Introduction
How To Use this Book – READ THIS FIRST!
Biography of John A. Day
Chapter 1. Abuse of Process
- Section 1. Abuse of Process – Generally
- Section 2. Abuse of Process – Limitation of Actions
Chapter 2. Alienation of Affections
- Section 1. Alienation of Affections – Generally
Chapter 3. Amusement Parks
- Section 1. Liability of Operator
- Section 2. Liability for Punitive Damages
Chapter 4. Animal Control Officer’s Rule
- Section 1. Animal Control Officer’s Rule – Generally
Chapter 5. Animals Other Than Bovines, Dogs, and Horses
- Section 1. Editor’s Note – Animals Other Than Bovines, Dogs, and Horses
- Section 2. Animals Other Than Bovines, Dogs, and Horses – Generally
- Section 3. Harboring Wild Animals
- Section 4. Animals on a Roadway or Otherwise Wandering
- Section 5. Liability of Non-Owner of Animal At Issue
Chapter 6. Assault and Battery
- Section 1. Assault – Generally
- Section 2. Battery – Generally
- Section 3. Medical Battery
- Section 4. Defense – Consent
- Section 5. Defense – Defense of Property
- Section 6. Defense – Provocation
Chapter 7. Assumption of Risk
- Section 1. Assumption of Risk – Generally
- Section 2. Express Assumption of Risk/Contractual Waiver of Liability/Exculpation Provisions
- Section 3. Contractual Waiver of Liability
- Section 4: Open and Obvious Danger Defense in Premises Liability Cases
Chapter 8. Attorney’s Fees
- Section 1. Apportionment of Fees in Cases with Workers’ Compensation Subrogation Interest
- Section 2. Court Evaluation of Contingency Fees
- Section 3. Division of Contingent Fees by Plaintiff’s Counsel – Effect of Failure to Disclose Fee Division to Client on the Ability of Lawyer to Receive a Fee
- Section 4. Fees Charged to Minors
Chapter 9. Attorney’s Lien
- Section 1. Attorney’s Lien – Generally
Chapter 10. Bad Faith Failure of Insurer to Pay First Party Claim (Statutory Cause of Action)
- Section 1. Statutory “Lack of Good Faith” Claim – Tenn. Code Ann. § 56-7-105
- Section 2. Necessity of Giving Notice of Intention to Seek Penalty
- Section 3. Effect of Misrepresentation by Insured in Proof of Loss
Chapter 11. Bad Faith Failure to Settle Tort Claim (Common Law Claim)
- Section 1. Bad Faith Failure to Settle Tort Claim – Generally
Chapter 11.A
- Section 1. Bovine Activities Generally
Chapter 12. Breach of Promise to Marry
- Section 1. Breach of Promise to Marry – Generally
Chapter 13. Causation
- Section 1. Causation – Generally
- Section 2. Cause in Fact vs. Proximate Cause
- Section 3. Intervening and Superseding Causes
- Section 4. Level of Proof Necessary (More Probable Than Not) to Establish Causal Relationship Between Injury and Event Caused by Negligence
Chapter 14. Charitable Immunity
- Section 1. Charitable Immunity – Generally
Chapter 15. Contractual Choice of Law Provisions
- Section 1. Contractual Choice of Law Provisions – Generally
Chapter 16. Comparative Fault
- Section 1. Joint and Several Liability Generally Abolished
- Section 2. Addition of Defendants After Expiration of Statute of Limitations (Tenn. Code Ann. § 20-1-119)
- Section 3. Allocation of Fault to Defendant Dismissed Before Trial
- Section 4. Allocation of Fault to One Protected by Governmental Immunity
- Section 5. Allocation of Fault to an Entity Granted Immunity or Partial Immunity by Legislative Action
- Section 6. Allocation of Fault to One Protected by Statute of Repose
- Section 7. Allocation of Fault to One Whose Conduct Cannot be the Legal Cause of an Injury
- Section 8. Allocation of Fault to a Product
- Section 9. Allocation of Fault to an Unknown Party Generally
- Section 10. Allocation of Fault to an Unknown Party in a Motor Vehicle Case
- Section 11. Applicability to Breach of Implied Warranty Cases
- Section 12. Applicability of Comparative Fault in Cases Alleging Fraud
- Section 13. Applicability of Comparative Fault to Nuisance Claim
- Section 14. Applicability to Negligent Misrepresentation
- Section 15. Bifurcated Fault Allocations Based on Causation Issues
- Section 16. Duty of Defendant to Allege Causative Acts or Omissions of Another or be Precluded for Introducing Evidence of or Arguing Such Acts or Omissions at Trial
- Section 17. Comparative Fault – Effect of Concerted Action
- Section 18: Effect of Co-Tortfeasor Committing Intentional Wrong
- Section 19: Effect of a Physically Injured Plaintiff’s Fault on Recoverability in Loss of Consortium Claimant’s Action
- Section 20. Effect on Tenn. Code Ann. § 56-7-1201 (Uninsured Motorist Claim)
- Section 21. Factors Considered in Fault Allocations
- Section 22. Fault of Plaintiff’s Employer or Co-Employee
- Section 23. Plaintiff Barred from Recovery if Fifty Percent (Or More) at Fault
- Section 24. Impact of Impaired Mental Capacity on Fault Allocation
- Section 25. Modification by Trial Judge of Fault Percentages Assigned by Jury
- Section 26. Comparative Fault and Negligent Entrustment
- Section 27. Several Liability as a General Rule
- Section 28. Comparative Fault in Strict Liability Cases
- Section 29. Tortfeasors in a Single Event May be Tried Separately
- Section 30. Vicarious Liability After Comparative Fault
