Day on Torts

May 7, 2026

Dismissal due to failure to file certificate of good faith affirmed.

Where a Tennessee HCLA complaint was dismissed because the plaintiff failed to file a certificate of good faith with her first complaint and the certificate of good faith filed with her amended complaint was not sufficient, but the plaintiff only addressed one ground in her appeal, dismissal was affirmed.

In Moses v. State of Tennessee, No. W2025-00386-COA-R3-CV (Tenn. Ct. App. Feb. 25, 2026), the plaintiff filed a pro se HCLA claim against the state after experiencing complications after a root canal. When the plaintiff filed her initial complaint with the Claims Commission, she failed to file a certificate of good faith. After the state filed a motion to dismiss, the plaintiff filed an amended complaint and included a certificate of good faith. The plaintiff asserted that “her amended complaint cured any issues related to her original failure to file a certificate of good faith.” The state then filed a motion to strike the amended complaint and certificate of good faith, as well as a brief in support of its motion to dismiss.

The Claims Commission granted the motion to dismiss, finding that 1) the plaintiff failed to file a certificate of good faith with her original complaint as required in Tenn. Code Ann. § 29-26-122 or to file a “properly supported motion for an extension of time,” and 2) that the certificate filed with her amended complaint was insufficient under the HCLA, as it “merely stated that [the plaintiff] had consultations with experts, and…she failed to identify individual defendants in the certificate.” Dismissal was affirmed on appeal.

May 5, 2026

Tennessee “Litigation Privilege” applied to statements made to opposing counsel in divorce case.

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

Where a lawyer made reasonable arguments within the context of a divorce case, the litigation privilege barred claims against her based on those arguments.

In Missel v. Larkins, No. E2025-00419-COA-R3-CV (Tenn. Ct. App. Feb. 10, 2026), the plaintiff inadvertently included his son and daughter-in-law on a deed for a home in which all the parties lived. By the time this deed error was discovered, the son and daughter-in-law were involved in divorce proceedings, in which the defendant attorney represented the daughter-in-law.

At some point, the daughter-in-law gave a sworn statement that she did not own any real property. The inclusion of her name on the deed was later discovered, and defendant attorney communicated to the son’s attorney that the daughter-in-law could not sign a quitclaim deed for the property, as such a transfer of property could violate the temporary injunction against the transfer of any marital property.

April 30, 2026

No Privilege for AI: Judge Rakoff’s Decision in United States v. Heppner and What It Means for Practitioners

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

In a memorandum opinion that every trial lawyer should read, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York has ruled that a criminal defendant’s written exchanges with the generative AI platform Claude are protected by neither the attorney-client privilege nor the work product doctrine. The decision appears to be the first of its kind nationwide, and its reasoning carries significant implications for how lawyers counsel clients — and for how clients use AI tools — in the shadow of litigation.

The Facts

In United States v. Heppner, No. 25 Cr. 503 (S.D.N.Y. Feb. 17, 2026), Bradley Heppner was indicted in October 2025 on charges of securities fraud, wire fraud, conspiracy, making false statements to auditors, and falsifying corporate records arising from his alleged conduct as an executive of GWG Holdings, Inc. Following his arrest, FBI agents executed a search warrant at his home and seized, among other materials, approximately thirty-one documents memorializing communications Heppner had with Claude, the AI platform operated by Anthropic. These exchanges — which Heppner’s counsel described as “reports” outlining potential defense strategy and legal arguments — were prepared by Heppner on his own initiative, after he had received a grand jury subpoena and it was clear he was a target of the investigation. Counsel conceded, critically, that they had not directed Heppner to use Claude.

April 24, 2026

Wrongful death plaintiff could rely on HCLA notice previously sent by disqualified surviving spouse.

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

Where a surviving spouse gave pre-suit notice under the HCLA of a wrongful death claim, but the surviving spouse was later found to have abandoned the decedent, the correct party plaintiff could rely on the pre-suit notice sent previously by the surviving spouse.

