Essentials of Tennessee Tort Law: Injury and Death Cases, 2018 Edition

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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 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 Noneconomic 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, 3^rd 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, destruction or concealment of records; under the 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:

UM/UIM Coverage (policies issued in TN):

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, 528 S.W.3d 487, 497 (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)

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