Lataisha M. Jackson v. Charles Anthony Burrell

06/12/2020

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 1, 2020 Session1

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

Appeal by Permission from the Court of Appeals

Circuit Court for Shelby County

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

___________________________________

No. W2018-00057-SC-R11-CV

___________________________________

The question presented in this health care liability case is whether the plaintiff’s

claim against a salon for negligent training, supervision, and retention of a massage

therapist should be dismissed because the plaintiff did not file a certificate of good faith

with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act

(“the Act”). Our answer depends on whether the common knowledge exception applies—

that is, whether laypersons using their common knowledge and without expert testimony

could decide whether the salon was negligent. If the common knowledge exception does

not come into play and expert testimony is necessary, then the plaintiff needed to file a

certificate of good faith with her complaint certifying that her negligence claim was

supported by a competent expert witness and that there was a good faith basis for the

claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually

assaulted her during a massage. In support of her claim of negligent training, supervision,

and retention, the plaintiff presented evidence that before her assault, the salon had

received complaints from two customers that the massage therapist had acted

inappropriately and made them feel uncomfortable. The trial court granted summary

judgment to the salon because the plaintiff had not filed a certificate of good faith. The

Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge

exception and that, in any event, expert testimony was necessary. We reverse and hold

that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff’s

claim against the salon for negligent training, supervision, and retention of the massage

therapist was within the common knowledge of laypersons and did not require expert

testimony about the standard of care in the massage industry. Thus, the plaintiff did not

have to present expert proof to establish her negligence claim against the salon. It follows

then that the plaintiff had no reason to file a certificate of good faith under section 29-26-

122, and her claim is not subject to dismissal for noncompliance with this section. The

trial court’s award of summary judgment is vacated.

1

We heard oral argument through videoconference under this Court’s emergency Order of March

25, 2020, restricting court proceedings because of the COVID-19 pandemic.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Order of the Trial Court Vacated; Remanded to the Trial Court

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

R. Sadler Bailey and J. Vance Montgomery, Memphis, Tennessee, for the appellant,

Lataisha M. Jackson.

Charles W. Hill, Robert B. C. Hale, and Danielle Rassoul, Memphis, Tennessee, for the

appellee, Gould’s Salons, Inc. d/b/a Gould’s Day Spa & Salon.

Warren D. McWhirter, Germantown, Tennessee, for the appellee, Charles Anthony

Burrell.

OPINION

I.

This case arises out of Lataisha Jackson’s claim that Charles Anthony Burrell, a

massage therapist for Gould’s Day Spa & Salon in Cordova, Tennessee, sexually

assaulted Ms. Jackson during an April 2014 massage.

Before the alleged assault, two customers had complained to Gould’s about Mr.

Burrell’s conduct. In December 2013, a customer emailed Gould’s claiming that Mr.

Burrell had made her extremely uncomfortable during her massage. She stated that he

had “[come] way too close to places he had no business touching.” This customer told

Gould’s that Mr. Burrell had not touched her in any inappropriate places, but he had

“grazed more than once and that’s not ok.” And in March 2014, a second customer called

Gould’s and reported that Mr. Burrell had made her uncomfortable during her massage

and “was very inappropriate.” Gould’s gave these customers gift cards to refund the

charges for their massages. Mr. Burrell had been a licensed massage therapist since 2002,

began working for Gould’s in 2012, and had performed thousands of massages with no

complaints. No disciplinary complaints had been filed against him with the Tennessee

Board of Massage Licensure, and there had been no criminal charges filed. Mr. Burrell

had previously given Ms. Jackson a massage in February 2014 without incident.

In January 2015, Ms. Jackson sued Gould’s in the Shelby County Circuit Court

alleging that Gould’s was negligent in its training, supervision, and retention of Mr.

Burrell. Ms. Jackson also raised other claims, including a claim for negligent hiring and

vicarious liability against Gould’s and claims against Mr. Burrell for assault and battery,

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intentional or reckless infliction of emotional distress, and false imprisonment. These

claims are not at issue in this appeal.2

Gould’s is a “health care provider” under the Act.3 In a health care liability case in

which expert testimony is required, a plaintiff must file with her complaint a certificate of

good faith. In the certificate, the plaintiff or her counsel must confirm that she or her

counsel consulted with one or more experts who provided a signed written statement that

they were competent to testify under the requirements of Tennessee Code Annotated

section 29-26-115 and that there was a good faith basis for the health care liability action.