In Anderson v. Saint Thomas Midtown Hospital, No. M2024-00687-COA-R9-CV (Tenn. Ct. App. Jan. 21, 2026), the decedent died after receiving care at defendant hospital. After the death, the decedent’s mother attempted to give pre-suit notice of a potential HCLA claim to the hospital, but the hospital refused to identify other potential defendants because it could not confirm that the mother was authorized to act on behalf of the decedent.

The decedent had a surviving spouse, who gave timely pre-suit notice of a wrongful death claim under the HCLA. The decedent’s mother filed a motion to replace the surviving spouse as administrator of the estate, asserting that the decedent was abandoned by the surviving spouse. The probate court did not grant the mother’s motion until after the one-year statute of limitations for the medical malpractice claim had expired.

April 8, 2026

Dismissal affirmed based on the plaintiff’s failure to appeal both grounds cited by the trial court.

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

Where the trial court found that the statute of limitations barred an HCLA claim based on two different grounds, but the plaintiff only appealed one of those grounds, dismissal was affirmed.

In Bartsch v. Premier Orthopaedics & Sports Medicine, PLC, No. M2024-00971-COA-R3-CV (Tenn. Ct. App. Aug. 12, 2025), the plaintiff filed a health care liability suit against his surgeon’s employer based on a surgery that occurred in April 2022. Pre-suit notice letters were sent to several providers, and one of the addresses listed for the surgeon was “Hughston Clinic Orthopaedics, PC.”

The plaintiff first filed suit in federal court based on diversity jurisdiction in July 2023, naming only The Hughston Clinic Southeast, PC as a defendant. According to the complaint, the clinic was the surgeon’s employer. The clinic responded by stating that it was not the surgeon’s employer and not a proper party to the lawsuit. In its answer, the clinic named Premier Orthopaedics & Sports Medicine, PLC (“Premier”), as the surgeon’s actual employer.

April 7, 2026

No direct action against negligent driver’s insurance company in Tennessee.

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

A claimant cannot take direct action against an insurance company for the wrongdoing of its insured in Tennessee.

In Johnson v. Tennessee Farmers Mutual Insurance Company, No. W2024-01791-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2025), the decedent was struck by a car. The car’s driver was insured by defendant insurance company.

The insurance company settled the claim with decedent’s family members for $50,000, who executed a release and settlement. Several months later, however, the family members filed this pro se case against the insurance company related to the accident. The trial court granted defendant’s motion to dismiss, ruling that the case was “an improper direct action against an insurance company,” and the Court of Appeals affirmed.

April 6, 2026

Unintentional victims of gunfire barred from GTLA claim by civil rights exception.

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

Where plaintiffs, who were mother and daughter, were injured by gunfire by police, but the police were aiming the gunfire at the father, the plaintiffs’ GTLA claims were rightly dismissed because the claims involved civil rights, and governmental immunity was therefore not removed.

In Guirguis v. Metropolitan Government of Nashville and Davidson County, No. M2024-01310-COA-R3-CV (Tenn. Ct. App. Sept. 5, 2025), the police were called to plaintiffs’ residence. When they arrived, a mother and father were engaged in a struggle on the front porch, and a minor child was also present. The police saw that the father had a gun. After being told to drop the gun, the father aimed the gun at the police, and the police opened fire. Both the mother and child were injured by the gunfire.

The plaintiffs (mother and child) filed this complaint against the city alleging that the officers “committed negligence in firing their weapons” despite the close proximity of the plaintiffs to the father, and that the police had negligently violated police training and policy. After the case languished for six years, the city filed a motion for summary judgment, asserting that the claims sounded in civil rights and that the city’s immunity was not removed under the GTLA. The trial court agreed that the “civil rights exception to the GTLA removal of immunity was applicable” and dismissed the case. The Court of Appeals affirmed this dismissal.

April 5, 2026

Minor beneficiaries not required to be named on HCLA pre-suit notice for wrongful death suit.

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

The decedent’s mother, who was the guardian of the decedent’s two minor children, was the proper person to be listed on the HCLA pre-suit notice as the “claimant authorizing the notice.”

