*1 and, incidental beneficiaries contracts, are plaintiffs these credit card association con- such, the right to enforce of have no part no the as created contracts through discharged which could tracts. EFS contracts. of the merchant
execution Therefore, are not intended plaintiffs the IV. Conclusion (a). subsection beneficiaries under reasons, conclude foregoing the we For (b), third- plaintiffs we conclude are not intended that the Under subsection the to confer the enforce not intend entitled party that EFS did beneficiaries no-surcharge provi we re- Accordingly, of the primary benefit contracts. defendants’ Certainly, the upon plaintiffs. Appeals holding sions the of the Court of verse the no-surcharge from the plaintiffs benefitted reinstate the trial contrary, we to the provisions. examining the terms judgment But grant summary court’s contract and the reasons appeal entire Costs on defendants. created, it becomes clear Owner-Operator which it In- plaintiffs, taxed Inc., Association, not to confer the contract’s intended Ha- dependent EFS Drivers cardholders, (d/b/a upon but encour benefits Hux Hux Landry, Jimmy rold Kershman, maximize its in order to age usage card Laurel Richard Trucking), (b), profit profits. Barrick, own subsection issue if may Under which execution part promisee of the motive on the necessary.
insufficient an third- to create enforceable Rather, promisee must
party right. principal
clearly intend to confer the bene upon party.
fits the contract the third such
The contracts at issue here contain no
evidence intent. sum, plaintiffs we conclude that the intend- prove they have failed to were LIMBAUGH, Executor Eddie Brown EFS- third-party ed beneficiaries Emma Ruth of the Estate of contracts. Flying J EFS-Pilot Limbaugh evidence, though contracts contain some conclusive, parties wished beneficiary claims. third-party exclude CENTER, et al. MEDICAL COFFEE Moreover, allowing plaintiffs to enforce Tennessee, Supreme Court of dispute would undermine the contracts at Nashville. procedures in the resolution established appropri- not be contracts thus would Oct. par- ate to effectuate intention Finally, plaintiffs have not shown ties. or the sur-
that the contract circumstances ei- indicate that
rounding performance (a) promise performance
ther: discharge satisfy obligation
will promisee to the benefi-
duty owed (b) promisee give intended to
ciary; or the promised beneficiary benefit Therefore, hold that the
performance. *3 Ray,
ment against Ms. but it reversed judgment against the medical center after concluding that it was a enti- ty and was therefore immune from suit under Tennessee’s Governmental Tort Lia- (GTLA). bility Act granted We then appeal to determine the following issues: (1) negli- whether a governmental entity’s gence provide can basis for under the GTLA for arising out Parsons, Manchester, H. Thomas Ten- *4 a reasonably foreseeable assault and bat- nessee, Appellant. for the (2) tery by an of employee entity; and Castellarin, Nashville, Michael M. Ten- whether comparative fault principles nessee, Appellee. for the should apply when and inten- Louise Ray, pro se. tional are both parties tortfeasors made to the suit. examining After the evidence Knoxville, John Duffy, Tennessee, C. for law, and applicable we conclude that curiae, amicus Tennessee Municipal medical center not immune from tort League Management Risk Pool. injuries where the at issue were proximately by its in negligence OPINION failing pro- to exercise reasonable care to BARKER, J„ WILLIAM M. delivered tect a resident from the foreseeable risk court, opinion in which FRANK employee’s intentional assault bat- and C.J, DROWOTA, III, F. and E. RILEY Furthermore, tery. we conclude that ANDERSON, BIRCH, and ADOLPHO A. arising where the harm from the intention- JR., JJ., joined. nursing al acts assistant a fore- was plaintiff, originally acting as seeable risk created medi- mother, center, conservator for his filed cal suit and all tortfeasors have been against suit, Coffee Medical Center and parties its em- made each tortfeasor ployee, nursing Louise Ray, party jointly assistant shall severally be held and recover damages for his mother’s liable for the entire amount of damages she when was assaulted nursing Accordingly, awarded. part reverse in complaint, assistant. his he and affirm alleged part Appeals in the Court of prior that the medical had center notice of and remand the case the Circuit Court Ray’s propensity Ms. for violence and for County Coffee determine the total negligently it failed take precautionary damages amount of be awarded to the measures, proximately plaintiff. caused his injuries. mother’s The Circuit Court for BACKGROUND trial, following a County,
