Category Archives: Tort Law

The law protects victims of sexual harassment and domestic violence, even when elected officials do not.

By Daniel Horwitz:

The past week has been a terrible one for victims of sexual harassment and domestic violence.  Two high profile scandals—both involving elected officials—suggest that any number of Tennessee’s politicians have no qualms about leveraging their positions of power to harass, abuse and intimidate women.  The first scandal involves allegations that State Representative Jeremy Durham—a member of the Republican leadership until just a few days ago—sexually harassed legislative staff and interns repeatedly and without hesitation.  The second involves allegations that Nashville Metro Councilmember Loniel Greene—who resigned his seat last night effective immediately—used his position as a public official to intimidate a victim of domestic violence.  According to a recorded phone call, Greene threatened a woman who had reported a domestic violence incident, stating:  “Bitch, I’m smarter than you.  You try to play the system, motherfucker I am the system.”  After stating that “she’s going to have to be shut down,” Councilman Greene then “work[ed] on” the alleged victim in an attempt to silence her.

The response to these allegations from other elected officials was tepid at best.  For example, in an utterly tone-deaf statement that placed responsibility for Representative Durham’s alleged sexual harassment squarely on the shoulders of those who were believed to have been the victims of it, House Speaker Beth Harwell announced that: “I have instructed the Director of the Internship program that interns are not to attend receptions or events related to the legislature, and they are not to give their cell phone numbers to members.”  The response to Councilman Greene’s scandal was similarly listless.  Prior to his resignation, exactly two out of forty total Metro Councilmembers—Councilman Bob Mendes and Councilman Jeremy Elrod—condemned the allegations, while the Mayor suggested that Councilman Greene should consider resigning because the allegations could “becom[e] a distraction.”

In sharp contrast, however, the response by women’s advocates was considerably more pointed.  Said Pat Shea, CEO of the YWCA of Nashville & Middle Tennessee[1]:

“The YWCA of Nashville & Middle Tennessee is appalled at news accounts of a current domestic violence case involving a newly elected Metro Councilman.  How is it that persons in positions of power in Nashville are able to misuse that power to silence victims?  How is it that processes, put in place to protect victims, are not followed?  These patriarchal behaviors raise serious questions about whether we are able to trust the systems set up to protect victims.

As advocates, we are constantly asked ‘why women do not report abuse; why women will not prosecute; why women cannot just leave.’  This recent high profile incident provides a perfect example of why victims don’t, won’t, and can’t.  We want Nashville to be a place where all of our leaders work to make Nashville safer for victims of domestic violence, not more dangerous. ”

Added Sara Beth Myers of AWAKE (Advocates for Women’s and Kids’ Equality):

“Tennesseans should be confident in our laws that protect victims of harassment both in the civil and criminal context. The offices of our state and local elected officials should be paragons of professionalism and transparency, setting an example for every other workplace in Tennessee. In a state in which women are so underrepresented in our legislature, lawmakers and policymakers should be especially deliberate about interacting with their female colleagues both legally and respectfully. The past week’s events revealed a situation in our government that we should all deem unacceptable.”

The presumption of innocence is obviously of paramount importance and should not be discounted.  As such, pending the outcome of formal legal proceedings against Representative Durham and former Councilman Greene, those who have resisted making public condemnations are entitled to the benefit of the doubt.  Elected officials’ collective disregard for the alleged victims of these incidents, however, is far more difficult to explain.  Protecting victims of harassment and domestic violence and protecting the presumption of innocence are not incompatible concepts.  A legal system that fails to do both at once holds little value.

To be absolutely clear at a time when too many elected officials haven’t been: victims are not responsible for being sexually harassed, beaten, or intimidated.  Sexual harassment is illegal.  Domestic violence is illegal.  Intimidating a victim of domestic violence is illegal.  Retaliating against a victim who reports being abused is illegal.  All such acts are despicable.  None should ever be tolerated.

The law protects victims of harassment, violence and abuse.  If you have been victimized, resources are available to help you.  If you’re in danger, you can reach the YWCA’s 24-hour crisis and information line at (615) 242-1199 or toll free 1-800-334-4628.  The Legal Aid Society of Middle Tennessee and the Cumberlands has free lawyers available to help those who have been victims of domestic violence, including providing free divorce services and helping victims obtain orders of protection.  The District Attorney’s Office has a Victim Witness Services Division that is exclusively dedicated to helping victims navigate the legal system.  The Tennessee Coalition to End Domestic and Sexual Violence makes a multitude of free resources available to victims of domestic violence and sexual abuse.  Many employment lawyers, although they are not free, will take sexual harassment cases on a contingency basis.  All of these resources exist to help empower victims and stop the cycle of abuse.