- Section 31. Allocation of Fault to One Protected by Immunity Under a Specialized Statute
- Section 32. Applicability of Comparative Fault to Claims Arising Under 42. U.S.C. Sec. 1983
Chapter 17. Confidential Relationship
- Section 1. Abuse or Breach of Confidential Relationship
- Section 2. Difference Between Fiduciary Relationships and Confidential Relationships
Chapter 18. Conflict of Laws in Tort Cases
- Section 1. Conflict of Laws in Tort Cases – Generally
Chapter 19. Contribution
- Section 1. Contribution – Generally
- Section 2. Contribution Actions Against the State of Tennessee
Chapter 20. Conspiracy
- Section 1. Conspiracy – Generally
- Section 2. Conspiracy is Not a Cause of Action – It Requires a Predicate Tort
- Section 3. Intracorporate Conspiracy Doctrine
Chapter 21. Constructive Fraud
- Section 1. Constructive Fraud – Generally
Chapter 22. Conversion
- Section 1. Conversion – Generally
- Section 2. Only Owner, Not Lessee or Bailee, Can Assert Claim for Conversion
- Section 3. Damages in Conversion Cases
- Section 4. Statute of Limitations Issues (Including Fraudulent Concealment Discussion)
Chapter 23. Criminal Conversation
- Section 1. Criminal Conversation – Generally
Chapter 24. Damages – Generally
- Section 1. Attorney’s Fees as Compensatory Damages under Independent Tort Theory
- Section 2. Calculation of Post-Judgment Interest
- Section 3. Cap on Noneconomic Damages Deemed Constitutional
- Section 4. Damage Award in Excess of Ad Damnum
- Section 5. Damages- Fraudulent Misrepresentation
- Section 6. Itemization of Elements of Damages on Verdict Form
- Section 7. Mitigation of Damages
- Section 8. Punitive Damages
- Section 9. Punitive Damages Against Estate of Defendant
Chapter 25. Damages in Personal Injury Cases
- Section 1 . Aggravation of a Pre-Existing Condition
- Section 2. Collateral Source Rule
- Section 3. Collateral Source Rule: “Amount Charged vs. Amount Paid”
- Section 4. Loss of Consortium (Personal Injury Cases)
- Section 5. Medical Monitoring
- Section 6. Medical Expenses – Past
- Section 7. Medical Expenses – Future
- Section 8. Medical Expenses – Availability of Certain Presumptions Concerning the Reasonableness of Medical Expenses (and, in Smaller Cases, the Necessity of Treatment)
- Section 9. Medical Expenses – Ability of a Doctor to Testify About Reasonableness and Necessity of Medical Bills or Charges from Other Health Care Providers
- Section 10. Personal Injury Damages Generally
- Section 11. Application of Noneconomic Damages Cap In Personal Injury Case When Loss of Consortium Is Awarded
- Section 12. Prejudgment Interest on Personal Injury Cases
- Section 13. Recovery of Medical Expenses by Minor
- Section 14. Interaction Between the Statutory Cap on Damages and Comparative Fault
- Section 15. Recovery of Loss of Consortium Damages by Children for Injuries to Parent
Chapter 26. Damages to Property and Financial Interests
- Section 1. Benefit of the Bargain Rule Applied in Misrepresentation Cases
- Section 2. Loss Concerning Real Property
- Section 3. Damages for Lost Profits
- Section 4. Election Between Punitive Damages and TCPA Fees
- Section 5. Election of Treble vs. Punitive Damages
- Section 6. Loss of Credit under TCPA
- Section 7. Measure of Damage to Personal Property (Including Loss of Use)
- Section 8. Death of or Injury to Guide Dogs
- Section 9. Damages for Death of a Pet (Includes Only Dogs and Cats)
Chapter 27. Damages in Wrongful Death Cases
- Section 1. Damages in Cases Involving Death of Spouse or Parent
- Section 2. Impact of Death of Plaintiff After Verdict on Recovery of Damages
- Section 3. Loss of Consortium Claim for the Death of a Child
Chapter 28. Defamation
- Section 1. Defamation – Generally
- Section 2. Actual Malice
- Section 3. Conditional Privilege
- Section 4. Damages
- Section 5. Defamatory Statement
- Section 6. Executive Office Privilege
- Section 7. Fair Report Privilege
- Section 8. Judicial Privilege
- Section 9. Legislative Privilege
- Section 10. Libel-Proof Plaintiff
- Section 11. Litigation Privilege
- Section 12. Private Person vs. Public Figure
- Section 13. Publication
- Section 14. Tennessee Public Participation Act (TPPA)
- Section 15. Tennessee Public Participation Act (TPPA) – Effect of Voluntary Dismissal on Ability to Use TPPA
- Section 16. Truth and Other Defenses
Chapter 29. Dog Bites and Dog Attacks
- Section 1. Common Law Abrogated by Statute
- Section 2. Landlord Liability
Chapter 30. Duty
- Section 1. Duty – Generally
- Section 2. Duty of a Designated Driver
- Section 3. Duty Arising Because of Special Relationship
- Section 4. Duty Gratuitously Undertaken
- Section 5. Duty of Home Inspector to Third Persons
- Section 6. Duty of Railroad to Maintain Visibility at Crossings
- Section 7. Duty of Teachers and Schools
- Section 8. Duty to Use Automated External Defibrillator (AED)
- Section 9. Helpless or Inattentive Plaintiffs
- Section 10. Duty Not to Sell Gasoline to Intoxicated Motorist
- Section 11. Duty Not to Kill Dog Owned by Another
Chapter 31. Ecclesiastical Abstention Doctrine
- Section 1. Ecclesiastical Abstention Doctrine – Generally
