The following section from Day on Torts Leading Cases in Tennessee Tort Law​​​ is out of date and should not be used. It remains a part of this site for historical purposes only. An updated version of the book is available by subscription at (Additional information below.)

§47.34 Re-Filing Case Under Savings Statute After Expiration of Statute of Repose

The Case: Foster v. St. Joseph Hosp., 158 S.W.3d 418 (Tenn. Ct. App. 2004).

The Basic Facts: Plaintiffs re-filed wrongful death action within year of non-suit of original action and adding party plaintiff.

The Bottom Line:

  • "Tennessee's savings statute, Tennessee Code Annotated section 28-1-105 provides that if an 'action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiff's right of action,' the plaintiff may refile the action within one year, even if the statute of limitations on the claim has since run. See Tenn. Code Ann. § 28-1-105(a) (2000). Under the savings statute, the plaintiff is entitled to the same procedural benefits he would have had in the original suit. Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 785 (Tenn. Ct. App. 1987)." 158 S.W.3d at 422.
  • "Because Tennessee law favors the resolution of disputes on their merits, the savings statute must be given a broad and liberal construction. Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn. 1996). The purpose behind the savings statute is ''to aid the courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of procedure.'' 917 (quoting Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 356 S.W.2d 283, 285 (Tenn. 1962)). To determine whether the savings statute is applicable, the court must ascertain whether the defendant had notice: '[N]otice to the party affected is the true test of the statute's applicability. . . . 'The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.'' Id. at 917-18 (quoting Burns v. People's Tel. & Tel. Co., 33 S.W.2d 76, 78 (Tenn. 1930)). Thus, the savings statute is only applicable when the original complaint and the new complaint allege substantially the same cause of action, which includes identity of the parties. SeeTurner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). It is not necessary that the two complaints be identical, only that the allegations arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney , 737 S.W.2d 783, 784-85 (Tenn. Ct. App. 1987) (holding that the savings statute was applicable to the second complaint, which had been amended to add a new claim, because the claim arose out of the same conduct, transaction, or occurrence alleged in the original action and the plaintiff, therefore, could have added the claim to the first action under [Tennessee Rule of Civil Procedure 15]). In determining whether there is identity of the parties between the two actions, we are mindful that, though the caption of a case is intended to identify the parties, the allegations of the complaint itself dictate the true parties to the lawsuit. Goss v. Hutchins, 751 S.W.2d 821, 824-25 (Tenn. 1988)." Id. at 422.
  • "If the original federal lawsuit commenced the action, we must determine whether the savings statute was applicable. As noted above, the savings statute is applicable where the original complaint and the new complaint allege substantially the same cause of action, including identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn. Ct. App. 1991). The two complaints need not be identical, so long as they arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn. Ct. App. 1987)." Id. at 424-25.
  • "Given the Tennessee Supreme Court's stated liberality in Chapman toward plaintiffs sometimes struggling to name the proper party plaintiff in a wrongful death action, as well as the purpose behind the savings statute, we must hold that the savings statute is applicable in this case. Despite the defects of the pleadings in the instant case, from the time they received service of process in the first action, the Defendants have been on notice that they would have to defend themselves against allegations of medical malpractice arising out of Mrs. Foster's death. With the addition of Mr. Foster in the second action, the defect in naming the proper party plaintiff was cured with no prejudice to the Defendants. Since the savings statute was applicable, the Plaintiffs' claim is not time-barred, and we find that the trial court erred in dismissing the complaint." Id. at 425

Other Sources of Note: Benson v. Penske Truck Leasing , No. 03-2088 MA/V, 2006 WL 840419 (W.D. Tenn. Mar. 30, 2006) (savings statute discussed at length).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866.812.8787.

The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

The book is now available electronically by subscription at The new format allows us to keep the book current as new opinions are released. BirdDog Law also has John's Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Statutes available by subscription, as well as multiple free resources to help Tennessee lawyers serve their clients

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff. Jamar Gibson
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
The Law Offices of John Day, P.C. is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire The Law Offices of John Day, P.C. again. Anthony Santiago
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson