§31.7 Intentional Tort Exclusion

The Case: Limbaugh v. Coffee Medical Center , 59 S.W.3d 73 (Tenn. 2001).

The Basic Facts: Plaintiff, originally acting as the conservator for his mother, filed suit against Defendant medical center and its employee, a nursing assistant, to recover damages for his mother's injuries when she was assaulted by the nursing assistant.

The Bottom Line:

• "[T]he 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."

  59 S.W.3d at 81.
• "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." Id.
• "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." Id. at 83.
• "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))." Id.
• "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 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.')." Id. at 83-84.
• "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.^FN8 To the extent that Potter and other cases hold otherwise, they are overruled.

  FN8 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 Act, which waives the government'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 immunity does not apply to '[a]ny claim arising out of assault, battery,' or other enumerated intentional torts. 28 U.S.C. § 2680(h). Similarly, the Utah Governmental Immunity 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)."

  Id . at 84.
• "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." Id.
• "(CONCURRING OPINION, Janice M. Holder, J.) Coffee Medical Center (CMC) owed a duty to its patient, Emma Ruth Limbaugh, to protect her from the foreseeable risk of harm presented by the employment of nursing assistant Louise Ray. I therefore agree with the result reached by the majority holding CMC liable for the injuries in this case. I write separately to express my disagreement with the majority's analysis of the applicable governmental immunity statutes. Because I believe the rationale supporting Potter v. City of Chattanooga, 556 S.W.2d 543 (Tenn. 1977), is flawed, I would overrule that opinion in its entirety. Instead, I would hold that a governmental entity may be held liable for its own negligent employment practices regardless of the nature of the underlying acts of its employees." Id. at 88.

Recent Cases:

Jones v. Bedford County , No. M2009-01108-COA-R3-CV, 2009 WL 4841063 (Tenn. Ct. App. Dec. 15, 2009) (affirming dismissal of plaintiff's claims finding no evidence that person with supervisory authority was on notice of information that would lead them to suspect future sexual assault by government employee); Timmons v. Metropolitan Government of Nashville and Davidson County, No. M2008-01581-COA-R3-CV, 2009 WL 1684662 (Tenn. Ct. App. Jun. 15, 2009) (holding plaintiff successfully proved negligence and defendant government failed to establish that the evidence preponderated against the finding of negligence rather than intentional acts); Autry v. Hooker, ___S.W.3d___, No. W2008-01027-COA-R3-CV, 2009 WL 1362318 (Tenn. Ct. App. May 15, 2009) (holding intentional tort exception to waiver of governmental immunity barred former student's recovery).

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