Claims Against the Government

September 1, 2021

Statute of limitations did not affect time period to file with Tennessee Claims Commission after denial by Division of Claims and Risk Management.

Where plaintiff failed to file her appeal to the Claims Commission within 90 days of her claim being denied by the Division of Claims and Risk Management, dismissal was affirmed, even though the filing with the Claims Commission was within the one-year period following the car accident at issue. In Howard v. State, No. M2020-00735-COA-R3-CV (Tenn. Ct. App. Aug. 26, 2021), plaintiff was injured in a car accident where the other car was being driven by a State employee. The accident occurred on March 12, 2019. Plaintiff filed a claim for damages with the Department of Claims and Risk Management (DCRM), which was denied on June 24, 2019. In the denial letter, the DCRM explained that plaintiff “had the right to file her claim with the Claims Commission within 90 days of the date of this denial.” Plaintiff subsequently filed her appeal with the Claims Commission on December 18, 2019. Because the appeal was not filed within 90 days of the denial by the DCRM, the Commissioner found that the Claims Commission lacked jurisdiction of the claim, and an order of dismissal was entered. This ruling was affirmed by the Court of Appeals.

“Tenn. Code Ann. § 9-8-402 provides… the procedure for initiating a claim against the State.” Subsection (c) of this statute states that if the claim is denied by the DCRM, “the division shall so notify the claimant and inform the claimant of the reasons therefor and of the claimant’s right to file a claim with the claims commission within ninety (90) days of the date of the denial notice.” The Tennessee Claims Commission Rules also refer to the “time limit set out in T.C.A. § 9-8-402(c).” (internal citation omitted).

August 18, 2021

Premises liability summary judgment affirmed based on insufficient evidence of causation.

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

Where plaintiff filed a premises liability claim against the State asserting that decedent’s death was caused by injuries he sustained when he fell off a sidewalk that constituted a dangerous condition, but plaintiff could not “show that the condition of the sidewalk more likely than not caused” the fall, summary judgment for defendant was affirmed.

In O’Guin v. State, No. M2020-00732-COA-R3-CV (Tenn. Ct. App. July 28, 2021), decedent was admitted to the Tennessee State Veterans’ Home after suffering a stroke. He was in a wheelchair, but was “alert, oriented, and able to communicate with staff.” While spending time outside just two days after his admission, decedent “fell outside the facility entrance” and “suffered serious injuries and tragically died five days later.”

Plaintiff filed this case with the Claims Commission as administrator of decedent’s estate, “alleging that the State negligently created or maintained a dangerous condition on the property.” Plaintiff asserted that decedent was “fatally injured after his wheelchair fell off the sidewalk in front of the facility entrance,” and that the height of the sidewalk combined with the “lack of sufficient markings or barriers at the edge of the sidewalk created a dangerous condition.”

September 14, 2020

Loss of Consortium Plaintiff Required to File Notice Before Complaint with Claims Commission.

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

Where plaintiffs included wife’s claim for loss of consortium in their complaint with the Tennessee Claims Commission, but the wife had not given notice of her loss of consortium claim to the Division of Claims Administration within the applicable statute of limitations, dismissal of the wife’s claim was affirmed.

In Kampmeyer v. State of Tennessee, No. M2019-01196-COA-R3-CV (Tenn. Ct. App. Aug. 28, 2020), plaintiffs were a husband and wife. The husband had been injured in a car accident allegedly caused by a TDOT vehicle and trailer parked in a roadway, and within the one-year statute of limitations, the husband filed a “Claim for Damages in the Division of Claims Administration” (the DCA). Because the DCA made no decision on his claim within 90 days, the claim was transferred to the Claims Commission.

Plaintiffs subsequently filed a complaint with the Claims Commission, including husband’s claims as well as a claim by wife for loss of consortium. The State “moved to dismiss [wife’s] loss of consortium claim on the ground that she did not file a notice of claim with the DCA within the one-year statute of limitations.” Because the complaint was filed within one year from the date of the accident, plaintiffs argued that wife’s “loss of consortium claim should not have been dismissed but should have been transferred to the Board of Claims for processing[.]” The Claims Commission agreed with the State and dismissed wife’s claim, and the Court of Appeals affirmed.

February 10, 2020

Day on Torts Nugget: Be Careful When Suing the State of Tennessee.

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

Certain claims for personal injury, wrongful death and property damage may be asserted against the State of Tennessee, but different rules apply and there are plenty of pitfalls for those unfamiliar with the law or procedures of litigating in the Claims Commission. One such pitfall arise at the intersection of the law of claims against the State and the law of comparative fault.

In Moreno v. City of Clarksville[1] plaintiff filed a claim against the State of Tennessee after a tree on state law fell on his vehicle. When the claim was not settled, he timely filed a formal complaint with the Claims Commission. The State of Tennessee then blamed the City of Clarksville for causing the damage and, within the 90-day period provided by §20-1-119 plaintiff sued the City of Clarksville under the Governmental Tort Liability Act in state court. As permitted by statute,[2] the Claims Commission action was transferred to the Circuit Court for Montgomery County and consolidated with the action pending against the City of Clarksville. [3]

September 5, 2019

Claims Commissioner’s Ruling Affirmed in Battle of the Experts Wrongful Death Case

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

Where a Claims Commissioner credited the testimony of defendant’s expert over plaintiffs’ expert in a wrongful death case, the Court of Appeals affirmed the ruling.

In Jones v. State of Tennessee, No. M2017-02198-COA-R3-CV (Tenn. Ct. App. July 24, 2019), plaintiffs’ son was a football player at Tennessee State University (TSU). While running a drill at practice one day, the son collapsed after suffering a sudden cardiac arrest. Two trainers rushed to respond, but they did not immediately recognize the situation as a cardiac arrest. The trainers called 911, and while on the phone, the son had a seizure and stopped breathing. At that time, the trainers began CPR and sent for an AED that was stored in the trainers’ van. The AED was never used, as the paramedics arrived before it was retrieved. The son was not able to be revived and was pronounced dead at the hospital. The autopsy listed his cause of death as “a fatal arrhythmia of his heart due to scar tissue,” and the report noted that “his heart’s right atrium and ventricle were enlarged” and that there were “extensive amounts of scar tissue throughout the left and right ventricles.”

July 31, 2019

Lay Witness Opinion on Source of Gravel on Road Admissible

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

Lay witness testimony should have been admitted regarding the likely source of gravel on a road after road construction, and summary judgment in this case was overturned.

In Flagg v. Hudson Construction Company, No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019), plaintiff crashed his motorcycle on a recently paved section of a state highway. Plaintiff alleged that an excessive amount of loose gravel left over from the construction caused the crash, and he brought negligence suits against the construction company and the state. The trial court granted summary judgment to defendants on all claims, holding that lay witness testimony regarding the likely source of the loose gravel on the road should be excluded, but the Court of Appeals reversed.

The evidence at trial showed that defendant construction company was contracted to resurface the road, and that the process involved laying rock chips and adhesive materials on the road, “followed by a thin layer of microsurfacing for a smoother driving surface.” The company “periodically cleaned excess gravel and debris from the road throughout the paving process,” but at the end it “only cleaned those portions of the road it deemed necessary for the permanent striping to adhere properly.” The stripes were put on the road on October 16th and 17th, and a TDOT supervisor inspected the project on October 19^th. He stated that he “looked for excess gravel, overall cleanliness, and the integrity of the permanent striping,” but that he did the majority of his inspection while driving his vehicle and only stopped and got out “when he deemed it necessary.” He found no problems and notified the construction company that the work was acceptable that day.

July 23, 2019

Circuit Court Complaint not Transferred to Claims Commission.