Chapter 32. Exclusivity of Workers Compensation Law – Ability of Employees to Sue Employers in Tort
- Section 1. Exclusivity Doctrine Generally
- Section 2. Assault at the Workplace by Non Co-Worker
- Section 3. Failure of Employer to Provide Safe Trenches
Chapter 33. Exculpatory Agreements (Also Known as Contractual Waivers of Liability)
- Section 1. Waiver of Liability Generally (Decision Addresses Contract with Medical Transportation Company)
- Section 2. Minor Not Bound by Parent’s Signature
- Section 3. Validity of Contract Provisions Which Provide that Parent Indemnify Defendant from Claims Asserted on Behalf of Injured Minor
- Section 4. Exculpatory Agreements and Incompetent Persons
Chapter 34. Expert Witnesses
- Section 1. Adequacy of Expert Witness Disclosure
- Section 2. Standard for the Admissibility of Testimony
- Section 3. Admissibility of Testimony – Consultation with Other Experts
- Section 4. Limited Use of Discovery Depositions of Experts
- Section 5. Payment of Contingent Fee to Expert
Chapter 35. False Imprisonment
- Section 1. False Imprisonment – Generally
- Section 2. Statute of Limitations Applicable to False Imprisonment Claims
Chapter 36. Family Purpose Doctrine
- Section 1. Family Purpose Doctrine – Generally
Chapter 37. Federal Employers’ Liability Act (FELA)
Chapter 38. Forum Non Conveniens
- Section 1. Forum Non Conveniens – Generally
Chapter 39. Forum Selection Clauses in Personal Injury and Death Cases
- Section 1. Forum Selection Clauses in Personal Injury and Death Cases – Generally
Chapter 40. Fraud
- Section 1. Fraud – Generally
- Section 2. Claim Made on Basis of Statement Made to Another
- Section 3. Duty to Disclose
- Section 4. Economic Loss Doctrine and Fraud Cases
- Section 5. Certain Opinions Can Be Basis for Fraudulent Misrepresentation Claim
- Section 6. Paternity Fraud
- Section 7. Promissory Fraud (Also Known as Fraudulent Inducement)
- Section 8. Reasonable Reliance
Chapter 41. Governmental Tort Liability Act (GTLA) – General Principles
- Section 1. Applicability of GTLA to Government Contractors
- Section 2. Award of Attorneys Fees if Employee is Improperly Sued
- Section 3. Civil Rights Exception to Liability Under the GTLA
- Section 4. Discretionary Function Exception
- Section 5. Government Employees Cannot be Sued When Government Entities Can be Sued
- Section 6. Government Employer’s Defense that Employee’s Actions Constituted More than Negligence
- Section 7. Immunity Waived for Ordinary Negligence Only
- Section 8. Intentional Tort Exclusion
- Section 9. Public Duty Doctrine
- Section 10. Qualified Immunity
- Section 11. Requirement that Employee Must be Acting Within Scope of Employment
- Section 12. Special Duty Exception to the Public Duty Doctrine
Chapter 42. Governmental Tort Liability Act (GTLA) – Damages
- Section 1. Loss of Consortium Claim in Personal Injury Case is Subject to Separate Damage Cap Under GTLA
- Section 2. Waiver of Statutory Damage Limits
Chapter 43. Governmental Tort Liability Act (GTLA) – Health Care Liability
- Section 1. Government Healthcare Providers as Tortfeasors
Chapter 44. Governmental Tort Liability Act (GTLA) – Limitation of Actions
- Section 1. Limitations of Actions for Claims by Minors
- Section 2. Statute of Limitations in GTLA Cases
Chapter 45. Governmental Tort Liability Act (GTLA) – Motor Vehicle Cases (including road and bridge)
- Section 1. Police Chases
- Section 2. Road and Bridge Cases
- Section 3. Road and Bridge Cases—Effect of Contracts with Other Entities for Road Maintenance
Chapter 46. Governmental Tort Liability Act (GTLA) – Premises Liability
- Section 1. Constructive Notice of Defective Condition
- Section 2. General Premises Liability Cases Against Governmental Entities
- Section 3. Governmental Entity’s Liability for Latent Defect
- Section 4. Government Ownership and Control of Property as Issue in Action Under GTLA
Chapter 47. Governmental Tort Liability Act (GTLA) – Injuries to Inmates (other than those alleging premises liability)
- Section 1. Inmate Work Details – Injuries to Inmates
- Section 2. Liability for Inmate-on-Inmate Assault
Chapter 48. Governmental Tort Liability Act (GTLA) – Miscellaneous
- Section 1. Duty of Teachers and Schools to Prevent Assault by Other Students
- Section 2. Limitations on Immunity Arising from Inspections of Private Property
- Section 3. Negligent Infliction of Emotional Distress Claim Against a Governmental Entity
Chapter 49. Gross Negligence
- Section 1. Gross Negligence – Generally
- Section 2. Definition of Gross Negligence
- Section 3. Gross Negligence and Exculpatory Clauses
- Section 4. Impact of Gross Negligence on Comparative Fault Allocation
- Section 5. Punitive Damages Not Permitted in Cases Where Defendant is Grossly Negligent
Chapter 50. Health Care Liability Actions – Editor’s Note
Chapter 51. Health Care Liability Determination of Which Scenarios Fall Within the Scope of Health Care Liability and Which Do Not
- Section 1. Statutory Definition of “Health Care Provider” and “Health Care Liability Action”
- Section 2. What is a Health Care Liability Action?
