025

Intrusion upon seclusion claim survives death of plaintiff.

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

In Tennessee, a claim for invasion of privacy based on intrusion upon seclusion does not abate when the person whose privacy was invaded dies.

In Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma, No. M2022-00471-SC-R11-CV, — S.W.3d — (Tenn. April 25, 2025), Ms. Jones was a resident of defendant nursing home and had impaired cognitive functioning. She required help with daily activities, including showering. While a certified nursing aide was helping Ms. Jones shower, the aide accepted a video call from her boyfriend, who was incarcerated. During the call, Ms. Jones’ nude body was visible in the background.

When Ms. Jones’ family was informed of this incident, they filed this invasion of privacy based on intrusion upon seclusion claim. The trial court granted the defendant’s motion for summary judgment, ruling that because Ms. Jones was unaware of the incident, the plaintiff could not show “actual injury or loss in the form of physical, mental or emotional injury.” While the case was pending in the trial court, Ms. Jones died.

June 16, 2025

No negligence by coach when cheerleader was injured in stunt.

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

Where a cheerleader was injured while doing a shoulder sit before a football game, the ruling that there was no negligence because the supervising teacher acted with reasonable care was affirmed.

In Wherry v. Obion County Board of Education, No. W2024-00693-COA-R3-CV (Tenn. Ct. App. April 28, 2025), the plaintiff was a cheerleader on her school sideline cheer team. At one particular football game, the cheer coach (who was an English teacher) noticed standing water near the bleachers. She told the cheerleaders not to perform stunts in that area. The coach spoke with TSSAA officials and another adult, who confirmed that the playing surface was safe. The cheerleaders warmed up in the end zone, after which they did not report standing water and had no mud on their shoes. Nonetheless, the coach told them to limit their stunts to a shoulder sit. Immediately before the game, the cheerleaders warmed up the shoulder sit two times with no incident with the coach nearby. When it was time for the team to run onto the field, the plaintiff attempted to climb onto her base to execute a shoulder sit and fell, suffering serious injuries.

The plaintiff and her parents filed a negligence action against the county board of education, alleging that 1) the negligent acts of the coach were the cause of the plaintiff’s injuries and 2) the school district was negligent in its hiring of the coach. After a bench trial, the trial court found in favor of the defendant school board, and the Court of Appeals affirmed.

June 13, 2025

No intentional infliction of emotional distress when the plaintiff was left at bus stop by bus driver.

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

A woman who was left at a bus stop in the cold by a bus driver did not state a claim for intentional infliction of emotional distress.

In Williams v. Holt, No. M2024-01188-COA-R3-CV (Tenn. Ct. App. May 1, 2025), the plaintiff was waiting at a bus stop on a November morning without a coat. When the next bus for that station pulled up, it initially pulled into a different bay because the correct bay was blocked. After seeing the plaintiff, the driver pulled to the correct bay, opened the doors, and said, “Come on, now.” The plaintiff asked the driver to lower to the steps for her, at which point the driver closed the doors and left plaintiff. The plaintiff expressed her concerns at the customer service desk, where a worker said she would file a complaint for the plaintiff. The plaintiff boarded the next bus twenty-six minutes after the previous bus left the plaintiff. The plaintiff later learned that the worker never filed a complaint.

The plaintiff filed this case pro se, asserting a claim for intentional infliction of emotional distress (“IIED”) against the bus driver and customer service representative who failed to file a complaint. She also alleged negligent infliction of emotional distress (“NIED”) against the Metropolitan Transit Authority, who she alleged employed the driver and worker. The trial court granted summary judgment to the defendants on all claims, which was affirmed on appeal.

June 11, 2025

Unchecked blanks made HIPPA authorization noncompliant.

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

Where a HIPAA authorization had blanks beside the names of all the providers listed under who was authorized to make disclosures, but none of the blanks were marked or checked, the HIPAA authorization was not compliant with the HCLA requirements.

In Crenshaw v. Methodist Healthcare- Memphis Hospitals, No. W2024-00682-COA-R3-CV (Tenn. Ct. App. May 7, 2025), the plaintiff filed a health care liability suit on behalf of her deceased mother. Per the HCLA statutory requirements, the plaintiff included a HIPAA authorization for the release of the decedent’s medical records with her pre-suit notice. Under the heading “The following individual or organization is authorized to make the disclosure,” the plaintiff listed thirteen providers. Beside each provider’s name there was a small blank. On the authorizations sent with the pre-suit notice, none of the small blanks were checked or marked in any way.

The defendants filed motions to dismiss asserting, among other arguments, that the HIPAA authorizations did not substantially comply with the HCLA statute. The trial court agreed and dismissed the plaintiff’s claims, and the Court of Appeals affirmed.

