tn-personal-injury

name: tn-personal-injury description: > Subject-matter bundle for Tennessee personal-injury and tort actions. Covers McIntyre v. Balentine modified comparative fault (49% bar); SOLs (1-year personal injury § 28-3-104, 3-year property damage § 28-3-105); 2011 tort- reform damages caps (§ 29-39-102 non-economic $750k/$1M catastrophic; § 29- 39-104 punitives greater of $500k or 2x compensatory; upheld in McClay v. Airport Management Services); Governmental Tort Liability Act (§ 29-20-101; $300k/$700k caps; ~12-month SOL; bench trial); Health Care Liability Act (§ 29-26-121 60-day pre-suit notice; § 29-26-122 certificate of good faith; § 29-26-116 3-year statute of repose); Tennessee Products Liability Act (§ 29-28-103 10-year statute of repose); wrongful death (§ 20-5-106); UM/UIM (§ 56-7-1201). version: 0.2.1

Tennessee Personal-Injury Practice

NOT LEGAL ADVICE. Tennessee tort practice is deadline-sensitive and has strict pre-suit gates (especially in health-care and governmental cases). Statute numbers, dollar caps, and day counts change — verify every SOL, cap, and predicate-notice clock against the current Tenn. Code Ann. before relying, and consult a licensed Tennessee attorney about your specific case.

Use this subject-matter bundle for Tennessee personal-injury and tort actions — auto accidents, premises (slip-and-fall), product and general negligence, health-care liability, wrongful death, products, dog-bite, and claims against governmental entities.

At a glance — the eight things that move every TN PI case

1. 1-year personal-injury SOL at § 28-3-104 — Tennessee's personal-injury clock is among the shortest in the country. Calendar at intake.
2. Modified comparative fault with 49% bar under McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). Plaintiff barred at 50% or more fault.
3. Several liability (not joint and several) post-McIntyre for most non-economic / non-intentional torts. Identify all at-fault parties and non-parties for fault allocation; Tenn. R. Civ. P. 8.03 / Brown v. Wal-Mart Stores East, L.P. (E.D. Tenn. 2010).
4. HCLA pre-suit notice (60 days) + certificate of good faith under §§ 29-26-121 / -122. The two most common case-killers in Tennessee health-care litigation.
5. GTLA short-fuse SOL (~12 months) + immunity removal + $300k/$700k caps under § 29-20-201 to -305 + § 29-20-403. Identify governmental defendants at intake; the GTLA reshapes the whole case.
6. 2011 tort-reform damages caps under §§ 29-39-102 / -104 — non-economic capped at $750k (most) or $1M (catastrophic); punitives capped at the greater of $500k or 2x compensatory. Upheld in McClay v. Airport Management Services, 596 S.W.3d 686 (Tenn. 2020).
7. TPLA 10-year statute of repose under § 29-28-103 for products-liability actions — a hard outer limit independent of the SOL.
8. Wrongful death is a survival statute (§ 20-5-106) — the action survives in the decedent's name with damages apportioned to statutory beneficiaries.

Statute-of-limitations catalog

Notes:

• The 1-year personal-injury SOL (§ 28-3-104) is discovery-rule tolled for latent injuries (Foster v. Harris, 633 S.W.2d 304 (Tenn. 1982)).
• In an auto case the personal-injury and property-damage claims run on different clocks (1 year vs. 3 years).
• Compliant HCLA pre-suit notice extends the SOL by 120 days; the 3-year statute of repose under § 29-26-116 is NOT extended by pre-suit notice (a sharp trap).
• The TPLA 10-year statute of repose is outcome-determinative and runs from the first purchase for use or consumption, not from injury date.

Comparative fault — the 49% bar and several liability

Tennessee follows modified comparative fault with a 49% bar, adopted in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992):

• Plaintiff recovers only if plaintiff's fault is less than 50%.
• Plaintiff who is 50% or more at fault recovers nothing.
• Recovery is reduced by the plaintiff's percentage of fault.

McIntyre abolished common-law contributory negligence and joint-and-several liability (for non-intentional torts). Tennessee operates a several-liability regime: each defendant pays only its allocated share. McIntyre's reasoning is codified at Tenn. Code Ann. § 29-11-107 (with exceptions).