Coffee bench en- a judgment Ray tered Ms. surrounding her The events arose case and in battery January assault the amount when an employee $25,000 (“CMC”) and against Coffee Medical Center the Coffee Center’s Medical $40,000. negligence home,1 for its amount nursing nursing assistant Louise Appeals Ray, The Court of affirmed in- judg- physically seriously assaulted and parties stipulated Nursing 1. The have that Coffee Med- ter Home one under the Hospital single ical Center Coffee Medical Cen- name of Coffee Medical Center. hand, backwards. As bending finger Lim- jured ninety year old Emma Ruth Ms. Cox’s dug fingernails resi- into baugh, nursing one of the home’s she her point hand, Limbaugh diagnosed had been Ms. Cox never dents. Ms. she warned predomi- again. disease and was her face Ms. Cox finger with Alzheimer’s her trial, her or a wheelchair. nantly confined to bed she time of the testified physical of her mental and As a result this inci- had on her hand from scars still infirmities, required to re- was wear she dent. safety personal straints her Price, the Di- Shirley Cox informed Ms. her completely dependent on otherwise Nursing, Ray’s Ms. outburst rector of personal for all of her needs. caretakers Price, turn, Ms. and harmful behavior. attack, Brown Following the Mr. Eddie a formal by filing reported the incident son, Limbaugh’s Limbaugh, filed suit2 Moore, the CMC complaint with William against nursing assistant Louise report Included Administrator. He assaulting injuring his mother. by several of Ms. were statements made CMC, alleg- a complaint also filed her as be- colleagues who described Ray’s ing prior had notice of Ms. using a tone “short residents” ing *5 Ray’s propensity for violence and there- times,” was “too harsh at of voice that precau- fore had a to take reasonable “illness, lack indicating Ray’s of Ms. from fore- tions to its residents However, only patience residents.” with seeable acts of a violent staff member. Ms. Lim- Ray Ms. had assaulted after duty to Because CMC breached its remove discipline the Moore nurs- baugh did Mr. patients, her from direct contact with her towards Jen- ing assistant for behavior negligence proximately his CMC’s caused probation her on for by placing nie Cox injuries. mother’s year. one support allegations against of his trial, a At the conclusion of bench CMC, trial Limbaugh Mr. introduced at Ray that Ms. was trial court determined Cox, testimony of Jennie Louise affirma- happen” about to “an accident daughter-in-law of a resident at the nurs- “had more than tively found CMC ing was home. Ms. Cox testified she demeanor, forewarning con- ample Ray engaged an altercation with Ms. attitude, duct, physical belligerence and
just days prior to the incident eighteen through the incident aggressiveness involving Limbaugh. According Ms. to Accordingly, the court awarded Ms. Cox.” Cox, evening January Ms. on the $40,000 judgment against its standing talking was hall she in the also that Ms. negligence. The court found to going with some of the nurses before justi- Limbaugh Ray assaulted Ms. without visit mother-in-law in her room. her fication, causing inju- her suffer severe Ray group talking, was Ms. While arm and face. The court ries her nearby patient’s of room and came out $25,000 against judgment awarded a point, joined one Ms. the conversation. At Ray. Ms. finger Ms. jokingly pointed Cox her appealed responded by Limbaugh Both Mr. and CMC Ray. allegedly Ms. The Court of finger twisting judgment.3 Ms. her the trial court’s grabbing Cox’s the action as ex- Limbaugh originally permission, this as to continue 2. Mr. filed action ecutor his mother's estate. for his mother. While the conservator Limbaugh pending, Ruth action was Emma Specifically, parties argued that both moved, Limbaugh granted died. Mr. among improperly fault trial allocated court Appeals the weight determined that the court cited this Court’s deci- supports evidence trial finding court’s sion in Chattanooga, Potter v. injuries that Ms. Limbaugh’s were (Tenn.1977), caused 5.W.2d 543 to conclude that Ray’s and battery, assault and while negligent, CMC was in fact the nurs- therefore, it the trial affirmed court’s ing home is nevertheless immune from suit $25,000 judgment Ray. Louise (2) pursuant provision, subsection However, the intermediate court reversed which entity’s retains if the immunity the trial court’s judgment CMC. injuries at issue “arise out of’ the inten- CMC, The court found governmen- governmental tional employ- conduct of a entity,4 subject tal the Governmental ee. (“GTLA”), Liability Tort Act TenmCode sought permission ap Mr. Limbaugh (1999), §§ Ann. -407 29-20-101 to which peal, which granted,5 presenting two waives immunity from suit (1) issues for our review: whether a gov any injury resulting from its tortious negligence ernmental entity’s provide can subject acts statutory exceptions the basis for under the GTLA for specifically provisions. enumerated injuries arising reasonably out of a fore 29-20-201(a). See TenmCode Ann. In- seeable battery by assault and deed, employ the Court of Appeals applied one of (2) ee of that entity; and whether exceptions, 29-20-205, compar these section principles apply ative fault should expressly when waives proximately act or and intentional tortfeasors omission of a governmental employee. parties are both made to the suit.6 *6 the and intentional pursuant defendants. Mr. and in the decision of this case l(a)(ii) Limbaugh the Operating asserted that trial court erred Rule of the Internal Proce- holding nursing Supreme in not the home liable for the dures of the Tennessee Court: alternative, damages. entire amount of In the circumstances, exceptional Absent all argued that it was immune from suit participate members of Court shall Act, under the Liability Governmental Tort hearing and determination of all cases consequently, should not have it been However, disqualified unless for conflicts. allocated fault for the intentional torts of one hearing proceed shall as scheduled not- of employees. withstanding the unavoidable of absence Notably, RayMs. not file a justices. Any justice did notice that one or more is who
