Eddie Limbaugh v. Coffee Med. Center

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 13, 2001 Session

EDDIE BROWN LIMBAUGH, Executor of the Estate of EMMA RUTH

LIMBAUGH v. COFFEE MEDICAL CENTER, ET AL.

Appeal By Permission from the Court of Appeals, Middle Section

Circuit Court for Coffee County

No. 28,936 Hon. John W. Rollins, Judge

No. M1999-01181-SC-R11-CV - Filed October 16, 2001

The plaintiff, originally acting as the conservator for his mother, filed suit against Coffee Medical

Center and its employee, nursing assistant Louise Ray, to recover damages for his mother’s injuries

when she was assaulted by this nursing assistant. In his complaint, he alleged that the medical center

had prior notice of Ms. Ray’s propensity for violence and that it negligently failed to take

precautionary measures, which proximately caused his mother’s injuries. The Circuit Court for

Coffee County, following a bench trial, entered a judgment against Ms. Ray for her assault and

battery in the amount of $25,000 and against Coffee Medical Center for its negligence in the amount

of $40,000. The Court of Appeals affirmed the judgment against Ms. Ray, but it reversed the

judgment against the medical center after concluding that it was a governmental entity and was

therefore immune from suit under Tennessee’s Governmental Tort Liability Act (GTLA). We then

granted this appeal to determine the following issues: (1) whether a governmental entity’s negligence

can provide the basis for liability under the GTLA for injuries arising out of a reasonably foreseeable

assault and battery by an employee of that entity; and (2) whether comparative fault principles

should apply when the negligent and intentional tortfeasors are both made parties to the suit. After

examining the evidence and applicable law, we conclude that the medical center is not immune from

tort liability where the injuries at issue were proximately caused by its negligence in failing to

exercise reasonable care to protect a resident from the foreseeable risk of an employee’s intentional

assault and battery. Furthermore, we conclude that where the harm arising from the intentional acts

of the nursing assistant was a foreseeable risk created by the negligent medical center, and all

tortfeasors have been made parties to the suit, each tortfeasor party shall be held jointly and severally

liable for the entire amount of damages awarded. Accordingly, we reverse in part and affirm in part

the Court of Appeals and remand the case to the Circuit Court for Coffee County to determine the

total amount of damages to be awarded to the plaintiff.

Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of

Appeals Affirmed in Part; Reversed in Part; Case Remanded

WILLIAM M. BARKER , J., delivered the opinion of the court, in which FRANK F. DROWOTA , III, C.J.,

and E. RILEY ANDERSON, and ADOLPHO A. BIRCH, JR., JJ., joined. JANICE M. HOLDER , J., filed a

concurring opinion.

H. Thomas Parsons, Manchester, Tennessee, for the appellant, Eddie Brown Limbaugh, Executor

of the Estate of Emma Ruth Limbaugh.

Michael M. Castellarin, Nashville, Tennessee, for the appellee, Coffee Medical Center.

Louise Ray, Manchester, Tennessee, Pro Se.

John C. Duffy, Knoxville, Tennessee, for the Amicus Curiae, Tennessee Municipal League Risk

Management Pool.

OPINION

BACKGROUND

The events surrounding this case arose on January 19, 1997, when an employee of the Coffee

Medical Center’s (“CMC”) nursing home,1 nursing assistant Louise Ray, physically assaulted and

seriously injured ninety year old Emma Ruth Limbaugh, one of the nursing home’s residents. Ms.

Limbaugh had been diagnosed with Alzheimer’s disease and was predominantly confined to her bed

or a wheelchair. As a result of her mental and physical infirmities, she was required to wear

restraints for her personal safety and was otherwise completely dependent on her caretakers for all

of her personal needs.

Following the attack, Mr. Eddie Brown Limbaugh, Ms. Limbaugh’s son, filed suit2 against

nursing assistant Louise Ray for assaulting and injuring his mother. He also filed a complaint

against CMC, alleging that CMC had prior notice of Ms. Ray’s propensity for violence and

therefore had a duty to take reasonable precautions to protect its residents from the foreseeable acts

of a violent staff member. Because CMC breached its duty to remove her from direct contact with

patients, CMC’s negligence proximately caused his mother’s injuries.

In support of his allegations against CMC, Mr. Limbaugh introduced at trial the testimony

of Jennie Louise Cox, the daughter-in-law of a resident at the nursing home. Ms. Cox testified that

1

The parties have stipulated that Coffee Medical Center Hospital and Coffee Medical Center Nursing Home

are one entity under the single name of Coffee M edical Center.

2

Mr. Lim baugh originally filed this action as the con servator fo r his moth er. While this action was pending,

Emma Ruth Limbaugh died. Mr. Limbaugh moved, and was granted permission, to continue the action as the executor

of his mother’s estate.

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she was engaged in an altercation with Ms. Ray just eighteen days prior to the incident involving Ms.

Limbaugh. According to Ms. Cox, on the evening of January 1, 1997, she was standing in the hall

talking with some of the nurses before going to visit her mother-in-law in her room. While the group

was talking, Ms. Ray came out of a nearby patient’s room and joined the conversation. At one point,

Ms. Cox jokingly pointed her finger at Ms. Ray. Ms. Ray allegedly responded by grabbing Ms.

