New SCOTN Opinion: Dismissal of Complaint Due to the Fact that Governmental Immunity Is Removed for "Negligent" Employee Conduct but Not "Reckless" Conduct Upheld on Appeal

The Tennesse Supreme Court has released its opinion in Lawson v. Hawkins County, No. E2020-01529-SC-R11-CV (Tenn. Feb. 16, 2023). The syllabus reads:

Governmental entities generally are immune from suit. But the Governmental Tort Liability Act removes immunity for certain injuries caused by the negligent acts of an employee. In this case, we consider whether the term “negligent” in the Act’s removal provision is limited to ordinary negligence or instead also encompasses gross negligence or recklessness. We hold that the Act removes immunity only for ordinary negligence. Because the Court of Appeals held to the contrary, we reverse the decision below and remand for further proceedings.

Here is a link to the slip opinion: 

0fdbd31a-edd1-44c4-a8ac-21567adf393a.pdf (tncourts.gov).

Justice Kirby's concurring opinion is at this link:

LAWSON - Separate Opinion.pdf (tncourts.gov).

NOTE: This opinion is a must-read one for any lawyer who handles claims under Tennessee's Governmental Tort Liability Act. 

The previous opinion from the Tennessee Court of Appeals can be found at this link:

Tony Duncan Law: New Case on the Tennessee Governmental Tort Liability Act: Liability Based on Negligence, Gross Negligence, Recklessness, and Exceptions to the Public Duty Doctrine Save the Day; Trial Court's Dismissal Reversed on Appeal (theduncanlawfirm.blogspot.com).

Summary Judgment for Defense Reversed on Appeal in Premises Liability (Wrongful Death) Case on the Issue of Duty, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Smith v. Highland Cove Apartments, M2021-01215-COA-R3-CV (Tenn. Ct. App. Jan. 30, 2023). The slip opinion reads:

This is negligence and wrongful death action brought be the decedent’s estate and the surviving spouse against the apartment complex owner and management company where the accident occurred. The decedent died from profound injuries he sustained when he fell while attempting to remove tree branches that blocked the only path his disabled stepson used for ingress and egress to his apartment. The complaint asserted claims for negligence based on premise liability, negligence per se, and wrongful death. Upon the motion of the defendants, the trial court summarily dismissed all claims based on the finding that the defendants did not owe the decedent a duty of care because the accident was not foreseeable. The court also dismissed the surviving spouse's independent claim for loss of consortium. Plaintiffs appealed. We find that sufficient facts exist from which a trier of fact could reach a different conclusion than that found by the trial judge on the issues of foreseeability and duty. Accordingly, we reserve the decision to dismiss the wrongful death claim. We nevertheless affirm the dismissal of the spouse’s independent claim for loss of consortium because it does not represent a claim for damages separate from the wrongful death action. Rather, “a claim for consortium. . .embodies one component of the decedent's pecuniary value of life.” Kline v. Eyrich, 69 S.W.3d 197, 207 (Tenn. 2002). Accordingly, the case is remanded to the trial court for further proceedings consistent with this opinion.

Here is a link to the slip opinion:

Majority Opinion 2021-1215-COA.pdf (tncourts.gov)

NOTE: This opinion offers up a good summary of the current state of Tennessee law on premises liability, summary judgment, and wrongful death. If you are a practitioner who has to deal with these areas of substantive law, then you need to read this opinion. 

Trial Court's Dismissal of Health Care Liability Action Upheld on Appeal Because Substitution of Deceased Plaintiff Was Not Timely Effected and Time to Substitute Could Not Be Enlarged Because No Excusable Neglect Was Shown to Exist

The Tennessee Court of Appeals has released its decision in Joshlin v. Halford, No. W2020-01643-COA-R3-CV (Tenn. Ct. App. Jan. 6, 2023). The syllabus from the slip opinion reads:

This appeal involves a failure to timely move for substitution of parties after the death of one of the two plaintiffs. In a previous appeal, this Court directed the trial court, on remand, to determine whether the plaintiff’s response to a motion to dismiss should be construed as a motion for enlargement of time pursuant to Tennessee Rule of Civil Procedure 6.02, and if so, to determine whether the plaintiff’s failure to timely move for substitution of the parties pursuant to Tennessee Rule of Civil Procedure 25.01 was the result of excusable neglect. On remand, the trial court determined that the plaintiff’s filing should be construed as a motion for an enlargement of time. However, the trial court also found that the plaintiff failed to timely move for substitution due to counsel’s misinterpretation of the law, which, the trial court concluded, did not constitute excusable neglect. As such, the trial court granted the defendants’ motion to dismiss for failure to timely substitute parties. The plaintiff appeals. We affirm and remand for further proceedings.

Here is a link to the opinion: TN Courts (scroll down; slip opinion may not be accessible via a smart phone or tablet due to a quirk in the system right now). 

NOTE: This appellate decision is another iteration of the case discussed in my blog post from Nov. 7, 2019, which can be found here:

 http://theduncanlawfirm.blogspot.com/2019/11/new-case-on-proper-way-to-maintain-suit.html.

Trial Court's Judgment in Favor of Plaintiffs in this Auto Tort Case Upheld on Appeal

The Tennessee Court of Appeals has issued its opinion in Kindred v. Townsend, No. W2021-01481-COA-R3-CV (Tenn. Ct. App. Dec. 7, 2022). The syllabus from the slip opinion reads:

This negligence action arises from the collision of Plaintiff/Appellee’s Mercedes convertible with a tractor-trailer operated by Defendant/Appellant in the scope of her employment. The trial court determined that Appellant was more than 50 percent at fault for the accident and apportioned 75 percent fault to Appellant and 25 percent fault to Plaintiff/Appellee. The trial court also determined that Defendant/Appellant employer was vicariously liable for the damages awarded. Discerning no error, we affirm the judgment of the trial court.

The opinion can be found here:

https://www.tncourts.gov/sites/default/files/kindredlindaopn.pdf.

NOTE: This is a good opinion for any Tennessee trial lawyer to read because it reminds us of the impact of forensic evidence at trial, the record on appeal, etc. It is just a good reminder in my humble opinion. 

New Health Care Liability Action: Dismissal of Complaint Against Hospital Upheld on Appeal Because Case Was a "Health Care Liability Action" (HCLA) as Defined by Tennessee Law and the Requirements for Filing a HCLA Were Not Met by Plaintiffs

The Tennessee Court of Appeals released its decision in Forsythe v. Jackson Madison Cnty. Gen. Hosp. Dist., No. W2021-01228-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2022). The syllabus from the opinion reads:

The trial court granted the defendant medical providers summary judgment on the basis of the plaintiff’s failure to comply with the Tennessee Health Care Liability Act’s pre-suit notice and good faith certificate requirements. On appeal, the plaintiff, an employee of the defendants, argues that her claim does not relate to the provision of health care services and that she was therefore not required to give pre-suit notice or file a good faith certificate. Because we conclude that the trial court did not err in determining that the claim is related to the provision of health care services, we affirm.

Here is a link to the slip opinion: 

https://www.tncourts.gov/sites/default/files/forsythejessicamarieopn.pdf.

NOTE: This decision demonstrates how broad the definition of a "health care liability action" (HCLA) can be under Tenn. Code Ann. sec. 29-26-101(a)(1). When it doubt, treat these iffy cases like they are HCLAs—just to be safe.  

New Health Care Liability Action Opinion: Dismissal of Complaint Upheld on Appeal Because Proper Action Was Not Taken Before Statute of Limitations Expired

The Tennessee Court of Appeals has released its opinion in Jackson v. Vanderbilt University Medical Center, No. M2022-00476-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2022). The syllabus form the slip opinion reads: 

Patient, by next of kin, sued hospital alleging negligence during his treatment. Trial court granted hospital’s motion to dismiss based on patient’s failure to file the complaint prior to the expiration of the statute of limitations. Patient appealed the dismissal. Because the trial court correctly determined that the statute of limitations commenced running when the patient was discharged, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/thomas_w._jackson_deceased_by_next_of_kin_latisha_jackson_v._vanderbilt_university_medical_center_-_m2022-00476-coa-r3-cv.pdf.

NOTE: This case reminds us of what needs to be done to ensure that a health care liability action is timely filed. 

