Wrongful Death

March 11, 2019

Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

A motion for summary judgment cannot be based solely on “unverified reworded statements of some of the factual allegations of the complaint,” along with unsworn, unverified, and unsigned exhibits. In addition, when a defendant asserts their Fifth Amendment privilege against self incrimination in an answer or in response to discovery requests, such assertion cannot “in and of itself be taken as an admission of the allegations[,]” but a plaintiff should be allowed to “present corroborating evidence as to each fact for which it seeks a negative inference” in connection with the assertion of the privilege.

In Smith v. Palmer, No. M2017-01822-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2019), plaintiff filed a wrongful death suit against several defendants regarding the death of her daughter. The daughter and defendants were camping at a music festival, and daughter’s body was found one morning in the lake. There was a dispute as to the cause of death, and though criminal charges were not filed, plaintiff alleged that defendants “caused her daughter’s death and conspired to cover it up.”

May 16, 2018

Who Has the Right to Bring Suit in a Tennessee Wrongful Death Case?

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

A surviving spouse maintains priority to file a wrongful death action, even if the surviving spouse’s alleged negligence caused or contributed to the decedent’s death.

In Nelson v. Myres, No. M2015-01857-SC-R11-CV (Tenn. March 5, 2018), decedent died in a car accident. The daughter filed a wrongful death action, naming several defendants, including decedent’s surviving husband. According to daughter, husband “was under the influence of an intoxicant at the time of the accident” and his actions disqualified him from maintaining the suit (husband was “ultimately incarcerated for vehicular homicide”). Husband filed a wrongful death action, naming only the other driver as a defendant, and the other driver asserted comparative fault against husband in his answer.

Husband moved to dismiss daughter’s wrongful death action, claiming that he had the superior right to bring the case, and the trial court agreed. The Court of Appeals, however, reversed, holding that husband “had an inherent conflict of interest because, due to his conduct in bringing about the accident, he would be both a defendant and a plaintiff in [decedent’s] wrongful death action.” The Court of Appeals held that “only [daughter’s] lawsuit would fully prosecute [decedent’s] cause of action.” Husband appealed to the Tennessee Supreme Court, which reversed the Court of Appeals decision, reinstating husband as the proper person to maintain the wrongful death action.

May 11, 2018

Comparative Fault in Tennessee Wrongful Death Cases

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

For your reading pleasure – my newest article in the Tennessee Bar Journal. The article discusses the responsibility imposed on one who decides to bring a Tennessee wrongful death suit and how fault allocations against that person can complicate the case.

October 3, 2017

Pro Se Wrongful Death Complaint Survives Challenge

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

In at least some situations, a surviving spouse can properly file a pro se wrongful death complaint, because the decedent’s right of action actually “passes to” the surviving spouse under Tennessee’s wrongful death statutes.

In Beard v. Branson, No. M2014-01770-SC-R11-CV (Tenn. Aug. 30. 2017), plaintiff’s wife died of sepsis after being treated by defendants. Plaintiff filed a pro se wrongful death action, and defendants moved to dismiss on the grounds that the complaint “was filed in a representative capacity on behalf of the decedent and, as a non-attorney, [plaintiff] could not file a lawsuit for another in a representative capacity.” After the motions to dismiss were filed and after the one-year statute of limitations had run, plaintiff retained an attorney, who filed a notice of appearance and an amended complaint. The trial court denied the motions to dismiss, holding that plaintiff “was permitted to file the wrongful death action pro se because, under section 20-5-106, the decedent’s cause of action passed to [plaintiff] as the surviving spouse, and the decedent had no other statutory beneficiaries.”

August 9, 2017

Special Duty Doctrine Applied Against 911 Agency in Suicide Case

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

In Ramsey v. Cocke County, Tennessee, No. E2016-02145-COA-R3-CV (Tenn. Ct. App. June 23, 2017), plaintiff sued the county, the police department, and the county emergency communications district for wrongful death after her daughter committed suicide. The trial court granted summary judgment to defendants, but the Court of Appeals reversed, holding that “the decedent’s suicide was foreseeable and that the special duty exception to the public duty doctrine applie[d].”

According to plaintiff, she called 911 around 8:30 p.m. one night because her daughter was exhibiting “unexplained serious mental and behavioral” issues and was indicating that she was going to commit suicide. Plaintiff asserted that she told the 911 operator that her daughter was threatening suicide and asked for police assistance, but that the operator refused to send police because “it was not their policy to respond to domestic family issues.” Plaintiff called again around 9:15 and was denied police assistance a second time, and plaintiff was transferred to an officer who allegedly affirmed that it was “not their policy to send responders in situations like this.” Because the operator had refused to dispatch an officer, plaintiff stated that she drove to the police department, but that the doors were locked and she could not find an officer. When plaintiff returned home, her daughter had committed suicide.

Plaintiff filed suit for wrongful death, and the defendants disputed plaintiff’s version of the facts. Defendants denied that plaintiff requested an officer or that she told them that her daughter was contemplating suicide. Defendants filed a motion for summary judgment on the basis that they “did not owe plaintiff a duty of care pursuant to the public duty doctrine” and that the suicide was “an intervening and independent cause which supersedes any liability and is the proximate cause of the death of the decedent.” The trial court granted the summary judgment, finding that the suicide here was an intervening cause, but the Court of Appeals reversed.

June 15, 2017

County Not Responsible for Suicide of Recently Released Inmate

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

In Haynes v. Wayne County, No. M2016-01252-COA-R3-CV (Tenn. Ct. App. April 19, 2017), the Court of Appeals affirmed summary judgment, holding that the county was not liable in a wrongful death action where an inmate committed suicide shortly after his release.

