The Tennessee Supreme Court’s current civil case docket continues to include an overweight percentage of tort cases. Tort cases comprise only about 10% of civil filings in a given year¹ but represent almost half of the civil cases on the court’s current docket.² Experienced tort lawyers make an effort to monitor the high court’s tort law docket because not only can the cases guide lawyers in identifying issues that need to be preserved in the record of cases pending in the trial courts, but they can also impact the outcome, settlement value and trial schedule of other cases.

The following is a listing and brief summary of each tort case currently under review by the Tennessee Supreme Court, with the longest-pending case listed first and the most recently accepted cases listed last:

1. Binns v. Trader Joe’s East Inc.³ This case raises an extremely important legal issue of whether a defendant’s admission of vicarious liability for the acts of its employee most directly involved in the circumstances giving rise to plaintiff’s injury or death cuts off a plaintiff’s right to make and prove independent acts of negligence against the employer itself. The issue arises in multiple contexts, including trucking cases where plaintiffs want to prove that the crash was caused by careless driving but also the other acts of the driver’s employer (e.g., negligent hiring, training, supervision).⁴
2. Charles v. McQueen.⁵ Anyone who files a defamation or similar claim is at risk of being faced with a counterclaim under the Tennessee Public Participation Act (TPPA), Tennessee’s version of an anti-SLAPP statute.⁶ Plaintiff was upset with defendant’s online review of his work and filed a defamation and false light invasion of privacy claim against defendant. Defendant filed a TPPA petition. The appeal raises numerous issues about how the TPPA should applied by trial courts, multiple evidence issues concerning the law of hearsay and authentication of documents, the limited-purpose public figure doctrine, and the law of defamation and false light.
3. Trentham v. Mid-America Apartments L.P.⁷  Prominent health care liability defense lawyer Bob Trentham was the personal injury plaintiff in this premises case, receiving a judgment of over $2,000,000. The defense is seeking review of multiple issues, including basic law of premises liability, causation and proof of damage to earning capacity. Is this case important to anyone other than the parties? The four amicus brief filings from seven entities, including the Chamber of Commerce of the United States of America, tells us that it is.⁸
4. Flade v. City of Shelbyville.⁹ Another TPPA case. The central issue in the case addresses the right of a defendant to assert a TPPA claim after voluntary dismissal of the original action. Anyone who files or defends defamation or similar claims will be impacted by the outcome of this decision.
5. Jones v. Life Care Centers of America d/b/a Life Care Center of Tullahoma.¹⁰ This is an unusual case dealing with the obscure tort of invasion of privacy for intrusion upon seclusion and the law of damages for that tort.
6. Richards v. Vanderbilt University Medical Center.¹¹ Yet another case dealing with issues that arise under Tennessee’s pre-suit notice statute for health care liability actions, Tenn. Code Ann. § 29-26-121(c). The issue here is whether a plaintiff who properly gives notice in a health care liability action, files the action taking advantage of the 120-day extension of the statute of limitations provided by § 29-26-121(c), dismisses that action and then gives notice of the intention to re-file the action can again rely on the 120-day extension of the statute of limitations. The Court of Appeals said “no,” and dismissed the re-filed case.
7. Locke v. Aston.¹² Certain defendants in certain cases will take surreptitious surveillance videos of the plaintiff in the hope of obtaining evidence of the plaintiff doing something inconsistent with what the plaintiff has testified about his or her physical limitations. Even if requested to do so in discovery, defendants do not want to produce the fruits of this effort before the plaintiff is deposed and before trial only want to produce that which they intend to use for impeachment at trial (and thus not the parts which corroborate plaintiff’s testimony).¹³ Can they do that? We will know the answer within one year.
8. Castillo v. Rex.¹⁴ After the death of plaintiff’s decedent, the hospital invited plaintiff and her parents to a “Communication and Optimal Resolution” (CANDOR) meeting to discuss the circumstances of the death. Two physicians were present at the CANDOR meeting. Plaintiff later filed suit and sought testimony from the two doctors about statements made to the family at the meeting and documents used in preparation for the meeting. Defendants asserted the Quality Improvement Privilege (QIP) granted by Tenn. Code Ann. § 68-11-272(c). Thus, the Supreme Court will explore the scope of the QIP and its application, if any, to CANDOR meetings.
9. Denson v. Methodist Medical Center of Oak Ridge.¹⁵ Another pre-suit notice case, this one in the context of a wrongful death case, that also raises an issue of who has standing to bring a wrongful death claim. The defendants argue that the purported wrongful death plaintiff — the mother of the decedent and the grandmother of her unmarried deceased daughter’s surviving minor children as well as their temporary legal custodian — did not have standing to file a wrongful death lawsuit and even if she did the notice was defective because she named only herself, not the minor children, as the claimant.¹⁶ The Court of Appeals disagreed with the defendants on both issues, but the Supreme Court accepted review.

