Day on Torts

March 8, 2026

Is Evidence of Remarriage Admissible in A Tennessee Wrongful Death Lawsuit?

Under Tennessee law, most wrongful death lawsuits are filed by the decedent’s surviving spouse. Sometimes, several years pass before the wrongful death lawsuit comes to trial and, in the meantime, the surviving spouse who filed the wrongful death lawsuit remarries. Is evidence of the re-marriage admissible at the trial of the wrongful death lawsuit?

A recent decision of the Tennessee Court of Appeals indicates that the answer to this question may be “yes.” In Davis v. Ellis, 2025 WL 3296175 (Tenn. Ct. App. Nov. 26, 2025), the late Ms. Sylvia Davis of West Tennessee died in January 2011, allegedly because of the medical errors of Dr. Ellis. The case did not go to trial until the Spring of 2024 and the wrongful death case filed by her husband was rejected by a jury.

Husband appealed the jury result to the Tennessee Court of Appeals, alleging multiple errors by the trial court. One of the alleged errors was that the trial court improperly allowed the jury to learn (and the defendant doctor to comment on) the fact that the plaintiff husband remarried one year after Sylvia Davis’s death.

September 23, 2025

Summary judgment on HCLA claim based on overtreatment of cancer affirmed.

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

Where a patient signed a consent form for a double mastectomy after being told about multiple options for treating her breast cancer, summary judgment on her HCLA claim against the surgeon based on surgical overtreatment and lack of informed consent was affirmed.

In Oakes v. Fox, No. E2024-00453-COA-R3-CV (Tenn. Ct. App. Aug. 22, 2025), the plaintiff patient was diagnosed with early-stage breast cancer and met with defendant surgeon to discuss treatment options. According to the defendant and the notes in the plaintiff’s file, the defendant discussed multiple options with the plaintiff, including a lumpectomy and a double mastectomy. The parties agreed that the plaintiff asked the surgeon what he would choose for his wife, and he responded that he would choose the double mastectomy. The plaintiff expressed a desire to avoid radiation treatment, which the doctor informed her could likely be avoided with the mastectomy. The plaintiff chose to move forward with the double mastectomy.

On the day of the surgery, the plaintiff signed a consent form stating that she expressly consented to the double mastectomy and the removal of lymph nodes. A few months after the surgery, the plaintiff experienced lymphedema. She opted to undergo an elective revision surgery with a different doctor.

September 18, 2025

Promissory fraud based on promise to pay future costs.

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

Where a town asserted that an individual member of an LLC had promised that the LLC would pay a certain amount towards a road improvement project, but that the LLC never intended to pay that amount, the town had stated a cause of action for promissory fraud against the individual.

In CCD Oldsmith Henry, LLC v. Town of Nolensville, No. M2024-01102-COA-R3-CV (Tenn. Ct. App. Aug. 21, 2025), Plaintiff LLC asked Defendant town to rezone property so that the LLC could develop residential units. Plaintiff LLC had two members—Smith and Olderman. Both Smith and Olderman attended the rezoning hearing, but Olderman did not speak during the hearing. When the discussion turned to improvements to a nearby intersection that would be required by the rezoning, Smith stated that “we can contribute the difference” in reference to the amount remaining after the state contributed. After additional discussion, the board approved the rezoning and “limited [the LLC’s] contribution to no more than 50% of the costs.”

At some point following the meeting, the town sent a bill to the LLC, and the LLC refused to pay the amount requested. The town then refused to issue building permits, and the LLC filed suit. The town filed a counterclaim against the LLC, as well as a motion to join Smith and Olderman individually, alleging that Smith and Olderman “fraudulently and negligently misrepresented what Oldsmith was willing to pay.” The trial court denied the motion to add Smith and Olderman as individuals, ruling that there was no personal liability on their parts. On appeal, that ruling was overturned as to Smith.

September 5, 2025

Pre-suit notice to former employees not sufficient under Tennessee law.