Cox’s finger and twisting her hand, bending the finger backwards. As she dug her fingernails into

Ms. Cox’s hand, she warned Ms. Cox never to point her finger in her face again. Ms. Cox testified

that at the time of the trial, she still had scars on her hand from this incident.

Ms. Cox informed Shirley Price, the Director of Nursing, of Ms. Ray’s outburst and harmful

behavior. Ms. Price, in turn, reported the incident by filing a formal complaint with William Moore,

the CMC Administrator. Included in the report were statements made by several of Ms. Ray’s

colleagues who described her as being “short with residents” and using a tone of voice that was “too

harsh at times,” indicating Ms. Ray’s “illness, or lack of patience with residents.” However, only

after Ms. Ray had assaulted Ms. Limbaugh did Mr. Moore discipline the nursing assistant for her

behavior towards Jennie Cox by placing her on probation for one year.

At the conclusion of a bench trial, the trial court determined that Ms. Ray was “an accident

about to happen” and affirmatively found that CMC “had more than ample forewarning of the

demeanor, conduct, attitude, belligerence and physical aggressiveness through the incident with Ms.

Cox.” Accordingly, the court awarded a judgment of $40,000 against CMC for its negligence. The

court also found that Ms. Ray assaulted Ms. Limbaugh without justification, causing her to suffer

severe injuries to her arm and face. The court awarded a judgment of $25,000 against Ms. Ray.

Both Mr. Limbaugh and CMC appealed the trial court’s judgment.3 The Court of Appeals

determined that the weight of the evidence supports the trial court’s finding that Ms. Limbaugh’s

injuries were caused by Ms. Ray’s assault and battery, and therefore, it affirmed the trial court’s

$25,000 judgment against Louise Ray. However, the intermediate court reversed the trial court’s

judgment against CMC. The court found that CMC, a governmental entity,4 is subject to the

Governmental Tort Liability Act (“GTLA”), Tenn. Code Ann. §§ 29-20-101 to - 407 (1999), which

waives governmental immunity from suit for any injury resulting from its tortious acts subject to the

statutory exceptions specifically enumerated in its provisions. See Tenn. Code Ann. § 29-20-201(a).

3

Specifically , both par ties argued that the trial cou rt improperly allocated fault among the negligent and

intentional defend ants. Mr. L imbau gh asserted that the trial cou rt erred in not holding the nursing home liable for the

entire amou nt of dam ages. In the alternative, CMC argued that it was immune from suit under the Governmental Tort

Liability Act, and consequently, it should not have been allocated fault for the intentional torts of one o f its employees.

Notably, Ms. Ray did not file a notice that she was appealing the trial court’s judgment against her. However,

because both Mr. Limbaugh and CMC filed notices of appeal, Ms. Ray was not required to file a separate notice

pursuant to Rule 13(a), which states that “once any party files a notice of appeal the appellate court may consider the

case as a w hole.” Te nn. R. A pp. P. 13 (a) Adv isory Co mmiss ion Com ment.

4

T h e p arties s tipu lated th at C M C is a governmental entity as defined in Tennessee Code Annotated § 29-20-

102(3).

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Indeed, the Court of Appeals applied one of these exceptions, section 29-20-205, which expressly

waives immunity for injuries proximately caused by a negligent act or omission of a governmental

employee. However, the court cited this Court’s decision in Potter v. City of Chattanooga, 556

S.W.2d 543 (Tenn. 1977), to conclude that while CMC was in fact negligent, the nursing home is

nevertheless immune from suit pursuant to subsection (2) of this provision, which retains the entity’s

immunity if the injuries at issue “arise out of” the intentional conduct of a governmental employee.

Mr. Limbaugh sought permission to appeal, which we granted,5 presenting two issues for our

review: (1) whether a governmental entity’s negligence can provide the basis for liability under the

GTLA for injuries arising out of a reasonably foreseeable assault and battery by an employee of that

entity; and (2) whether comparative fault principles should apply when the negligent and intentional

tortfeasors are both made parties to the suit.6

STANDARD OF REVIEW

Our review of the trial court’s findings of fact in this case is de novo upon the record of the

trial court accompanied by a presumption of the correctness of the findings, unless the

preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Cross v. City of Memphis,

20 S.W.3d 642, 644-45 (Tenn. 2000) (upholding Rule 13(d) as the applicable standard of appellate

review for findings of fact in a bench trial).

