2014 Tennessee Legislature Makes Judgments Permanent if Injury or Death Caused by Criminal Conduct

Analysis:  The Tennessee Legislature made an interesting change to the typical rule in Tennessee that judgments are only good for ten years unless renewed (See T.C.A. § 28-3-110 and Tennessee Rule of Civil Procedure 69.04).  The Tennessee Legislature in the 2014 Tennessee legislative session passed Public Chapter No. 596 which was signed into law by Governor Bill Haslam on March 28, 2014.  This statute essentially allows a party to make a judgment permanent (as opposed to the current law where it expires after 10 years unless renewed) if the injury or death was caused by criminal conduct.  This act applies to any civil judgments that go into effect after July 1, 2014.  Additionally, there is actually a way for this act to apply to judgments entered before July 1, 2014, if a specific procedure is followed.

The new T.C.A. § 28-3-110(B)(1) provides as follows:

(b)(1) Notwithstanding the provisions of subsection (a), there is no time within which a judgment or decree of a court of record entered on or after July 1, 2014, must be acted upon in the following circumstances:

(A) The judgment is for the injury or death of a person that resulted from the judgment debtor's criminal conduct; and

(B) The judgment debtor is convicted of a crim...

In Tennessee Can a Surviving Spouse Recover in a Wrongful Death Suit for Death of Spouse After Abandonment?

Analysis:  The Tennessee wrongful death statute is found in T.C.A. § 20-5-106 and T.C.A. § 20-5-107.  A specific provision in this statute provides that the right to institute and collect any proceeds from a wrongful death action is prohibited for certain surviving spouses.  Specifically, if the children and next of kin establish the surviving spouse abandoned the deceased spouse or willfully withdrew for a period of two years, then the surviving spouse cannot recover under the Tennessee wrongful death statute.  Specifically, T.C.A. § 20-5-107(e)(1) and (2) provides as follows:

(e)(1) Notwithstanding any other law to the contrary, the right to institute and the right to collect any proceeds from a wrongful death action granted by this section to a surviving spouse shall be waived, if the children or next of kin establish the surviving spouse has abandoned the deceased spouse as described in § 36-4-101(a)(13) or otherwise willfully withdrawn for a period of two (2) years.

(2) If the period of two (2) years has passed since the time of abandonment or willful withdrawal then there is created a rebuttable presumption that the surviving spouse abandoned the deceased spouse for purposes of this section.

So, what is the definition of “abandonment” of a spouse as described in this statute?  This definition is found in T.C.A. § 36-4-101(a)(13) which provides as follows:

(13) The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so pro...

In Tennessee, can a Parent Recover in a Wrongful Death Suit when they Owe Child Support?

Analysis:  Tennessee has a statute that address whether a parent can recover in a wrongful death cause of action when they have not paid child support.  Specifically, T.C.A. § 20-5-107 provides that a parent cannot recover through a wrongful death action until all child support obligations, along with interest, have been paid.  T.C.A. § 20-5-107(b) provides as follows:

(b) In no event shall a parent be permitted to recover through an action commenced pursuant to subsection (a) until all child support arrearages, together with interest on the child support arrearages, at the legal rate of interest computed from the date each payment was due, have been paid in full to the parent ordered to receive the support or to the parent's estate if deceased.

Additionally, a parent who has intentionally refused and neglected to pay child support for a two year period (or for the life of the child if it is less) can be prevented from recovering under the Tennessee wrongful death statute under certain circumstances.  If this person was subject to a court order requiring payment of child support and failed to do so and if they intentionally refused or neglected to contact the child or exercise visitation rights, then they are not permitted to recover for a wrongful death action in Tennessee on behalf of their child.  Specifically, T.C.A. § 20-5-107(c) provides as follows:

(c) Notwithstanding any law to the contrary, a parent who has intentionally refused or neglected to pay any support for a child for a two-year period, or for the life of the child, whichever is less, when subject to a court order requiring the payment of child support and who has intentionally refused or neglected to contact the child or exercise visitation during such period, shall not be permitted to recover through an action commenced pursuant to subsection (a) and § 20-5-106.

2013 Tennessee Legislation – New requirements for healthcare providers to provide infant CPR information and instruction.

Analysis:  The Tennessee legislature passed Public Chapter No. 197 which was signed into law by Governor Bill Haslam on April 23, 2013.  Public Chapter No. 197 provides a new requirement for almost every kind of health care practitioner or health care facility that provides health care to prenatal patients or newborns.  This bill requires these health care providers to provide infant CPR “information and instruction concerning the appropriate use and techniques of infant cardiopulmonary resuscitation (CPR).” TCA § 68-5-___ (the new bill did not designate a specific section for the statute but that will be done shortly).  This new law goes into effect on July 1, 2013.