she appealing judgment trial court’s unavoidably hearing may absent from the However, participate her. because both Mr. in the determination of the case Limbaugh appeal, by teleconferencing, and CMC filed notices of either videoconferenc- required separate ing, Ms. by reviewing tape argu- was not to file a or of oral 13(a), ment, pursuant notice subject to Rule which states to the determination of any party appeal that "once files notice of Chief Justice. Counsel shall advised appellate may open justice fully court consider the case as a absent court that the will 13(a) R.App. Advisory whole." Tenn. P. participate Com- of in the discussion and decision mission Comment. the case. parties stipulated govern- directly that CMCis a Appeals 6. The Court of declined issue, stating mental as defined Tennessee Code address of that its reversal 29-20-102(3). § Annotated judgment against the trial court's CMC ren- dered this issue moot as to the medical cen- 13, $25,000 2001, argument by affirming 5. Oral judg- was heard June ter. Ray, Although Appeals Nashville. then Chief ment the Court of Justice unavoidably implicitly upheld apportion- Anderson was absent from the the trial court’s argument, parties were open informed in ment of fault between the and inten- court participation of his in the discussion tional tortfeasors.
79 nursing battery is assistant’s assault OF REVIEW STANDARD by the intentional tort barred findings of the trial court’s Our review from lia- potentially immunizes CMC upon the fact in this is de novo case bility. by a accompanied court record of trial find- of the correctness of the
presumption Negligence evi- Center ings, preponderance unless of Coffee Medical P. R.App. otherwise. See Tenn. dence is have not Although parties 13(d); 20 Memphis, v. Cross a nursing home the issue whether raised (Tenn.2000) 642, (upholding 644-45 to act to duty under “an affirmative is 13(d) applicable as Rule standard sustaining from prevent residents] [its in a appellate findings review for of fact Daniel, harm,” v. 854 S.W.2d Bradshaw trial). bench (Tenn.1993), 865, held 871 we have relationship a special exists between where I. LIABILITY MEDI- OF COFFEE person and “a who is fore- the defendant CENTER, A CAL GOVERNMEN- (cit id. seeably danger,” risk from ... ENTITY, THE TAL UNDER GOV- (Second) § ing Torts Restatement LIABILITY ERNMENTAL TORT (1965)), an affirma defendant is under ACT steps take “whatever are rea tive 1973, Assembly the General enacted sonably necessary and available the Tennessee Tort Liabili- Governmental potential Turner an intended victim.” (GTLA) ty codify Act general com- (Tenn.1997) Jordan, v. 957 S.W.2d governmental mon law rule that “all enti- Laird, A.2d (quoting Naidu any ties shall be immune suit from (Del.1988)). example spe An of this injury may result from the activities relationship, one analogous cial most entities,” of such Tenn. Code case, relationship in this at issue 29-20-201(a), subject statutory Ann. physician/patient relationship born out exceptions in provisions. the Act’s For assumption responsi physician’s instance, general waiver of bility safety for the care and of another. personal from suit for injury pro- claims is *7 Turner, See, e.g., 957 S.W.2d 820-21 injury vided in section “for 29-20-205 (holding psychotherapist has an af that proximately aby act or duty protect firmative to a foreseeable any employee scope omission of within the party patient presents third when the employment,” injury of his unless danger party); risk unreasonable to arises out of one of several enumerated Bradshaw, (holding at 872 854 S.W.2d section, exceptions to this as the in- such physician duty owes a warn identifi exception. Specifically, tentional tort this persons patient’s family against in the able injuries arising bars claims for patient’s foreseeable risks related imprisonment pursuant out of to a “false illness); Transport Corp. v. Wharton court, arrest, mittimus from a mali- false (Tenn.1980) 521, Bridges, trespass, prosecution, cious intentional duty (holding physician owed a to a libel, deceit, slander, in- process, abuse of injured by a truck driver whom party third rights, terference with contract infliction examined physician negligently had right priva- mental invasion anguish, certified). follows, then, It § cy, rights.” Ann. 29- civil Tenn.Code 20-205(2). case, then, home and relationship nursing between a At issue residents, home volun nursing where plaintiffs whether claim “ ‘provide tarily obligation out assumes an injuries arising recover care for those who are unable because of employee, although not followed in this physical or impairment mental provide case, further that physical demonstrates ” themselves,’ care for Niece v. Elmview by abuse staff members previously known Home, 39, Group 131 Wash.2d 929 P.2d physically aggressive is a foreseeable 420, (1997) (alteration (cita- in original) danger against which precau- reasonable omitted), tions gives rise to an affirmative tions must be taken. by owed the nursing home to exercise Obviously, “[t]here is ... no liability
