Every time there is a airplane crash, we hear about the efforts to locate “the black box.”

The “black box” is a flight data recorder – a device that constantly gathers information from dozens of sources about the operation of the airplane.   There is also a cockpit voice recorder, which captures sounds in the cockpit, including the conversations among the pilots.  The collective data is essential to understand how plane crashes occur.

(By the way, a “black box” is not black – it is orange.  Federal law requires that they be painted orange so they are easier to find after a crash.)

Tennessee Bar Journal, a publication of the Tennessee Bar Association, has published my latest Day on Torts column.   The article discusses a recent opinion of the Tennessee Court of Appeals discussing the proximity element of negligent infliction of emotional claims.




There are seven tort cases pending before the Tennessee Supreme Court.  Here is a list of the cases and the summary of the holding of the Tennessee Court of Appeals (if applicable) in each case:

  1. Style: Williams v. Smyrna Residential, LLC et al.

    TSC Docket Number: M2021-00927-SC-R11-CV

Where plaintiff set up his own ladders on cardboard at defendant’s home, and defendant had no control over the set-up, summary judgment for defendant was affirmed on plaintiff’s premises liability claim arising from injuries sustained when the ladders slipped.

In Fulghum v. Notestine, No. M2022-00420-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2023), plaintiff and defendant were close friends. Plaintiff was a carpenter, defendant was a truck driver who was knowledgeable about car repairs, and plaintiff and defendant would often help each other with projects using their own expertise.

Defendant was remodeling his home, and plaintiff was installing shiplap around defendant’s fireplace. On the day of the injury, plaintiff let himself into defendant’s house, set up two of his own ladders, and decided to put cardboard under the ladders to protect defendant’s new floors. Plaintiff set up the two ladders next to each other on the cardboard in an attempt to work more efficiently. Defendant did not assist with or direct the set up. At some point while plaintiff was working, defendant arrived home and briefly chatted with plaintiff. Sometime thereafter, the ladders slipped, causing plaintiff to fall, and plaintiff was seriously injured.

Where plaintiffs’ minor daughter was sexually abused by a church staff member, but plaintiffs did not perceive any injury-producing event, dismissal of their negligent infliction of emotional distress claim was affirmed.

In Doe v. Bellevue Baptist Church, No. W2022-01350-COA-R3-CV (Tenn. Ct. App. Nov. 7, 2023), plaintiffs brought various claims against defendant church related to their minor daughter being sexually abused by a church staff member, including a claim on their own behalf for negligent infliction of emotional distress (“NIED”). Defendant moved to dismiss this claim, arguing that the complaint never alleged that plaintiffs witnessed or perceived an injury producing event. The trial court agreed and granted the motion to dismiss, and dismissal was affirmed on appeal.

Calling the law surrounding NIED claims “murky and difficult,” the Court of Appeals noted that when a plaintiff does not witness the actual injury-producing event, he or she must show:

According to the Tennessee Supreme Court, where an HCLA defendant did not assert in his answer that a non-party physician was the cause-in-fact of plaintiff’s injuries, the trial court did not err by excluding evidence supporting that allegation at trial, even when the defendant did not seek to prove that the other physician was negligent. Further, where plaintiff’s medical bills were discounted due to an insurance policy plaintiff purchased and paid for privately, the collateral source rule was not abrogated under Tenn. Code Ann. § 29-26-119, and plaintiff could use the “full, undiscounted medical bills to satisfy the burden of proving the reasonable value of medical expenses.”

In Crotty v. Flora, 676 S.W.3d 589 (Tenn. 2023), plaintiff filed an HCLA claim against defendant doctor, alleging that her ureter was perforated during a surgery performed by defendant. Five days after the surgery performed by defendant, plaintiff had to have a second surgery, which was performed by Dr. Wiatrak. Plaintiff’s ureter perforation was found during this second surgery.

Plaintiff did not name Dr. Wiatrak as a defendant in her HCLA case. When defendant filed his answer, he reserved the right to amend his answer to assert comparative fault allegations, but he never did so.