I. LIABILITY OF COFFEE MEDICAL CENTER,

A GOVERNMENTAL ENTITY,

UNDER THE GOVERNMENTAL TORT LIABILITY ACT

In 1973, the General Assembly enacted the Tennessee Governmental Tort Liability Act

(GTLA) to codify the general common law rule that “all governmental entities shall be immune from

5

Oral argum ent was heard on June 13 , 2001, in Nash ville. Although then Chief Justice Anderson was

unavo idably absent fro m the arg umen t, the parties w ere inform ed in op en cour t of his particip ation in the discussion

and in the decision of this case pursuant to Rule 1(a)(ii) of the Internal Operating Procedures of the Tennessee Supreme

Court:

Absent exceptio nal circum stances, all m embe rs of this Co urt shall participate in the hearing

and determ ination of all cases unle ss disqualified for conflic ts. However, a hearing shall proceed as

scheduled notwithstanding the unavo idable ab sence of o ne or m ore justices. A ny justice w ho is

unavo idably absent from the hearing may participate in the determination of the case either by

teleconferencing, videoconferencing, or by reviewing the tape of oral argument, subject to the

determination of the Ch ief Justice. Co unsel sha ll be advise d in ope n court th at the absen t justice will

fully participate in the discussion and decision of the case.

6

The Cou rt of Appeals de clined to directly addre ss this issue, stating that its reversal of the trial court’s

judgment against CMC rendered this issue moot as to the medical center. However, by affirming the $25,000 judgment

against Ms. Ray, the Court of Appe als implicitly upheld the trial court’s apportionment of fault between the negligent

and inten tional tortfea sors.

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suit for any injury which may result from the activities of such governmental entities,” Tenn. Code

Ann. § 29-20-201(a), subject to statutory exceptions in the Act’s provisions. For instance, a general

waiver of immunity from suit for personal injury claims is provided in section 29-20-205 “for injury

proximately caused by a negligent act or omission of any employee within the scope of his

employment,” unless the injury arises out of one of several enumerated exceptions to this section,

such as the intentional tort exception. Specifically, this exception bars claims for injuries arising out

of “false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution,

intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights,

infliction of mental anguish, invasion of right of privacy, or civil rights.” Tenn. Code Ann. § 29-20-

205(2). At issue in this case, then, is whether the plaintiff’s claim against CMC to recover for

injuries arising out of the nursing assistant’s assault and battery is barred by the intentional tort

exception that potentially immunizes CMC from liability.

Negligence of Coffee Medical Center

Although the parties have not raised the issue of whether a nursing home is under “an

affirmative duty to act to prevent [its residents] from sustaining harm,” Bradshaw v. Daniel, 854

S.W.2d 865, 871 (Tenn. 1993), we have held that where a special relationship exists between the

defendant and “a person who is foreseeably at risk from . . . danger,” id. (citing Restatement (Second)

of Torts § 315 (1965)), the defendant is under an affirmative duty to take “whatever steps are

reasonably necessary and available to protect an intended or potential victim.” Turner v. Jordan, 957

S.W.2d 815, 819 (Tenn. 1997) (quoting Naidu v. Laird, 539 A.2d 1064, 1075 (Del. 1988)). An

example of this special relationship, and one most analogous to the relationship at issue in this case,

is the physician/patient relationship born out of the physician’s assumption of responsibility for the

care and safety of another. See, e.g., Turner, 957 S.W.2d at 820-21 (holding that a psychotherapist

has an affirmative duty to protect a foreseeable third party when the patient presents an unreasonable

risk of danger to that party); Bradshaw, 854 S.W.2d at 872 (holding that a physician owes a duty to

warn identifiable persons in the patient’s family against foreseeable risks related to the patient’s

illness); Wharton Transport Corp. v. Bridges, 606 S.W.2d 521, 526 (Tenn. 1980) (holding that a

physician owed a duty to a third party injured by a truck driver whom the physician had negligently

examined and certified). It follows, then, that the relationship between a nursing home and its

residents, where a nursing home voluntarily assumes an obligation to “‘provide care for those who

are unable because of physical or mental impairment to provide care for themselves,’” Niece v.

Elmview Group Home, 929 P.2d 420, 424 (Wash. 1997) (alteration in original) (citations omitted),

gives rise to an affirmative duty owed by the nursing home to exercise reasonable care to protect its

residents from all foreseeable harms “within the general field of danger which should have been

anticipated.” Id. at 427.

In this case, the evidence clearly reflects that the risk of harm to Ms. Limbaugh was a

foreseeable one. First, several members of the nursing home staff had witnessed, just eighteen days

prior to the incident with Ms. Limbaugh, Ms. Ray’s physical outburst directed at visitor Jennie Cox.

Second, Ms. Limbaugh herself was well known by the nursing staff to physically strike out against

her caretakers as a result of her dementia. Consequently, it was certainly foreseeable that this

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nursing assistant, who had demonstrated her propensity to be physically aggressive even when

slightly provoked, presented a risk of harm to a resident also known to be combative. In addition,

evidence was presented by Mr. William Moore, the administrator of the nursing home during Ms.

Ray’s employment, as to the nursing home’s standard procedure for dealing with the errant behavior

of an employee. He testified that “if there was any contact between any associate, [who] is an

employee of the facility, that is combative in any manner whatsoever, it would be reported directly

to the [S]tate within 24 hours, written up, and sent in. That employee would be sent home and

placed on leave.” He further testified that he would discharge any employee who had “physically

assaulted, battered, [or] touched” another person, or who otherwise had demonstrated a propensity

for violence. We believe that CMC’s policy for disciplining a combative employee, although not

followed in this case, further demonstrates that physical abuse by staff members previously known

to be physically aggressive is a foreseeable danger against which reasonable precautions must be

taken.