reasonable care to its residents used, when such care has in fact been nor from all foreseeable harms “within the where the defendant neither knows nor general danger field of which should have has reason to danger foresee the or other- anticipated.” been Id. at 427. wise to precautions know that are called al, for.” W. Page Keeton et Prosser and case, In this clearly evidence Keeton the Law Torts at 385. reflects that the risk of harm to Lim Ms. However, this was not the case. The rec- baugh First, awas foreseeable one. sev 2, 1997, ord January indicates that on eral members of nursing home staff day after the incident between Louise Ray witnessed, had just eighteen days prior to Cox, and Jennie the Director of Nursing the incident with Ms. Limbaugh, Ray’s Ms. filed a Complaint Record of reporting Ms. physical outburst directed at visitor Jennie Ray’s behavior, harmful which was submit- Second, Cox. Ms. Limbaugh herself was ted to Mr. Moore. only well by known the nursing staff to physi evidence regarding record Mr. cally strike out against her caretakers as a Moore’s acknowledgment of this incident result of her Consequently, dementia. it with Ms. Cox is a signed memorandum was certainly foreseeable that nursing Mr. Moore January and dated assistant, who had pro demonstrated her memorandum, In this explained Mr. Moore pensity physically to be aggressive even that he discussed this incident with Ms. when slightly provoked, presented a risk of put probation her on year for one harm to a resident also known to be com “from the date of this discussion.” Al- addition, bative. present evidence was though this date is specified, never Moore, ed Mr. William the administra record reflects that RayMs. was working tor of nursing during home Ray’s Ms. scheduled shifts until the date of the inci- employment, as to the nursing home’s dent involving Limbaugh. As the trial procedure standard for dealing with the found, court errant behavior of an employee. He testi [T]he defendant nursing home had more “if fied that there any contact between *8 ample forewarning than of the demean- associate, any is an employee [who] of the or, conduct, attitude, belligerence and facility, any is in combative manner physical aggressiveness through the in- whatsoever, it reported would directly cident with Ms. Cox and the fitness re- hours, to the [S]tate within 24 up, written ports .... It is Ms. clear[ ] was and sent in. employee That would be sent accident about to happen. The records placed home and on leave.” He further any are barren of attempts at interven- testified that he would discharge any em prior tion to the Limbaugh assault. ployee assaulted, who had “physically bat tered, person, [or] touched” another I find affirmatively the inaction of the who otherwise had demonstrated a pro nursing home and the lack of corrective pensity for violence. We believe that involving employee, action Ray, Ms. policy CMC’s for disciplining a combative was the direct and proximate legal cause today overrules Pot- decision by Lim- Because our injury [Ms. sustained immunity to extent that it retains baugh]. ter the not liability specifical- torts from those affirm the trial court’s decision and We tort ex- ly in the intentional enumerated negligently act hold that CMC did indeed court reverse the intermediate ception, we precautions failing in to take reasonable to inten- liable for the and that CMC is hold from Limbaugh Ruth protect Emma by battery and committed tional assault that she be assault- foreseeable risk would assistant. physi- nursing a staff member known to be ed cally aggressive. in- background The factual Potter plaintiffs City arrest Exception Tort volved the
Intentional who Chattanooga police officer discovered that CMC was Having determined vehicle. plaintiffs alcohol in the bottle of to take affirma failing indeed plain- not test Although the officer did protect Limbaugh from tive action to Ms. intoxi- tiff to determine whether she was the foreseeable risk that she would be cated, arrested her for he nevertheless "by Ray, potentially harmed CMC is city jail, public drunkenness. At subject liability pursuant to to section 29- to officer became irate when she started 20-205 the GTLA. issue cry, whereupon physically he assaulted here is whether CMC nonetheless retains cell, plaintiff causing in her her to suffer pursuant immunity its to intentional injuries including severe broken bones provision, tort to this which im at 544. bleeding her ear. Id. munizes the from tort governmental if injury out of “false arises city plaintiff The filed suit imprisonment pursuant to a mittimus from for the intentional of false arrest torts court, arrest, prosecution, false