In Denson v. Methodist Medical Center of Oak Ridge, No. E2023-00027-SC-R11-CV (Tenn. Oct. 13, 2025), decedent died of cardiac arrest shortly after being discharged from defendant hospital. Decedent had two minor children who were then placed with their maternal grandmother (decedent’s mother), and the grandmother was named the temporary custodian of the children.

The grandmother sent pre-suit notice of an HCLA claim to defendants, which listed the grandmother as the claimant. The pre-suit notice did not mention the minor children. The grandmother then filed this HCLA suit as “Decedent’ mother and next friend and individually,” and in the complaint, she alleged for the first time that she was bringing the suit “on behalf of…decedent’s surviving minor children…as Grandmother and Legal Guardian.” Eventually the grandmother’s individual claims were dropped, and she pursued the case only on behalf of the minor children.

April 2, 2026

Residential dog bite plaintiff had insufficient evidence to survive summary judgment.

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

Where the plaintiffs had no evidence to refute the defendant dog owner’s sworn statement that they had no way to know of their dog’s dangerous propensities, summary judgment for the defendants was affirmed.

In A.M. by Amanda M. v. Masek, No. W2024-01412-COA-R3-CV (Tenn. Ct. App. Sept. 23, 2025), the plaintiffs visited the defendants’ home to celebrate Christmas. The plaintiffs’ minor son stayed the night, and the next morning he went into the defendants’ back yard with the defendants’ dogs. The defendants had not left the child alone with the dogs before and intended to join him in the yard soon. Within three minutes, one of the dogs attacked the boy.

The plaintiffs filed this suit, and the defendants moved for summary judgment. The trial court granted summary judgment based on the filings of the parties, finding that the plaintiffs did not prove an essential element of their claim. The Court of Appeals affirmed.

April 2, 2026

Day on Torts 4th Edition Now Available! Special Pricing Available Only This Month

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

I have been working on the Fourth Edition of Day on Torts: Leading Cases in Tennessee Tort Law for several years.

It has been a massive undertaking. First published in 2008, the new book has two volumes totaling over 1300 pages. It summarizes the leading case on 579 different tort law topics and cites thousands of other cases.

Here is a listing of the overall topics covered in this book, each of which is broken down further into subtopics.

