Articles Posted in Wrongful Death

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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.”

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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.

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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.”

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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.

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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].”

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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.

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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).

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The case of Jernigan v. Hunter, No. M2013-01860-COA-R3-CV (Tenn. Ct. App. Sept. 30, 2014) begins in January 2006, when John Jernigan was stabbed and beaten to death by two men, a father and son, inside a Nashville strip club. Father pleaded guilty to voluntary manslaughter in his criminal proceeding, and son pleaded guilty to the lesser charge of aggravated assault.

Thereafter, Jernigan’s parents filed a wrongful death lawsuit against father and son, both of whom defended themselves during a bench trial. The trial court found that Jernigan’s parents had proved by a preponderance of the evidence that father had directly and intentionally contributed to Jernigan’s death by stabbing him multiple times. However, due to conflicting evidence, the trial court ruled that parents did not prove that the son had caused or contributed to Jernigan’s death. Accordingly, the court awarded Jernigan’s parents $250,000 in damages against the father and dismissed the son. The father appealed and represented himself again.

The appellate court’s opinion classified father’s arguments on appeal into three categories: evidentiary issues, legal issues, and issues first raised on appeal.

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Under Tennessee wrongful death law, the distribution of proceeds obtained after a settlement for wrongful death are governed by common law not statute. Basically, the law provides that the wrongful death proceeds are distributed under the law of intestate succession.

Thus, if a decedent left behind a surviving spouse and one child, each would receive one-half of the proceeds. If the wrongful death decedent left behind a surviving spouse and two children, each of them would receive one-third of the wrongful death proceeds. A surviving spouse would never receive less than a one-third share of the recovery, even if there were three or more surviving children.

A recent case from the Tennessee Court of Appeals faced a question never addressed before in Tennessee: what happens to wrongful death proceeds when the surviving spouse entered into a postnuptial agreement agreeing to waive all rights which she acquired as a result of her marriage to the defendant?

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Well, it ain’t much, but the Tennessee Legislature has fixed one small problem with the tort reform legislation that impacts all tort cases arising on or after October 1, 2011.

The original legislation included a provision that required all future damages to be broken down "on an annual basis"  for future medical bills, lost earning capacity, and non-economic damages. Tennessee Code Annotated, Section 29-39-103(a)(2),   This was a disaster waiting to happen.  Why?

Here is an example.  Assume a 20 year old unmarried woman is severely brain damaged as a result of an incident.  She will never work again and she has a significant future medical expenses over her lifetime.  Her life expectancy is disputed – the defense says she has a fifteen year life expectancy and the plaintiff’s expert says she has a normal (sixty year) life expectancy.  There is also a dispute over the inflation rate and the discount rate.

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