Identification and joinder of all potentially at-fault parties (and non-parties for allocation) is the central strategic concern. The defense raises non-party fault under Tenn. R. Civ. P. 8.03 by amendment to the answer, triggering the plaintiff's right to amend within 90 days to add the named non-party as a defendant (Brown v. Wal-Mart Stores East, L.P.). Failure to add within 90 days does not bar allocation, but bars direct recovery against the non-party.

Damages framework

Non-economic damages cap — § 29-39-102 (effective Oct. 1, 2011)

Tennessee caps non-economic damages (pain and suffering, loss of enjoyment, emotional distress, loss of consortium, etc.):

• $750,000 per injured person, all defendants combined, for most cases.
• $1,000,000 per injured person where the injury is "catastrophic" — defined as spinal-cord injury with paralysis, amputation, third-degree burns over 40% of body or face, wrongful death of a parent leaving a surviving minor child.
• Exemptions at § 29-39-102(c)(2): defendant acted with intent to inflict serious physical injury; defendant intentionally falsified, destroyed, or concealed evidence; defendant was under the influence of alcohol or drugs to the point that judgment was substantially impaired; defendant committed a felony related to the action.

Constitutional challenge rejected: McClay v. Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020), upheld § 29-39-102 against state-constitutional challenges (individual right to a jury trial; equal protection; due process). The caps are firmly in place.

Punitive damages cap — § 29-39-104

• Punitives capped at the greater of $500,000 or two times the total compensatory damages awarded.
• Exemptions at § 29-39-104(a)(7): same list as the non- economic cap exemptions, plus a few narrower ones.
• Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992), remains the common-law standard for entitlement: the plaintiff must show by clear and convincing evidence that the defendant acted intentionally, fraudulently, maliciously, or recklessly.
• Bifurcated trial on punitives is automatic on request under § 29-39-104(a)(2) — liability/compensatory first, then punitives.

Economic damages

Not capped. Wage loss, medical expenses (past + future), out-of-pocket costs, lost earning capacity, and future medical needs are all uncapped.

Collateral source rule: Tennessee continues to recognize the collateral-source rule for tort cases — payments from independent sources (health insurance, disability) generally do not reduce a tortfeasor's liability (Donnell v. Donnell, 2009; but see § 24-5-113 for the limited medical-bill statutory presumption of reasonableness).

Governmental Tort Liability Act (GTLA)

Claims against the State, counties, municipalities, and other governmental entities are governed by the Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-101 et seq.

Critical mechanics:

• Immunity is the default; removed only as the statute provides. Categories at § 29-20-202 to -205 (negligent operation of motor vehicles; dangerous conditions of streets / sidewalks / structures; certain employee negligence). Work the claim into a removal category or it fails.
• Damages caps under § 29-20-403:
  • $300,000 per person;
  • $700,000 per occurrence;
  • $100,000 per occurrence for property damage. (Confirm current figures; the legislature has amended these before.)
• Shortened SOL under § 29-20-305: ~12 months from accrual. Do not assume the general 1-year personal-injury clock — confirm the exact accrual rule.
• No jury trial; GTLA cases are tried to the bench under § 29-20-307.
• Discretionary-function immunity: planning-level decisions are immune; operational-level negligence is actionable. Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992).
• Notice of claim: GTLA does not have a separate notice-of- claim statute parallel to many states, but consult the specific governmental defendant's charter / ordinances for any pre-suit-notice requirement.

Federal claims against governmental defendants (42 U.S.C. § 1983; ADA; Title VI) escape the GTLA framework and run in parallel under their own SOLs.

Health Care Liability Act (HCLA)

Tennessee replaced "medical malpractice" with "health care liability action" in 2011. Use the term.

Pre-suit notice — 60 days (§ 29-26-121)

Written notice to each provider at least 60 days before filing. Content requirements:

• Identity of claimant + relationship to person who received care
• Plaintiff's date of birth + last 4 of SSN
• The full name and address of each provider being notified
• The full name and address of each other provider also being notified
• HIPAA-compliant medical authorization
• A list of names and addresses of all providers being notified

Compliant pre-suit notice extends the SOL by 120 days. The 3-year statute of repose (§ 29-26-116) is NOT extended.

Defective notice = dismissal. Stevens ex rel. Stevens v. Hickman Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013), clarified that compliance must be substantial, not perfect, but missing one of the listed elements (especially the HIPAA authorization) is fatal to extension and often to the claim.