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

An HCLA pre-suit notice that was sent to two former employees of a rehabilitation center, rather than to the appropriate address or agent for the rehabilitation center, was not sufficient under the statute.

In Anderson v. Alexian Village of Tennessee, No. E2024-00977-COA-R3-CV (Tenn. Ct. App. July 31, 2025), the plaintiff filed a health care liability suit against the defendant rehabilitation center. Before filing suit, the plaintiff sent two copies of pre-suit notice—one addressed to the CEO of the center and one addressed to the president of the center. Neither of these individuals were named as defendants.

The defendant moved to dismiss the case based on the plaintiff’s failure to comply with the pre-suit notice requirements of the HCLA. The defendant asserted that the pre-suit notice had only been sent to two former employees, neither of whom had worked for the defendant for at least five years. The trial court agreed that the pre-suit notice was deficient and dismissed the case. The Court of Appeals affirmed.

September 3, 2025

Alleged fraudulent invoice sent from Florida to Tennessee resulted in personal jurisdiction over tort claim.

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

Where a Florida general contractor allegedly used a fraudulent invoice to defraud a Tennessee company, the Court of Appeals ruled that Tennessee could exercise personal jurisdiction over the general contractor for the plaintiffs’ tort claims.

In Hannah Development, LLC v. Maverick General Contractors, LLC, No. M2024-01592-COA-R3-CV (Tenn. Ct. App. July 21, 2025), the plaintiff, a Tennessee company, had worked with the defendants, a Florida general contractor and its principal, on two homebuilding projects. The homes were built in Florida. During the construction of the homes, the defendants sent an invoice to the plaintiff that included a charge for the painting of the defendant principal’s residential fence. The expense was “fraudulently disguised…as a legitimate business expense” for the home building project. The invoice was sent to the Tennessee company, and it was paid with a Tennessee account.

When the plaintiff later learned of the fraudulent expense, it brought this tort action in Tennessee. The defendants moved to dismiss for lack of personal jurisdiction. In response, the plaintiff responded with voluminous exhibits including emails, invoices, text messages, money transfers, and other documents purportedly showing that the defendants “knowingly and intentionally engaged in tortious conduct aimed at Tennessee and that they injured a Tennessee domiciliary in the State of Tennessee.” The circuit court granted dismissal, finding a lack of personal jurisdiction, but the Court of Appeals reversed.

August 27, 2025

No duty to remove ice and snow from steps during an ongoing storm.

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

A restaurant did not have a duty to clear ice and snow from its steps while a winter storm was ongoing.

In Broyles v. Herrin, No. M2024-00592-COA-R3-CV (Tenn. Ct. App. July 24, 2025), the plaintiff visited defendant restaurant during a winter storm. Snow and ice had been falling for approximately ten to thirty minutes before the plaintiff arrived at the restaurant, and snow and ice had accumulated on the steps. The plaintiff could see the accumulated precipitation, so he used the handrail as he climbed the restaurant steps, but he slipped and fell on an ice patch. This suit followed.

The plaintiff alleged that the defendant restaurant “caused his injuries by failing to remove snow and ice from the premises or by failing to follow proper procedures to protect him from the dangerous and unsafe condition.” The defendant moved for summary judgment, arguing that it owed no duty to “remove snow and ice from the premises during an ongoing winter storm.” The trial court agreed with the defendant, granting summary judgment, and the Court of Appeals affirmed.

August 22, 2025

Claim barred by legal malpractice statute of limitations

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

Plaintiff’s legal malpractice claim against the attorneys who drafted her fiancé’s will accrued when she filed an answer to the will contest brought by the fiancé’s surviving relatives.

In LaChappelle v. Tual, No. W2024-01234-COA-R3-CV (Tenn. Ct. App. July 18, 2025), the plaintiff had hired defendant attorneys to draft a will for her fiancé while the fiancé was in the hospital in Tennessee. The fiancé later died, and after the plaintiff filed a petition to probate the will drafted by the defendants, the fiancé’s brother and father filed a complaint to set aside the will based on the failure to comply with certain Mississippi requirements. The plaintiff filed an answer in the will contest case on May 10, 2021.

The plaintiff eventually lost the will contest case, and an earlier will was probated. The plaintiff filed this legal malpractice claim against the defendants as a beneficiary of her fiancé’s will. The legal malpractice complaint was filed on September 14, 2023, but the plaintiff and the defendants had entered a tolling agreement in July 2022. The defendants moved for summary judgment based on the statute of limitations, arguing that the legal malpractice claim accrued no later than May 2021. The one-year statute of limitations had therefore expired before the tolling agreement was executed, so the tolling agreement “did not affect the timeliness of [the plaintiff’s] complaint.” The trial court agreed, granted summary judgment to the defendants, and the Court of Appeals affirmed.

August 13, 2025

Morristown street sweeper driver found 51 percent at fault for collision.

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

Where an 87-year-old driver ran into a street sweeper, the Court of Appeals affirmed the finding that the street sweeper driver was 51 percent at fault.

In Hurst v. City of Morristown, No. E2024-00779-COA-R3-CV (Tenn. Ct. App. July 8, 2025), the plaintiff brought this suit under the Governmental Tort Liability Act (“GTLA”) on behalf of his father. The father, who was 87 years old at the time of the incident, was driving down a city street when he ran into a street sweeper. After the accident, the father stated that he “never saw a thing.” The father passed away from his injuries.

At trial, the evidence showed that the street sweeper driver stated immediately after the accident that he was kicking up a lot of dust. Further, although the street sweeper was equipped with sprayers to reduce dust, the employee had not turned the sprayers on. Much testimony focused on the Manual on Uniform Traffic Control Devices (“MUTCD”), which requires high intensity lighting or a separate vehicle following behind the sweeper. Although the sweeper in question had many lights, they were not high intensity, and there was no vehicle following the sweeper on the day of the accident.

August 4, 2025

Dismissal of claim against state affirmed based on failure to file appeal within 90 days.

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

After receiving a denial of claim for his claim against the State from the Division of Claims and Risk Management, the plaintiff had ninety days to file his notice of appeal, not mail his notice of appeal.

In Ferguson v. State of Tennessee, No. W2024-00831-COA-R3-CV (Tenn. Ct. App. July 2, 20225), the plaintiff was involved in an automobile accident that he alleged was caused by a police officer for a university. The plaintiff filed a claim with the Tennessee Division of Claims and Risk Management (“DCRM”), and the DCRM denied the claim on November 2, 2023. The plaintiff then mailed a notice of appeal to the Claims Commission on January 31, 2024. The notice was filed with the claims commission on February 5, 2024, which was more than ninety days after the November 2 denial.

The State moved to dismiss the claim, asserting that it “had not been filed within the required 90-day period set out in Tennessee Code Annotated section 9-8-402(c).” The Claims Commission agreed and dismissed the claim, and that dismissal was affirmed on appeal.

July 29, 2025

Mailman’s notation on certified mail was not sufficient for service of process.

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

A mailman’s notation on a certified letter sent by the Secretary of State did not constitute proper service of process in a car accident case.

In Lowe v. Harvey, No. E2024-01588-COA-R3-CV (Tenn. Ct. App. June 27, 2025), the plaintiff and defendant were in a car accident, and the defendant lived in Indiana. The plaintiff attempted to serve the defendant under the Tennessee statutes addressing service of an out-of-state motorist, Tenn. Code Ann. § 20-2-203 through -207. Pursuant to the statute, the plaintiff had a summons issued to the Tennessee Secretary of State, who then sent a summons to the defendant by registered mail. At the time of service in 2021, however, the postal service had “suspended its signature requirement for certified mail and registered return receipt mail because of Covid-19.” The letter to the defendant was returned with a marking made by the mail carrier in the signature space.

After the plaintiff filed suit, the defendant moved to dismiss based on insufficient service of process. The trial court agreed that the defendant had not been served and dismissed the case, and the Court of Appeals affirmed.