December 6–12, 2025
Intermediate Scrutiny—a Tennessee Court of Appeals blog—is a snappy weekly newsletter from Tennessee appellate attorney Daniel A. Horwitz summarizing the week’s decisions from the Tennessee Court of Appeals. To subscribe, click here. Past newsletters can be found here.
- After breaching a property contract by failing to make a necessary balloon payment and ultimately getting evicted, Breacher sues her Attorney for legal malpractice, asserting that better advice would have allowed her to keep the property. Trial court: Attorney may have breached a duty, but that did not cause Breacher’s damages, so Breacher’s case is dismissed. Tennessee Court of Appeals: Indeed. “[T]he Contract was terminated before [attorney] was retained,” and that is what caused Breacher’s damages, so there is no viable malpractice claim here.
- Pro se litigant files accelerated interlocutory appeal of the trial court’s order denying his motion to recuse. Tennessee Court of Appeals: But the appeal is untimely (the deadline is 21 days, not 30) and the original recusal motion was not verified, so we summarily dismiss the appeal.
- Minor who suffers from severe psychological issues is paralyzed after jumping out of a second story window while attending a specialized public school. Her mother sues both Metro and DCS for negligence. Trial court rules that “[Minor] attempting to run away from school through an unlocked window in an unsupervised room was foreseeable” and that it was “within the defendants’ power to take action that more probably than not would have prevented the injury[,]” and Metro appeals. Tennessee Court of Appeals: “[W]e reject Metro’s arguments regarding the nonexistence of a duty of supervision under the circumstances of this case.” Further, Metro’s foreseeability argument “focuses too narrowly on what it knew, rather than what it should have known.” Beyond that: “’[T]he foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or through the exercise of reasonable diligence should have foreseen, the general manner in which the injury or loss occurred.’ . . . ‘The exact manner in which the injury occurred need not be foreseen so long as the general manner in which the injury occurred was foreseeable, or should have been foreseen through the exercise of reasonable diligence.’” For these reasons and 53 pages’ worth of others, we affirm.
Firm Updates
New brief! Kaye Maze (who is innocent, proved her innocence, and had her innocence acknowledged by the State) is seeking Tennessee Supreme Court review of her claim of innocence, which two-thirds of a sloppy Court of Criminal Appeals panel was uninterested in acknowledging. Read her Rule 11 Application here.
New motion! Do you think that a Facebook page titled “Rolling Thunder Sharts”—which features “an image of a brown, flatulating golf cart that is constructed of feces” and is explicitly labeled “Satire/Parody”—is likely to confuse customers? If you answered “no,” we tend to agree. Here’s why.
Separately, in what your Summarist is certain will convince CoreCivic to stop spoliating evidence of inmate injuries, here’s a welcome ruling from the Western District of Tennessee on the penalties that result from: (1) failing to preserve footage of an injury caused by slamming a cell door on an inmate’s finger, after (2) being informed that litigation is forthcoming.