Certificate of good faith — § 29-26-122

Where expert testimony is required (essentially always for non-common-knowledge claims), file a certificate with the complaint:

• Plaintiff or counsel has consulted with one or more experts;
• Each expert is qualified under § 29-26-115;
• Each expert has provided a signed written statement that there is a good-faith basis;
• Certificate is signed by counsel (or plaintiff if pro se).

Failure to file = dismissal with prejudice under § 29-26-122(c). The dismissal is generally not curable by amendment.

Expert qualifications — § 29-26-115

The contiguous-state rule: an expert must have practiced in Tennessee or in a state bordering Tennessee in the year preceding the alleged negligence. Tennessee borders Kentucky, Virginia, North Carolina, Georgia, Alabama, Mississippi, Arkansas, and Missouri (8 states). The contiguous-state rule sharply limits the available expert pool.

Tennessee Products Liability Act (TPLA) — § 29-28-101 et seq.

• Strict liability + negligence + breach of warranty unified into a single statutory framework.
• 10-year statute of repose under § 29-28-103(a) — runs from the date the product was first purchased for use or consumption, not from the date of injury. Bars suit on injury occurring after the 10-year mark.
• Special carve-outs: silicone gel breast implants extended to 25 years; asbestos has no repose; certain implanted devices have extended periods.
• Sealed-container defense under § 29-28-106 protects retailers and distributors who sold the product in a sealed container, leaving manufacturer liable.

Wrongful death — § 20-5-106 et seq.

Tennessee's wrongful-death statute is a survival statute: the cause of action survives in the decedent's name, prosecuted by the surviving spouse, children, parents (in order), or personal representative.

• SOL: 1 year from death (§ 28-3-104) — runs from death, not from the underlying tort.
• HCL deaths: pre-suit notice + certificate of good faith apply; 3-year statute of repose under § 29-26-116 runs from the date of the negligent act, not death.
• Damages catalog under § 20-5-113:
  • Pecuniary value of life lost (lost earnings + lost services + funeral expenses);
  • Mental and physical suffering of decedent before death;
  • Loss of consortium to surviving spouse (separately under § 20-5-113(a)(1));
  • Hancock damages — emotional injury and grief of surviving beneficiaries (Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999)).
• Beneficiary apportionment under § 20-5-107: spouse + children share; if neither, parents; if neither, dependents.

Premises liability

• Open and obvious is not an automatic bar — Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998), modified the doctrine into a duty/foreseeability/balance-of-risk analysis rather than a categorical defense.
• Status distinctions reduced but not abolished — Tennessee still distinguishes invitees, licensees, and trespassers, but the differences are muted under the Coln foreseeability framework.
• Mode-of-operation theory — Blair v. West Town Mall, 130 S.W.3d 761 (Tenn. 2004), recognized a limited mode-of- operation theory for self-service operations.
• Constructive notice — plaintiff must show the dangerous condition existed long enough for the defendant to have known or reasonably should have known. Self v. Wal-Mart Stores, Inc., 885 F.2d 336 (6th Cir. 1989).

UM / UIM motorist coverage — § 56-7-1201 et seq.

• Mandatory UM offer under § 56-7-1201; insured may reject in writing.
• UM/UIM operates as a contract claim with a 6-year SOL under § 28-3-109, but the tort SOL controls the underlying injury claim.
• Notice to UM/UIM carrier: when suing an underinsured defendant, serve the UM/UIM carrier under § 56-7-1206(a) contemporaneously with serving the defendant; the carrier has the right to appear and defend.
• Subrogation: UM/UIM carrier's subrogation rights are governed by the policy + § 56-7-1208.
• Stacking: limited; check policy language and most-recent case law.

Dog bites — § 44-8-413

Tennessee uses a dual regime:

• Strict liability if the dog was in a public place or on the dog owner's property where the injured person was lawfully present and the dog was not on a leash / not under reasonable control / had previously demonstrated dangerous propensities.
• One-bite + negligence otherwise — owner liable only on a showing of negligence or scienter.

Statutory residential carve-out at § 44-8-413(c) limits strict liability where the bite occurs on a residential property.