New Health Care Liability Action Opinion: Summary Judgment for Defense Upheld on Appeal Because Plaintiff's Expert Was Not Qualified to Render an Opinion under the Locality Rule

The Tennessee Court of Appeals has issued its opinion in Jackson v. Thibault, No. E2021-00988-COA-R3-CV (Tenn. Ct. App. Oct. 25, 2022). The syllabus from the slip opinion reads:

Plaintiff appeals the trial court’s decision to exclude her proffered expert for failing to comply with the locality rule expressed in Shipley v. Williams, 350 S.W.3d 527 (Tenn. 2011). Plaintiff also appeals the trial court’s decision to grant the defendants’ motion for summary judgment. Discerning no abuse of discretion, we affirm the decision of the trial court to exclude the expert. Additionally, we affirm the grant of summary judgment to defendants. 

Here is the link to the opinion:

https://www.tncourts.gov/sites/default/files/e2021-00988_jackson_v._thibault.pdf.

NOTE: This case offers a good discussion of what it takes for an expert to be able to render an opinion in a health care liability action and the current state of summary judgment practice. 

New Health Care Liability Action Opinion: Summary Judgment for Physician Upheld on Appeal Due to Her Being an Employee of the University of Tennessee and Immune from Suit

The Tennessee Court of Appeals has released its opinion in Parker ex rel. Parker v. Dassow, No. E2021-01402-COA-R3-CV (Tenn. Ct. App. Oct. 20, 2022). The syllabus from the opinion reads:

This appeal involves a healthcare liability action. The plaintiff sued a physician who had interpreted the results of her fetal ultrasound. The physician was employed by a Tennessee state university as a professor. Her job duties included both educational responsibilities and clinical care to patients in the residency clinics. The trial court granted summary judgment in favor of the physician, finding that she had received no personal gain by her act of interpreting the ultrasound. Therefore, the physician possessed absolute immunity under the Tennessee Claims Commission Act for her actions within the scope of her state employment. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/alexandrea_parker_v_jeanie_d._dassow_m.d..pdf.

NOTE: This opinion offers a great discussion of Tennessee's current summary judgment standard and physician immunity in a health care liability action (née medical malpractice case) when the physician is a state employee only not acting for personal gain. 

New Health Care Liability Action Opinion: Summary Judgment for Hospital that Was a Governmental Entity Upheld on Appeal Because It Could Not Be Held Vicariously Liable for the Negligence of Nonemployee Physicians

The Tennessee Court of Appeals released its opinion Howell v. Chattanooga-Hamilton County Hospital Authority, No. E2021-01197-COA-R3-CV (Tenn. Ct. App. Oct. 7, 2022). The syllabus from the slip opinion reads: 

This appeal involves a healthcare liability action. The plaintiffs filed suit against the defendant hospital, which is a governmental entity, alleging negligence by physicians practicing medicine within the hospital emergency department. The supervising physician was not an employee of the defendant hospital but an employee of a company contracting with the defendant hospital. The medical resident physician and medical student treating the patient in the emergency department also were not employees of the defendant hospital. During summary judgment proceedings, the plaintiffs presented no evidence of direct liability by the defendant hospital or of negligence by the nursing staff at the defendant hospital. Plaintiffs presented such evidence only as to physicians not directly employed by the defendant hospital. Determining that the physicians were not employees of the defendant hospital, the trial court held that the defendant hospital could not be held vicariously liable for the actions of these non-employee physicians under the Governmental Tort Liability Act []. As such, the trial court granted summary judgment in favor of the defendant hospital. Discerning no error, we affirm.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/jefferson_howell_v._chattanooga_hamilton_county_hospital.pdf.

NOTE: The bottom line from this opinion is this: a hospital cannot be held vicariously liable for the actions of nonemployee physicians under the Governmental Tort Liability Act.

