Day on Torts

July 15, 2025

HCLA expert failed to satisfy locality rule.

An expert witness in an HCLA case who admittedly did not know any information about the hospital that administered treatment, including what services it offered or its size, and had never spoken to anyone who worked there or been there in person, did not satisfy the locality rule.

In Bowen v. Nelson, No. W2024-00749-COA-R3-CV (Tenn. Ct. App. May 27, 2025), the plaintiff filed an HCLA action based on her treatment and the transfer process at Jackson-Madison County General Hospital. The plaintiff identified Dr. Jim as her standard of care and causation expert. In his deposition, Dr. Jim stated that he had spent many years working at a hospital in St. Lous, Missouri. When questioned about his familiarity with the hospital where the plaintiff was treated, he admitted to knowing very little. He did not know the population of the city, did not know how many beds were in the hospital (and guessed very inaccurately), and did not know what services the hospital offered. He stated that he had never spoken to anyone who worked at the hospital or visited the hospital.

Based on this testimony, the defendants filed a motion to exclude Dr. Jim pursuant to the locality rule, as well as a motion for summary judgment based on the plaintiff’s inability to prove the necessary elements of her HCLA claim by expert proof. The trial court granted both motions, and the Court of Appeals affirmed.

July 14, 2025

No nuisance liability where plaintiff cannot prove a nuisance existed.

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

Summary judgment for a nuisance claim was affirmed where the plaintiffs failed to provide any evidence beyond their own affirmations that a nuisance existed.

In Heatley v. Estate of Gaither, No. M2024-01097-COA-R3-CV (Tenn. Ct. App. May 29, 2025), the plaintiffs and the defendants lived on two plots of land that were joined as one property until around 1990. While the land was owned by one party, a septic tank was installed on the plaintiffs’ side that serviced the property the defendants eventually owned.

In 2013, the plaintiffs discovered the septic tank, and the defendants had the septic line “permanently severed and sealed under the supervision of the Tennessee Department of Environment and Conservation” in 2014. In early 2014, the plaintiffs filed their first lawsuit related to the septic tank, alleging claims for negligence and trespass. The defendants were granted summary judgment on the nuisance claims in that matter, and the remaining claim was eventually nonsuited in 2022.

July 11, 2025

Causation ruling on auto accident injury reversed.

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

Where a trial court’s ruling that a plaintiff’s rotator cuff injury was not caused by a car accident was not supported by the evidence, the ruling was reversed.

In Payne v. Shelby County, Tennessee, No. W2024-00641-COA-R3-CV (Tenn. Ct. App. May 23, 2025), the plaintiff was riding in the front of a small bus while helping to transport a patient as part of her job as a certified nursing assistant. She was buckled with a lap belt. While stopped at a red light, a deputy sheriff stopped in a car behind the bus began moving and struck the back of the bus. The airbags in the rear car did not deploy, but the car was inoperable and had to be towed.

The plaintiff declined ambulance transport but took herself to a medical center to be examined that day. She complained of neck and low back pain, and she was seen at an emergency room later than evening. The next morning, she went to the recommended follow up visit and complained of back, neck and shoulder pain. Over the next few weeks, the plaintiff was seen for follow up visits, and she eventually saw an orthopedic surgeon. The surgeon clinically diagnosed her with a rotator cuff tear and recommended an MRI. Based on the MRI and clinical findings, the plaintiff had surgery on her rotator cuff three months after the automobile accident.

July 9, 2025

Dismissal of HCLA case based on unsigned HIPAA authorizations filed with complaint overturned.

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

Where an HCLA plaintiff filed unsigned HIPAA authorizations with her complaint, but at least one defendant admitted that the HIPAA authorization it received was actually signed, dismissal was reversed.

In Buckner v. Complete Wellness Chiropractic Center, No. E2024-00698-COA-R3-CV (Tenn. Ct. App. May 15, 2025), the plaintiff suffered long-term complications after several practitioners failed to diagnose the cause of her back pain properly. She filed this healthcare liability suit against twenty defendants and asserted in her complaint that she had sent proper pre-suit notice under the HCLA. The notices attached to her complaint, however, included HIPAA authorizations that were not signed.

Based on these unsigned authorizations, the defendants moved to dismiss the complaint. The plaintiff did not provide additional proof, but she insisted that she complied with the statute. The defendants argued that the error here was substantive because the plaintiff could not prove compliance, and dismissal was therefore appropriate. During oral arguments, counsel for one of the defendants was asked by the trial court whether the HIPAA authorization his client received was signed, to which he admitted that it was. The trial court nonetheless granted the motion to dismiss, but that ruling was reversed on appeal.

July 8, 2025

Nonsuit not allowed after denial of TPPA petition is appealed and remanded

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

When a trial court’s denial of a TPPA petition for dismissal had been appealed, and the Court of Appeals had remanded the case with instructions for the trial court to enter an order containing sufficient findings of fact and conclusions of law, the plaintiff was not entitled to voluntarily dismiss the case without prejudice.

In Richman v. Debity, No. E2024-00919-COA-R3-CV (Tenn. Ct. App. May 21, 2025), the defendants’ request to their HOA to install a fence had been denied. In an effort to show that the HOA did not apply the rules consistently, the defendants took photos of the plaintiffs’ home and yard from the public street. Based on these photos, the plaintiffs filed this suit in general sessions court alleging harassment and invasion of privacy, and asking for a restraining order.

The defendants filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”), Tennessee’s anti-SLAPP statute. The trial court denied the TPPA petition to dismiss, and the defendants appealed that denial to the Court of Appeals pursuant to the statute’s provision that decisions thereunder are immediately appealable. The Court of Appeals found that the trial court’s “ruling does not indicate why the trial court dismissed the TPPA Petition within the context of the burden shifting mechanism found in Tennessee Code Annotated section 20-17-105(a) through (c).” The Court thus vacated the order and remanded the case with instructions for the trial court to enter an order containing sufficient findings of fact and conclusions of law.

June 23, 2025

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

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

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.