Day on Torts

March 31, 2026

Plaintiff not required to present proof in GTLA case of facts admitted by defendant.

Where the defendant governmental entity admitted in its answer that it owned the vehicle involved in the accident, and that the driver involved was its employee and was “acting within the course and scope of his employment” at the time of the accident, the plaintiff did not have to offer evidence on this issue.

In Butcher v. Shelby County Board of Education, No. W2024-01202-COA-R3-CV (Tenn. Ct. App. Oct. 10, 2025), the plaintiff was injured in a car accident where the other driver was 100% at fault. The other vehicle was owned by the defendant board of education. In its answer, the defendant admitted that it owned the vehicle, that the driver was its employee, and that the driver was acting within the course and scope of his employment.

At the close of the trial, the defendant moved for involuntary dismissal on the basis that the plaintiffs “failed to prove that [the driver] was an employee” of the defendant, which was a prerequisite to removing immunity under the GTLA. The trial court denied the motion and entered a verdict for the plaintiff, and the Court of Appeals affirmed.

March 30, 2026

Statute of limitations not tolled until plaintiff knew extent of her injuries.

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

Where the plaintiff fell when exiting a bus, and she stated at the time of the fall that the driver had not properly lowered the ramp and that her lower extremities might be injured, the statute of limitations began to run on the date of the fall.

In Jordan v. East Tennessee Human Resources Agency, Inc., No. E2025-00445-COA-R3-CV (Tenn. Ct. App. Oct. 13, 2025), the plaintiff, who used a wheelchair, frequently used the defendant’s transportation services. On July 13, 2023, the plaintiff was exiting a van in her wheelchair when she fell forward onto her face. The wheelchair allegedly fell onto her legs. Video of the incident captured the plaintiff and a bystander stating that the ramp was not lowered properly, and plaintiff saying that she might have hurt her lower extremities but was not certain due to her paralysis. Later in July, the plaintiff visited the doctor and discovered that she had been injured in the fall.

On July 16, 2024, the plaintiff filed this negligence suit under the GTLA. The defendant moved for summary judgment pursuant to the one-year statute of limitations, which the trial court granted and the Court of Appeals affirmed.

March 27, 2026

Failure of Plaintiff to Address all Issues on Appeal Dooms Case

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

Where the trial court granted summary judgment to the defendant in a car accident case based on the plaintiff’s lack of sufficient evidence as to breach of duty and causation, and the plaintiff’s appellate brief failed to mention duty at all, summary judgment was affirmed.

In Metcalf v. Woodard, No. W2024-01321-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2025), the plaintiff was injured in a motor vehicle collision with a UPS tractor trailer. The plaintiff filed a suit asserting several claims, although she eventually voluntarily dismissed all claims except general negligence. The trial court issued a scheduling order, and the plaintiff failed to disclose any expert witnesses by the relevant deadline. The plaintiff identified expert witnesses eleven months after the deadline, after which the defendants moved for summary judgment. The trial court held a hearing and granted summary judgment to the defendants, ruling that the plaintiff had presented insufficient evidence to establish the elements of breach of duty or causation.

The plaintiff appealed the grant of summary judgment, but in her statement of issues, she focused solely on the exclusion of her causation experts. The plaintiff’s appellate brief “fail[ed] to make any reference to ‘breach’ or ‘duty.’” By failing to make any argument that she established the essential element of breach of duty, the plaintiff waived that argument on appeal. Because summary judgment was granted on two bases, including the failure to show breach of duty, summary judgment was affirmed due to the plaintiff’s failure to address that issue on appeal.

March 26, 2026

Nursing facility required to authenticate arbitration agreement.

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

Where a nursing facility could not authenticate the decedent’s signature on an arbitration agreement, denial of the facility’s motion to compel arbitration was affirmed.

In Niter-Martin v. Methodist Healthcare-Memphis Hospitals d/b/a Methodist University Hospital, No. W2024-01193-COA-R3-CV (Tenn. Ct. App. Nov. 4, 2026), the plaintiff filed claims for negligent care and wrongful death against defendant nursing facility related to the facility’s care of the plaintiff’s mother, who passed away six days after the complaint was filed. The defendant facility filed a motion to compel arbitration, and it attached an arbitration agreement allegedly signed by the decedent to the motion.

In response to the motion to compel arbitration, the plaintiff argued that the facility could not authenticate the arbitration agreement. The trial court agreed and denied the motion, and the Court of Appeals affirmed.

March 25, 2026

Issues not raised in motion for new trial waived on appeal.

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

Where a car accident defendant failed to file a motion for new trial raising certain evidentiary issues, those issues had been waived on appeal.

In Pajazetovic v. Baker, No. M2024-00372-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was involved in a car accident. The plaintiff filed suit against the driver and the owner of the other car, and the defendant’s underinsured motorist carrier was also served.

Prior to the first trial, the defendants filed a motion in limine to exclude the plaintiff’s accident reconstructionist, arguing that his opinion was based solely on his determination of which witnesses were most credible rather than on “calculations or other scientific explanations.” The trial court denied the motion in limine, the accident reconstructionist testified, and the first trial resulted in a hung jury. The accident reconstructionist passed away before the second trial, and the trial court ruled that the expert was unavailable under Rule 804. The trial court allowed his testimony from the first trial to be used. This second trial resulted in a jury verdict for plaintiff of more than $120,000.