Summary Judgment for a Defendant Upheld on Appeal: Trial Court Found that Movant Did Not Owe a Duty of Care to Injured Plaintiff

The Tennessee Court of Appeals has released its opinion in Lynch v. Poe, No. M2021-00867-COA-R3-CV (Tenn. Ct. App. Sept. 9, 2022). The syllabus form the slip opinion reads:

This is a multi-party premises liability and general negligence action among a roofer who fell from the homeowner’s roof, the homeowner who erected the scaffolding at issue, and the scaffolding company that rented the scaffolding to the homeowner, but did not erect the scaffolding. The complaint alleged that the roofer slipped and fell on the roof and then bounced over to the scaffolding before falling to the ground. The complaint also alleged that had a safety rail been installed on the scaffolding it could have prevented the roofer’s fall. The homeowner filed an answer denying liability and alleging comparative fault against the scaffolding company. Consequently, the roofer filed an amended complaint adding the scaffolding company as a codefendant. After discovery, the scaffolding company filed a motion for summary judgment, alleging that it owed no duty to the roofer or the homeowner because it had no control over the premises nor actual or constructive notice of a dangerous condition on the premises. The roofer and homeowner opposed the motion contending, inter alia, that this is a case of general negligence against the scaffolding company because the homeowner relied on the scaffolding company for guidance during the installation process and the scaffolding company assumed the duty of care to ensure the scaffold was installed safely. They also contend that summary judgment was not appropriate because material facts are in dispute. The trial court summarily dismissed all claims against the scaffolding company, and this appeal followed. We find that the material facts are not in dispute and that the scaffolding company was entitled to summary judgment as a matter of law on claims sounding in premises liability and general negligence. Thus, we affirm the summary dismissal of all claims against the scaffolding company.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/david_lynch_sr._et_al._v._bradley_e._poe_et_al._-_m2021-00867-coa-r3-cv.pdf.

NOTE: This opinion offers an excellent discussion of the current state of the law on summary judgment procedure and of the elements of a premises liability and a general negligence. For the practitioner whose case involves any of these matters this is a must-read decision in my humble opinion. 

New Health Care Liability Action Opinion: Trial Court's Denial of Defense's Motion to Dismiss Based on a Finding of "Excusable Neglect" Reversed on Appeal

The Tennessee Court of Appeals has released its opinion in Moxley v. Amisub SFH, Inc., No. W2021-01422-COA-R9-CV (Tenn. Ct. App. Aug. 29, 2022). The syllabus reads:

In this interlocutory appeal of a health care liability action, the only issue for review is whether the trial court erred in denying the defendants’ motions to dismiss based on its finding that “extraordinary cause” existed to excuse the plaintiff’s failure to comply with the statutory pre-suit notice requirem)nts. For the following reasons, we reverse and remand for further proceedings.

Here is a link to the slip opinion: 

 https://www.tncourts.gov/sites/default/files/moxleyeugeneopn.pdf.

NOTE: There is subsequent history to this case. Moxley v. Amisub SFH, Inc., No. W2023-00220-COA-R3-CV (Tenn. Ct. App. Apr. 24, 2024). This latest opinion has been designated as a "MEMORANDUM OPINION" and "shall not be cited or relied on for any reason in any unrelated case." Id., slip op. at 2, fn. 1. Despite that designation, it still sheds light on the history of Moxley. 

New Health Care liability Action Opinion: Summary Judgment for Physician Reversed on Appeal Because the Trial Court Abused Its Discretion in Not Allowing Plaintiff to Obtain a New Standard-of-care Expert When that Expert Refused to Testify Through No Fault of Plaintiff, Etc.

The Tennessee Court of Appeals has issued its opinion in Blackburn v. McClean, No. M2021-00417-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This is a wrongful death health care liability action. At issue in this appeal are claims that were asserted against a hospital and an emergency room physician. During the course of litigation, the trial court permitted the defendants to amend their pleadings to assert a comparative fault defense but placed certain limitations on any new experts the plaintiff might retain to address the defense. The trial court also denied the plaintiff’s efforts to secure a new standard of care expert when one of his retained experts withdrew from the case and refused to testify. Ultimately, through a series of summary judgment orders, the claims against the hospital and emergency room physician were dismissed. Although the plaintiff generically challenges the trial court’s summary judgment dispositions on appeal, we conclude that the plaintiff’s challenges are all waived except as they relate to the last summary judgment order that was entered as to the emergency room physician. That summary judgment order is reversed consistent with the discussion herein, namely in light of our conclusion that the trial court abused its discretion in refusing to allow the plaintiff to secure a substitute standard of care expert after his retained expert refused to testify due to no fault of counsel or his client. Further, although we find no error in the trial court’s decision to allow the defendants to amend their pleadings to assert comparative fault, we are of the opinion that the court abused its discretion with respect to the limitations it placed on any potential expert retained by the plaintiff to address the issues raised in the later amendment alleging comparative fault.

