Lataisha M. Jackson v. Charles Anthony Burrell -Concur in Part/Dissent in Part

01/16/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 9, 2018 Session

LATAISHA M. JACKSON v. CHARLES ANTHONY BURRELL ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-000328-15 Valerie L Smith, Judge

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No. W2018-00057-COA-R3-CV

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J. STEVEN STAFFORD, P.J., W.S., concurring in part and dissenting in part.

Here, as I perceive it, the majority opinion contains four central holdings: (1) both

Defendant Burrell and Defendant Gould’s are “health care providers,” and, as such, any

claims against them that relate to the provision of health care services are governed by

the Tennessee Health Care Liability Act (“THCLA”); (2) the intentional tort claims

against Defendant Burrell are not governed by the THCLA because they are not related to

the provision of health care services; (3) all vicarious liability claims against Defendant

Gould’s fail to state a claim upon which relief can be granted; and (4) the remaining

direct liability claims against Gould’s, i.e., the claims of negligent retention and

supervision, are governed by the THCLA and fail due to the lack of a good faith

certificate. While I agree with the result reached by the majority with regard to the first

three holdings, I cannot agree that Plaintiff’s negligent retention and supervision claims

fail due to the lack of a good faith certificate. As such, I respectfully file this partial

dissent.

Before reaching the substantive merits of this issue, I find it necessary to address

the manner in which Plaintiff raised this argument in the trial court. As the majority

correctly notes, Plaintiff here has conflated her claims against Defendant Burrell and

Defendant Gould’s. As such, the common knowledge exception to the THCLA, though

minimally raised in the trial court, was buried under an ultimately unconvincing

argument that the claims against Gould’s should not be subject to the THCLA at all.

Specifically, Plaintiff insisted in the trial court that she was not required to file a

certificate because the impetus of her claim was an alleged sexual battery, meaning the

claim was not subject to the mandates of the THCLA. I agree with the majority, however,

that the claims of direct liability against Gould’s are “related to the provision of . . .

health care services” and therefore must comply with all applicable mandates of the

THCLA. Cordell v. Cleveland Tennessee Hosp., LLC, 544 S.W.3d 331, 339 (Tenn. Ct.

App. 2017), perm. app. denied (Tenn. Aug. 17, 2017) (quoting Tenn. Code Ann. § 29-26-

101(a)(1)).

The question then becomes whether a good faith certificate was required to be

filed in order to comply with the mandates of the THCLA in this particular case or

whether the filing of certificate of good faith was excused under the common knowledge

exception. Despite an appellate record totaling six volumes, such an argument was

addressed only twice in the trial court, and in a decidedly conclusory fashion: once in a

response to summary judgment filed early in the action,1 and once in the second hearing

on summary judgment held following the trial court’s initial oral ruling.2 Thus, the

common knowledge exception was never expressly and specifically invoked by Plaintiff

in the trial court.

Generally, when arguments are not raised in the trial court, they may not be raised

for the first time on appeal. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009). The

party invoking waiver must show, however, that the issue was in fact not raised in the

trial court. Id. at 171 (“While we endorse the continuing vitality and validity of the

principle that parties will not be permitted to raise issues on appeal that they did not first

raise in the trial court, we also hold that the party invoking this principle has the burden

of demonstrating that the issue sought to be precluded was, in fact, not raised in the trial

court.”). In this case, Gould’s has not asserted that application of the common knowledge

exception should be waived. Moreover, my review of the record convinces me that that

this argument was raised, though in a minimal and specious fashion, with regard to both

the claims against Defendant Burrell and Defendant Gould’s. Finally, the doctrine of

waiver generally exists to prevent litigants from raising issues to which their opponents

1

Specifically, the response stated:

The Supreme Court of Tennessee has repeatedly held that no expert testimony is required

in health care liability cases in which the negligence is obvious and can be understood by

the average layperson. Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn.

2010) (“Unless the negligence is obvious and readily understandable by an average lay

person, expert testimony will be required to demonstrate the applicable standard of care

and breach of the standard.”); Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d

86, 42 (Tenn. 1999) (“Expert testimony is required in medical malpractice cases to assist

and educate the trier of fact unless the alleged malpractice lies within the common

knowledge of by lay persons.”).

2

Specifically, counsel for Plaintiff made the following argument:

This case does not require expert proof. A jury does not need to be told that

Gould’s have been provided with notice that they have a potential claim, any claim that

they have under their employment a sexual predator. Gould has a duty to protect their

customers from a sexual predator. Now, do we need an expert to tell us that. I don’t

understand what expert would we need to say that Gould’s, if they [sic] notice of a

potential sexual predator has a duty to protect their customers. It is not the healthcare act.

This sexual battery is criminal conduct. It does not require expert proof.