Obviously, “[t]here is . . . no liability when such care has in fact been used, nor where the

defendant neither knows nor has reason to foresee the danger or otherwise to know that precautions

are called for.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 56, at 385.

However, this was not the case. The record indicates that on January 2, 1997, the day after the

incident between Louise Ray and Jennie Cox, the Director of Nursing filed a Record of Complaint

reporting Ms. Ray’s harmful behavior, which was submitted to Mr. Moore. However, the only

evidence in the record regarding Mr. Moore’s acknowledgment of this incident with Ms. Cox is a

memorandum signed by Mr. Moore and dated January 22, 1997. In this memorandum, Mr. Moore

explained that he discussed this incident with Ms. Ray and put her on probation for one year “from

the date of this discussion.” Although this date is never specified, the record reflects that Ms. Ray

was working scheduled shifts until the date of the incident involving Ms. Limbaugh. As the trial

court found,

[T]he defendant nursing home had more than ample forewarning of the demeanor,

conduct, attitude, belligerence and physical aggressiveness through the incident with

Ms. Cox and the fitness reports . . . . It is clear[] Ms. Ray was an accident about to

happen. The records are barren of any attempts at intervention prior to the Limbaugh

assault.

I find affirmatively the inaction of the nursing home and the lack of corrective

action involving this employee, Ms. Ray, was the direct and proximate legal cause

of the injury sustained by [Ms. Limbaugh].

We affirm the trial court’s decision and hold that CMC did indeed act negligently in failing to take

reasonable precautions to protect Emma Ruth Limbaugh from the foreseeable risk that she would

be assaulted by a staff member known to be physically aggressive.

Intentional Tort Exception

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Having determined that CMC was indeed negligent in failing to take affirmative action to

protect Ms. Limbaugh from the foreseeable risk that she would be harmed by Ms. Ray, CMC is

potentially subject to liability pursuant to section 29-20-205 of the GTLA. However, the issue here

is whether CMC nonetheless retains its immunity pursuant to the intentional tort exception to this

provision, which immunizes the governmental entity from tort liability if the injury arises out of

“false imprisonment pursuant to a mittimus from a court, false arrest, malicious prosecution,

intentional trespass, abuse of process, libel, slander, deceit, interference with contract rights,

infliction of mental anguish, invasion of right of privacy, or civil rights.” The intermediate court

cited our decision in Potter v. City of Chattanooga, 556 S.W.2d 543 (Tenn. 1977), to hold, albeit

reluctantly, that CMC retains its immunity because Ms. Ray

committed an intentional tort, assault and battery [sic], upon Emma Ruth Limbaugh.

Inasmuch as the GTLA does not permit a plaintiff to recover for the intentional torts

of governmental employees, and inasmuch as our supreme court’s decision in Potter

does not permit a plaintiff to circumvent the defense of governmental immunity by

asserting a claim for negligent hiring or retention, we conclude that the judgment

entered against the Medical Center in this case must be reversed.

Because our decision today overrules Potter to the extent that it retains immunity from liability for

those torts not specifically enumerated in the intentional tort exception, we reverse the intermediate

court and hold that CMC is liable for the intentional assault and battery committed by the nursing

assistant.

The factual background in Potter involved the plaintiff’s arrest by a City of Chattanooga

police officer who discovered a bottle of alcohol in the plaintiff’s vehicle. Although the officer did

not test the plaintiff to determine whether she was intoxicated, he nevertheless arrested her for public

drunkenness. At the city jail, the officer became irate when she started to cry, whereupon he

physically assaulted the plaintiff in her cell, causing her to suffer severe injuries including broken

bones and bleeding in her ear. Id. at 544.

The plaintiff filed suit against the city for the intentional torts of false arrest and battery. In

response to the city’s motion to dismiss, the plaintiff amended her complaint to allege that the city

was negligent in failing to “screen[] its employees to adequately determine the psychological

capabilities of its employees to handle the jobs to which they were assigned”; consequently, such

negligence failed to protect her from the police officer’s “berzerk and callous” actions, which the city

“should have known or reasonably could have known were likely to [occur].” Id. We dismissed the

action against the city, holding that

the true bases of the injuries for which recovery of damages is sought are false arrest

and assault and battery. The amendment to the complaint, while levelling additional

charges of negligence against the City, does not alter the fact that the injuries that are

the subject of the action “arose out of” the battery and the false arrest, and was not

effective to avoid the immunity granted the City under [Tennessee Code Annotated

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section] 23-3311.

Id. at 545.

