Day on Torts

March 26, 2026

Nursing facility required to authenticate arbitration agreement.

Where a nursing facility could not authenticate the decedent’s signature on an arbitration agreement, denial of the facility’s motion to compel arbitration was affirmed.

In Niter-Martin v. Methodist Healthcare-Memphis Hospitals d/b/a Methodist University Hospital, No. W2024-01193-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2026), the plaintiff filed claims for negligent care and wrongful death against defendant nursing facility related to the facility’s care of the plaintiff’s mother, who passed away six days after the complaint was filed. The defendant facility filed a motion to compel arbitration, and it attached an arbitration agreement allegedly signed by the decedent to the motion.

In response to the motion to compel arbitration, the plaintiff argued that the facility could not authenticate the arbitration agreement. The trial court agreed and denied the motion, and the Court of Appeals affirmed.

March 25, 2026

Issues not raised in motion for new trial waived on appeal.

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

Where a car accident defendant failed to file a motion for new trial raising certain evidentiary issues, those issues had been waived on appeal.

In Pajazetovic v. Baker, No. M2024-00372-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was involved in a car accident. The plaintiff filed suit against the driver and the owner of the other car, and the defendant’s underinsured motorist carrier was also served.

Prior to the first trial, the defendants filed a motion in limine to exclude the plaintiff’s accident reconstructionist, arguing that his opinion was based solely on his determination of which witnesses were most credible rather than on “calculations or other scientific explanations.” The trial court denied the motion in limine, the accident reconstructionist testified, and the first trial resulted in a hung jury. The accident reconstructionist passed away before the second trial, and the trial court ruled that the expert was unavailable under Rule 804. The trial court allowed his testimony from the first trial to be used. This second trial resulted in a jury verdict for plaintiff of more than $120,000.

March 24, 2026

Conclusory statements not enough to defeat TPPA dismissal petition.

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

When faced with a TPPA petition to dismiss, a plaintiff must present more than conclusory statements to establish a prima facie case for their claims.

In Blythe v. Forshythe, No. M2023-01463-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was a surgeon and the defendant was a scrub tech. The plaintiff and the defendant had a verbal altercation during a surgery, and the defendant scrub tech stated that the plaintiff grabbed her wrist and physically knocked her off a stool in the operating room.

After the surgery, the defendant gave a statement to the hospital, filed a police report, and filed a complaint with the health board. Based on these verbal and written statements, the plaintiff surgeon filed this case asserting claims for defamation and intentional interference with a business relationship against the defendant scrub tech. The defendant filed a petition to dismiss under the Tennessee Public Participation Act (“TPPA”), which the trial court granted, and the Court of Appeals affirmed.

March 23, 2026

Home sellers had no duty to disclose open and obvious condition of the house.

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

The sellers of a home were not required to disclose a condition of the home that was apparent through common observation, and their failure to do so did not support a claim of intentional misrepresentation. Part of the claims were lost because the plaintiffs failed to properly respond to a Rule 56.03 statement of undisputed material facts served by defendants.

In McDaniel v. Frazier, No. W2025-00183-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2025), the plaintiffs purchased a home from the defendants without first visiting or viewing the home. Before closing on the home, the defendants completed a disclosure statement affirming that they were not aware of any material defects. The plaintiff buyers hired a home inspector, who provided a report that mentioned minor defects, fogged windowpanes, and a moisture stain in the ceiling. The home inspector recommended routine maintenance on the wood, but the plaintiff buyers did not ask any additional questions after receiving the inspection. When the plaintiff buyers eventually went to the property after closing, they discovered “rotting exterior siding, rotting windows, [and] rotting doorframes” that they asserted were “readily apparent” at the home.

The plaintiff buyers filed this suit asserting claims against several parties, including a claim for intentional misrepresentation against the defendant sellers. The trial court dismissed this claim on summary judgment, and the Court of Appeals affirmed.

March 20, 2026

Nolle prosequi dismissal was not a favorable termination for malicious prosecution claim.

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

When a nolle prosequi order was entered in a shoplifting case, halting the prosecution of the case, the discharge of the action did not qualify as a favorable termination in order to support a later claim of malicious prosecution.

In Smith v. Dillard Tennessee Operating Limited Partnership, No. W2024-010881-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff was charged with shoplifting from the defendant department store. After criminal proceedings began, the State entered an Order for Expungement of Criminal Offender Record because a nolle prosequi had been entered in the case. The shoplifting case was accordingly discharged.

Based on the shoplifting charges, the plaintiff filed a claim for malicious prosecution. The trial court granted summary judgment to defendant, ruling that the plaintiff could not show that the underlying cause of action was terminated in her favor, and the Court of Appeals affirmed.

March 19, 2026

TPPA did not apply to legal malpractice claim

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

When a lawyer files a lawsuit on behalf of a client, he is not exercising his own right to petition, and a later legal malpractice claim related to that underlying lawsuit is not subject to dismissal under the Tennessee Public Protection Act.

In Cartwright v. Hendrix, No. W2022-01627-SC-R11-CV (Tenn. Dec. 9, 2025), the Tennessee Supreme Court considered the issue of whether a lawyer sued for legal malpractice could invoke the TPPA to seek dismissal of the case. The defendants in this case represented the plaintiff in multiple lawsuits related to the administration of a trust. After over ten years of unsuccessful litigation, the plaintiff filed this legal malpractice case against the defendants.