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have no opportunity to respond. See, e.g., Shaw v. Gross, No. W2017-00441-COA-R3-

CV, 2018 WL 801536, at *4 (Tenn. Ct. App. Feb. 9, 2018) (discussing waiver of issues

that are raised only in reply briefs). Here, Gould’s clearly perceived that Plaintiff was

raising the common knowledge exception as a defense to its request for summary

judgment and provided ample response to that argument. As such, though I caution

litigants from engaging in such conclusory arguments in the trial court, I must conclude

that this issue is properly before this Court. See Fayne, 301 S.W.3d at 171 (“Like the

Tennessee Rules of Appellate Procedure, this Court’s jurisprudential rules should be

interpreted and applied in a way that enables appeals to be considered on their merits.”);

see also Tenn. R. App. P. 1 (stating that rules of appellate procedure should be construed

to “secure the just, speedy, and inexpensive determination of every proceeding on its

merits”) (emphasis added).3

I also must deviate from the majority’s ultimate conclusion that Plaintiff was

required to file a certificate of good faith in order to bring her negligent supervision and

retention claim against Gould’s, and that the common knowledge exception lends

Plaintiff no support under these circumstances. While the direct liability claims against

Gould’s clearly fall within the ambit of the THCLA,

a determination that a claim falls within the THCLA does not automatically

trigger all of the statute’s requirements. The need for expert proof will not

lie if the matter is within the common knowledge of a layperson, and if

there is no need for expert proof, a plaintiff’s complaint will not fail for

failure to attach a certificate of good faith under section 29-26-122. See

Tenn. Code Ann. 29-26-122(a) (2012) (“In any health care liability action

in which expert testimony is required by § 29-26-115, the plaintiff or

plaintiff’s counsel shall file a certificate of good faith with the complaint.”)

(emphasis added). Thus, although determining that a claim constitutes a

health care liability action will subject it to the pre-suit notice requirement

in section 29-26-121, additional analysis is needed to determine whether

expert proof is necessary.

Zink v. Rural/Metro of Tenn., L.P., 531 S.W.3d 698, 706 (Tenn. Ct. App. 2017); see

also Ellithorpe v. Weismark, 479 S.W.3d 818, 829 (Tenn. 2015) (noting the continued

3

Although the majority also concludes that this issue was waived because no argument was

“raised or argued by Plaintiff . . . to this Court,” I must respectfully disagree. Here, Plaintiff devotes an

entire section of her brief to the application of the common knowledge exception. Gould’s brief also

contains a section devoted to the application of the common knowledge exception, showing that Gould’s

had ample notice of Plaintiff’s reliance on this doctrine. Although Plaintiff’s brief again focuses on an

argument that the majority correctly concludes is unavailing, see supra, I simply cannot conclude that the

burden to show waiver has been met in this case, particularly in light of this Court’s policy in favor of

deciding cases on their merits. See Norton v. Everhart, 895 S.W.2d 317, 322 (Tenn. 1995) (noting “the

clear policy of this state favoring the adjudication of disputes on their merits”).

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viability of the common knowledge exception to the expert proof requirement in health

care liability claims). Thus, while the majority opinion is correct that claims involving

“medical negligence” typically require expert proof, not all “health care liability claims”

contemplate medical negligence such that expert proof regarding the standard of care is

necessary. Cf. Estate of Thibodeau v. St. Thomas Hosp., No. M2014-02030-COA-R3-

CV, 2015 WL 6561223, at *4 (Tenn. Ct. App. Oct. 29, 2015) (citing Ellithorpe v.

Weismark, 479 S.W.3d 818 (Tenn. 2015)) (adopting the defendant’s position that the

THCLA “unambiguously expanded the scope of actions subject to the health care liability

statutes and abolished the common law tests for determining whether an action

constitutes a medical malpractice or ordinary negligence action”).

This Court has recognized two situations where the common knowledge exception

may apply in the context of a health care liability claim. See Osunde v. Delta Med. Ctr.,

505 S.W.3d 875, 886 (Tenn. Ct. App. 2016). “First, expert proof may be dispensed with

when the trier of fact can determine, based on common knowledge, that the direct

allegations against a defendant constitute negligence.” Id. (citing Rural Ed. Ass’n v.

Anderson, 261 S.W.2d 151, 155 (Tenn. Ct. App. 1953)) (“It is a matter of common

knowledge and common sense of laymen that a patient in such a condition should be

watched and protected and not left unattended on an upper story by an unguarded

window through which he might, and ultimately did, fall or jump to his death.”). Second,

the common knowledge exception is also applicable in the res ipsa loquitur situation. Id.