Here is a link to that opinion: 

https://www.tncourts.gov/sites/default/files/blackburn_v.mclean.pdf.

NOTE: The primary takeaway from this opinion is that it was an abuse of discretion by the trial court to not allow the plaintiff to obtain a new standard-of-care expert when the former expert in this area became unavailable through no fault of the plaintiff, which jibes with Tennessee's policy of deciding cases on their merits and not in procedural technicalities. The secondary takeaway is that the trial court also abused its discretion in severely limiting expert testimony that the plaintiff could offer to rebut a newly pleased defense based on the decedent's alleged comparative fault. Both of these abuses required reversal and a remand. 

P.S. This is the second appeal in this case. The first one is the subject of my from Aug. 1, 2020-post, to wit: http://theduncanlawfirm.blogspot.com/2020/08/new-case-on-certification-of-nonfinal.html.

Clarification Offered on Attorney's Fees Awarded under Tenn. Code Ann. sec. 20-12-119(c) upon the Granting of a Motion to Dismiss under Tenn. R. Civ. P. 12.02(6)

The Tennessee Court of Appeals has issued its opinion in Thomson v. Genesis Diamonds, LLC, No. M2021-00634-COA-R3-CV (Tenn. Ct. App. Aug. 10, 2022). The syllabus from the slip opinion reads:

This appeal involves an award of attorney’s fees pursuant to Tenn. Code Ann. § 20-12- 119(c). The trial court dismissed two of the plaintiff’s three claims for relief pled in his amended complaint pursuant to Tenn. R. Civ. P. 12.02(6), upon its finding that the plaintiff had failed to state a claim for which relief could be granted on the two claims. The third claim also was included in the defendant’s motion to dismiss, as well as arguments for improper venue and lack of subject matter jurisdiction, all of which were denied by the trial court. More than thirty days after a final judgment was entered, the defendant requested an award of attorney’s fees and discretionary costs. In his supporting affidavit, the defendant’s counsel included attorney’s fees as relevant to the entire motion to dismiss instead of distinguishing the time spent regarding the claims that were dismissed pursuant to Rule 12.02(6). The trial court awarded the defendant attorney’s fees in the amount of $10,000, which is the maximum amount of attorney’s fees a trial court can award under Tenn. Code Ann. § 20-12-119(c). The trial court denied the defendant’s request for discretionary costs as untimely. We affirm the trial court’s denial of discretionary costs, vacate the award of attorney’s fees, and remand for the Trial Court to reconsider the attorney’s fees award as consistent with this opinion and the Tennessee Supreme Court’s opinion in Donovan v. Hastings, No. M2019-01396-SC-R11-CV, -- S.W.3d -- , 2022 WL 2301177 (Tenn. June 27, 2022).

Here is a link to that opinion:

https://www.tncourts.gov/sites/default/files/michael.thomson.opn_.pdf.

NOTE: This opinion offers insight into attorney's fees under sec. 20-12-119(a), discretionary costs,  and appellate practice. It is of significance as to the first matter and instructs the bench and the bar that fees under -119(c) are only for the work done on the claims dismissed, to wit:

We hold that the limited scope of Tenn. Code Ann. § 20-12-119(c) allows an award of attorney’s fees only for the tasks performed regarding the claims that were actually dismissed by the Trial Court for failure to state a claim upon which relief can be granted. Therefore, we vacate the Trial Court’s award of attorney’s fees and remand to the Trial Court for recalculation of the attorney’s fee award in this case in compliance with our Supreme Court’s opinion in Donovan and this opinion. During remand, the Trial Court should consider the factors in Tenn. Sup. Ct. R. 8, Rule of Professional Conduct 1.5(a) when determining whether the award of attorney’s fees is reasonable and necessary. See Donovan, 2022 WL 2301177, at *6 n.13 (“Rule of Professional Conduct 1.5 sets forth the ‘correct legal standard’ when assessing the reasonableness of a cost and fee request.”). Further, in compliance with Donovan, the Trial Court on remand should consider Defendant’s request for attorney’s fees incurred prior to the amended complaint only to the extent that the claim or claims were pled by Plaintiff prior to the amended complaint and defense counsel’s fees prior to the amended complaint involved those specific claims that were dismissed pursuant to Tenn. R. Civ. P. 12.02(6).

