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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
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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. 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.

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