Tenn. Code Ann. § 29-26-122(a) (2012). Failure to file a good faith certificate subjects a

complaint to dismissal with prejudice. Id. § 29-26-122(c). Ms. Jackson did not file a

certificate of good faith, explaining that her claim against Gould’s for negligent training,

supervision, and retention of an employee was not a health care liability action in which

expert testimony was required by Tennessee Code Annotated section 29-26-115.

The trial court granted summary judgment to Gould’s based on Ms. Jackson’s

failure to file a certificate of good faith with her complaint.4

Ms. Jackson appealed. First, the Court of Appeals ruled that Ms. Jackson had

waived the common knowledge exception by not raising the issue in the trial court or in

the appellate court. Jackson v. Burrell, No. W2018-00057-COA-R3-CV, 2019 WL

237347, at *5 (Tenn. Ct. App. Jan. 16, 2019), perm. app. granted (Tenn. Aug. 21, 2019).

The Court of Appeals then held that, even if Ms. Jackson had not waived the issue, the

common knowledge exception did not apply and that expert proof was needed to

establish the applicable standard of care in the massage industry. Id. at *6. Noting that

2

The trial court dismissed these claims on summary judgment except for the negligent hiring

claim, which Ms. Jackson agreed should be dismissed. The Court of Appeals reversed the trial court’s

award of summary judgment to Mr. Burrell, holding that the intentional tort claims against him were

unrelated to the provision of health care services and not subject to the requirements of the Act. Jackson

v. Burrell, No. W2018-00057-COA-R3-CV, 2019 WL 237347, at *4 (Tenn. Ct. App. Jan. 16, 2019),

perm. app. granted (Tenn. Aug. 21, 2019). Mr. Burrell did not seek review of that ruling, and the

intentional tort claims against him are not at issue in this appeal. The Court of Appeals affirmed summary

judgment on Ms. Jackson’s vicarious liability claim against Gould’s. Ms. Jackson did not seek review of

that ruling.

3

The Tennessee Health Care Liability Act defines a health care provider as “[a] health care

practitioner licensed, authorized, certified, registered, or regulated under any chapter of [Tennessee Code

Annotated] title 63 or title 68 . . . .” Tenn. Code Ann. § 29-26-101(a)(2)(A) (2012). Gould’s is licensed

and regulated under the Massage Licensure Act of 1995, Tennessee Code Annotated sections 63-18-101

to -116.

4

Gould’s also asserted in its motion for summary judgment that Ms. Jackson had signed a waiver

before her massage that barred her claims against Gould’s and that Gould’s was not vicariously liable for

Mr. Burrell’s intentional torts. The trial court’s award of summary judgment based on Ms. Jackson’s

failure to file a certificate of good faith pretermitted these issues.

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Gould’s had received two customer complaints about Mr. Burrell, the Court of Appeals

concluded that neither customer had accused Mr. Burrell of sexual assault and that Ms.

Jackson failed to establish what Gould’s did or did not do after receiving these

complaints. Id. The Court of Appeals found that without this evidence, the ordinary

layperson lacked the necessary knowledge to decide whether Gould’s violated the

massage industry standard in training, supervising, or retaining Mr. Burrell. Id.

One member of the Court of Appeals panel disagreed with the majority’s ruling on

the certificate of good faith issue. Id. at *6 (Stafford, P.J., W.S., concurring in part and

dissenting in part). This judge found that Ms. Jackson had raised the common knowledge

exception in the trial court and that Gould’s, which had the burden of proving waiver, had

not asserted the issue. Id. at *7. Finding no waiver, the dissenting judge determined that

the common knowledge exception applied because an ordinary layperson could

determine whether Gould’s, after receiving customer complaints about Mr. Burrell, was

negligent in allowing him to keep performing massages on disrobed customers. Id. at

*10. In the dissenting judge’s view, expert testimony was unnecessary because “this is

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

ordinary affairs of life,’” and it was “not a complex idea limited to ‘the massage

industry.’” Id. (citation omitted).

This Court granted Ms. Jackson’s application for permission to appeal to

determine whether Ms. Jackson waived the issue of the common knowledge exception,

and if not, whether the common knowledge exception applied to Ms. Jackson’s claim for

negligent training, supervision, and retention so that she did not need to file a certificate

of good faith with her complaint.

II.