Thomas, supra, at 12.

Summary Judgment for the Defense Affirmed on Appeal: Trial Court's Determination that No Duty of Care Existed Stands

The Tennessee Court of Appeals has issued its decision in Tino v. Walker, No. M2021-01230-COA-R3-CV (Tenn. Ct. App. July 18, 2022). The syllabus from the slip opinion reads:

In this premises liability case, the plaintiff appeals the trial court’s order granting the defendants’ motion for summary judgment and dismissing the plaintiff’s complaint with prejudice. The plaintiff contends that the trial court erred by determining that the divot in the brick step that caused her to trip and fall amounted to a minor aberration and that, as a result, the defendants did not owe her a duty of care. Discerning no reversible error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/kathy.tino_.opn_.pdf.

NOTE: This opinion does a good job setting forth the current state of summary judgment jurisprudence in Tennessee as well as the law on duty of care in a premises liability case. I would submit that this is a must-read decision for any lawyer handling premises liability cases in Tennessee.  

New Laws Effective in Tennessee on July 1, 2022

Here is an abstract of the new laws that went into effect in Tennessee on July 1, 2022, to wit:

https://www.capitol.tn.gov/Archives/Joint/publications/EffectiveDate_2022-07.pdf

Dismissal of Plaintiffs' Claims (Sounding in Tort) Reversed on Appeal Because They Were Permissive Counterclaims and Not Barred by Res Judicata

The Tennessee Court of Appeals has issued its decision in Albers v. Powers, No. M2021-00577-COA-R3-CV (Tenn. Ct. App. July 12, 2022). The syllabus from the slip opinion reads:

This appeal requires us to consider the defense of res judicata in the context of two separate lawsuits filed by parties who were in a car accident. Following the car accident, the first lawsuit was filed and settled by agreement of the parties. An agreed judgment was entered dismissing the first lawsuit. Subsequently, the defendant from the initial lawsuit and her husband filed suit against the former plaintiff, alleging various causes of action sounding in tort. The trial court dismissed the second case, finding that all of the claims were barred by res judicata. The defendant in the initial suit and her husband—the plaintiffs in the second suit—appealed the dismissal of their lawsuit. We find that the tort claims alleged in the second suit were not compulsory counterclaims under Tenn. R. Civ. P. 13.01, and were not claims that would nullify the initial action or impair rights established in the initial action; therefore, we hold that the doctrine of res judicata does not bar those claims. The judgment of the trial court dismissing the case is reversed, and the case is remanded for further proceedings.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/lori.albers.opn_.pdf.

NOTE: This is a very interesting read for any civil procedure nerd like me. It offers up a great discussion of the tort exception under Rule 13 of the Tennessee Rules of Civil Procedure (which does not exist under its federal counterpart) and how tort claims are not barred under res judicata because they are generally permissive and not compulsory counterclaims. 

Trial Court's Dismissal of Plaintiff's Case Upheld on Appeal Due to Her Counsel's Failure to Make a Proper Substitution for Her After She Died from Causes Unrelated to the Complained-of Injuries

 The Tennessee Court of Appeals has released its opinion in Cunningham v. Fresenius Medical Care, Inc., No. M2021-01087-COA-R3-CV (Tenn. Ct. App. June 22, 2022). The syllabus from the slip opinion reads:

In this appeal arising out of a negligence action, the plaintiff died while the litigation was pending, and no motion for substitution of the plaintiff was filed within the ninety-day period following the filing of the suggestion of death as required by Tenn. R. Civ. P. 25.01. After the defendant filed a motion to dismiss, the plaintiff’s counsel filed a motion to enlarge the time, pursuant to Tenn. R. Civ. P. 6.02. The trial court found no excusable neglect warranting enlargement of the ninety-day period and dismissed the action pursuant to Tenn. R. Civ. P. 25.01. The plaintiff appealed the trial court’s denial of its motion to enlarge and the dismissal of the suit. Discerning no error, we affirm.