malicious city’s battery. response to motion trespass, process, intentional abuse of li dismiss, plaintiff com- to amended her slander, bel, deceit, interference with con plaint city allege rights, anguish, tract infliction of mental employees its failing ] “screenf right rights.” invasion of or civil privacy, ca- adequately psychological determine the court our intermediate cited decision pabilities employees to handle the Chattanooga, in Potter v. jobs they assigned”; were conse- which (Tenn.1977), hold, S.W.2d 543 albeit re failed to quently, negligence such luctantly, that CMC retains its police her officer’s “berzerk from Ms. Ray because actions, city which the “should callous” tort, committed an intentional assault reasonably have have known or could [sic], upon battery Emma Ruth likely We known were Id. [occur].” Limbaugh. Inasmuch the GTLA as city, hold- dismissed the action permit plaintiff to recover for does ing that the intentional torts of the true bases of the our employees, and inasmuch as su- sought damages are false recovery preme decision in Potter does not court’s *9 The battery. assault and arrest and permit plaintiff a to circumvent de- complaint, le- to the while amendment immunity fense of as- charges negligence additional velling serting hiring or claim fact retention, City, does not alter the judg- conclude that subject are the ment entered the Medical Cen- battery “arose of’ the ter in this case must be reversed. action out arrest, the false and was not effective to Court was able to avoid addressing the immunity avoid the granted city’s negligence by issue of the deciding under Code [Tennessee Annotated sec- instead that the officer’s retention was a tion] 23-3311. quasi-judicial function and the city was therefore immune under the statute. Id. at 545. Consequently, the Salerno decision does Notably, our decision in part relied provide adequate guidance for deter- factually two jur- similar cases outside this mining whether a Tennessee governmental isdiction that addressed the same issue entity should be held negligently liable for and that ultimately reached the same re- allowing an employee intentionally However, sults. respective as the lia- tort proximately plaintiffs injuries. cause the bility statutes were differently, worded those two decisions should have had little We also relied on the in decision impact First, in jurisdiction. our we cited Schafer, F.Supp. Little v. Racine, Salerno (S.D.Tex.1970), 62 Wis.2d interpreted which the Tex (1974), plaintiff N.W.2d 446 where the as Tort Claims Act containing statutory city sued the for the intentional com- language torts similar in to that the GTLA but by police mitted city’s officer and for the expressly listing battery assault and in its negligence in retaining that violent provision officer. preserving a im municipality’s Court, Supreme Little, Wisconsin applying munity. reject the district court statute, applicable found the city plaintiffs to be ed the claim that two cit Texas immune from suit on all counts. The stat- negligently police ies entrusted its officers ute at provided perti- issue that case night with clubs. The court relied on the part: nent “No brought plain Act, suit shall be language in the Texas against any [governmental entity] municipality for the excluded from assault, intentional torts of its [employees] “[a]ny nor claim arising battery, out of shall any brought suit be against [govern- imprisonment, false any or other intention mental or against employ- entities] al [their tort.” Id. at 191. The court reasoned ees] for acts done in the legis- exercise of complaint “a citizen’s about negli lative, quasi-legislative, judicial quasi- gent police utilization of officers has no judicial functions.” Id. at 447 n. 1. Al- meaning apart from those officers’ acts or though statutory language plainly pro- omissions which inure to the detriment of city tected the from suit complainant. for the officer’s The assault is the sine intentional battery, assault and qua plaintiffs statute non of knowledge that mu was unclear as to whether a governmental nicipal negligence exists.” Id. at 192. entity could negligence. be hable for its agree While we continue to with that ration Accordingly, ale,7 Supreme Wisconsin our statute does not allow us Holder, concurring opinion, 7. Justice general gov- her common law rule that "all disagrees majority point with the on this ernmental entities shall be immune from suit,” 29-20-201(a), would hold instead that Potter should be over- Tenn.Code Ann. sub- entirety. argues gov- ject ruled in its specific exceptions She that a contained with- ernmental be held liable provided should "for its in the Act. One such 29-20-205, negligent employment practices regardless section which waives underlying "injury proximately nature of the of the em- by negligent acts ployee causing injury.” respectfully any employee We act or omission of within the disagree interpretation scope employment.” general of the stat- of his If this here, re-emphasize position ute. We that the General As- waiver ended Justice Holder's sembly codify persuasive enacted Tennessee’s GTLA to would be more to us.
83 scope. Mooney v. intended precise yond if reach this result the intentional (Tenn.2000). Sneed, 304, 306 30 S.W.3d in the torts committed are enumerated “ to purpose and are legislative ‘The intent exception. tort intentional natural primarily from the be ascertained appli a result of Potters overbroad As statutory lan ordinary meaning of the and exception, of the intentional tort cation interpre or without a forced subtle guage, following subsequently, courts Potter have stat that limit or extend the tation would erroneously, held that intention albeit v. (quoting Id. State application.’” ute’s exception preserves immunity al tort (Tenn. 200, Blackstock, 19 210 S.W.3d injuries arising from all torts. intentional 2000)). to alter Courts are not authorized See, County, v. Loudon 736 e.g., Jenkins “ statute, ‘presume and must or amend 603, (Tenn.1987) that (stating S.W.2d 608 in a what says statute legislature that the in “scope of is generally the GTLA it in a statute what it means and means torts”); to intentional Belk tended exclude ” at 307 Bell- says (quoting there.’ Id. (Tenn.Ct. 34, 7 County, v. Obion S.W.3d 40 Telecomm., Greer, v. 972 Inc. South that “neither intentional App.1999) (stating 663, (Tenn.Ct.App.1997)); 673 S.W.2d rights” give civil rise torts nor violations of 15 Corp., v. Checker Cab Transit Gleaves liability county municipal govern to and (Tenn.2000) (‘“If 799, S.W.3d 803 ments); Hosp., v. Blount Roberts Mem’l thing plainly mean one words of statute 744, (Tenn.Ct.App.1997) S.W.2d 746 963 they meaning another given cannot that (stating it is “well-settled that ” v. Henry judicial (quoting construction.’ Liability no Tort Act has Governmental 70, White, 192, 250 72 194 Tenn. S.W.2d torts”); application to intentional Gifford (1952))). espe principle applies This last City Gatlinburg, 900 296 S.W.2d GTLA, as the cially analyzing when (“[TJhere (Tenn.Ct.App.1995) no waiver is derogation this Act in legislature created immunity under the for inten [GTLA] law, therefore, the Act the common and tort.”); Hayes, Anderson v. tional Roberts, 963 strictly must be construed. (stat (Tenn.Ct.App.1978) S.W.2d rel. (citing at Lockhart ex “it ing logical is conclude County Lockhart v. Jackson-Madison 29-20-205(2) shows ] an obvious [section (Tenn.Ct.App. Hosp., Gen. 793 S.W.2d to exclude legislative only [i]nten- intention 1990)). cases”). tort principle tional While this Applying foregoing principles accurate, conspic we notice generally construction, it statutory conclude uously absent from the list of intentional torts expand the intentional was error (2) torts subsection those of assault of assault include torts battery. and battery. has legislative intent plain unambiguous It is well-settled that the role expressed in been terms, “to construing required statutes is this Court and we are therefore to” as written. The Gen give legislative ascertain effect enforce statute Assembly unduly expressly restrict created section purpose intent without eral immu governmental coverage a statute’s be 29-20-205 remove ing expanding Therefore, goes exempt liability we decline provision 963 S.W.2d on to from "arising out of” of several impose those one blanket section, exceptions to this includ- enumerated employment practices for its exception. Act ing tort As this the intentional immunizing exceptions one of the when derogation created common was law, applicable. entity is Roberts, strictly it must be construed. *11 §4
nity
injuries
for
proximately
by
caused
the extent that Potter and other cases hold
acts;
otherwise,
they
that it wanted to then cre
are overruled.
exceptions
ate several
general
to this
waiv
Applying our conclusions to the
er convinces us that
exceptions
additional
present case, we first reiterate that Ms.
implied
are not to
legislative
absent
Ray’s
Limbaugh
assault Ms.
was a fore
intent to
contrary.