Chapter 52. Health Care Liability Action – Issues Arising Under the Notice Provision of Tenn. Code Ann. § 29-26-121
- Section 1. The Statute Requiring Pre-Suit Notice
- Section 2. Compliance With Notice Requirement – Generally
- Section 3. Notice Sent to Incorrect Party
- Section 4. Failure to Provide Proper HIPAA Authorization
- Section 5. HIPAA Authorization When Defendant is a Single Provider
- Section 6. Substantial Compliance with Content Requirements
- Section 7. Failure to Attach Proof of Notice to Complaint
- Section 8. Notice Required for Re-Filed Complaint After Voluntary Dismissal
- Section 9. Dismissal Without Prejudice Proper Sanction
- Section 10. Noncompliance Excused for Extraordinary Cause
- Section 11. Notice Tolling Provision – Applicability to Governmental Entities
- Section 12. Failure to Wait 60 Days After Giving Notice to File Suit
- Section 13. Proper Method to Challenge Adequacy of Notice
- Section 14. When Defendant Has a Duty to Give Notice Of Provider Who May Be Named As Defendant
- Section 15. Giving Notice When it is Later Determined it Was Not Required
Chapter 53. Health Care Liability Action – Issues Arising Under Certification of Good Faith Provisions of Tenn. Code Ann. § 29-26-122
- Section 1. The Statute Requiring Certificate of Good Faith
- Section 2. What is Required in the Certificate of Good Faith
- Section 3. Health Care Liability Action – Generally
- Section 4. Certificate is NOT Required When the “Common Knowledge Exception” Applies
- Section 5. No Requirement to File Certificate of Good Faith in Battery Claim
- Section 6. “Extraordinary Cause” to Excuse Filing of Certificate of Good Faith
- Section 7. Need to File Certificate of Good Faith After Voluntary Dismissal and Re-filing Action
- Section 8. Subsequently Added Defendants – Is Certificate of Good Faith Required?
- Section 9. No Duty to Disclose Zero Prior Violations
- Section 10. Proper Method to Challenge Certificate of Good Faith
- Section 11. Dismissal with Prejudice Proper Sanction
- Section 12. Ability to Take Voluntary Dismissal after Motion to Dismiss has Been Filed
- Section 13. Motion Practice to Review Certificate of Good Faith After Case is Dismissed
- Section 14. Sanctions for Improper Certificate of Good Faith
Chapter 54. Health Care Liability – Battery and Informed Consent
- Section 1. Battery
- Section 2. Informed Consent
Chapter 55. Health Care Liability – General Issues
- Section 1. Linking Negligence Related to Understaffing in Health Care Facilities to Injuries or Death
- Section 2. Disclosure to the Jury of the Amount Sought
- Section 3. Agency / Apparent Authority
- Section 4. Allocation of Fault to Medical Negligence Plaintiff for Pre-Injury Conduct
- Section 5. Collateral Source Rule
- Section 6. Sudden Emergency Doctrine
- Section 7. Liability for Suicide
- Section 8. Discovering the Standard of Care from the Defendant Doctor
- Section 9. Loss of Chance
- Section 10. Duty of Hospital Generally
- Section 11. Duty of Hospital to Get Informed Consent
- Section 12. Duty, Non-Delegable
- Section 13. Peer Review Privilege
- Section 14. Duty of Nursing Home to Protect Patients from Criminal Acts of Employee
- Section 15. Duty of Pharmacist
- Section 16. Pharmacist – Ability to Use “Seller Shield” as Defense to HCLA Case
- Section 17. Physician Assistant Negligence – Proof of Standard of Care
- Section 18. Res Ipsa Claims Generally
- Section 19. Proof of Causation in Res Ipsa Claim
- Section 20. Duty of Physician to Non-Patients When Prescribing Drug to Patient
- Section 21. Duty of Physician to Refer to a Specialist
- Section 22. Duty of Psychiatrist to Prevent Injury by Patients to Others
- Section 23. Duty to Warn Patient of HIV Infection
- Section 24. Duty to Warn Non-Patient Family Member of Risk of Contracting Rocky Mountain Spotted Fever from Patient
- Section 25. Error of Judgment Rule
- Section 26. Ex Parte Interviews with Plaintiffs’ Treating Healthcare Providers
- Section 27. Existence of Physician–Patient Relationship
- Section 28. Vicarious Liability – Is it Appropriate to Sue the Principal and Not the Agent?