Waiver

The material facts here are not in dispute. The issues of waiver and the application

of the common knowledge exception present us with questions of law which we review

de novo, with no presumption of correctness or deference to the decisions of the lower

courts. Bryant v. Bryant, 522 S.W.3d 392, 399 (Tenn. 2017) (citing Rye v. Women’s Care

Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Parker v. Holiday

Hospitality Franchising, 446 S.W.3d 341, 346 (Tenn. 2014)).

We first address the matter of waiver because a party may not raise an issue on

appeal that was not raised in the trial court.5 The party invoking waiver has the burden of

5

Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010) (citing Barnes v. Barnes,

193 S.W.3d 495, 501 (Tenn. 2006); City of Cookeville ex rel. Cookeville Reg’l Med. Ctr. v. Humphrey,

126 S.W.3d 897, 905–06 (Tenn. 2004); Tenn. R. App. P. 3, adv. comm’n cmt., subdiv. (e)).

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showing that the other party did not raise the issue in the trial court.6 Gould’s neither

carried this burden nor argued that Ms. Jackson had waived the common knowledge

exception. Instead, Gould’s argued the merits of the issue—that the common knowledge

exception did not apply and that Ms. Jackson had to file a certificate of good faith.

We find that Ms. Jackson raised the common knowledge exception both in the trial

court and in the Court of Appeals. Ms. Jackson asserted in her complaint that she was not

filing a certificate of good faith because her claim did not arise out of any diagnosis,

treatment, or care, but arose out of a sexual battery that occurred while she was on the

premises and a patron of Gould’s. The complaint alleged, in part, that the negligent

training, supervision, and retention of Mr. Burrell by Gould’s proximately caused Ms.

Jackson’s injuries and damages.

In her response to the motion for summary judgment, Ms. Jackson argued that

Gould’s was negligent in its training, supervision, and retention of Mr. Burrell and had

placed Mr. Burrell in a position to commit the alleged sexual assault. Ms. Jackson then

invoked the common knowledge exception, citing the distinction between ordinary

negligence and health care liability, which “turns on whether the acts or omissions

complained of . . . can . . . be assessed on the basis of common everyday experience of

the trier of fact.” Ms. Jackson’s response stated that “[i]t would be obvious to any

layperson that Defendant Gould’s owed a duty of care to place Plaintiff in the hands of a

properly trained and supervised massage therapist without the potential for any sort of

unwanted touching of a sexual nature . . . .” Ms. Jackson also argued that the two

previous customer complaints received by Gould’s were sufficient evidence to overcome

Gould’s motion for summary judgment.

Arguing to the trial court that expert testimony was not necessary, Ms. Jackson’s

attorney said:

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

Gould’s [had] been provided with notice that they have a potential claim,

any claim that they have under their employment a sexual predator.

Gould[’s] 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 [have] 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.

6

Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing Waste Conversion Sys., Inc. v.

Greenstone Indus., Inc., 33 S.W.3d 779, 783 (Tenn. 2000); Smith v. Smith, 989 S.W.2d 346, 348 (Tenn.

Ct. App. 1998)).

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While Ms. Jackson may not have used the term “common knowledge exception,” her

pleadings and arguments in the trial court show that she relied on the common knowledge

exception.

Ms. Jackson also contended in a section of her brief to the Court of Appeals that

the common knowledge exception applied to her negligence claim. Gould’s, in turn,

devoted four pages of its brief in the Court of Appeals to a section titled “The Common

Knowledge Exception Does Not Excuse Appellant’s Failure to File the Required

Certificate of Good Faith.” Gould’s was not denied an opportunity to respond to this

issue.7

We interpret and apply our rules in a way that allows us to consider appeals on

their merits. Fayne v. Vincent, 301 S.W.3d 162, 171 (Tenn. 2009) (citing Tenn. R. App.

P. 1). About questions of waiver on appeal, we “should not exalt form over substance.”

Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010). Even though the

parties used the term “common knowledge exception” for the first time on appeal, this

does not amount to waiver. Id. (citing Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 n.1

(Tenn. 2001)) (“The fact that the party phrased the question or issue in the trial court in a

different way than it does on appeal does not amount to a waiver of the issue.”); Fahrner,

48 S.W.3d at 143 n.1 (finding that “the failure to use the right label” for a claim did not

cause a waiver of that claim on appeal).

