Essentials of Tennessee Tort Law: Personal Injury & Death Cases – A Quick Reference Guide for Lawyers

The Statute of Limitations is ONE YEAR:

  • For “injuries to the person”, T.C.A. § 28-3-104(a)(1)(A).
    • Exception: Where criminal charges are brought against the defendant, the period of limitation is extended to two years if listed conditions are met, C.A. § 28-3-104(a)(2).
  • SOL tolled for minors, but statutes of repose will still apply, T.C.A. § 28-1-106.
  • In wrongful death cases, the cause of action accrues on the date of the negligent act or omission, which is NOT necessarily the date of death, Fowlkes v. Nashville & D. R. Co., 56 Tenn. 829 (1872).
  • Medical malpractice:
    • One Year SOL is automatically extended 120 days by complying with the pre-suit notice requirements of T.C.A. § 29-26-121.
    • If the injury is not discovered within the one year period, the SOL can run from the date of discovery, T.C.A. § 29-26-116(a)(2).

Statutes of Repose:

  • Products Liability: Six years from date of injury, and within ten years from date the product was first purchased (exceptions for asbestos and silicone breast implants), T.C.A. § 29-28-103.
  • Construction deficiency causing injury: Four years after substantial completion, T.C.A. § 28-3-202, unless injury occurs during fourth year, T.C.A. § 28-3-203 adds 1 more year.
  • Medical malpractice cases: Three years, T.C.A. § 29-26-116(a)(3).

$750,000 cap on non-economic damages:

  • Increases to $1,000,000 for “catastrophic loss or injury” (spinal cord injury resulting in paraplegia or quadriplegia, amputation of two hands or feet, 3rd degree burns over 40% of the body), T.C.A. § 29-39-102(d).
  • Caps do not apply where there was specific intent to injure, falsification of records, influence of drugs or alcohol, or conviction of felony T.C.A. § 29-39-102(h).

Comparative Fault:

  • Modified comparative fault, Plaintiff must be less than 50% at fault, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).
  • A defendant is only liable for the percentage of the plaintiff’s damages caused by that defendant’s negligence,
  • Non-parties can be added within 90 days of answer alleging such other person to be at fault even if the statute of limitations has expired, T.C.A. § 20-1-119.

Liability Insurance is not discoverable in state courts:

  • TRCP 26, Thomas v. Oldfield, 279 S.W.3d 259 (Tenn. 2008).

UM/UIM coverage (policies issued in TN):

  • Does not stack, offset by liability limits.

 Products Liability:

  • Strict liability can be imposed on manufacturers and sellers under T.C.A. § 29-28-105.

Premises Liability:

  • Generally there must be an unsafe condition creating an unreasonable risk of harm, either created by the defendant, or that defendant knew or should have known about.
  • There is no real distinction between licensees and invitees under TN law. Social guests are owed a duty of reasonable care, Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984).

Medical Malpractice (Health Care Liability):

  • Attorney’s fees are limited to one-third, T.C.A. § 29-26-120.
  • Collateral sources cannot be recovered except for privately purchased insurance benefits, T.C.A. § 29-26-119.
  • Experts must come from TN or a contiguous state (with exceptions) and must have been practicing in that profession or specialty within one year preceding date of injury or wrongful act, T.C.A. § 29-26-115(b).
  • Locality rule applies, T.C.A. § 29-26-115(a)(1).
  • Complicated pre-suit notice, good faith requirements, T.C.A. §§ 29-26-121, 122.

Governmental Tort Liability:

  • Tort claims against the State (T.C.A. § 9-8-307), and against counties and cities (T.C.A. §29-20-403) are capped at $300,000 per claimant/$1,000,000 per occurrence.
  • Claims against the State must be filed with the Claims Commission.

Wrongful Death:

  • Scheme is a confusing “hybrid between the survival and wrongful death statutes”, T.C.A. § 20-5-102, 106, Beard v. Branson (Tenn. 2017).
  • Suit can be filed by personal representative, parent, surviving spouse (or children or next of kin if no surviving spouse), T.C.A. § 20-5-106, 107.
  • Damages include pecuniary value and consortium damages for next of kin (capped by T.C.A. § 29-39-102 at $750,000, or $1,000,000 for parent leaving minor child), T.C.A. § 20-5-113, Jordan v. Baptist Three Rivers Hospital, 984 S.W. 2d 593 (Tenn. 1999)

Punitive Damages:

  • Clear and convincing evidence, bifurcated trial, limitations on vicarious liability, capped at twice compensatory damages or $500,000, whichever is greater, subject to various exceptions including specific intent, falsifying records, being under the influence of drugs or alcohol, or conviction of felony, T.C.A. § 29-39-104.

 Miscellaneous:

  • Hospital liens are limited to one-third of the total recovery (T.C.A. § 29-22-101), and only include charges that were reasonable and necessary, West v. Shelby County Healthcare Corp., 459 S.W.3d 33 (Tenn. 2014)

PLEASE NOTE: This is intended only as a summary and quick reference guide for lawyers. It is not a comprehensive review of all applicable law and each practitioner should use it only as a starting point for further research.

If you are an attorney, and you would like to have a laminated copy of our Essentials of Tennessee Tort Law – Personal Injury and Death Cases, 2017 Ed., send an email to kelsey@thehamiltonfirm.com

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