Wrongful Death

June 10, 2024

Non-attorney cannot represent siblings in wrongful death case.

Where decedent was survived by two children, and those two children filed a wrongful death claim pro se purporting to assert claims on their own behalf and on behalf of the other four children, the complaint was only proper to the extent the two plaintiffs were asserting their own right under the wrongful death statutes.

In Grose v. Stone, No. W2023-00090-COA-R3-CV (Tenn. Ct. App. April 25, 2024), decedent died in a car accident. Thereafter, two of decedent’s six children filed a wrongful death claim. The complaint stated that plaintiffs were acting on their own behalf, and on behalf of decedent’s other four children as administrators of decedent’s estate.

After multiple opportunities to hire counsel and several court dates, the trial court ultimately dismissed the complaint as a whole. The trial judge found that the complaint was void ab initio and constituted the unauthorized practice of law by the two plaintiffs. Plaintiffs appealed this ruling, and the Court of Appeals reversed dismissal, finding that the complaint was partially proper.

April 25, 2022

More On Powers of Attorney, Arbitration Agreements, and Wrongful Death

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

Where the person who executed an arbitration agreement in connection with decedent’s admission to a nursing home had a power of attorney for decedent, but that power of attorney did not mention the ability to make health care decisions, the arbitration agreement was unenforceable. Further, decedent’s wrongful death beneficiaries would not have been bound by the arbitration agreement even if it were enforceable.

In Williams v. Smyrna Residential, LLC, No. M2021-00927-COA-R3-CV (Tenn. Ct. App. April 8 2022), plaintiff was the son of decedent, who died while he was a resident at defendant assisted living center. Plaintiff filed this wrongful death action on behalf of decedent’s wrongful death beneficiaries. In response to the complaint, defendant filed a motion to compel arbitration. According to defendant, decedent’s daughter had executed an arbitration agreement on decedent’s behalf when decedent was admitted to the facility. At the time, the daughter was the named attorney-in-fact in decedent’s durable power of attorney (POA). Plaintiff argued that the arbitration agreement was not enforceable because the POA did not mention the authority to make health care decisions, and the trial court agreed, denying the motion to compel arbitration. On appeal, this ruling was affirmed.

January 4, 2022

Wrongful Death of a Zygote? Last Year the Law Changed

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

Tennessee wrongful death lawyers may wish to read my newest article in the Tennessee Bar Journal, “”Wrongful Death of a Zygote?”

The article discusses a recent important change to Tennessee wrongful death law.

December 20, 2021

Decedent’s personal injury settlement did not become wrongful death proceeds after his death.

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

Where decedent had filed a personal injury and loss of consortium case in West Virginia, settled that case, and then received a portion of the settlement proceeds before his death, the Court of Appeals affirmed dismissal of this Tennessee case filed by decedent’s heirs “seeking to have the settlement proceeds received pursuant to the West Virginia litigation characterized as wrongful death proceeds.”

In Welch v. Welch, No. M2021-00081-COA-R3-CV (Tenn. Ct. App. Dec. 10, 2021), plaintiffs were the heirs of decedent, who had previously died of mesothelioma. Before his death, decedent filed suit for personal injury and loss of consortium in West Virginia. That suit was settled, and decedent received several distributions from the settlement proceeds before he died.

After decedent’s death, plaintiffs filed this suit in Tennessee, attempting to have the remaining settlement proceeds distributed as wrongful death proceeds rather than having them distributed under decedent’s will. The trial court dismissed the action, finding that the settlement of the personal injury case “very clearly intended to foreclose upon any future wrongful death funds related to the mesothelioma litigation,” and the Court of Appeals affirmed the dismissal.

March 11, 2019

Assertion of the Fifth Amendment Privilege in Wrongful Death Cases

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

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.”