In sum, Ms. Jackson maintained in the trial court and in the Court of Appeals that

her claim did not require expert testimony. Thus, she did not waive this argument, and the

common knowledge exception is properly before this Court.

Common Knowledge Exception

The resolution of this case depends on whether the common knowledge exception

applies. In health care liability cases, this exception comes into play when the subject

matter of the alleged misconduct is “within the understanding of lay members of the

public.” Joseph H. King, The Common Knowledge Exception to the Expert Testimony

Requirement for Establishing the Standard of Care in Medical Malpractice, 59 Ala. L.

Rev. 51, 62–63 (2007) (“The Common Knowledge Exception”). The practical effect of

applying the common knowledge exception is that the plaintiff need not produce expert

testimony to prove the elements set forth in section 29-26-115(a) of the Act—the

standard of care applicable to the defendant, a deviation from that standard of care, and a

resulting injury that would not have otherwise occurred. It follows that if the plaintiff

does not have to present expert testimony at trial to prove her case, then she need not file

a certificate of good faith confirming that the negligence claim is supported by a

7

See Jackson, 2019 WL 237347, at *7 (citing Shaw v. Gross, No. W2017-00441-COA-R3-CV,

2018 WL 801536, at *4 (Tenn. Ct. App. Feb. 9, 2018)).

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competent expert witness and that there is a good faith basis for the claim. See Tenn.

Code Ann. § 29-26-122(a).

The common knowledge exception is part of the law in many states, including

Tennessee. See, e.g., Ex Parte Healthsouth Corp., 851 So. 2d 33, 39 (Ala. 2002) (quoting

Tuscaloosa Orthopedic Appliance Co. v. Wyatt, 460 So. 2d 156, 161 (Ala. 1984))

(“reformulat[ing]” the common knowledge exception to recognize its application to cases

“‘where want of skill or lack of care is so apparent . . . as to be understood by a layman,

and requires only common knowledge and experience to understand it’”); Revels v.

Pohle, 418 P.2d 364, 366 (Ariz. 1966) (quoting Boyce v. Brown, 77 P.2d 455, 457 (Ariz.

1938)) (recognizing an exception to the requirement of expert testimony when “‘the

negligence is so grossly apparent that a layman would have no difficulty in recognizing

it’”); District of Columbia v. Hampton, 666 A.2d 30, 36 (D.C. 1995) (noting that expert

testimony is not required “when the issue before the jury [does] not involve either a

subject too technical for lay jurors to understand or the exercise of sophisticated

professional judgment”); McClure v. Clayton Cnty. Hosp. Auth., 336 S.E.2d 268, 271

(Ga. Ct. App. 1985) (quoting Killingsworth v. Poon, 307 S.E.2d 123, 125 (Ga. Ct. App.

1983)) (stating that the common knowledge exception applies when “‘the case concerns

matters which juries must be credited with knowing by reason of common knowledge’”);

Craft v. Peebles, 893 P.2d 138, 149 (Haw. 1995) (citing Rosenberg ex rel. Rosenberg v.

Cahill, 492 A.2d 371, 374 (N.J. 1985)) (explaining that the common knowledge

exception transforms a medical negligence case “‘into an ordinary negligence case, thus

obviating the need for expert testimony’”); Oswald v. LeGrand, 453 N.W.2d 634, 640

(Iowa 1990) (finding that a doctor’s responsibility to attend to a patient “screaming

hysterically that she was about to give birth” in a hospital hallway was within the

common knowledge of a layperson); Hare v. Wendler, 949 P.2d 1141, 1147 (Kan. 1997)

(quoting Webb. v. Lungstrum, 575 P.2d 22, 25 (Kan. 1978)) (stating that the “‘common

knowledge exception applies if what is alleged to have occurred in the diagnosis,

treatment, and care of a patient is so obviously lacking in reasonable care and the results

are so bad that the lack of reasonable care would be apparent to and within the common

knowledge and experience of mankind generally’”); McCorkle v. Gravois, 152 So. 3d

944, 948 (La. Ct. App. 2014) (citing Pfiffner v. Correa, 643 So. 2d 1228, 1234 (La.

1994)) (stating that expert medical testimony is not required where the negligence is

obvious to a layperson without the help of expert testimony); Patten v. Milam, 480 A.2d

774, 778 (Me. 1984) (quoting Cox v. Dela Cruz, 406 A.2d 620, 622 (Me. 1979); Cyr v.