Notably, our decision relied in part on two factually similar cases outside this jurisdiction that

addressed the same issue and that ultimately reached the same results. However, as the respective

tort liability statutes were worded differently, those two decisions should have had little impact in

our jurisdiction. First, we cited Salerno v. Racine, 214 N.W.2d 446 (Wis. 1974), where the plaintiff

sued the city for the intentional torts committed by a police officer and for the city’s negligence in

retaining that violent officer. The Wisconsin Supreme Court, applying the applicable statute, found

the city to be immune from suit on all counts. The statute at issue in that case provided in pertinent

part: “No suit shall be brought against any [governmental entity] for the intentional torts of its

[employees] nor shall any suit be brought against [governmental entities] or against [their

employees] for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial

functions.” Id. at 447 n.1. Although the statutory language plainly protected the city from suit for

the officer’s intentional assault and battery, the statute was unclear as to whether a governmental

entity could be liable for its negligence. Accordingly, the Wisconsin Supreme Court was able to

avoid addressing the issue of the city’s negligence by deciding instead that the officer’s retention was

a quasi-judicial function and the city was therefore immune under the statute. Consequently, the

Salerno decision does not provide adequate guidance for determining whether a Tennessee

governmental entity should be held liable for negligently allowing an employee to intentionally

proximately cause the plaintiff’s injuries.

We also relied on the decision in Little v. Schafer, 319 F. Supp. 190 (S.D. Tex. 1970), which

interpreted the Texas Tort Claims Act containing statutory language similar to that in the GTLA but

expressly listing assault and battery in its provision preserving a municipality’s immunity. In Little,

the district court rejected the plaintiff’s claim that two Texas cities negligently entrusted its police

officers with night clubs. The court relied on the plain language in the Texas Act, which excluded

a municipality from liability for “[a]ny claim arising out of assault, battery, false imprisonment, or

any other intentional tort.” Id. at 191. The court reasoned that “a citizen’s complaint about the

negligent utilization of police officers has no meaning apart from those officers’ acts or omissions

which inure to the detriment of the complainant. The assault is the sine qua non of plaintiff’s

knowledge that municipal negligence exists.” Id. at 192. While we continue to agree with that

rationale,7 our statute does not allow us to reach this precise result if the intentional torts committed

7

Justice Holder, in her concurring opinion, disagrees with the m ajority on this point and would hold instead

that Potter should b e overru led in its entirety . She argu es that a go vernm ental entity sh ould be held liable “for it s

negligent emplo ymen t practices reg ardless of th e nature o f the und erlying ac ts of the employee causing the injury.” We

respectfu lly disagree with this interpretation of the statute. We re-emphasize that the General Ass embly enacted

Tennessee’s GTL A to codify the gene ral com mon la w rule tha t “all gover nmen tal entities shall be immu ne from suit,”

Tenn. Code An n. § 29-20-201(a), subject to th e specific ex ceptions c ontained within the Act. One su ch exce ption is

provided in section 29-20-205, which waives immunity for “injury proximately caused by a negligent act or omission

of any employee within the scope of his employment.” If this general waiver ended here, Justice Holder’s position

(continu ed...)

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are not enumerated in the intentional tort exception.

As a result of Potter’s overbroad application of the intentional tort exception, courts

following Potter have subsequently, albeit erroneously, held that the intentional tort exception

preserves immunity for injuries arising from all intentional torts. See, e.g., Jenkins v. Loudon

County, 736 S.W.2d 603, 608 (Tenn. 1987) (stating that the “scope of the GTLA is generally

intended to exclude intentional torts”); Belk v. Obion County, 7 S.W.3d 34, 40 (Tenn. Ct. App.

1999) (stating that “neither intentional torts nor violations of civil rights” give rise to liability of

county and municipal governments); Roberts v. Blount Mem’l Hosp., 963 S.W.2d 744, 746 (Tenn.

Ct. App. 1997) (stating that it is “well-settled that the Governmental Tort Liability Act has no

application to intentional torts”); Gifford v. City of Gatlinburg, 900 S.W.2d 293, 296 (Tenn. Ct. App.

1995) (“[T]here is no waiver of immunity under the [GTLA] for intentional tort.”); Anderson v.

Hayes, 578 S.W.2d 945, 949 (Tenn. Ct. App. 1978) (stating that “it is logical to conclude that

[section 29-20-205(2)] shows an obvious legislative intention to exclude only [i]ntentional tort

cases”). While this principle is generally accurate, we notice that conspicuously absent from the list

of intentional torts in subsection (2) are those of assault and battery.

It is well-settled that the role of this Court in construing statutes is “to ascertain and give

effect to” the legislative purpose and intent without unduly restricting or expanding a statute’s

coverage beyond its intended scope. Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000). “‘The

legislative intent and purpose are to be ascertained primarily from the natural and ordinary meaning

of the statutory language, without a forced or subtle interpretation that would limit or extend the

statute’s application.’” Id. (quoting State v. Blackstock, 19 S.W.3d 200, 210 (Tenn. 2000)). Courts

are not authorized to alter or amend a statute, and must “‘presume that the legislature says in a statute

what it means and means in a statute what it says there.’” Id. at 307 (quoting BellSouth Telecomm.,

Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997)); Gleaves v. Checker Cab Transit Corp.,

15 S.W.3d 799, 803 (Tenn. 2000) (“‘If the words of a statute plainly mean one thing they cannot be

given another meaning by judicial construction.’” (quoting Henry v. White, 250 S.W.2d 70, 72

(Tenn. 1952)). This last principle applies especially when analyzing the GTLA, as the legislature

created this Act in derogation of the common law, and therefore, the Act must be strictly construed.