The decedent was 20-years-old and had been arrested for underage consumption, public intoxication, and resisting arrest. On the night of his arrest, he was intoxicated to the point of barely being able to walk and throwing up on himself. He asked two arresting officers if their guns were real and asked the officers to shoot him. This behavior was reported to the booking officer, who asked decedent several standard medical questions. Decedent told the booking officer that “he was suffering from depression and had attempted to commit suicide several times in the past.” Decedent was put in a suicide prevention suit and in an isolated cell on suicide watch, where he slept without incident. There was a non-profit organization called Centerstone that would come evaluate suicidal inmates, but they would not come while an inmate was intoxicated. At 6:00 a.m. there was a shift change and a new officer came on duty. The officer was informed of the statements decedent had made the night before. That morning, decedent was told he was eligible for release, and the officer asked decedent if he remembered making the suicidal threats the night before, to which decedent “replied in a joking manner that he remembered making the statement but was just drunk and did not mean it.” The release process took about an hour, and decedent “seemed fine during that time.”

April 19, 2017

Statute Regarding Community Supervision of Sex Offenders Did Not Confer Private Right of Action

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

In Hale v. State, No. E2016-00249-COA-R3-CV (Tenn. Ct. App. Feb. 2, 2017), the Court of Appeals affirmed dismissal of a negligence case because it was based on the failure of the Tennessee Department of Corrections (TDOC) to ensure compliance with a certain statute, and that statute did not “confer a private right of action.”

Plaintiff’s daughter was murdered by Terry Releford while she was married to Mr. Releford and pregnant with his child. Before this marriage, Mr. Releford had spent time in a Tennessee prison for several crimes, including three counts of aggravated rape. Tenn. Code Ann. § 39-13-524 “requires that those convicted of certain offenses, including aggravated rape, remain subject to community supervision for life.” Mr. Releford’s judgment of conviction, however, did not include the community supervision requirement.

At some point during Mr. Releford’s incarceration, a TDOC employee sent a letter to the District Attorney’s office asking for a corrected judgment. No response was received, and the judgment was never corrected. Mr. Releford was released with no community supervision requirement, subsequently met plaintiff’s daughter, and murdered her less than a year later.

March 28, 2017

Limit on Right of Surviving Spouse to Bring Wrongful Death Claim

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

While a surviving spouse typically has the superior right to bring a wrongful death suit, there are certain exceptions to that rule. In Nelson v. Myres, No. M2015-01857-COA-R3-CV (Tenn. Ct. App. Jan. 18, 2017), the Court held that a suit filed by the deceased’s daughter rather than her husband could proceed, as the husband was alleged to have at least partially caused her death.

Wife died in a multi-car accident while she was a passenger in a vehicle driven by her husband. In the accident, husband and a car driven by Mr. Bennett collided, then those two vehicles crossed into opposing traffic and hit two other vehicles. Both the husband and daughter of deceased wife filed wrongful death actions. The trial court dismissed daughter’s action, holding that her action “must yield to the claim of the surviving spouse.” The Court of Appeals reversed and reinstated daughter’s complaint.

In her complaint, daughter named husband as a defendant and alleged that husband was guilty of negligence and negligence per se because he was driving under the influence and was traveling at a high rate of speed, racing Mr. Bennett. In the suit filed by husband, Mr. Bennett was the only defendant named, and husband alleged that “Mr. Bennett’s actions were the sole cause of the accident and death of [wife].”

June 2, 2016

The Court of Appeals addressed an issue of first impression regarding the interpretation of a wrongful death statute related to a surviving spouse who has outstanding child support obligations.

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

In Spires v. Simpson, No. E2015-00697-COA-R3-CV (Tenn. Ct. App. April 26, 2016), the Court of Appeals addressed an issue of first impression regarding the interpretation of a wrongful death statute related to a surviving spouse who has outstanding child support obligations.

In this case, decedent mother was killed in a car accident, leaving behind a surviving spouse and one child, whose biological father was the surviving spouse. At the time of the accident, the decedent and surviving spouse had been living apart and the child had been living only with the decedent. The spouse instituted a wrongful death action on behalf of himself, the child, and the decedent. When he instituted the suit, the spouse owed child support to children of four other women (though he did not owe any regarding the child at issue in this case because there was no court order regarding that child). While the wrongful death litigation was ongoing, a maternal uncle adopted the child, and the uncle petitioned to intervene on behalf of the child. Ultimately, the trial court held that Tenn. Code Ann. § 20-5-107(b) disqualified the surviving spouse from commencing the action or collecting proceeds due to his outstanding child support arrearages. The trial court substituted the child’s uncle as plaintiff and awarded the agreed damages in trust solely to the child. The Court of Appeals, however, reversed.

April 19, 2015

Tennessee Wrongful Death Law – Rights of Spouse Who Is Not in Household

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

In 2011, a subsection was added to our state statutes regarding surviving spouses’ rights to institute and collect proceeds from Tennessee wrongful death actions:

Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.

If the period of two (2) years has passed since the time of abandonment or willful withdrawal, then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.

Tenn. Code Ann. § 20-5-106(c). Until recently, this new subsection had not been interpreted by Tennessee courts, but the Court of Appeals took up the task of analyzing the statute in Baugh v. United Parcel Service, Inc., No. M2014-00353-COA-R3-CV (Tenn. Ct. App. March 31, 2015).