Abuse of Process ∙ Alienation of Affections ∙ Amusement Parks ∙ Animal Control Officer’s Rule ∙ Animals Other Than Bovines, Dogs, and Horses ∙ Assault and Battery ∙ Assumption of Risk ∙ Attorney’s Fees ∙ Attorney’s Lien ∙ Bad Faith Failure of Insurer to Pay First Party Claim (Statutory Cause of Action) ∙ Bad Faith Failure to Settle Tort Claim (Common Law Claim) ∙ Bovine Activities ∙ Breach of Promise to Marry ∙ Causation ∙ Charitable Immunity ∙ Contractual Choice of Law Provisions ∙ Comparative Fault – Generally ∙ Comparative Fault – Allocation and Applicability ∙ Confidential Relationship ∙ Conflict of Laws in Tort Cases ∙ Contribution ∙ Conspiracy ∙ Constructive Fraud ∙ Conversion∙ Criminal Conversation ∙ Damages – Generally ∙ Damages in Personal Injury Cases ∙ Damages to Property and Financial Interest ∙ Damages in Wrongful Death Cases ∙ Defamation ∙ Dog Bites and Dog Attacks ∙ Duty ∙ Ecclesiastical Abstention Doctrine ∙ Exclusivity of Workers Compensation Law – Ability of Employees to Sue Employers in Tort ∙ Exculpatory Agreements (Also Known as Contractual Waivers of Liability)∙ Expert Witnesses ∙ False Imprisonment ∙ Family Purpose Doctrine ∙ Federal Employers’ Liability Act (FELA) ∙ Forum Non Conveniens ∙ Forum Selection Clauses in Personal Injury and Death Cases ∙ Fraud∙ Governmental Tort Liability Act (GTLA) – General Principles ∙ Governmental Tort Liability Act (GTLA) – Damages ∙ Governmental Tort Liability Act (GTLA) – Health Care Liability ∙ Governmental Tort Liability Act (GTLA) – Limitation of Actions ∙ Governmental Tort Liability Act (GTLA) – Motor Vehicle Cases (including road and bridge) ∙ Governmental Tort Liability Act (GTLA) – Premises Liability ∙ Governmental Tort Liability Act (GTLA) – Injuries to Inmates (other than those alleging premises liability) ∙ Governmental Tort Liability Act (GTLA) – Miscellaneous ∙ Gross Negligence ∙ Health Care Liability – Cases Which Define the Scope of Health Care Liability Law ∙ Health Care Liability Action – Issues Arising Under the Notice Provision of Tenn. Code Ann. § 29-26-121 ∙ Health Care Liability Action – Issues Arising Under Certification of Good Faith Provisions of Tenn. Code Ann. § 29-26-122 ∙ Health Care Liability – Battery and Informed Consent ∙ Health Care Liability – General Issues ∙ Health Care Liability – Expert Witness Issues ∙ Health Care Liability – Statute of Limitations ∙ Health Care Liability – Statute of Repose ∙ Health Care Providers – Asserted Claims / Liens on Recoveries ∙ Horses (Equine) – Actions Involving ∙ Imputed Negligence or Fault ∙ Indemnity Claims ∙ Independent Contractor ∙ Intentional and/or Reckless Infliction of Emotional Distress (formerly known as Outrageous Conduct) ∙ Intentional Interference with Business Relationship ∙ Intentional Interference with Contractual Relationships ∙ Interference With and Mishandling Human Remain ∙ Intrusion on Seclusion ∙ Invasion of Privacy ∙ Jurisdiction in Tort Cases ∙ Last Clear Chance Rule ∙ Legal Malpractice ∙ Limitation of Actions (Statutes of Limitation) and Certain Statutes of Repose ∙ Liquor Liability ∙ Loss of Chance ∙ Loss of Consortium (Personal Injury Cases) ∙ Malicious Harassment ∙ Malicious Prosecution ∙ Minor, Right of Parent to Bring Claim ∙ Misrepresentation by Concealment ∙ Motor Vehicle Cases – Generally ∙ Motor Vehicle Cases – Insurance-Related Issues ∙ Negligent or Intentional Acts by a Child ∙ Negligence Per Se ∙ Negligence Arising During Bailment ∙ Negligent Entrustment ∙ Negligent Hiring, Supervision and Retention ∙ Negligent Infliction of Emotional Distress (“NIED”) ∙ Negligent Misrepresentation ∙ Nuisance ∙ Parent – Child Immunity ∙ Personal Property ∙ Physician – Patient Confidentiality ∙ Physical or Mental Disability, Impact in Tort Cases ∙ Policeman and Fireman’s Rule ∙ Preemption ∙ Premises Liability ∙ Products Liability ∙ Punitive Damages ∙ Rescue Doctrine ∙ Res Ipsa Loquitor in Non-HCLA (Medical Negligence) Case ∙ Savings Statute ∙ Settlement ∙ Spoliation of Evidence ∙ Spousal Immunity ∙ State of Tennessee, Tort Claims Against the State (Actions Before the Tennessee Claims Commission) ∙ Strict Liability for Ultra-Hazardous Activities ∙ Subrogation ∙ Subsequent Medical Negligence, Liability of Original Tortfeasor ∙ Suicide, Cases Involving ∙ Tennessee Public Participation Act (TPPA) ∙ Tort of Another – Recoverability of Fees ∙ Trespass ∙ Trespass to Chattels ∙ Unavoidable Accident ∙ Unfair Competition ∙ Vicarious Liability ∙ Wrongful Death ∙ Wrongful Pregnancy

The book is normally priced at $415, which includes shipping and handling but does not include sales tax. Through the end of April, 2026, the book is available for $315, plus sales tax (no S&H).

Order on Amazon.