- Section 29. Failure of Defendant To Assert Fault of Non-Party But Blame Non-Party At Trial
Chapter 56. Health Care Liability – Expert Witness Issues
- Section 1. Contiguous State Rule – Application to Causation Witnesses
- Section 2. Contiguous State Rule- Length of Time Expert Must Practice in Contiguous State
- Section 3. Contiguous State Rule – Waiver
- Section 4. Causation Expert Need Not Know Standard of Care
- Section 5. Expert Testimony Regarding Causation
- Section 6. Causation May Not Be Established by Nurse
- Section 7. Doctor Testifying about the Standard of Care of a Nondoctor
- Section 8. Licensure Requirements
- Section 9. Locality Rule
- Section 10. Standard of Care Expert’s Familiarity with Profession or Specialty
Chapter 57. Health Care Liability – Statute of Limitations
- Section 1. The Text of the Statute
- Section 2. Continuing Medical Treatment Doctrine Does Not Extend Statute
- Section 3. The Discovery Rule
Chapter 58. Health Care Liability – Statute of Repose
- Section 1. The Text of the Statute
- Section 2. Applicability to All Plaintiffs (Including Minors)
- Section 3. Foreign Objects Exception
- Section 4. Fraudulent Concealment Exception
- Section 5. Application When Case is Re-filed Under Savings Statute
Chapter 59. Health Care Providers – Asserted Claims / Liens on Recoveries
- Section 1. Claims Asserted by Chiropractors Under an Assignment Provision
- Section 2. Hospital Liens
- Section 3. Right of Hospital to Assert Lien After Being Paid by Private Insurer
- Section 4. Hospital Liens and Attorney’s Fees
Chapter 60A. Horses (Equine) – Actions Involving
- Section 1. Horses (Equine) – Related Liability Generally
Chapter 61. Imputed Negligence or Fault
- Section 1. Imputed Negligence – Generally
- Section 2. Imputation of Fault from Vehicle Driver to Vehicle Passenger
- Section 3. Imputing Negligence or Fault in Case Where Member of Association Sues Association
- Section 4. Fault Imputation in the Presence of Joint Enterprise or Joint Venture
Chapter 62. Indemnity Claims
- Section 1. Indemnity and Comparative Fault – Generally
- Section 2. Right of Indemnity Between Negligent Tortfeasor and Intentional Tortfeasor
Chapter 63. Independent Contractor
- Section 1. Liability of Employer for Negligence of Contractor
Chapter 64. Intentional and/or Reckless Infliction of Emotional Distress (formerly known as Outrageous Conduct)
- Section 1. Intentional Infliction of Emotional Distress (IIED) Generally
- Section 2. Defense to Intentional Infliction of Emotional Distress Claim – Litigation Privilege
- Section 3. Serious Emotional Injury Requirement
- Section 4. Reckless Infliction of Emotional Distress (RIED) Generally
- Section. 5 Reasonably Foreseeable Scope of Plaintiffs in Reckless Infliction of Emotional Distress Claims
Chapter 65. Intentional Interference with Business Relationship
- Section 1. Intention Interference – Generally
Chapter 66. Intentional Interference with Contractual Relationships
- Section 1. Intention Interference – Generally
- Section 2. Inducement to Breach – Parent Inducing Wholly-Owned Subsidiary
Chapter 67. Interference With and Mishandling Human Remains
- Section 1. Interference – Generally
- Section 2. Damages
- Section 3. Who is Entitled to Maintain Action
Chapter 68. Intrusion on Seclusion
- Section 1. Intrusion – Generally
Chapter 69. Invasion of Privacy
- Section 1. Invasion – Generally
- Section 2. Appropriation of Another’s Name or Likeness
- Section 3. Intrusion Upon The Seclusion of Another
- Section 4. False Light
- Civil Action Related to the Disclosure of Intimate Images – Federal Statute
Chapter 70. Jurisdiction in Tort Cases
- Section 1. Personal Jurisdiction
Chapter 71. Last Clear Chance Rule
- Section 1. Last Clear Chance Rule – Generally
Chapter 72. Legal Malpractice
- Section 1. Legal Malpractice – Generally
- Section 2. Assignment of Legal Malpractice Claims
- Section 3. Burden of Criminal Defendant as Plaintiff
- Section 4. Effect of Violation of Ethics Rules
- Section 5. Discovery Rule
- Section 6. Statute of Repose
- Section 7. Punitive Damages
- Section 8. Recoverability of Attorney’s Fees
- Section 9. Stay of Litigation Pending Plaintiff’s Release from Jail
- Section 10. Tennessee Consumer Protection Act – Application to Lawyers
Chapter 73. Limitation of Actions (Statutes of Limitation) and Certain Statutes of Repose
- Section 1. Public Policy Reasons Underlying Statutes of Limitation
- Section 2. Applicability of Statutes of Limitation to Counterclaims and Cross-Claims
- Section 3. Death of a Minor
- Section 4. Discovery Rule
- Section 5. Discovery Rule Applied to Add Employer as Defendant after Statute of Limitations Expired
- Section 6. Discovery Rule in Defamation Cases
- Section 7. Discovery Rule in Negligence Infliction of Emotional Distress Cases
- Section 8. Avoiding a Statute of Limitations Defense – Equitable Estoppel
- Section 9. Avoiding a Statute of Limitations Defense – Adjudicated Incompetent
- Section 10. Fraudulent Concealment Exception to Statute of Limitations Generally