United States
Cf
consequence
seeable
of CMC’s failure to
Smith,
160,167,
1180,
v.
499 U.S.
111 S.Ct.
precautions
take
reasonable
(1991) (“Where
85
to be
considered
dis-
policy-making
a
func-
perform discretionary
or
exercise or
tion,
requiring judicial
acts
restraint
cretionary
or not
the discretion
whether
therefore,
are,
subject
tort lia-
not
Essentially,
discretionary
abused.”
the
hand, decisions that
prevents
the other
exception
bility.
the use
On
function
pre-existing policies
second-guess
merely implement
es-
tort
what are
actions
operation-
to be
regulations
or
deci-
are considered
sentially legislative
administrative
economic,
social,
the decision-mak-
involving
political,
require
al in nature
sions
implementing the
scientific,
reasonably
some
to act
professional policies
or
or
er
policy, regula-
policy.
If the
policies. Doe v.
established
mixture of these
Coffee
Educ.,
899,
tion,
man-
procedure
or other standard of
852
907
County Bd.
S.W.2d
conduct,
any
specific
employee
then
(Tenn.Ct.App.1992)
States
dates
(citing United
Gaubert,
315, 323,
that direction
reasonably complying
111
499 U.S.
S.Ct.
(1991)).
1267,
immunity if
abrogate
entity’s
ratio-
not
the
also Carlson v. 598 P.2d 972 case, Turning to in this the facts (Alaska 1979). nursing home at the administrator of the Chattanooga, v. City Limbaugh’s In Bowers the time of Ms. abuse testified recognized precise Court that a more to the existence of certain standards for as analysis was has disciplining employee method of needed for deter who exhibited mining According which acts are to discre behavior. to Mr. entitled combative immunity. testimony, tionary Consequently, function these standards re Moore’s adopted reported we test that the be planning-operational quired incident twenty-four of its occur under which it is the “nature of the con within hours State duct,” is, offending employee that the decision-making process, rence and actor,” Bowers, leave,” “placed presum and not the “status of home and sent 430-31, twenty-four hour ably pe 826 at wheth also within that governs investigation. applies. er await exception See also United riod to State’s Gaubert, 315, 322, foregoing principles, 499 111 find Applying States v. U.S. 1267,113 (1991). nursing L.Ed.2d broad discretion to S.Ct. Under that the home’s policy ques most analysis, planning implement governing decision is discipline likely whether and how to to reflect course of conduct tions of employees policy after or de is indeed determined consideration combative give rise to tort charge formulating bate those in determination cannot Bowers, plans liability. negligently at policies. 826 S.W.2d 972-73). Carlson, designed guidelines failed to follow (citing P.2d measures planning proper disciplinary rise to the prescribe Decisions that level impose upon after hospital by “allowing sign the incident from the him to involving Jennie Cox. Accordingly, [Against out AMA Advice].” Medical Id. (alteration discretionary attack, function original). After her waiver of plaintiff does not brought suit Dr. Jor- *13 recovery dan, bar Limbaugh’s Mr. claims alleging duty that he violated his negligent nursing home. use care in reasonable the treatment of his Therefore, judgment patient, we reverse the of the proximately inju- caused her intermediate court and hold that CMC is ries and resulting damages. After deter- Limbaugh’s injuries proxi- liable for Ms. mining psychiatrist did indeed mately by negligent duty acts. a plaintiff owe care to the nurse
because he knew or should have known II. APPORTIONMENT OF FAULT patient that his posed “an unreasonable foreseeable, readily risk of harm to a iden- presented
The final issue
for our
person,”
tifiable third
id. at
we then
review is whether the trial
in
court erred
negligent
held
the “conduct of a
de-
apportioning fault between the negligent
compared
fendant should not be
with the
and intentional defendants where the in
in
intentional conduct of another
determin-
tentional conduct was the foreseeable risk
comparative
ing
fault where the intentional
by
created
negligent nursing
home.9
by
conduct is the foreseeable risk created
question
impression
This
is one of first
and
negligent
tortfeasor.” Id. at 823.
requires us to review our
in
holding
Tur
Jordan,
(Tenn.1997).
ner v.
nity statutes. Because
believe that the
CONCLUSION
rationale
supporting
Potter
Chat-
(Tenn.1977),
Having thoroughly
tanooga,
examined
record
Accordingly,
portion
we affirm that
exception
indicating
tort
in a manner
that
judgment
Appeals
the
of the
find-
Court
exception preserves immunity
inju-
the
ing
negligent.