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

When a case that should have been filed with the Claims Commission was filed in circuit court and did not “pertain to the negligent operation or maintenance of any motor vehicle or any other…conveyance,” the trial court could not transfer the case to the Claims Commission and dismissal was affirmed.

In Powell v. Tennessee Department of Correction, No. M2018-01677-COA-R3-CV (Tenn. Ct. App. May 6, 2019), plaintiff filed a pro se complaint in circuit court alleging that TDOC employees injured him “’by gross negligent acts or omissions within the scope of their employment’ in the handling of Plaintiff’s prison disciplinary hearing.” The trial court dismissed the case, finding that it lacked subject matter jurisdiction, and it denied plaintiff’s request to transfer the case. The Court of Appeals affirmed.

“[A]s a general rule, claims for monetary damages against the State may be heard only by the Claims Commission.” (citing Tenn. Code Ann. § 9-8-307(a)(1)). Because plaintiff’s claims did not fall into any exception to this rule, the trial court correctly ruled that it did not have subject matter jurisdiction over this case.

April 24, 2019

Claims Commissioner Must Make Conclusions of Law For Each Theory of Negligence

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

Where the Claims Commissioner’s ruling for defendant on a negligence suit did not include conclusions of law regarding both of plaintiffs’ theories, the order of dismissal was deemed deficient and was vacated by the Court of Appeals.

In Kim v. State, No. W2018-00762-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2019), plaintiffs filed a negligence claim after their six-year-old son fell from a fifth-floor balcony at a state-owned hotel. Plaintiffs were guests of the hotel as part of a church group, and while checking out, the son became separated from his parents. The son went upstairs to the room that plaintiffs had been staying in, and despite having already been cleaned, the door to the room was ajar. The son entered the room, went onto the balcony, climbed on top of the railing, and ultimately fell, sustaining major injuries. Testimony at trial established that it was both hotel and industry policy for a housekeeper to ensure that the door to a hotel room was locked after it had been cleaned, and it was undisputed that the son could not have gained access to the room if it had been locked. It was further established that the housekeeper who cleaned this particular room “had previously been reprimanded for neglecting to secure a room after cleaning it.”

August 1, 2018

No Claims Commission Jurisdiction Over Medical School Dismissal

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

A claim that a medical student was wrongly dismissed without the proper process does not fall under the jurisdiction of the Tennessee Claims Commission.

In Williams v. State, No. E2017-00626-COA-R3-CV (Tenn. Ct. App. April 23, 2018), plaintiff had been dismissed from ETSU medical school, and he filed a complaint with the Tennessee Claims Commission alleging that his “permanent dismissal was negligently done by Defendant without a hearing or other university procedures required by the catalog and student hand book.” The Claims Commission dismissed the complaint for lack of subject matter jurisdiction, and the Court of Appeals affirmed.

July 5, 2018

Invasion of Privacy, Emotional Distress and Misrepresentation Claims Dismissed

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

In Fitzgerald v. Hickman County Government, No. M2017-00565-COA-R3-CV (Tenn. Ct. App. April 4, 2018), plaintiff brought several claims against the county and the county mayor related to his employment termination. The trial court dismissed all claims after defendants filed a motion to dismiss, and the Court of Appeals affirmed the dismissal of all claims except plaintiff’s claim for false light invasion of privacy.

The basic facts of this case were that plaintiff had worked for the county for over fifteen years, and that the mayor fired him citing “bogus complaints.” When plaintiff attempted to use the grievance procedure, he was sent a letter from the mayor stating that his “grievance claim had been denied.” In addition, plaintiff claimed that at the time of his firing, the mayor promised to create a new job for him, but such a job never came to fruition because the county commission “determined that it could not afford to fund the new position.” Plaintiff also claimed that the mayor had made public statements regarding an alleged extramarital affair and regarding plaintiff receiving “certain compensation in his final payment” as an employee.