(quoting Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn. 1999))

(“[T]he ‘common knowledge’ language has also been referred to in cases involving the

application of res ipsa loquitur, which ‘allows an inference of negligence where the jury

has a common knowledge or understanding that events which resulted in the plaintiff’s

injury do not ordinarily occur unless someone was negligent.’”); see also Tenn. Code

Ann. § 29-26-115(c) (codifying the doctrine of res ipsa loquitur in the health care liability

context). Regardless, we have described the defining feature of this doctrine thusly:

“expert testimony is not required where the act of alleged wrongful conduct lies within

the common knowledge of a layperson.” Osunde, 505 S.W.3d at 886.

We therefore turn to consider the claims alleged in this case, specifically that

Gould’s acted negligently in supervising and retaining Defendant Burrell, resulting in the

assault on Plaintiff. Although the majority prefers to cite caselaw applicable to “medical

negligence” claims, Plaintiff’s claims, while certainly health care liability claims, are

simply not medical negligence claims subject to the same proof requirements. See id. at

880 (“Under traditional legal principles, our courts recognized that not every negligence

action asserted against a hospital or doctor [or health care provider] was one for medical

malpractice.”). Instead, this Court has held that “‘[a] plaintiff in Tennessee may recover

for negligent hiring, supervision or retention of an employee if he establishes, in addition

to the elements of a negligence claim, that the employer had knowledge of the

employee’s unfitness for the job.’” Brown v. Mapco Exp., Inc., 393 S.W.3d 696, 703

(Tenn. Ct. App. 2012) (quoting Doe v. Catholic Bishop for Diocese of Memphis, 306

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S.W.3d 712, 717 (Tenn. Ct. App. 2008)). Neither Gould’s nor the trial court cited any law

that mandates expert proof in all claims of this type, nor has our research revealed any.

Thus, we have generally allowed “the trier of fact [to] determine, based on

common knowledge, that the direct allegations against a defendant constitute negligence”

when this type of claim is at issue. Osunde, 505 S.W.3d at 886. To impose an expert

proof requirement in a negligent hiring, supervision, or retention claim would therefore

be in contrast to the typical case, while declining to impose an expert proof requirement

in a medical negligence case would be in contrast to the typical claim. See Osunde, 505

S.W.3d at 880 (noting that “although medical malpractice claims typically required

expert proof, claims asserting ordinary negligence did not”). As such, analogies to

medical negligence are not particularly helpful to a resolution of this dispute.

Still, any claim, including claims of negligent retention and supervision, may

require expert proof

when the subject matter requires that the court and jury have the aid of

knowledge or experience not held by ordinary witnesses, Lawrence County

Bank v. Riddle, 621 S.W.2d 735, 737 (Tenn. 1981), and where common

knowledge furnishes no criteria for judgment or where proof depends on

observation and analysis outside the common experience of jurors, expert

testimony is required to establish the proof.

Hall v. State, No. E2004-01635-CCA-R3-PD, 2005 WL 2008176, at *30 (Tenn. Crim.

App. Aug. 22, 2005), perm. app. denied (Tenn. Dec. 19, 2005). Thus, when

issues . . . are not subject to an intelligent determination simply on the basis

of deductions made and inferences drawn from ordinary knowledge,

common sense, and practical experience gained in the ordinary affairs of

life . . . the testimony of a witness with special knowledge and skill is

required in order to arrive at an intelligent conclusion.

Id. (quoting Lawrence County Bank, 621 S.W.2d at 737); see also Tenn. R. Evid. 702

(stating that expert testimony is admissible “[i]f scientific, technical, or other specialized

knowledge will substantially assist the trier of fact to understand the evidence or to

determine a fact in issue”). However, “[i]f the finder of fact can comprehend the subject

of expertise without expert testimony, then an expert witness is not necessary.” Miller v.

Willbanks, 8 S.W.3d 607, 615 (Tenn. 1999) (citing Lawrence County Bank, 621 S.W.2d

at 737).

Notwithstanding the fact that the claims at issue relate to the provision of health

care services, a recent Tennessee Court of Appeals case supports my conclusion that the

facts of this case do not necessitate expert proof. See C.D. v. Keystone Continuum, LLC,

No. E2016-02528-COA-R3-CV, 2018 WL 503536 (Tenn. Ct. App. Aug. 8, 2017). In

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Keystone, we considered a matter in which a young boy who was being held in a

residential treatment center was allegedly assaulted by one of the center’s employees.

After the alleged assault, the child’s mother brought suit against the facility, in part

raising claims of negligent supervision and/or training. Id. at *1. The defendant moved

for summary judgment, arguing that because the center was a mental health facility, and

the employee at issue a “mental health associate,” the plaintiff’s claims were subject to

the requirements of the THCLA, namely, pre-suit notice and a certificate of good faith.

Id. The trial court agreed and dismissed the suit. Id. On appeal, however, the plaintiffs

argued that their allegations regarding the defendant’s “negligent failure to supervise

and/or train its employees involve matters that ordinary laypersons are able to assess by

their common knowledge.” Id. at *7. We agreed, concluding that the allegations at issue

generally pertained to inadequate security and protection for the residents. Id. Indeed, we

wrote that “the trier of fact will be able to review and assess the proof of defendant’s

measures to provide security for the residents and determine whether they were adequate

and appropriate without the assistance of expert testimony.” Id.