Roberts, 963 S.W.2d at 746 (citing Lockhart ex rel. Lockhart v. Jackson-Madison County Gen.

Hosp., 793 S.W.2d 943 (Tenn. Ct. App. 1990)).

Applying the foregoing principles of statutory construction, we conclude that it was error to

expand the intentional torts exception to include the torts of assault and battery. The legislative

7

(...continued)

would be more persuasive to us. However, the provision goes on to exempt from liability those injuries “arising out

of” one of several enumerated exceptions to this section, including the intentional tort exception. As this Act was

created in derog ation of the comm on law, it m ust be strictly co nstrued. Roberts , 963 S.W.2d at 746. Therefore, we

decline to impose blanket liability on a governmental entity for its negligent employment practices when one of the

exceptions immunizing the entity is applicable.

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intent has been expressed in plain and unambiguous terms, and we are therefore required to enforce

the statute as written. The General Assembly expressly created section 29-20-205 to remove

governmental immunity for injuries proximately caused by negligent acts; that it wanted to then

create several exceptions to this general waiver convinces us that additional exceptions are not to be

implied absent legislative intent to the contrary. Cf. United States v. Smith, 499 U.S. 160, 167

(1991) (“Where Congress explicitly enumerates certain exceptions to a general prohibition,

additional exceptions are not to be implied, in the absence of evidence of a contrary legislative

intent.”).

Accordingly, we hold that section 29-20-205 of the GTLA removes immunity for injuries

proximately caused by the negligent act or omission of a governmental employee except when the

injury arises out of only those specified torts enumerated in subsection (2). To immunize all

intentional torts would result in an overly broad interpretation of the statute, and there is no

indication that the legislature intended such a result. Indeed, we find it noteworthy that the

legislature excluded the two intentional torts most likely to give rise to injury. Under the maxim

“expressio unius est exclusio alterius,” which states the principle that the expression of one thing

implies the exclusion of all things not expressly mentioned, City of Knoxville v. Brown, 260 S.W.2d

264, 268 (Tenn. 1953), we are unable to expand the intentional torts exception to include assault and

battery. To do so would be to judicially create two additional exceptions giving rise to an entity’s

immunity.8 To the extent that Potter and other cases hold otherwise, they are overruled.

Applying our conclusions to the present case, we first reiterate that Ms. Ray’s assault of Ms.

Limbaugh was a foreseeable consequence of CMC’s failure to take reasonable precautions to protect

its residents from the risk of abuse by this aggressive nursing assistant. Based on the plain language

of section 29-20-205, the injury inflicted on Ms. Limbaugh was “proximately caused by a negligent

act or omission” of this nursing home’s supervisory personnel. Although it is that negligence of

which the plaintiff complains, it is clear that Ms. Limbaugh’s injuries “arose out of” the intentional

torts of assault and battery committed by Ms. Ray. Because these torts are conspicuously absent

from the intentional tort exception rendering governmental entities immune from liability for

injuries, we hold that the clearly negligent defendant is not immune under this exception.

The Discretionary Function Exception to Liability for Negligence

Under the Governmental Tort Liability Act

8

Moreover, when we compare similarly worded statutes outside our jurisdiction, we observe that the torts of

assault and battery are specifically included in the exceptions to the removal of immunity. For example, the Federal

Tort Claims A ct, which waives th e gover nmen t’s historic sovereign immunity, allows recovery against the United States

for the negligent acts of any of its employees “in the same manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674 (1994). However, this waiver of immu nity does not app ly to “[a]ny claim arising

out of assault, battery,” or other enumerated intentional torts. 28 U.S.C. § 2680(h). Similarly, the Utah Governmental

Imm unity Act, which is phrased almost identically to the Tennessee Act, also has a provision barring recovery for claims

arising out of “assault [or] battery” and other specifically enumerated intentional torts. See Utah Code Ann. § 63-30-

10(2).

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We next address whether CMC is nevertheless immune from tort liability under section 29-

20-205(1), the discretionary function exception. This exception immunizes local governmental

entities from liability for an employee’s negligence if the injury arises out of “the exercise or

performance or the failure to exercise or perform a discretionary function, whether or not the

discretion is abused.” Essentially, the discretionary function exception prevents the use of tort

actions to second-guess what are essentially legislative or administrative decisions involving social,

political, economic, scientific, or professional policies or some mixture of these policies. Doe v.

Coffee County Bd. of Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citing United States v.

Gaubert, 499 U.S. 315, 323 (1991)). The rationale for preserving immunity for certain acts

performed by governmental entities is that the government should be permitted to operate without

undue interference by the courts, as courts are often “ill-equipped to investigate and balance the

numerous factors that go into an executive or legislative decision.” Bowers v. City of Chattanooga,

826 S.W.2d 427, 431 (Tenn. 1992) (quoting Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982));

see also Carlson v. State, 598 P.2d 969, 972 (Alaska 1979).

