Journal Issue Date: May-June 2021
Journal Name: Vol. 57 No. 3
Every lawyer who has crossed the threshold of a Tennessee courthouse door knows mentally competent adults1 are subject to a one-year statute of limitations for Tennessee personal injury tort cases.2 Slander cases face a shorter period of limitation, and applying a statute of repose can effectively reduce the period of limitation3 substantially, even to as little as one day.4 But a one-year deadline applies in the vast majority of cases for competent adults.
The Tennessee Legislature has lengthened the period to file suit for personal injury cases for mentally competent adults under three circumstances: claims for sexual misconduct against therapists,5 claims under the Drug Dealer Liability Act,6 and in the presence of the initiation of criminal charges against the defendant.7 Today’s article focuses on the latter of the three.
Under Tenn. Code Ann. § 28-3-104(a)(2), the statute of limitations for personal injury and wrongful death cases is extended to two years after accrual if:
(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury;
(B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by:
(i) A law enforcement officer;
(ii) A district attorney general; or
(iii) A grand jury; and
(C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such contact.8
The reason behind this rule is simple. A civil suit arising out of conduct that is the subject of a pending criminal case faces significant discovery hurdles. The criminal defendant also uses evidence of the civil suit to allege bias (financial gain) against the plaintiff, hoping to undermine his or her credibility. Likewise, the defendant could also seek the deposition of the plaintiff/complainant in the civil case, discovery which would not otherwise be available in criminal court. Thus, the Legislature deemed it prudent to delay the need to file the civil suit until the criminal proceedings were likely over.
In Younger v. Okbahhanes,9 the Tennessee Court of Appeals addressed whether the extension of the statute of limitations should be applied in a car wreck case when the defendant was issued a traffic citation for failure to exercise due care. The failure to exercise due care while driving is a Class C misdemeanor.10 The intermediate court held that “the traffic citation issued [by a state trooper to the d]efendant for failure to exercise due care, which had been prepared, accepted, and the original citation filed with the court, is a criminal charge and a criminal prosecution by a law enforcement officer,” and thus the two-year rule applied.11 The court went on to explain the result was mandated by the language of the statute, and said that the General Assembly could have excluded traffic citations from the application of § 28-3-104(a)(2) if it had intended to do so.
The court rejected the defendant’s argument that a traffic citation is not a legally adequate charging instrument and that being issued a traffic citation and paying a fine is not a criminal charge or a criminal prosecution.12 The court explained that “[a]ccording to Tennessee Code Annotated § 55-10-207(d), when a traffic citation has been prepared, accepted, and the original citation delivered to the court, that original citation ‘shall constitute a complaint to which the person cited must answer and the officer issuing the citation shall not be required to file any other affidavit of complaint with the court.’”13
The defendant has filed a Rule 11 application in this case.14 If accepted by the Tennessee Supreme Court, we can expect a definitive ruling on the issue in the Spring of 2022.
This holding opens the door to extending the statute of limitations in motor vehicle wrecks in which the defendant timely receives a traffic citation for violating a state statute. However, until the Tennessee Supreme Court rules on the issue, it would be prudent to assume that the one-year rule applies in such cases unless it has expired before the plaintiff can file suit. In such a case, one will be forced to rely on Younger v. Okbahhanes to preserve the action.15
Likewise, recall that the statute’s language extends the deadline only to the person facing criminal charges, not to other potential defendants in the case, arguably including those vicariously liable for the defendant’s conduct. Thus, in a case with multiple defendants, only one of whom has pending criminal charges arising out of the incident, one must weigh the pros and cons of delaying filing suit against the defendant facing criminal charges.
JOHN A. DAY is a plaintiff’s personal injury and wrongful death lawyer with offices in Brentwood, Nashville and Murfreesboro. He much prefers others make that case law interpreting statutes of limitation
1. A different rule applies for persons of unsound mind. Tenn. Code Ann. § 28-1-106(c).
2. Tenn. Code Ann. § 28-3-104(a)(1). Tennessee does not have a special statute of limitations for wrongful death cases, and instead applies the general statute of limitations for injuries to the person. See, e.g., Jones v. Black, 539 S.W.2d 123 (Tenn. 1976).
3. Tenn. Code Ann. § 28-3-103 (within six months after the slanderous words are uttered).
4. How? Let me give you an example, using the health care liability three-year statute of repose. Assume that a medical error is made on a competent adult on June 1, 2018. The error reasonably could not have been and in fact was not discovered until May 31, 2021. While the one-year statute of limitation would give the patient until May 31, 2022 to file suit, her rights expire on June 1, 2021 under the statute of repose unless one of two exceptions to the statute of repose (foreign object and fraudulent concealment) apply. My personal record: a products liability filing deadline against a vehicle manufacturer 20 days after a car wreck. (The vehicle was subject to a 10-year statute of repose and been sold to the first user or consumer nine years and 345 days before the wreck).
5. Tenn. Code Ann. § 28-26-201 et seq. The limitations provision is contained in Tenn. Code Ann. § 28-26- 208 (generally speaking, two years subject to a three-year statute of repose)
6. Tenn. Code Ann. § 29-38-101 et seq. The limitations provision is contained in Tenn. Code Ann. § 28-38- 115 (generally speaking, two years subject to a generous tolling provision)
7. Tenn. Code Ann. § 28-3-104(a)(2). Subsection (a)(2) was added to the existing code in 2015.
8. To be wholly accurate, the two-year period granted by the statute also applies to actions asserting libel, false imprisonment, malicious prosecution, breach of marriage promise, federal civil rights, as well as actions for statutory penalties, if the criteria of the statute are met
9. No. E2020-00429-COA-R10-CV, 2021 WL 289332 (Tenn. Ct. App. Jan. 28, 2021).
10. 2021 WL 289332 at *4, citing Tenn. Code Ann. § 55-8-136(c). TTenn. Code Ann. § 40-35-111(e)(3) provides that a Class C misdemeanor may be punishable by up to 30 days incarceration and a fine of up to $50.
11. 2021 WL 289332 at *5. In so holding, the court rejected defendant’s argument that a traffic citation is not a legally adequate charging instrument and that being issued a traffic citation and paying a fine is not a criminal charge or a criminal prosecution. Id. at *4. The court explained that “[a]ccording to Tennessee Code Annotated § 55-10-207(d), when a traffic citation has been prepared, accepted, and the original citation delivered to the court, that original citation “shall constitute a complaint to which the person cited must answer and the officer issuing the citation shall not be required to file any other affidavit of complaint with the court (emphasis added by court).”
12. Id. at *4.
13. Id. citing Tenn. Code Ann. § 55-10-207(d) (emphasis added by court).
14. The application was filed on March 29, 2021.
15. Before relying on Younger v. Okbahhanes, it may be wise to confirm that the citation was prepared by the officer, accepted by the defendant, and the original delivered to the court, all as required by Tenn.Code Ann. § 55-10-207(b), (c) and (d).
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