Keystone is highly analogous to the facts in the present matter. Both Keystone and

this case involve direct claims against employers for negligent supervision based on

allegations that the defendant health care provider had knowledge that its employee was

unfit for duty.4 These types of claims are generally not supported by expert proof, see

supra, and nothing in the record or the parties’ arguments leads me to believe that the

proof required should be different in the instant case. Instead, I am of the opinion that

common knowledge alone is sufficient to determine whether Gould’s breached the

standard of care in allowing Defendant Burrell to continue engaging in close, intimate

contact with dis-robed customers in spite of these prior complaints. As I perceive it, this

is exactly the type of question that can be answered by “practical experience gained in the

ordinary affairs of life.” Hall, 2005 WL 2008176, at *30.

Moreover, it is entirely unclear to me what “scientific, technical, or other

specialized knowledge” could “substantially assist the trier of fact” in determining this

question. Tenn. R. Evid. 702. The majority suggests that “the ordinary layman does not

possess the knowledge required to determine whether or not Defendant Gould’s violated

4

Although the Keystone opinion does not state what evidence was presented of the residential

facility’s notice of its employee’s unfitness for the job, here the record contains evidence that Gould’s

received two complaints prior to this incident concerning Defendant Burrell’s conduct while giving

massages to female customers. Indeed, while both myself and the majority have detailed how Plaintiff

conflated issues in the trial court and on appeal, the majority itself appears to conflate the expert proof

requirement with issues of whether these complaints were sufficient to put Gould’s on notice of

Defendant Burrell’s unfitness. The trial court’s decision to grant summary judgment did not rest on its

determination that Plaintiff provided insufficient proof of the notice element of Plaintiff’s negligent

supervision and retention claims. Rather, the only basis for the dismissal of these claims was the lack of

certificate of good faith, a certificate that is only required where expert proof is necessary. Indeed, the

trial court commented that these prior complaints were likely sufficient to withstand a summary judgment

motion on the issue of notice. I express no opinion as to that issue.

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the massage industry standard in retaining or supervising Defendant Burrell.”

Respectfully, this assertion over-complicates the issue. The notion that an employer

should be concerned about allegations of sexual harassment by one of its employees is

not a complex idea limited to “the massage industry.” Rather, this is a simple concept

applicable to virtually all workplaces and industries.

Nothing in the nature of the massage industry or the fact that this case involves the

provision of health care services alters the fact that employers have a duty to exercise due

care in the hiring and retention of their employees. Cf. Jones v. Windham, No. W2015-

00973-COA-R10-CV, 2016 WL 943722, at *10 (Tenn. Ct. App. Mar. 11, 2016) (Gibson,

J., dissenting), perm. app. granted (Tenn. Aug. 19, 2016) (noting that the claims of

negligent hiring, retention, and supervision rest on the notion that employers have “a duty

to exercise ordinary care when hiring employees”) (quoting Morgan, Fife, Predator in the

Primary: Applying the Tort of Negligent Hiring to Volunteers in Religious Organizations,

2006 BYU L. Rev., 569, 578–79 (2006)). Thus, to impose an expert proof requirement in

this case would be akin to requiring expert proof in all negligent hiring, retention, and

supervision cases, a holding at odds with decades of Tennessee jurisprudence. See e.g.,

Wishone v. Yellow Cab Co., 20 Tenn. App. 229, 97 S.W.2d 452, 453 (Tenn. Ct. App.

1936) (affirming a judgment against an employer for negligence in hiring without the

benefit of expert proof); cf. Ms. B. v. Boys & Girls Club of Middle Tennessee, No.

M2013-00812-COA-R3-CV, 2014 WL 890892, at *8 (Tenn. Ct. App. Mar. 6, 2014)

(reversing summary judgment on a negligent supervision claim although no expert proof

was presented regarding whether the defendant organization committed negligence in

supervising an employee).

Moreover, the majority’s conclusion above could also be applied to the

supervision of the employee of the residential treatment facility in Keystone. Notably,

however, another panel of this Court clearly rejected such a holding by concluding that

expert proof was not necessary to support the plaintiff’s negligent supervision claim. See

Keystone 2018 WL 503536, at *7. I believe that panel reached the correct result in

Keystone and that the same reasoning should be applicable here.

For the foregoing reasons, I conclude that the common knowledge exception

exempted the Plaintiff in this case from filing a certificate of good faith as to her claims

of negligent retention and supervision against Defendant Gould’s. As such, I respectfully

file this partial dissent from the majority opinion.

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J. STEVEN STAFFORD, JUDGE

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