In Bowers v. City of Chattanooga, this Court recognized that a more precise method of

analysis was needed for determining which acts are entitled to discretionary function immunity.

Consequently, we adopted the planning-operational test under which it is the “nature of the conduct,”

that is, the decision-making process, and not the “status of the actor,” Bowers, 826 S.W.2d at 430-

31, that governs whether the exception applies. See also United States v. Gaubert, 499 U.S. 315, 322

(1991). Under this analysis, a planning decision is most likely to reflect a course of conduct that was

determined after consideration or debate by those in charge of formulating plans or policies.

Bowers, 826 S.W.2d at 430 (citing Carlson, 598 P.2d at 972-73). Decisions that rise to the level of

planning or policy-making are considered to be discretionary acts requiring judicial restraint and are,

therefore, not subject to tort liability. On the other hand, decisions that merely implement pre-

existing policies and regulations are considered to be operational in nature and require the decision-

maker to act reasonably in implementing the established policy. If the policy, regulation, or other

standard of procedure mandates specific conduct, then any employee reasonably complying with that

direction will not abrogate the entity’s immunity if the action furthers the underlying policies of the

regulation. See generally Chase v. City of Memphis, 971 S.W.2d 380, 384 (Tenn. 1998). If such

an employee does not act reasonably but pursues a course of conduct that violates mandatory

regulation, the discretionary function exception will not apply because the action would be contrary

to the entity’s established policy. Id.; see also Gaubert, 499 U.S. at 324.

Turning to the facts in this case, the administrator of the nursing home at the time of Ms.

Limbaugh’s abuse testified as to the existence of certain standards for disciplining an employee who

has exhibited combative behavior. According to Mr. Moore’s testimony, these standards required

that the incident be reported to the State within twenty-four hours of its occurrence and that the

offending employee be sent home and “placed on leave,” presumably also within that twenty-four

hour period to await the State’s investigation. Applying the foregoing principles, we find that the

nursing home’s broad discretion to implement a policy governing the questions of whether and how

to discipline combative employees is indeed a policy determination that cannot give rise to tort

liability. However, CMC negligently failed to follow the guidelines designed to prescribe the proper

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disciplinary measures to impose upon Ms. Ray after the incident involving Jennie Cox.

Accordingly, the discretionary function exception to the waiver of governmental immunity does not

bar recovery for Mr. Limbaugh’s claims against the negligent nursing home. Therefore, we reverse

the judgment of the intermediate court and hold that CMC is liable for Ms. Limbaugh’s injuries

proximately caused by its negligent acts.

II. APPORTIONMENT OF FAULT

The final issue presented for our review is whether the trial court erred in apportioning fault

between the negligent and intentional defendants where the intentional conduct was the foreseeable

risk created by the negligent nursing home.9 This question is one of first impression and requires

us to review our holding in Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997).

In Turner, the plaintiff, a hospital nurse, was assaulted and severely injured by Tarry

Williams, a mentally ill patient in the hospital where she worked. Dr. Jordan, Williams’s treating

psychiatrist, had diagnosed his patient as “aggressive, grandiose, intimidating, combative, and

dangerous,” id. at 817 (emphasis omitted), but he nevertheless decided to discharge him from the

hospital by “allowing him to sign out AMA [Against Medical Advice].” Id. (alteration in original).

After her attack, the plaintiff brought suit against Dr. Jordan, alleging that he violated his duty to use

reasonable care in the treatment of his patient, which proximately caused her injuries and resulting

damages. After determining that the psychiatrist did indeed owe a duty of care to the plaintiff nurse

because he knew or should have known that his patient posed “an unreasonable risk of harm to a

foreseeable, readily identifiable third person,” id. at 821, we then held that the “conduct of a

negligent defendant should not be compared with the intentional conduct of another in determining

comparative fault where the intentional conduct is the foreseeable risk created by the negligent

tortfeasor.” Id. at 823.

We held the defendant responsible for the entire amount of the plaintiff’s damages for several

reasons. First, we determined that the legal conception of “fault” necessarily precluded the

allocation of fault between negligent and intentional actors because “negligent and intentional torts

are different in degree, in kind, and in society’s view of the relative culpability of each act.” Id.10

9

Interestingly, the issue of Ms. Ray’s immunity from suit for her tortious actions committed as a governmental

employee has not been raised in the trial court, the C ourt of A ppeals, or in this Court. Therefo re, any claims for M s.

Ray’s immunity made pursuant to Tennessee Code Annotated § 29-20-310(b) (“No claim may be brought against an

employee or judgment entered against an employee for damages for which the imm unity of th e gover nmen tal entity is

removed by this chapter unless the claim is one for medica l malprac tice broug ht against a health care practitione r. . .

.”) have been waived.

10

As aptly e xpressed by the diss enting op inion in a c ase decid ed by th e Wyo ming S uprem e Court,

The law of intentional torts constitutes a separate world of legal culpability. It is a system that

balances specific rights and obligations, and imposes liability on the basis of a party’s intent, rather

(continu ed...)

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Second, we expressed our concern that allowing comparison would reduce the negligent person’s

incentive to comply with the applicable duty of care and thus prevent further wrongdoing. Id.

Finally, we recognized that when a defendant breaches a duty to prevent the foreseeable risk of harm

by a nonparty intentional actor, that negligent co-tortfeasor cannot reduce his or her liability by

relying on the foreseeable risk of harm that he or she had a duty to prevent. Id.

The present case presents a different factual setting. Unlike Turner, the plaintiff here has

brought a cause of action against all tortfeasors whose unreasonable acts have contributed to the

elderly resident’s injuries. Consequently, we are required to determine how to assign causal

responsibility between negligent and intentionally tortious defendants where the intentional

misconduct is the foreseeable risk created by the negligent defendant. We continue to adhere to the

principle established in Turner that the conduct of a negligent defendant should not be compared

with the intentional conduct of a nonparty tortfeasor in apportioning fault where the intentional

conduct is the foreseeable risk created by the negligent tortfeasor. Id.; see also White v. Lawrence,

975 S.W.2d 525, 531 (Tenn. 1998) (holding that the defendant physician’s liability would not be

reduced by comparing his negligent conduct with the decedent’s intentional act of committing

suicide since the intentional act was a foreseeable risk created by the defendant’s negligence). After

careful consideration, we conclude that where the intentional actor and the negligent actor are both

named defendants and each are found to be responsible for the plaintiff’s injuries, then each

defendant will be jointly and severally responsible for the plaintiff’s total damages. See generally

Restatement (Third) of Torts § 24 (1999). Therefore, both CMC and Ms. Ray are each liable for all

of the plaintiff’s damages.11

Although our adoption of comparative fault abrogated the use of the doctrine of joint and

several liability in those cases where the defendants are charged with separate, independent acts of

negligence, see McIntyre v. Balentine, 833 S.W.2d 52, 58 (Tenn. 1992), the doctrine continues to

be an integral part of the law in certain limited instances. See Owens v. Truckstops of Am., 915

S.W.2d 420, 431 n.13, 432 (applying joint and several liability to parties in the chain of distribution

of a product when the theory of recovery is strict liability); see also Resolution Trust Corp. v. Block,

924 S.W.2d 354, 355-56 (Tenn. 1996) (holding the officer and director jointly and severally liable

10

(...continued)

than the moral blameworthiness of that party’s conduct by societal standards. The real qualitative

distinctions between intentional torts and other forms of culpable conduct share a single origin–the

“duty” concept. Intentional torts are dignitary by nature. They are designed to protect one’s right to

be free from unpermitted intentional in vasions o f person o r proper ty. Alterna tively, the du ty

underlying an action in neglige nce or strict p roducts liability is to avoid causing, be it by conduct or

by product, an un reasonable risk of harm to others within the range of proximate cause foreseeability.

These d istinct world s of culpa bility cann ot be reco nciled.

Mills v. Reynolds, 807 P.2 d 383, 4 03 (W yo. 199 1) (Urb igkit, C.J., dissen ting).

11

Althoug h statutory principles o f contribu tion and in demn ity apply, th ere is “no right of contribution in favor

of any tort-feasor who has intentionally caused or contributed to the injury.” Tenn. Code A nn. § 29-11-102(c).

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to the corporation for their collective actions). We believe that in the context of a negligent

defendant failing to prevent foreseeable intentional conduct, the joint liability rule “is a very

reasonable and just rule of law which compels each to assume and bear the responsibility of the

misconduct of all.” Resolution Trust Corp., 924 S.W.2d at 356. Consequently, we reverse the trial

court’s apportionment of fault and hold that CMC and Louise Ray are jointly and severally liable

for the full amount of damages awarded to Mr. Limbaugh. However, because the trial court

incorrectly apportioned damages between the two tortfeasors, we remand this case to the Circuit

Court for Coffee County to determine the total amount of damages for which each tortfeasor shall

be jointly and severally liable.

CONCLUSION

Having thoroughly examined the record in this case and after carefully applying all

applicable law, we hold that: (1) the Governmental Tort Liability Act removes governmental

immunity for injuries proximately caused by the negligent act or omission of a governmental

employee except when the injury arises out of only those specified torts enumerated in Tennessee

Code Annotated section 29-20-205(2); and (2) where the harm arising from the tortious acts of an

intentional tortfeasor was a foreseeable risk created by a negligent defendant, and all tortfeasors have

been made parties to the suit, each tortious actor shall be jointly and severally liable for the

plaintiff’s damages.

Accordingly, we affirm that portion of the judgment of the Court of Appeals finding Coffee

Medical Center negligent. However, we reverse those portions of the judgment (1) holding Coffee

Medical Center immune from suit, and (2) implicitly upholding the trial court’s apportionment of

fault and allocation of damages between the negligent and intentional tortfeasors. We remand the

case to the trial court to determine the total amount of damages to be awarded to the plaintiff.

Costs of this appeal are taxed to the appellee, Coffee Medical Center.

__________________________________________

WILLIAM M. BARKER, JUSTICE

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