Coffee Medical Center
all
arising
ries
from intentional torts.
Id.
portions
we reverse those
of the
majority today
at 544-46. The
corrects
(1)
judgment
holding
Medical
misapplication
Coffee
Cen-
that
of the intentional tort
suit,
(2) implicitly
ter immune from
exception, overruling Potter to the extent
upholding
apportionment
the trial court’s
spe-
that it immunized intentional torts not
29-20-205(2).
damages
of fault and allocation of
§
between
in
cifically listed
negligent
and intentional tortfeasors.
I
the limitation
Although
agree with
We remand the
to the trial court to
case
29-20-205(2)
§
to those intentional
torts
total
damages
determine the
amount of
enumerated,
I
specifically
disagree with
plaintiff.
to the
awarded
in
premise underlying
our decision
are
appeal
Costs
taxed to the
fully
Potter and would therefore
overrule
appellee, Coffee Medical Center.
Potter,
holding.
plaintiff initially
In
alleging liability
filed her
on the
complaint
J„
HOLDER,
M.
filed a
JANICE
part
City
Chattanooga
of the
for the
concurring opinion.
police
by
torts committed
offi-
intentional
(CMC)
response
City’s
Coffee Medical Center
owed a
cer. Id. at 544.
dismiss,
plaintiff
patient,
Limbaugh,
Emma Ruth
amended
to its
motion
complaint
negli-
a claim of
her from the foreseeable risk of her
to include
presented
gence by
City
provide
for failure to
employment
harm
em-
Ray.
adequate psychological screening
I therefore
of its
nursing assistant Louise
that
agree
ployees.
reached
the ma-
Id. This Court held
result
injuries
were the inten-
for the
“true bases” of
jority holding CMC liable
torts.
It
intentional
police
not the
officer’s
arrest and assault
tional torts
false
by the intentional
at
is not barred
complaint.
in the
Id.
therefore
battery alleged
29-20-205(2).
§
negli-
under
545. The Court reasoned that
tort
upon
provide
failure to
gence claim based
Moreover,
Assembly has
the General
not alter the
psychological screening did
gov-
its intent to waive
clearly expressed
in-
injuries arose out of the
fact that the
injuries proxi-
immunity for
ernmental
upon
Id.
the inten-
tentional torts.
Based
by negligent governmental
mately caused
exception,
tort
concluded
tional
Court
We
Tenn.Code Ann.
29-20-205.
acts.
plaintiff
could not maintain
intent
uphold
are bound
despite
negli-
her
action
role in statu-
fullest extent. “This Court’s
gence claim. Id.
545-46.
and to
tory interpretation is to ascertain
to be
reasoning
I find the
Potter
intent.” Free-
legislature’s
effectuate
fundamentally flawed.
have noted
We
Co.,
Transp.
27 S.W.3d
man v. Marco
pursue
several
“plaintiffs
free to
(Tenn.2000).
interpretation of
The
recovery
alternative theories of
and to
employed
§ 29-20-205
Potter did
their
structure
claims
the manner
the intent of the General Assem-
carry out
is most beneficial
them.” Concrete
recovery
for the
acts
bly to allow
Sender,
Spaces, Inc. v.
entity.
governmental
(Tenn.1999). Rule 8.01 of the Tennessee
provides
in Potter also
us
holding
Procedure,
Rules of
claims
governing
Civil
outcome.
It allows
with an inconsistent
pleadings, provides
for relief in
that “[r]e-
governmental em-
recovery
lief
the alternative or of several differ
if
ployment practices
types may
ent
be demanded.” Further
*16
if
employee
negligently
acts
but not
more,
recognized
this Court has
that an
I
employee
intentionally.
acts
cannot
intentional tortious act
not necessari
does
contrary
with a
to common
agree
result so
ly supersede
prior
act.
negligent
See
legislative
Proper
intent.
inter-
sense
(Tenn.
Jordan,
Turner
ligence
employees. The second claim arises out practices, City’s negligent employment