- Section 11. Impact of Conservatorship on Statute of Limitations
- Section 12. Impact of Grant of Durable Power of Attorney on Statute of Limitation
- Section 13. Improvement to Real Property Statute of Repose
- Section 14. Limitation of Action in Malicious Prosecution Case
- Section 15. Impact of Repressed Memory on Application of Statute of Limitation
- Section 16. Soldiers and Sailors Civil Relief Act of 1940
- Section 17. Analysis of Complaint to Determine which Limitations Period Applies
- Section 18. Potential Extension of Statute of Limitations When Defendant Dies Before Suit is Filed
- Section 19. Re-filing Case Under Savings Statute After Expiration of Statute of Repose
Chapter 74. Liquor Liability
- Section 1. Claims Against Seller of Alcohol to Minors – Third Person Injured
- Section 2. Claim by Adult Alcohol Consumer Against Seller of Alcohol
- Section 3. Claim by Third Person Against Social Host Where Alcohol was Available to Minors
- Section 4. First Party Claim Against Bar for Furnishing (Not Selling) Alcohol to Minor
- Section 5. Provision of Alcohol (Non-Sale) by Social Host to Minor Who is Later Injured in Motor Vehicle Wreck
Chapter 75. Loss of Chance
- Section 1. Loss of Chance – Generally
Chapter 76. Loss of Consortium (Personal Injury Cases)
- Section 1. Loss of Consortium – Generally
Chapter 77. Malicious Harassment
- Section 1. Malicious Harassment – Generally
Chapter 78. Malicious Prosecution
- Section 1. Malicious Prosecution – Generally
- Section 2. Malice Element
- Section 3. Damages in Malicious Prosecution Actions
- Section 4. Advice of Counsel Defense
- Section 5. “Termination in the Plaintiff’s Favor” Element
- Section 6. “Without Probable Cause” Element
Chapter 79. Minor, Right of Parent to Bring Claim
- Section 1. Right of Non-Primary Residential Parent to Assert Claim
Chapter 80. Misrepresentation by Concealment
- Section 1. Misrepresentation by Concealment – Generally
Chapter 81. Motor Vehicle Cases – Generally
- Section 1. Claim Against Employer Even After Employer Admits Fault and Vicarious Liability for Acts of Employee
- Section 2. Common Carriers – Duty to Passengers
- Section 3. Common Carriers – Duty to Passengers with Disabilities
- Section 4. Dangerous Road Condition
- Section 5. Driving with Obstruction to Vision
- Section 6. Duty of Driver Generally
- Section 7. Duty of Emergency Vehicle Operators
- Section 8. Duty at Intersections
- Section 9. Duty Not to Leave Keys Unattended in Vehicle
- Section 10. Duty of Passenger
- Section 11. Duty of Pedestrians
- Section 12. Duty to Remove Road Debris
- Section 13. Duty of Motor Vehicle Drivers – Private Property
- Section 14. Duty of Road Construction Contractor
- Section 15. Family Purpose Doctrine
- Section 16. Imputation of Fault from Vehicle Driver to Vehicle Passenger
- Section 17. Overcoming Statutory Presumption of Agency
- Section 18. Physical Facts Rule
- Section 19. Admissibility of Police Reports in Motor Vehicle Crash Cases
- Section 20. Statute of Limitations: No Tolling for Nonresident Defendants
- Section 21. Sudden Loss of Consciousness or Physical Capacity as a Defense
- Section 22. Waiver of Right of Way
- Section 23. “Wet Road” Defense
- Section 24. Evidence of Excessive Rate of Speed
- Section 25. Limitation of Actions When State Citation Has Been Issued / Criminal Charges Filed.
Chapter 82. Motor Vehicle Cases – Insurance Issues
- Section 1. Uninsured Motorist Cases – Failure to Give Timely Notice
- Section 2. Liability Insurance – Duty of Insurer to Give Notice to Claimant of Declaratory Judgment Action Concerning Coverage
- Section 3. Uninsured Motorist Cases – Duty to Timely Commence Action Against Defendant to Trigger Uninsured Motorist Claim
- Section 4. Uninsured Motorist Cases – Offsets
- Section 5. Uninsured Motorist Cases – Post-Judgment Interest
- Section 6. Uninsured Motorist Cases – Prejudgment Interest
- Section 7. Uninsured Motorist Cases – Proof Required in a No-Contact John Doe Case
- Section 8. Uninsured Motorist Cases – Statutory Arbitration Procedures
- Section 9. Uninsured Motorist Cases – Comparative Fault
- Section 10. Uninsured Motorist Cases- Limitation of Actions Against Uninsured Motorist Carrier
- Section 11. Uninsured Motorist Cases – Service of Process
Chapter 83. Negligent or Intentional Acts by a Child
- Section 1. Application of the “Rule of 7s”
- Section 2. Liability of Parents for Intentional or Malicious Acts of Children
- Section 3. Liability of Parents for Nonintentional Acts of Children
- Section 4. Liability of Parents for Negligently Supervising Child
Chapter 84. Negligence Per Se
- Section 1. Ordinances and Negligence Per Se
- Section 2. Statutes and Negligence Per Se
- Section 3. Regulations and Negligence Per Se
- Section 4. Internal Policies and Negligence Per Se
Chapter 85. Negligence Arising During Bailment
- Section 1. Negligence Arising During Bailment – Generally
Chapter 86. Negligent Entrustment
- Section 1. Negligent Entrustment – Generally
- Section 2. Does Negligent Entrustment Give Rise to Vicarious Liability?