Giesen, 108 A.2d 316, 218 (Me. 1954)) (recognizing exception to the rule requiring

expert testimony in medical malpractice cases “‘where the negligence and harmful results

are sufficiently obvious as to lie within common knowledge’”); Reiss v. Am. Radiology

Servs., LLC, 211 A.3d 475, 490–91 (Md. Ct. Spec. App. 2019) (finding that expert

testimony was required to prove a breach of the standard of care because it was beyond

the understanding of the ordinary layperson); Pitts v. Wingate at Brighton, Inc., 972

N.E.2d 74, 79 (Mass. App. Ct. 2012) (citing Ward v. Levy, 534 N.E.2d 308, 309 (Mass.

App. Ct. 1989)) (finding that expert testimony was not required to prove that a fall caused

an injury because “jurors could have accepted the plaintiff’s commonsense explanation

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without relying on mere speculation or conjecture”); Dorris v. Detroit Osteopathic Hosp.

Corp., 594 N.W.2d 455, 465–66 (Mich. 1999) (concluding that the supervision and

monitoring of patients in a hospital psychiatric ward required expert testimony because it

was outside of the common knowledge and experience of the ordinary layperson);

Tousignant v. St. Louis Cnty., 615 N.W.2d 53, 60 (Minn. 2000) (stating that if the facts

necessary to establish a medical malpractice claim “are within the general knowledge and

experience of lay persons, then expert testimony is not required”); Hubbard v. Wansley,

954 So. 2d 951, 960–61 (Miss. 2007) (quoting Palmer v. Anderson Infirmary Benevolent

Ass’n, 656 So. 2d 790, 795 (Miss. 1995)) (acknowledging that “‘where a layman can

observe and understand the negligence as a matter of common sense and practical

experience,’ expert testimony is not necessary”); Thone v. Reg’l W. Med. Ctr., 745

N.W.2d 898, 904 (Neb. 2008) (quoting Halligan v. Cotton, 227 N.W. 10, 13 (Neb. 1975))

(stating that the common knowledge exception has long been recognized in cases where

“‘the evidence and the circumstances are such that the recognition of the alleged

negligence may be presumed to be within the comprehension of laymen[,]’” but it only

applies in “cases of extreme and obvious misconduct”); Brouwer v. Sisters of Charity

Providence Hosps., 763 S.E.2d 200, 204 (S.C. 2014) (citations omitted) (finding that

negligent exposure of a patient with a known allergy to latex was within the common

knowledge or experience of a layperson so that no expert proof was necessary);

Steinkamp v. Caremark, 3 S.W.3d 191, 197 (Tex. App. 1999) (citations omitted) (finding

that a claim based on a surgical instrument being left inside a patient’s body fell within

the common knowledge exception because “‘[i]t does not take a medical expert to know

that a surgical instrument is not supposed to break and remain either in part or whole,

inside the body’”); Summers v. Syptak, 801 S.E.2d 422, 425 (Va. 2017) (citations

omitted) (noting that the common knowledge exception is rarely used and applies when

“‘the alleged act of negligence clearly lies within the range of the jury’s common

knowledge and experience’”); Woods v. Pommerening, 271 P.2d 705, 707 (Wash. 1954)

(citations omitted) (stating the exception to the rule requiring expert testimony as “when

the negligence is so grossly apparent that a layman would have no difficulty in

recognizing it”); Totten v. Adongay, 337 S.E.2d 2, 6 (W. Va. 1985) (explaining that “[t]he

essence of [the common knowledge] exception is simply that certain medical situations

present routine or noncomplex matters which are cognizable under the common

knowledge or experience of lay jurors and, therefore, the presence or absence of

negligence can be determined without resort to expert testimony”).

Tennessee has long recognized the common knowledge exception in health care

liability cases. In Osunde v. Delta Medical Center, the Court of Appeals held that “expert

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

common knowledge of a layperson.” 505 S.W.3d 875, 886–87 (Tenn. Ct. App. 2016)

(citing Baldwin v. Knight, 569 S.W.2d 450, 456 (Tenn. 1978); Bowman v. Henard, 547

S.W.2d 527, 530–31 (Tenn. 1977); Tucker v. Metro. Gov’t of Nashville & Davidson

Cnty., 686 S.W.2d 87, 92 (Tenn. Ct. App. 1984)).