It is also important to shed light on the many existing policy shortcomings that need fixing.  Although late in coming, legislative leaders have already acknowledged that the General Assembly’s current sexual harassment policy needs to be overhauled, because “staffers and others who are regularly at the Capitol do not feel comfortable coming forward.”  Sadly, the same is often true of the criminal justice system.  In many instances, for example, the names of victims of domestic and sexual violence are made publicly accessible on arrest warrants, which discourages a significant number of victims from reporting.  There is also a pending dispute in the Tennessee Supreme Court over whether victims’ private, personal information becomes a public record under Tennessee law once their records have been turned over to law enforcement.  On behalf of several domestic and sexual violence prevention advocates who participated in the case as amici curiae, the author has argued that it does not, but the Tennessee Supreme Court will have the final say.  Additionally, the legislature’s failure to adapt to modern forms of harassment has left a void in victims’ protection against abuses such as non-consensual pornography—otherwise known as “revenge porn”—and harassment via electronic media, such as text messages and facebook.

These shortcomings certainly need to be corrected.  While that happens, however, don’t wait.  The law protects victims of sexual harassment and domestic violence, even when elected officials do not.  If you need help, help is available.

Questions about this article?  Email Daniel Horwitz at

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[1] In the interest of full disclosure, the author is a member of the YWCA’s Board of Directors.

All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

By Daniel Horwitz:

In February of 2012, the Juvenile Court of Sumner County awarded temporary custody of “M.L.” – a minor child – to her great aunt and uncle.  However, the Court’s custody order also provided that M.L.’s biological parents – Adam and Ashley Ellithorpe – were permitted to participate in any counseling that she received.  After the Ellithorpes discovered that M.L. had received counseling for approximately two years without their knowledge, however, they sued M.L.’s counselor – Ms. Janet Weismark – for negligence.  According to M.L.’s parents, Ms. Weismark – a licensed clinical social worker – acted recklessly and caused their daughter substantial harm by providing her counseling services without first obtaining their consent to do so.

After receiving the Ellithorpes’ complaint, Ms. Weismark asked the court to dismiss it on the basis that the Ellithorpes had failed to comply with the pre-suit notice requirements of the Tennessee Health Care Liability Act (the “HCLA”).  In Tennessee, people who want to file lawsuits involving the provision of health care services are first required to comply with a variety of procedural requirements that are unique to health care claims.[1]  Given that the HCLA’s pre-suit notice requirements serve as a minefield to unwary litigants and frequently result in otherwise-valid claims being dismissed on technical procedural grounds, the author has previously characterized these requirements as “red tape with fangs.”  See Daniel A. Horwitz, The Law of Unintended Consequences:  Avoiding the Health Care Liability Act Booby Trap, Nashville Bar Journal (June 2015) (feature article), available at

Chief among the HCLA’s pre-suit notice requirements is a rule that “[i]n any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint.”[2]  This rule requires a plaintiff to certify that before filing the lawsuit, the plaintiff consulted at least one medical expert who concluded that there was a good faith basis to pursue the claim.[3]  Tennessee law also provides that a plaintiff’s failure to comply with this requirement results in his or her complaint being dismissed with prejudice,[4] which means that the lawsuit is over and it can never be brought again.

Continue reading All claims related to the provision of health care are now governed by the Health Care Liability Act, holds Tennessee Supreme Court.

In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court

By Daniel A. Horwitz

Case Background

On the evening of December 24, 2009, Richard Moreno was driving his car across the Neal Tarpley Bridge in Clarksville when a massive tree suddenly slammed on top of his car, seriously injuring him.  The tree had been planted on property owned by the State of Tennessee.  As a result, in accordance with the Tennessee Claims Commission Act,[1] Mr. Moreno filed a claim with the Claims Administration describing his injuries and providing an accounting of his medical expenses.

After filing his claim, Mr. Moreno received an order from the Claims Commissioner directing him to file a formal complaint against the State of Tennessee.  Mr. Moreno promptly complied by filing a complaint alleging that the State had negligently maintained both the bridge and the tree that fell on him.  Thereafter, the State filed an answer to Mr. Moreno’s complaint denying liability.

Notably, the State’s initial answer to Mr. Moreno’s complaint never mentioned that someone else might be responsible for the accident.  However, sixteen months later, the State amended its answer and alleged for the first time that the City of Clarksville was responsible for Mr. Moreno’s injuries because water run-off from a city storm drain had eroded the soil around the bridge, rendering the tree that fell on him unstable.

Continue reading In 4-1 ruling, Tennessee Supreme Court holds that procedural obstacles keep Clarksville man’s claim out of court

Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

By Daniel A. Horwitz

After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council.  Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1]  In his complaint, Mr. Young requested a jury trial, which the City opposed.  Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court.  After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.

Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury.  The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2]  According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3]  Thus, the GTLA’s prohibition against jury trials did not apply.

Separately, the Tennessee Constitution expressly includes a right to trial by jury.  Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]”  Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4]  Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5]  In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]

Continue reading Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation.

By Daniel A. Horwitz

Can a business refuse to hire you solely because you’ve previously filed a workers’ compensation claim?  According to the Tennessee Supreme Court, the answer is yes.

In Yardley v. Hospital Housekeeping Systems, the Tennessee Supreme Court accepted a certified question of law to determine whether the Tennessee Workers’ Compensation Act prohibits employers from refusing to hire a prospective employee solely because he or she “had filed, or is likely to file, a workers’ compensation claim incurred while working for a previous employer.”  In some states, discrimination of this sort is unlawful and gives rise to a claim for “retaliatory failure to hire.”  In an opinion authored by Chief Justice Sharon Lee, however, the Tennessee Supreme Court held that under Tennessee law, this practice is legal.

In 2010, Kighwaunda Yardley, a hospital housekeeping employee, was hurt on the job and began receiving workers’ compensation benefits.  She received treatment and continued performing “light duty work” for her employer until 2012, with the expectation that when she fully recovered from her injury, she would return to her job as a housekeeping aide.

Unfortunately for Ms. Yardley, in 2012, her job was outsourced to a separate company (“the New Company”).  The New Company re-hired most of the hospital’s housekeeping staff, but it declined to hire Ms. Yardley.  An internal email sent by the New Company’s Vice President revealed that he had written that Ms. Yardley had: “been out on Workers’ Comp with the hospital long before the [New] Company’s arrival,” that her shoulder was hurting her again, and that “bringing her on board with the [New] Company would seem to be a Workers’ Comp claim waiting to happen.”  The New Company’s Vice President also stated internally that he: “would advise against hiring Ms. Yardley IF we have that option.”   After she was not hired, Ms. Yardley sued the New Company for retaliatory failure to hire.

Continue reading Tennessee Supreme Court holds that businesses may lawfully refuse to hire employees solely because they’ve previously filed for workers’ compensation.

Tennessee Supreme Court holds that insurance assignment clause was ineffective.

By Daniel A. Horwitz

A Victim was injured in a car accident, and he sought chiropractic services from the Plaintiff, Action Chiropractic Clinic.  Prior to receiving the chiropractic services, the Victim signed a contract with an “Assignment of Rights” clause.  In pertinent part, the Assignment of Rights clause stated:

For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC

. . . .

For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.

The Assignment of Rights clause specifically named Erie Insurance Exchange as the policy holder.  Of note, however, Erie Insurance Exchange was not the Victim’s insurance company.  Instead, Erie Insurance Exchange was the insurance provider for the driver who had injured the Victim in the car accident.

Action Chiropractic Clinic ultimately charged the Victim $5,010.00 for its chiropractic services.  Shortly thereafter, Erie Insurance Exchange entered into a settlement with the Victim and paid him $8,510.00 for all claims relating to the car accident.  However, neither the Victim nor Erie Insurance Exchange paid Action Chiropractic Clinic anything for the chiropractic services that it rendered to the Victim.  As a result, Action Chiropractic Clinic sued both the Victim and Erie Insurance Exchange seeking payment, among other things, under the “Assignment of Rights” provision. Continue reading Tennessee Supreme Court holds that insurance assignment clause was ineffective.

Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.

By Daniel A. Horwitz

A massive jury verdict finding the railroad company CSX liable for causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial on the damages awarded to the employee’s widow, the Supreme Court of Tennessee has held.

Between 1962 and 2003, Winston Payne worked for CSX Transportation as a switchman, a switch foreman, and a brakeman.  Less than three years after he retired, he was diagnosed with lung cancer.  In 2007, Mr. Payne filed a lawsuit against CSX both under the Federal Employers’ Liability Act and based on a common law negligence theory, alleging that CSX had negligently exposed him to asbestos, diesel engine exhaust fumes, and radioactive materials, and further alleging that CSX had violated several statutes and regulations designed to protect the safety of railroad employees.  According to Mr. Payne, all of these failures contributed to his developing lung cancer.

In contrast, CSX contended that Mr. Payne had instead developed lung cancer due to his history of cigarette smoking.  Furthermore, CSX contended if the jury decided to award damages to Mr. Payne based upon its negligence, then any damages award should be reduced by virtue of the impact of Mr. Payne’s cigarette smoking.  Mr. Payne died from lung cancer in 2010, and his widow continued the lawsuit in his place.

During the trial, the late Mr. Payne’s legal team Continue reading Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.