High-yield Tennessee PI checks

1. What's the SOL? Personal injury 1 year (§ 28-3-104); property damage 3 years (§ 28-3-105) — separate clocks. Criminal-conduct extension under § 28-3-104(a)(2)?
2. Governmental defendant? GTLA immunity-removal category (§§ 29-20-202 to -205) + $300k/$700k caps (§ 29-20-403) + shortened ~12-month SOL (§ 29-20-305) + no jury?
3. Health-care liability? 60-day pre-suit notice (§ 29-26-121) + certificate of good faith (§ 29-26-122) + 3-year statute of repose (§ 29-26-116) not extended by notice + contiguous-state expert (§ 29-26-115)?
4. Comparative fault? Plaintiff under 50%? Non-parties at fault identified? Tenn. R. Civ. P. 8.03 non-party-fault plead?
5. Caps? Non-economic capped at $750k / $1M catastrophic under § 29-39-102; punitive capped at greater of $500k / 2x compensatory under § 29-39-104; McClay upheld both.
6. Products case? TPLA 10-year statute of repose under § 29-28-103 — runs from first purchase, not injury. Sealed-container retailer defense under § 29-28-106?
7. Wrongful death? § 20-5-106 survival; beneficiary order under § 20-5-107; Jordan-type emotional damages.
8. Auto case? UM/UIM offered? Notice to UM/UIM carrier under § 56-7-1206 contemporaneously with serving defendant? Property damage separate clock?

Drafting checklist

• Confirm the 1-year SOL is not running out within 30 days — file an intent-to-sue letter to preserve evidence and statute if it is.
• If a governmental defendant is in the case, draft to a GTLA removal category and confirm the ~12-month clock and the caps.
• If health-care liability, send pre-suit notice 60+ days before filing with HIPAA authorization; file certificate of good faith with the complaint.
• Plead all non-parties at fault under Tenn. R. Civ. P. 8.03 or address defense's 8.03 amendment within 90 days.
• In the damages prayer, plead non-economic damages up to the cap — pleading above the cap is hazardous; consider citing § 29-39-102 directly.
• For punitive damages, plead the § 29-39-104(a)(7) exemption if applicable; otherwise prepare for the automatic bifurcated trial.
• Auto case: file with service to the UM/UIM carrier under § 56-7-1206.
• If filing wrongful death, identify statutory beneficiaries with specificity per § 20-5-107.

Composition

• For statewide format and caption: tn-statewide-format
• For Circuit / Chancery venue: tn-davidson, tn-shelby, tn-knox, tn-hamilton, tn-county-courts
• For ≤ $25k claims: tn-general-sessions
• For first responsive pleading: tn-first-30-days
• For drafting motions / declarations / orders: tn-draft-motion, tn-draft-declaration, tn-draft-order
• For SOL / pre-suit-notice / GTLA clocks: tn-deadlines
• For discovery: tn-discovery
• For overlap with employment torts (intentional infliction, assault by co-employee — workers'-comp exclusive-remedy bar): tn-employment
• For QC: tn-quality-check, tn-fact-check

References

• tn-law-references — Tenn. Code Ann., Tenn. R. Civ. P., Tenn. R. Evid., and federal symlinks
• Tenn. Code Ann. § 28-3-104 / § 28-3-105 — SOLs
• Tenn. Code Ann. § 29-11-107 — fault apportionment
• Tenn. Code Ann. §§ 29-20-101 to -407 — GTLA
• Tenn. Code Ann. §§ 29-26-101 to -122 — HCLA
• Tenn. Code Ann. §§ 29-28-101 to -108 — TPLA
• Tenn. Code Ann. §§ 29-39-101 to -104 — 2011 tort-reform caps
• Tenn. Code Ann. § 20-5-106 et seq. — wrongful death
• Tenn. Code Ann. §§ 56-7-1201 to -1209 — UM/UIM
• Tenn. Code Ann. § 44-8-413 — dog bites
• McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992)
• McClay v. Airport Management Services, LLC, 596 S.W.3d 686 (Tenn. 2020) — 2011 caps upheld
• Coln v. City of Savannah, 966 S.W.2d 34 (Tenn. 1998) — open and obvious
• Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992) — punitives standard
• Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999) — Jordan emotional damages in wrongful death
• Stevens v. Hickman Community Health Care Services, Inc., 418 S.W.3d 547 (Tenn. 2013) — HCLA pre-suit notice compliance