March 24, 2026

Conclusory statements not enough to defeat TPPA dismissal petition.

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

When faced with a TPPA petition to dismiss, a plaintiff must present more than conclusory statements to establish a prima facie case for their claims.

In Blythe v. Forshythe, No. M2023-01463-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was a surgeon and the defendant was a scrub tech. The plaintiff and the defendant had a verbal altercation during a surgery, and the defendant scrub tech stated that the plaintiff grabbed her wrist and physically knocked her off a stool in the operating room.

After the surgery, the defendant gave a statement to the hospital, filed a police report, and filed a complaint with the health board. Based on these verbal and written statements, the plaintiff surgeon filed this case asserting claims for defamation and intentional interference with a business relationship against the defendant scrub tech. The defendant filed a petition to dismiss under the Tennessee Public Participation Act (“TPPA”), which the trial court granted, and the Court of Appeals affirmed.

March 23, 2026

Home sellers had no duty to disclose open and obvious condition of the house.

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

The sellers of a home were not required to disclose a condition of the home that was apparent through common observation, and their failure to do so did not support a claim of intentional misrepresentation. Part of the claims were lost because the plaintiffs failed to properly respond to a Rule 56.03 statement of undisputed material facts served by defendants.

In McDaniel v. Frazier, No. W2025-00183-COA-R3-CV (Tenn. Ct. App. Nov. 12, 2025), the plaintiffs purchased a home from the defendants without first visiting or viewing the home. Before closing on the home, the defendants completed a disclosure statement affirming that they were not aware of any material defects. The plaintiff buyers hired a home inspector, who provided a report that mentioned minor defects, fogged windowpanes, and a moisture stain in the ceiling. The home inspector recommended routine maintenance on the wood, but the plaintiff buyers did not ask any additional questions after receiving the inspection. When the plaintiff buyers eventually went to the property after closing, they discovered “rotting exterior siding, rotting windows, [and] rotting doorframes” that they asserted were “readily apparent” at the home.

The plaintiff buyers filed this suit asserting claims against several parties, including a claim for intentional misrepresentation against the defendant sellers. The trial court dismissed this claim on summary judgment, and the Court of Appeals affirmed.

March 20, 2026

Nolle prosequi dismissal was not a favorable termination for malicious prosecution claim.

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

When a nolle prosequi order was entered in a shoplifting case, halting the prosecution of the case, the discharge of the action did not qualify as a favorable termination in order to support a later claim of malicious prosecution.

In Smith v. Dillard Tennessee Operating Limited Partnership, No. W2024-010881-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff was charged with shoplifting from the defendant department store. After criminal proceedings began, the State entered an Order for Expungement of Criminal Offender Record because a nolle prosequi had been entered in the case. The shoplifting case was accordingly discharged.

Based on the shoplifting charges, the plaintiff filed a claim for malicious prosecution. The trial court granted summary judgment to defendant, ruling that the plaintiff could not show that the underlying cause of action was terminated in her favor, and the Court of Appeals affirmed.

March 19, 2026

TPPA did not apply to legal malpractice claim

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

When a lawyer files a lawsuit on behalf of a client, he is not exercising his own right to petition, and a later legal malpractice claim related to that underlying lawsuit is not subject to dismissal under the Tennessee Public Protection Act.

In Cartwright v. Hendrix, No. W2022-01627-SC-R11-CV (Tenn. Dec. 9, 2025), the Tennessee Supreme Court considered the issue of whether a lawyer sued for legal malpractice could invoke the TPPA to seek dismissal of the case. The defendants in this case represented the plaintiff in multiple lawsuits related to the administration of a trust. After over ten years of unsuccessful litigation, the plaintiff filed this legal malpractice case against the defendants.

The defendant lawyers filed a petition to dismiss under the Tennessee Public Protection Act (“TPPA”). The defendants argued that the claims related to their right to petition and were thus covered by the TPPA. The trial court found that the TPPA did not apply, but the Court of Appeals reversed that holding. In this opinion, the Tennessee Supreme Court ruled that the TPPA did not apply because the lawyers were not exercising their own right to petition.

March 18, 2026

Evidence of Re-Marriage Admissible in Wrongful Death Case; Errata Sheet Could Be Used in Cross-Examination.

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

After affirming several challenged evidentiary rulings, the Court of Appeals upheld a jury verdict for the defendant doctor in an HCLA case.

In Davis v. Ellis, No. W2024-01467-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2025), the plaintiff filed an HCLA claim against the defendant doctor based on his treatment of the decedent. The decedent came to the emergency room with a complicated medical history and bilateral pneumonia. On her second day at the hospital, the defendant doctor performed a pulmonary consultation on the decedent at 4:00 pm. Based on his exam, the defendant changed the decedent’s antibiotic, ordered further testing, and ordered that she be transferred to the ICU stat. The defendant also charted that he suspected she would get worse and would likely need intubation within the next twenty-four hours.

The defendant’s shift ended at 6:00 pm, at which time the plaintiff’s vital signs were stable. Between 6:00 pm and the decedent’s death, she was seen by ten other medical professionals. The decedent’s condition began deteriorating at some point that evening, and around 11:00 pm a team attempted to intubate decedent. Intubation required multiple attempts, and the decedent passed away early the next morning.