The defendant lawyers filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The defendants argued that the claims related to their right to petition and were thus covered by the TPPA. The trial court found that the TPPA did not apply, but the Court of Appeals reversed that holding. In this opinion, the Tennessee Supreme Court ruled that the TPPA did not apply because the lawyers were not exercising their own right to petition.

March 18, 2026

Evidence of Re-Marriage Admissible in Wrongful Death Case; Errata Sheet Could Be Used in Cross-Examination.

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

After affirming several challenged evidentiary rulings, the Court of Appeals upheld a jury verdict for the defendant doctor in an HCLA case.

In Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff filed an HCLA claim against the defendant doctor based on his treatment of the decedent. The decedent came to the emergency room with a complicated medical history and bilateral pneumonia. On her second day at the hospital, the defendant doctor performed a pulmonary consultation on the decedent at 4:00 pm. Based on his exam, the defendant changed the decedent’s antibiotic, ordered further testing, and ordered that she be transferred to the ICU stat. The defendant also charted that he suspected she would get worse and would likely need intubation within the next twenty-four hours.

The defendant’s shift ended at 6:00 pm, at which time the plaintiff’s vital signs were stable. Between 6:00 pm and the decedent’s death, she was seen by ten other medical professionals. The decedent’s condition began deteriorating at some point that evening, and around 11:00 pm a team attempted to intubate decedent. Intubation required multiple attempts, and the decedent passed away early the next morning.

March 17, 2026

School’s duty to supervise student affirmed

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

Where a public school failed to read the information it was provided about a student with a long history of psychological and behavioral problems, and the student jumped from a second story window when left in a classroom unattended by any adult, the finding of negligence under the GTLA against the city was affirmed.

In Dodson-Stephens v. Metropolitan Government of Nashville and Davidson County, No. M2024-01006-COA-R3-CV (Tenn. Ct. App. Dec. 9, 2025), the plaintiff mother filed suit individually and on behalf of her daughter, who was paralyzed after she jumped from a second story window at a public school operated by defendant city. The daughter had a life-long history of behavioral and psychological problems, many stemming from abuse she experienced before being adopted by the plaintiff mother. The daughter’s past issues included violence, self-harm, and running away.

At the time of the incident underlying this case, the daughter was a teenager in state care, but the mother was still actively involved in the daughter’s life. Against the mother’s recommendations, the daughter was transferred from a facility in Memphis to a facility in Nashville that would involve stepped-down supervision. As part of this transition, the daughter would begin classes at a new school. This new school was focused largely on assisting formerly incarcerated teens transition back into a school setting. The Department of Children’s Services (“DCS”) took charge of this transition.

March 15, 2026

Legal Malpractice Falls Short – No Causation Demonstrated

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

Where plaintiff filed a legal malpractice claim based on an attorney’s advice regarding a contract to purchase real property, summary judgment for the attorney was affirmed because the contract terminated before the attorney was hired, and the plaintiff therefore could not show causation or proximate cause.

In Buhler v. Lefkovitz & Lefkovitz, PLLC, No. M2025-00210-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2025), the plaintiff was party to an installment sales contract to purchase real property. The time for a balloon payment was extended by the sellers twice, but prior to the third agreed upon date for the final balloon payment, the plaintiff informed the sellers that she “could not and would not make the balloon payment.” The sellers denied the plaintiff’s request to extend the deadline again, and the December 31, 2021, deadline passed.

On January 24, 2022, the sellers’ attorney sent the plaintiff a written notice of default. After receiving this letter, the plaintiff hired defendant attorney. When the plaintiff subsequently made installment payments, the sellers returned those funds. Upon the advice of defendant attorney, the plaintiff filed a petition for relief under the bankruptcy code. The defendant attorney stated that his hope was to have the contract ruled an executory contract that could be assumed by the bankruptcy trustee, but that plan was unsuccessful.

March 15, 2026

Wrongful burial/cremation case dies.

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

A plaintiff’s fraud claim failed because she had no proof that her son’s body was cremated, rather than buried, as alleged in the complaint.

In Sessel v. N.J. Ford and Sons Funeral Home, Inc., No. W2024-00587-COA-R3-CV (Tenn. Ct. App. Dec. 15, 2025) (memorandum opinion), the plaintiff filed suit alleging that her son’s dead body had been cremated rather than buried as she instructed. According to the plaintiff, on the day of the son’s burial, the ground was too cold for a grave to be dug, so she was told he would be buried sometime thereafter. About a year after the funeral, she received an investigative report created by the medical examiner’s office that related to her son’s homicide. On a section labeled “cremation approved,” the form had been marked “yes.”

Based on this report, the plaintiff filed this suit against the funeral home and cemetery. Although the claims were hard to decipher, the Court of Appeals found that the complaint alleged breach of contract and fraud. The defendants filed a motion for summary judgment, citing testimony from the county’s Chief Medical Examiner who stated that this section of the report was meant to indicate that, if a family wished to cremate a body, it was permitted to do so because the forensic center had completed its investigation. He described it as “essentially pre-approval” for cremation, showing that if cremation were desired it would not hinder any investigation. He stated it was not authority for a funeral home to cremate a body.