The Tennessee Supreme Court has accepted Rule 11 review of Richards v. Vanderbilt University Medical Center, No. M2022-00597-COA-R3-CV, 2023 WL 4451631 (Tenn. Ct. App. July 11, 2023).

Plaintiff first filed suit on December 12, 2014, relying on the 120-extension of the statute of limitations provided by Tenn. Code Ann. Sec. 29-26-121. to commence an action that arose in August of 2013.  That case was voluntarily dismissed without prejudice on October 4, 2019.  Mandatory pre-suit notice was given again and suit was re-filed on January 28, 2021, with Plaintiff once again relying on the  the 120-day extension of the statute of limitations referenced in the notice statute.
Vanderbilt moved to dismiss, arguing that Plaintiff was not entitled to rely on the 120-day extension of the statute of limitations on the second filing, and therefore the second case must be dismissed because it was not filed within one year of the date of the previous dismissal.  Vanderbilt relied on this language in subsection (c) of the notice statute: “nor shall more than one (1) extension be applicable to any provider.”

Where plaintiff’s HCLA claims were based upon medical care he received while incarcerated, and his only medical expert had never practiced or studied medical care for incarcerated persons, summary judgment for defendant was affirmed.

In Higgins v. CoreCivic, Inc., No. E2022-01101-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023), plaintiff fell from the top bunk while he was incarcerated and suffered severe injuries. Plaintiff alleged that he should have been given seizure medication and a bottom bunk based on his history of seizures. Plaintiff also asserted that he was injured while being transported from the hospital back to the correctional facility. Plaintiff’s injuries all occurred in April 2017.

Plaintiff brought claims against three defendants in May 2018, including CoreCivic who operated the facility under a contract with Hamilton County, CCS who provided medical treatment to inmates through a contract with CoreCivic, and Hamilton County who ultimately owned the facility. Defendants filed for summary judgment, which the trial court granted on various grounds, all of which were affirmed on appeal.

A disabled person’s conservator had the authority to enter into a consent agreement releasing the person’s HCLA claims against a doctor without approval from the probate court.

In Hamilton v. Methodist Healthcare Memphis Hospitals, No. W2022-00054-COA-R3-CV (Tenn. Ct. App. Oct. 16, 2023), plaintiff filed an HCLA suit as conservator on behalf of a disabled 24-year-old patient. In the original suit, plaintiff conservator named multiple defendants, including a doctor and defendant hospital. All claims against the hospital were based on its vicarious liability for the actions of the doctor.

At the end of a jury trial, the jury was unable to come to a unanimous verdict, and plaintiff conservator was granted a mistrial. The conservator thereafter entered into a consent agreement with the doctor whereby she agreed not to name the doctor as a defendant in any subsequent suit in exchange for the doctor not pursuing discretionary costs related to him being voluntarily dismissed from the original suit. The same day the consent agreement was signed, plaintiff refiled the HCLA claim against the hospital, naming the hospital as the sole defendant and alleging that it was vicariously liable for the actions of the doctor.

Where defendant received a citation for violating a Tennessee municipal ordinance in a car accident, the one-year statute of limitations applied. The limitations period was not extended to two years under Tenn. Code Ann. § 28-3-104(a)(2) because the municipal code violation was not a criminal charge or criminal prosecution.

In Peterson v. Carey, No. E2022-01656-COA-R3-CV (Tenn. Ct. App. Oct. 23, 2023), plaintiff was injured when he was in a car accident while riding as a passenger in defendant’s vehicle. After the accident, defendant received a citation for violating a municipal code, which carried a maximum fine of $50.

Plaintiff filed this action more than one year after the date of the accident, and after an initial appeal and remand, the trial court considered plaintiff’s argument that the statute of limitations was extended to two years under Tenn. Code Ann. § 28-3-104(a)(2). The trial court ruled that the two-year extension did not apply here because the code violation was civil in nature rather than criminal, and it therefore granted summary judgment to defendant. On appeal, this ruling was affirmed.

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