Here is a link to the opinion:

https://www.tncourts.gov/sites/default/files/barbara.cunningham.opn_.pdf.

NOTE: This case serves as a cautionary tale of what happens when a party to a lawsuit dies during the pendency of the action from causes unrelated to the complained-of injuries and a motion to substitute is not filed within ninety-days of the filing of a suggestion of death. What I am not sure about is why did Plaintiff's counsel file the suggestion of death. It was not necessary. Once it was filed, however, Plaintiff's counsel was put "on the clock" and had ninety days to get a motion for substitution filed under Rule 25.01 of the Tennessee Rules of Civil Procedure (or move for an enlargement of time). The quick takeaways from this opinion are: (1) Counsel for a plaintiff does not need to file a suggestion of death when a client dies; (2) a motion for substitution under Rule 25.01 should be filed within ninety days of the filing a suggestion of death; and (3) if a motion for substitution cannot be filed within ninety days of the filing of a suggestion of death, a motion seeking an enlargement of time should be filed under Rule 6.02 of the Tennessee Rules of Civil Procedure. 

New Health Care Liability Action Opinion: Motion for Extension of Time to File a Certificate of Good Faith Is Governed under "Good Cause" Standard, Etc.

The Tennessee Court of Appeals has released its decision in Estate of Vickers v. Diversicare Leasing Corp., No. M2021-00894-COA-R3-CV (Tenn. Ct. App. June 13, 2022). The syllabus from the slip opinion reads:

A nursing home resident commenced this health care liability action after she had 18 teeth extracted, after which she suffered excessive bleeding. Before suing, the plaintiff’s daughter, acting as her mother’s attorney in fact, provided each prospective defendant with a form that purported to authorize the release of the plaintiff’s health information as required by Tennessee Code Annotated § 29-26-121(a)(1). Four months later, the plaintiff filed her complaint and a certificate of good faith as required by § 29-26-122(a). The defendants responded by moving to dismiss the complaint, arguing that the pre-suit authorizations were invalid because the daughter lacked the authority to make “health care decisions” for the plaintiff. The trial court denied the motions, finding the general power of attorney authorized the daughter to release the plaintiff’s medical records. After the plaintiff filed an amended complaint to add a claim for lack of informed consent, the defendants moved to dismiss all claims set forth in the amended complaint based on the plaintiff’s failure to file a new certificate of good faith. The plaintiff argued that a new certificate was unnecessary; nevertheless, she moved for an extension of time to comply. Following a hearing, the court found that a new certificate of good faith was required by § 29-26-122(a) because the amended complaint asserted a new claim. The court also denied the plaintiff’s motion for an extension of time to comply on the ground that the plaintiff failed to establish “extraordinary cause” to justify an extension. Based on these findings, the court granted the defendants’ motions to dismiss all claims. This appeal followed. We agree that a new certificate of good faith was required; however, we find that the trial court applied an incorrect legal standard to deny the motion for an extension of time in which to comply. This is because the standard applicable to a motion for an extension of time to comply is “good cause,” not “extraordinary cause,” and good cause is a less exacting standard than extraordinary cause. See Stovall v. UHS Lakeside, LLC, No. W2013-01504- COA-R9-CV, 2014 WL 2155345, at *12 (Tenn. Ct. App. Apr. 22, 2014) (citations omitted), overruled on other grounds by Davis ex rel. Davis v. Ibach, 465 S.W.3d 570 (Tenn. 2015). Accordingly, this issue, along with the trial court’s decision to dismiss the entire amended complaint, are vacated and remanded for further consideration by the trial court. As a result, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

Here is a link to the opinion: 

https://www.tncourts.gov/sites/default/files/estate.of_.jennifer.d.vickers.opn_.pdf.

NOTE: This is an informative read for any lawyer who handles Tennessee health care liability actions (f/k/a medical malpractice cases). It lets one know when an new certificate of good faith is needed and how that is to be handled if not filed with the complaint or an amended complaint (under a "good cause" standard), etc. It also offers a great analysis of when an attorney-in-fact may authorize the release of a principal's medical records via a general power of attorney in these types of cases. 