The information and instruction is required to be provided to one (1) parent or caregiver of the newborn infant.  It is also important to point out that this new statute does not go as far as requiring classes in certification for infant CPR.  The entire text of this new statute is as follows:

§68-5-____

(a)        Hospitals, birthing centers, health care facilities, physicians, nurse practitioners, physician assistants or other health care practitioners who provide medical care to newborns as well as obstetricians who provide routine care for prenatal patients shall make available information and instruction concerning the appropriate use of techniques of infant cardiopulmonary resuscitation (CPR) to at least one (1) parent or caregiver of a newborn infant.  Nothing in this section shall require classes in certification of infant CPR.  This section shall also not constitute a requirement to be assessed during any inspection under Chapter 11, part 2 of this title.

(b)        Any facility or practitioner acting within the scope of their licensure or practice shall be immune from any civil liability under this section and shall have an affirmative defense to...

Assisted Living Facility – Recent Tennessee Supreme Court decision discusses liability for failure to provide adequate staff by an assisted living facility.

Analysis:  The Tennessee Supreme Court recently decided a case pertaining to the liability of an assisted living facility's management company for failing to provide appropriate staff to the facility (Celebration Way facility).  Wilson v. Americare Systems, Inc., No. M2011-00240-SC-R11-CV, 2013 WL 658078 (Tenn. 2013).  At trial the jury found the management company (Americare Systems, Inc.) of an assisted living facility was negligent, causing the death of a resident, based on the fact it understaffed the facility.  Wilson at 1.  The resident of the facility, Mable Farrar, died from a perforated colon.  The testimony at trial showed that the assisted living facility failed to follow Ms. Farrar’s physician’s order to administer medicine for constipation.  Wilson at 1.  As a result of this failure to provide the prescribed medicine, Ms. Farrar became significantly constipated and her doctor therefore ordered the assisted living facility to give her three to four enemas a day.  Wilson at 1.  The assisted living facility only gave Ms. Farrar one enema on the first day after the order, none on the second day and one on the third day.  On the third day, after she received the enema, her colon perforated and she died.  Wilson at 1, 2.  The testimony at trial established she should not have been provided an enema by the facility nurse based on her physical status at that time.

Testimony at trial showed there were only two licensed nurses that worked at this facility.  Wilson at 7.  One of the nurses testified she was "always on call, twenty-four hours a day".  Wilson at 7.  The two licensed nurses had to cover a lot of shifts and were not paid overtime compensation because they were salaried employees.  Wilson at 7.  The nurses that worked at the facility as well as the regional operations director for the assisted living facility management company testified there were staffing problems at the facility.  There were numerous complaints from the staff at the facility requesting additional staffing in order to be able to provide adequate care for the residents.  Wilson at 6-8.  Despite these complaints, no additional staffing was provided to the facility.  Wilson at 7, 8

Tennessee Statutes of Limitation – Statutes of Limitation for Common Tennessee Causes of Action

This post will address the statutes of limitation for several common Tennessee causes of action.  I will also provide the Tennessee statute that is the source for the statutes of limitation for each cause of action.  

It must be noted that fact specific inquiries need to be completed for each and every case.  Each case could have specific facts that could impact whether the statute of limitations bars a particular claim.  The “discovery rule” is one doctrine that has been applied to some Tennessee causes of action.  The Tennessee Supreme Court has found the discovery rule “provides that the statute of limitations begins to run when the injury is discovered, or in the exercise of reasonable care and diligence, the injury should have been discovered. The rule responds to the unfairness of requiring that he [a plaintiff] sue to vindicate a non-existent wrong, at a time when injury is unknown and unknowable.”  Quality Auto Parts v. Bluff City Buick, 876 S.W.2d. 818, 820 (Tenn. 1994).  There are other potential exceptions to Tennessee statutes of limitation including exceptions for minors or those deemed incompetent under certain circumstances.  See T.C.A. § 28-1-106.

The causes of action and the Tennessee statute of limitation for each are as follows:

1.          Slander - "within six (6) months after the words are uttered."  (See T.C.A. § 28-3-103)

2.          Civil actions for compensatory or punitive damages brought under the Federal Civil Rights statutes - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(3))

3.          False Imprisonment - 1 year statute of limitation (See T.C.A. § 28-3-104(a)(1))