The results in these nine cases will impact the rights of plaintiffs and defendants and the litigation of tort cases for decades (if not longer). |||

JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Murfreesboro and Nashville, Tennessee. Readers interested in monitoring the current status of all civil and criminal cases pending before the Tennessee Supreme Court can do so by viewing his free e-book, Cases Pending Before the Tennessee Supreme Court, accessible at pendingcases.birddoglaw.com.

NOTES

1. For example, according to the Annual Report of the Tennessee Judiciary 2022-23, there were 56,536 cases filed in the Tennessee’s chancery courts in the fiscal year ending June 30, 2023, 306 of which were classified as “damages/tort” cases. The circuit courts saw 43,783 cases filed in this period, of which 9,864 were classified as “damages/tort” cases and 322 were classified as “medical malpractice” cases. The probate courts had 5,991 case filings, none of which were classified as “damages/tort” cases. Thus, in FY 2022-23 there were 10, 492 tort cases (“damages/tort” and “medical malpractice” cases) filed out of 106,310 total civil case filings, or 9.87% of all civil case filings.
2. As of March 21, 2024, there were 20 civil cases accepted for review and pending by the Tennessee Supreme Court (excluding bar disciplinary matters). Nine of those cases involve tort issues.
3. There is no citation to the Court of Appeals decision in this case because the intermediate court refused to accept the trial judge’s recommendation to hear the issue on a Rule 9 appeal. Thus, the matter is before the High Court because it granted plain etc.
4. This case was argued on Oct. 4, 2023, and thus the opinion may well be released before the publication of this article.
5. 2022 WL 4490980 (Tenn. Ct. App. Sept. 28, 2022).
6. “SLAPP” is the acronym for “strategic lawsuit against public participation.” It is one of the few laws our General Assembly chose to import from California.
7. 2023 WL 1635477 (Tenn. Ct. App. Jan. 12, 2023).
8. Other amicus briefs were filed by the National Apartment Association and Tennessee Apartment Association (a joint filing), Public Entity Partners, Tennessee Municipal Attorneys Association, and Tennessee Municipal League (a joint filing), and the Tennessee Trial Lawyers Association.
9. 2023 WL 2200729 (Tenn. Ct. App. Feb. 24, 2023).
10. 2023 WL 3476523 (Tenn. Ct. App. May 16, 2023).
11. 2023 WL 4451631 (Tenn. Ct. App. July 11, 2023).
12. 2023 WL 6205978 (Tenn. Ct. App. Sept. 25, 2023).
13. This issue arises in tort cases, but of course can arise in other cases as well, e.g., family law cases.
14. 2023 WL 6464103 (Tenn. Ct. App. Oct. 4, 2023).
15. 2023 WL 6626763 (Tenn. Ct. App. Oct. 12, 2023).
16. The grandmother was the temporary custodian of the children under an order from the juvenile court. Defendants argue that only a legal guardian, not a custodian, has the right to file a wrongful death suit on behalf of the minor children.