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Although the Act’s pre-suit notice requirement, Tennessee Code Annotated

section 29-26-121, applies to all health care liability claims under the Act, the same is not

true for whether expert testimony is required under Tennessee Code Annotated section

29-26-122.8 “[A]dditional analysis is needed to determine whether expert proof is

necessary.” Osunde, 505 S.W.3d at 887 (citing Smith v. Testerman, No. E2014-00956-

COA-R9-CV, 2015 WL 1118009, at *5 (Tenn. Ct. App. Mar. 10, 2015), perm. app.

denied (Tenn. June 15, 2015)); see also Estate of Bradley v. Hamilton Cnty., No. E2014-

02215-COA-R3-CV, 2015 WL 9946266, at *5 (Tenn. Ct. App. Aug. 21, 2015) (quoting

Smith, 2015 WL 1118009, at *4) (stating that expert testimony is not required “‘if the

negligence is obvious and readily understandable by an average layperson’”).

Courts determine on a case-by-case basis whether expert testimony is necessary in

a health care liability case. For example, the plaintiff in Osunde alleged that she fell and

was injured after a hospital radiology technician provided her with a faulty stool that

shifted when she stepped off of it. Id. at 877. Under the Act, the radiology technician was

a “health care provider” and furnishing a stool in connection with x-ray services qualified

as a “health care service.” Id. at 888. Thus, the plaintiff’s lawsuit was subject to the

requirements of the Act. Id. But the plaintiff did not have to present expert proof because

the Court of Appeals found that “[i]t is within the common knowledge of a layperson to

determine whether the provision of an unstable stool is negligent.” Id. at 889. The

appellate court explained that a determination of the correct type of medical equipment to

use during a medical procedure would generally require expert proof because “[i]t is not

ordinarily within common knowledge what is appropriate for medical treatment.” Id. at

889 n.9. But it is within the common knowledge of a layperson to determine whether

providing a specific piece of “inherently faulty” equipment, such as a “wobbly and

unstable” stool, is negligence because it is common knowledge that “a stool should

promote stability.” Id.

In C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV, 2018 WL

503536 (Tenn. Ct. App. Jan. 22, 2018), the plaintiff alleged that a security guard working

for the mental health facility where the plaintiff was a patient attacked and injured him.

The plaintiff sued the facility, alleging negligent training and supervision of the security

guard. Id. at *6. The Court of Appeals agreed with the trial court that the plaintiff’s

claims of negligent training and supervision were “health care services” under the Act but

found that the plaintiff’s claims involving willful assault and battery were unrelated to the

provision of health care services. Id. at *5–6. The Court of Appeals determined that while

the Act covered the allegations against the facility for negligent training and supervision

of its employees, the plaintiff did not have to file a certificate of good faith. This was

because expert testimony was not necessary to determine whether the security the facility

provided to its residents was adequate and appropriate. Id. at *7.

8

Ms. Jackson’s compliance with the Act’s pre-suit notice requirement is not at issue.

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

similar. The plaintiff alleged that while he was strapped to a gurney, an emergency

medical technician struck the plaintiff in the face with his fist. Id. at 700. The trial court

found that the common knowledge exception did not apply. Id. at 701. The Court of

Appeals reversed, finding that expert proof was unnecessary because it was within the

common knowledge of a layperson to decide whether an emergency medical technician

violated the standard of care by striking the face of a patient who was strapped to a

gurney. Id. at 707. For that reason, the plaintiff’s claim should not have been dismissed

for failure to file a certificate of good faith with his complaint. Id.; see also Miller v.

Willbanks, 8 S.W.3d 607, 615 (Tenn. 1999) (citing Lawrence Cnty. Bank v. Riddle, 621

S.W.2d 735, 737 (Tenn. 1981)) (holding that serious mental injury caused by intentional

infliction of emotional distress can be determined by the trier of fact without expert

testimony, which is only necessary “when the subject of examination requires knowledge

or experience that persons lacking special skills do not have and that cannot be obtained

from ordinary witnesses”); Redick v. Saint Thomas Midtown Hosp., 515 S.W.3d 853, 859

(Tenn. Ct. App. 2016) (finding that expert proof was not needed to prove a hospital

employee’s failure to comply with fall precautions); Graniger v. Methodist Hosp.

Healthcare Sys., Inc., No. 02A01-9309-CV-00201, 1994 WL 496781, at *4 (Tenn. Ct.