June 9, 2025

Quality Improvement Privilege (QIC) waivable in Tennessee.

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

Statements made that were related to a QIC meeting on a patient’s care were subject to the QIC privilege, but the hospital administrator waived that privilege to the extent he disclosed the privileged information to the patient’s family.

In Castillo v. Rex, No. E2022-00322-SC-R11-CV (Tenn. May 9, 2025), the plaintiff filed an HCLA suit after her husband died shortly after being discharged from defendant hospital. Following the husband’s death, the hospital held a quality improvement committee (“QIC”) meeting to discuss his care. The hospital then invited the plaintiff wife and her parents to what the hospital labeled a CANDOR meeting. (Note: The Supreme Court specifically pointed out that Tennessee has not adopted a statute creating CANDOR meetings, so this meeting had no additional statutory protections, but the Court referred to the meeting in this way for simplicity). During this meeting, the plaintiff did not sign any documents and was not told that any information being shared was privileged. The hospital told the plaintiff that the CT scan performed on her husband showed an internal bleed and that he should not have been discharged.

After this suit was filed, counsel for the hospital deposed the plaintiff. Defense counsel asked the plaintiff about the CANDOR meeting and made “detailed inquiries into the statements” made therein. When the plaintiff’s attorney deposed hospital representatives, however, defense counsel instructed the witnesses not to answer questions about what was said in the CANDOR meeting because it was subject to the QIC privilege. The defense also asserted the QIC privilege in response to some written discovery requests.

April 30, 2025

Dismissal of defamation claim reversed.

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

In a case where a former Tennessee Department of Environment and Conservation Deputy Commissioner claimed defamation based on statements related to a sexual harassment investigation and his subsequent termination, the Court of Appeals ruled that the State’s motion to dismiss should not have been granted, and that the State had not yet met its burden of showing that the absolute executive privilege applied.

In Hill v. State of Tennessee, No. M2022-01749-COA-R3-CV (Tenn. Ct. App. April 10, 2025), the plaintiff was terminated from his position as Deputy Commissioner of a state department after an investigation into alleged sexual harassment claims. The initial incident that started the investigation centered on another state employee with whom the plaintiff discussed camping. The plaintiff had texted her information about a hike after an in-person conversation. This employee later commented to a co-worker that the plaintiff had a crush on her. According to plaintiff, this was said in jest, and the employee was not bothered by the plaintiff’s comments or texts. In fact, the plaintiff asserted in this suit that the employee was eventually discharged because she would not go along with the narrative that the plaintiff sexually harassed her.

Plaintiff asserted that the investigation into his alleged sexual harassment was a sham, and that the state employees who conducted the investigation knew he was innocent. He asserted that sexual harassment allegations were fabricated and known to be false, and that these false statements were distributed to the media.

April 18, 2025

Incomplete HIPAA authorizations lead to dismissal of HCLA claim.

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

Where an HCLA plaintiff provided incomplete HIPAA authorizations with his pre-suit notice, the trial court should have granted the defendants’ motion to dismiss.

In Elmore v. Mills, No. E2023-01064-COA-R9-CV (Tenn. Ct. App. Mar. 31, 2025), the plaintiff filed an HCLA suit against multiple defendants based on decedent’s death, who aspirated during a hip surgery after being given food on the day of the surgery by hospital staff. The plaintiff sent pre-suit notice to multiple individuals and entities, including Dr. Sorce, the treating physician, and Dr. Sorce’s group, TVO. The plaintiff thereafter filed this HCLA suit.

Defendants Sorce and TVO filed a motion to dismiss, arguing that the pre-suit notice was not sent within the one-year statute of limitations and that the HIPPA authorizations provided with the pre-suit notice were insufficient. The trial court denied the motion to dismiss, but the Court of Appeals reversed based on the incomplete HIPAA authorizations.

April 3, 2025

Bench with no back not a dangerous condition.

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

Where a premises liability plaintiff had no proof that a bench outside defendant restaurant was dangerous or defective, summary judgment for the defendant was affirmed.

In Ellis v. Snookums Steakhouse, LLC, No. W2024-01165-COA-R3-CV (Tenn. Ct. App. Mar. 11, 2025), the plaintiff ate at defendant restaurant before walking outside. When the plaintiff sat on a bench located outside, the bench “flipped or tilted from end to end.” The plaintiff did not look back when she was sitting down.

Based on this incident, the plaintiff filed this premises liability suit against the restaurant. The plaintiff emphasized that the bench had “new bolts in the holes in the metal to which the back would be fastened,” but that there was no back on the bench.