The team at Dodson Parker Behm & Capparella, PC shares updates and thoughts on developments in the law.

Legislative Summary: The Long and the Tort of It

July 10, 2016

Here are a few items of interest to the tort law practitioner stemming from the Tennessee General Assembly’s last session…

There are two new laws that relate to healthcare liability actions.  One such law (HB0713/SB0889, sponsored by Rep. Wilburn, R-Somerville, and Sen. Kelsey, R-Germantown) limits certain information about a healthcare provider that can be “used” in a healthcare liability action.  In particular, the results of a “survey, an inspection, or an investigation” of a healthcare provider conducted by any state or federal department or agency will not be admissible and cannot be “otherwise used” in a healthcare liability action.

In addition, there were two procedural provisions, amending Tenn. Code. Ann. § 29-26-101, pertinent to healthcare liability actions (HB1285/SB0819, sponsored by Rep. Durham, R-Franklin, and Sen. Kelsey, R-Germantown).  First, when a healthcare provider receives notice of a potential claim for healthcare liability, that provider must, within 30 days of receiving the notice, based upon any reasonable knowledge and information available, provide written notice to the potential claimant of anyone else who may be a properly named defendant.  In addition, the amendment provides that “[w]hen determining the statute of limitations in a health care liability action, the date of the original pleading shall control regardless of whether there are amended pleadings or substituted or added parties.”

There were some gun-related laws affecting tort liability that passed this year.  One law (HB0246/SB0616, sponsored by Rep. Farmer, R-Sevierville, and Sen. Stevens, R-Huntington) extends liability protections to landowners who have shooting sports – target shooting, shooting ranges, archery – on their property.

Another one (HB2033/SB1736, sponsored by Rep. Faison, R-Cosby, and Sen. Gresham, R-Somerville) started as a bill intended to create a special cause of action for people who were harmed while on the premises of a business that does not allow individuals to carry guns.  In other words, if you were a “good guy with a gun” shot by a “bad guy with a gun” and you were prevented by the business owner from carrying your gun to protect yourself, the bill would have allowed you to sue the business owner, you would have had a two-year statute of limitations to do so, and you could have recovered not only damages, but also attorney’s fees, expert witness fees, and other litigation costs.  The bill was ultimately passed and signed by the governor, but only after an amendment was adopted rewriting the bill to provide immunity to property owners from suits based on the decision to adopt or not to adopt policies prohibiting weapons on the property.

Certain statutes of limitations were amended in instances where there is an accompanying criminal prosecution.  The law (HB0200/SB0463, sponsored by Rep. Lamberth, R-Cottontown, and Sen. Bell, R-Riceville) affects the following civil actions: actions for libel, injuries to the person, false imprisonment, malicious prosecution, breach of marriage; actions for compensatory or punitive damages, or both, brought under federal civil rights statutes; and actions for statutory penalties.  Such causes of actions that occurred on or after July 1, 2015 now have a two-year statute of limitations, extended from a one-year statute of limitations, where there is an accompanying criminal charge against the supposed defendant.

The GTLA was amended in two important ways this year.  The first amendment extended immunity (HB0568/SB0332, sponsored by Rep. DeBerry, D-Memphis, and Sen. Norris, R-Collierville).  As enacted, this bill broadens the definition of a “governmental entity” to include a nonprofit public benefit corporation or charitable entity that is appointed by statute, ordinance, or some other directive to provide services and activities at government owned property that is a public park.  This is a narrow amendment, but one you will need to know if you come across a tort lawsuit arising in a public park.

Finally, the other GTLA amendment became one of the most hotly debated bills before the General Assembly (HB1679/SB2377, sponsored by Rep. Lamberth, R-Cottontown, and Sen. Bell, R-Riceville).  This amendment changes the American Rule presumption and requires that attorney’s fees be awarded for state and local government employees who are sued in their individual capacities and are the prevailing party.  Supporters of the bill argued that it would protect state employees from attempts by lawyers to “bully” them into settling frivolous lawsuits.  Opponents of this “loser pays” rule, however, contended that the bill will prevent good lawsuits from being filed.  In particular, in light of the sexual harassment controversy surrounding Rep. Jeremy Durham, opponents of the bill expressed concern that the law would discourage victims of sexual assault and harassment from pursuing legitimate claims against government and elected officials.

This article and more timely developments in Tennessee law are available to subscribers of the Tennessee Tort Law Letter.  For more information, click here.  

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