A Tenn. Claims Commission-Case Consolidated with a Governmental Tort Liability Act-Case in Circuit Court: Trial Court's Denial of State's Motion for Summary Judgment Upheld on Appeal Due to State's Nondelegable Duty to Inspect and Maintain State Highways

The Tennessee Court of Appeals has released its opinion in Polhamus v. State, No. E2021-01253-COA-R9-CV (Tenn. Ct. App. June 2, 2022). The opinion's syllabus reads:

This case arises from a single-vehicle motorcycle accident at the intersection of State Route 1 and State Route 36 within the city limits of Kingsport, Tennessee. The cyclist contends the accident was caused by the failure of the State of Tennessee and the City of Kingsport to properly maintain the state highways; specifically, he alleges that their failure to repair a pothole caused the accident. The plaintiff filed a claim against the State with the Tennessee Division of Claims Administration, and shortly thereafter he commenced this action against the City in the Sullivan County Circuit Court. The claim against the State was later transferred and consolidated with the action against the City. Both the State and the City claimed immunity and moved for summary judgment. The State asserted that it had immunity because the City contractually agreed to maintain the highways where the accident occurred. The City asserted that it had immunity because the State owned the highways where the accident occurred. The trial court granted summary judgment in favor of the City upon the finding the City had immunity because it did not “own” the state highways; however, it denied the State’s motion because “[t]o hold that both the State and the City [were] immune from suit would be against public policy.” We granted this interlocutory appeal to address whether the State owed a duty to the plaintiff even though it contracted with the City to maintain the highways where the plaintiff’s accident occurred. Having closely reviewed the State’s contract with the City of Kingsport, we find nothing in the contract or in Tennessee Code Annotated §§ 54-5-201 and -203 that authorizes the State to delegate its responsibilities under § 9-8-307(a)(1)(I) “to exercise reasonable care under all the attendant circumstances in . . . maintaining the State system of highways” and (J) for “[d]angerous conditions on state maintained highways.” On the contrary, and as § 54-5-201 expressly provides, “the state’s obligation for maintenance of its system of highways shall be governed by those limitations now set out by law, it being the intent of this section neither to enlarge nor to diminish present obligations for this maintenance.” Because the State bears the ultimate responsibility for inspecting and maintaining state highways, we find the contract did not absolve the State of potential liability for failing to do so. Therefore, we affirm the trial court’s decision.

The slip opinion can be found at this link: 

https://www.tncourts.gov/sites/default/files/e2021-1253_polhamus_v._state.pdf.

NOTE: This opinion is one of the rare ones discussing the state's liability under the Claims Commissions Act and how that interacts with a municipality's liability under the Governmental Tort Liability Act.  It discusses the state's liability due to a nondelegable statutory duty imposed on it "to inspect and maintain state highways." Polhamus, No. E2021-01253-COA-R9-CV, slip op. at 7. A must-read decision for any lawyer who handles these types of cases.

New Health Care Liability Action: Trial Court's Denial of Dismissal Upheld on Appeal Due to the Application of the Discovery Rule

The Tennessee Court of Appeals has released its decision in Archer v. Sodexo Operations, LLC, No. W2020-01176-COA-R9-CV (Tenn. Ct. App. May 25, 2022). The opinion's syllabus reads:

This interlocutory appeal arises from a health care liability action. The defendant filed a motion to dismiss based on the statute of limitations. In response, the plaintiff invoked the discovery rule and argued that his claim was timely filed after he learned the identity of the defendant. The plaintiff submitted an affidavit of counsel in an effort to detail the due diligence undertaken by the plaintiff to ascertain the identity of the defendant. Upon considering the affidavit, the trial court denied the defendant’s motion to dismiss. However, the trial court granted permission for the defendant to seek an interlocutory appeal. This Court granted the defendant’s application. We now affirm the trial court’s order and remand for further proceedings. 

Here is a link to the slip opinion:

https://www.tncourts.gov/sites/default/files/archerstevenopn_0.pdf.

NOTE: This decision offers up a great explanation of the current state of the discovery rule in health care liability actions (HCLA)  (f/k/a medical malpractice cases). It is a must-read case for any lawyer who handles HCLAs under Tennessee substantive law.