App. Sept. 9, 1994) (stating that the necessity of removing a foreign object imbedded in a

patient’s foot was within the knowledge of a layman), perm. app. denied (Tenn. Jan. 3,

1995).

In other cases, courts have declined to apply the common knowledge exception

after finding that specialized medical knowledge was needed to establish negligence in a

health care liability action. See Mayo v. United States, 785 F. Supp. 2d 692, 696–97

(M.D. Tenn. 2011) (finding that the plaintiff needed expert testimony to prove potential

exposure to bodily fluids caused hepatitis); Newman v. Guardian Healthcare Providers,

Inc., No. M2015-01315-COA-R3-CV, 2016 WL 4069052, at *7 (Tenn. Ct. App. July 27,

2016) (holding that it was not within the ordinary knowledge of a layperson whether a

psychiatric patient should be restrained, and therefore expert testimony was necessary);

Patterson v. Arif, 173 S.W.3d 8, 12 (Tenn. Ct. App. 2005) (stating that it was not within

the common knowledge of a layperson that a person suffering from shortness of breath

should be taken immediately to the emergency room); McConkey v. State, 128 S.W.3d

656, 661 (Tenn. Ct. App. 2003) (holding that it was not within the knowledge of a

layperson whether the accidental severing of a vein during a surgical procedure was a

breach of the standard of care); Age v. HCA Health Servs. of Tenn., Inc., No. M2001-

01286-COA-R3-CV, 2002 WL 1255531, at *2–3 (Tenn. Ct. App. June 7, 2002) (holding

that the transfer of a post-surgical patient involved specialized training and knowledge

that was beyond the knowledge of a layperson, and therefore the plaintiff had to prove

negligence through expert testimony); Tyree v. Donelson Hosp., Inc., No. 88-227-II, 1989

WL 13064, at *3–5 (Tenn. Ct. App. Feb. 17, 1989) (concluding that the plaintiff needed

to present expert testimony to prove that the hospital was negligent in failing to restrain

and supervise a patient who was a fall risk).

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What all of these cases have in common is the fundamental consideration of

whether the conduct at issue involved the exercise of medical judgment or skill. In other

words, whether the alleged negligent conduct involved technical or specialized

knowledge of a medical procedure or a patient’s medical condition or whether the alleged

negligent conduct involved medical decision-making—such as determining the type of

treatment or procedure to perform or the type of equipment or medicine to use. If so, then

expert proof would be necessary. As Professor King has suggested, this inquiry might be

phrased as whether “[t]he specific decision making by the health care provider . . .

involve[d] the exercise of uniquely professional medical skills, a deliberate balancing of

medical risks and benefits, or the exercise of therapeutic judgment.” The Common

Knowledge Exception, supra, at 56.

After reviewing the undisputed facts, we hold that Ms. Jackson’s claim against

Gould’s for negligent training, supervision, and retention is within the knowledge and

experience of an ordinary layperson and does not require explanation from a witness with

specialized knowledge of the massage industry. Ms. Jackson does not allege that Mr.

Burrell negligently performed the massage, used improper technique or excessive force,

or erred in decision-making as a massage therapist. Thus, there is no need for expert

testimony about different types of massage, proper techniques for performing a type of

massage, or other specialized knowledge that an expert in the massage industry would

know and the average layperson likely would not. Instead, Ms. Jackson alleges that Mr.

Burrell sexually assaulted her during a massage and that Gould’s knew or should have

known that Mr. Burrell had previously acted inappropriately, making two other clients

feel uncomfortable, and thus posed a risk of sexually assaulting Ms. Jackson. A layperson

could understand that a salon may be negligent in its training, supervision, and retention

of a massage therapist who sexually assaults a disrobed customer in a private setting

during a massage when the salon knew of the massage therapist’s prior inappropriate

actions.

Because we have determined that the common knowledge exception applies and

expert testimony is not required to assist the trier of fact, we hold that the trial court erred

in granting summary judgment based on Ms. Jackson’s failure to file a good faith

certificate.

III.

We vacate the trial court’s grant of summary judgment to Gould’s and reverse the

Court of Appeals’ judgment affirming the trial court’s ruling. We remand this case to the

trial court for further proceedings consistent with this opinion. The costs of this appeal

are taxed to Gould’s Salons, Inc. d/b/a Gould’s Day Spa & Salon, for which execution

may issue if necessary.

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_________________________________

SHARON G. LEE, JUSTICE

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