Chapter 87. Negligent Hiring, Supervision and Retention
- Section 1. Negligent Hiring, Supervision and Retention – Generally
Chapter 88. Negligent Infliction of Emotional Distress (“NIED”)
- Section 1. NIED Cases Arising from Injuries to Another – Plaintiff Witnessed Event
- Section 2. NIED Cases Arising from Injuries to Another – Plaintiff Did Not Witness Actual Event
- Section 3. NIED Claim of Parents Against Health Care Provider for Emotional Injury Arising from Negligent Care of Plaintiff’s Minor Child
- Section 4. Proof in Parasitic Claims (Where Emotional Injury Arising from Conduct Which is One of Multiple Claims for Damages)
- Section 5. Relationship Requirement in Stand-Alone Claims
- Section 6. Serious Emotional Injury Requirement in Stand Alone Claims
- Section 7. “Stand-Alone” NIED Cases (Plaintiff Directly Involved in Incident but Suffered Only an Emotional Injury)
Chapter 89. Negligent Misrepresentation
- Section 1. When is There a Duty to Disclose Material Facts?
- Section 2. Negligent Misrepresentation of Paternity
- Section 3. Negligent Misrepresentations by Professionals and Business Persons
- Section 4. Reasonable Reliance Element
- Section 5 – Negligent Misrepresentation and the Economic Loss Doctrine
- Section 6. “Statements of Present Fact”
Chapter 90. Nuisance
- Section 1. Temporary and Permanent Nuisances Generally
- Section 2. Nuisance Claim Against Government Entity
- Section 3. Damages for Permanent Nuisance
- Section 4. Damages for Temporary Nuisance
- Section 5. Limitation of Actions in Nuisance Cases
- Section 6. Application of Statute of Repose in Nuisance Cases
Chapter 91. Parent – Child Immunity
- Section 1. Parent – Child Immunity – Generally
Chapter 92. Personal Property
- Section 1. Suit to Recover Personal Property from Governmental Entity
- Section 2. Measuring Damages to Personal Property
- Section 3. Limitation of Actions in Claims Involving Damage to or Loss of Personal Property
Chapter 93. Physician – Patient Confidentiality
- Section 1. Physician – Patient Confidentiality – Generally
- Section 2. Right of Defendant in HCLA Case to Have Ex Parte Communication with Plaintiff’s Treating Physicians
Chapter 94. Physical or Mental Disability, Impact in Tort Cases
- Section 1. Mental Disorder / Disability as a Defense
- Section 2. Impact of Visual Difficulty
- Section 3. Impact of Voluntary Intoxication
Chapter 95. Policeman and Fireman’s Rule
- Section 1. Policeman and Fireman’s Rule
Chapter 96. Preemption
- Section 1. Federal Preemption Generally
Chapter 97. Premises Liability
- Section 1. Duty Owed by Property Owners / Possessors Generally
- Section 2. Accepted Work Doctrine
- Section 3. Duty to Independent Contractors Working on Premises
- Section 4. Duty of Landlord Concerning Leased Premises
- Section 5. Impact of the Recreational Use Statute on a Premises Liability Case
- Section 6. Impact of the Statute of Repose for Improvements to Real Property on Premises Liability Cases
- Section 7. Liability for Criminal Acts of Third Persons
- Section 8. Non-Delegable Duty to the Public Exception to General Rule that Property Owners Are Not Responsible for Negligence by Independent Contractor
- Section 9. Open and Obvious Danger
- Section 10. Proof of Notice of Dangerous Condition
- Section 11. Snow and Ice Resulting in Pedestrian Injuries
- Section 12. Test to Determine Whether Plaintiff is a Trespasser
Chapter 98. Products Liability
- Section 1. Allocation of Fault to a Product – Procedure After Adoption of Comparative Fault
- Section 2. Application of the Consumer Expectation Test to All Products
- Section 3. Breach of Warranty
- Section 4. Causation in Products Liability Cases
- Section 5. Claim Against Manufacturer of Alcohol
- Section 6. Component Parts Doctrine
- Section 7. Post-Sale Duty to Warn
- Section 8. Duty to Warn – Time of Sale
- Section 9. Economic Loss Doctrine
- Section 10. Feasible, Alternative Design
- Section 11. Learned Intermediary Doctrine
- Section 12. Misrepresentation
- Section 13. Admissibility of Other Similar Incidents
- Section 14. Seller Liability – Generally
- Section 15. Seller Liability After Bankruptcy Filing by Manufacturer
- Section 16. Seller Liability Because of Inability to Serve Process on Manufacturer of Product
- Section 17. Statute of Repose in Products Liability Cases
- Section 18. Tests to Determine Whether a Product is Defective or Unreasonably Dangerous
Chapter 99. Punitive Damages
- Section 1. Editor’s Note – Punitive Damages Generally
- Section 2. Punitive Damages – Allowable in Breach of Warranty Claim
- Section 3. Punitive Damages – Breach Higher Degree of Care May Lower Threshold for Punitive Damages
Chapter 100. Rescue Doctrine
- Section 1. Rescue Doctrine – Generally
Chapter 101. Res Ipsa Loquitor in Non-HCLA (Medical Negligence) Cases
- Section 1. Res Ipsa Loquitor in Non-HCLA (Medical Negligence) Cases – Generally
Chapter 102. Savings Statute
- Section 1. Savings Statute – Generally
Chapter 103. Settlement
- Section 1. Financial Impact of Settlement with One of Multiple Tortfeasors on the Ability of Plaintiff to Collect Money from Other Tortfeasors
- Section 2. Admissibility of Settlement with One Party at Trial Involving Remaining, Non-settling Defendant(s)
- Section 3. Enforcement of Settlement Agreement Announced in Open Court
Chapter 104. Spoliation of Evidence
- Section 1. Spoliation of Evidence – Generally
Chapter 105. Spousal Immunity
- Section 1. Spousal Immunity – Generally
Chapter 106. State of Tennessee, Tort Claims Against the State (Actions Before the Tennessee Claims Commission)
- Section 1. Jurisdiction Generally
- Section 2. “Care, Custody and Control of Persons” – Child Placement
- Section 3. “Care, Custody and Control of Persons” – Visitor to State Park
- Section 4. Acts or Omissions of State Employees
- Section 5. Constructive Notice of Dangerous Conditions
- Section 6. Discretionary Function Immunity in Cases Against the State of Tennessee
- Section 7. Limitation of Actions in Claims Against the State of Tennessee
- Section 8. Recreational Use Statute – Impact in Claims Against the State of Tennessee
- Section 9. Road and Bridge Cases—Effect of Contracts with Other Entities for Road Maintenance
- Section 10. Time of Filing Notice of Claim and Impact on Fault of Others
- Section 11. Waiver of Other Claims Arising from Filing Claim in Tennessee Claims Commission
Chapter 107. Strict Liability for Ultra-Hazardous Activities
- Section 1. Strict Liability for Ultra-Hazardous Activities – Generally
Chapter 108. Subrogation
- Section 1. Effect of Fault of Employer or Employee on Worker’s Compensation Subrogation Interest
- Section 2. Effect of Uninsured Motorist Coverage Recovery on Workers’ Compensation Subrogation Interest
- Section 3. Interest of Non-ERISA, Non-Worker’s Compensation Insurance Carriers
- Section 4. Recoverability of Subrogation Monies from Recovery Obtained by Loss of Consortium Plaintiff
- Section 5. Interest of Uninsured Motorist Insurers – Recovery from Automobile Products Liability Settlement
- Section 6. Workers’ Compensation Subrogation Interest – Future Medical Bills
- Section 7. Role of Plaintiff Asserting Subrogation Interest at Trial
- Section 8. Worker’s Compensation Subrogation – Made Whole Doctrine Not Applicable
Chapter 109. Subsequent Medical Negligence, Liability of Original Tortfeasor
- Section 1. Subsequent Medical Negligence – Generally
Chapter 110. Sudden Emergency Doctrine
- Section 1. Sudden Emergency Doctrine – Generally
- Section 2. Medically Incapacitating Disorder as a Sudden Emergency Defense
Chapter 111. Suicide, Cases Involving
- Section 1. Claim Arising Out of Suicide (Defendant was Plaintiff’s Health Care Provider)
- Section 2. Claim Arising Out of Suicide (Defendant Not Plaintiff’s Health Care Provider)
Chapter 112. Trespass
- Section 1. Trespass – Generally
Chapter 113. Trespass to Chattels
- Section 1. Trespass to Chattels – Generally
Chapter 114. Unavoidable Accident
- Section 1. Unavoidable Accident – Generally
Chapter 115. Unfair Competition
- Section 1. Unfair Competition – Generally
Chapter 116. Vicarious Liability
- Section 1. Apparent or Ostensible Agency
- Section 2. Alter-Ego
- Section 3. Circumstances When Principle Is Not Liable for Acts of Agent
- Section 4. Claim Against Employer Even After Employer Admits Fault and Vicarious Liability for Acts of Employer
- Section 5. Liability of Employer for Acts of Independent Contractor
- Section 6. Liability of Insurer for Acts of an Attorney
- Section 7. Loaned Servant Doctrine
- Section 8. Analysis of Agent v. Independent Contractor Issue
- Section 9. Analysis of the Respondeat Superior and Borrowed Servant Issue
- Section 10. Statutory/Regulatory Basis to Impose Liability on Employer for Criminal Conduct of Employee
- Section 11. Employer’s Liability for Acts of Employee Alleged to be “Intentional” Acts
Chapter 117. Wrongful Death
- Section 1. Common Fund Doctrine
- Section 2. Damages in Cases Involving Death of Spouse or Parent
- Section 3. Distribution of Wrongful Death Proceeds
- Section 4. Effect of Negligence by Wrongful Death Beneficiary on the Recovery of Damages
- Section 5. Limitations of Actions – Applicability of Discovery Rule in Wrongful Death Cases
- Section 6. Limitation of Actions – Death of a Minor
- Section 7. Loss of Consortium Claim for the Death of a Child
- Section 8. Proper Parties Plaintiff (Who Can Assert Cause of Action)
- Section 9. Reduction of Economic Losses for Personal Maintenance Expenses
- Section 10. Waiver of Right to Portion of Wrongful Death Proceeds
- Section 11. Rights of Spouse who is Not in Household – Abandonment
- Section 12. Standing of Alleged Intentional Tortfeasor to Bring Suit for Wrongful Death of Another
- Section 13. Standing to Bring Suit by One Other Than One Having Primary Right
- Section 14. Wrongful Death Claim Brought by Parent Who Owes Back Child Support
- Section 15. Proper Plaintiff When Surviving Spouse Allegedly Contributed to Cause of Death of Decedent
- Section 16. Death In Utero.
- Section 17. Enforceability of Arbitration Agreements in Wrongful Death Cases
Chapter 118. Wrongful Pregnancy
- Section 1. Wrongful Life / Pregnancy – Generally
