October 16, 2001
Volume 7 — Number 191

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
04 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

EDDIE BROWN LIMBAUGH, Executor of the Estate of 
EMMA RUTH LIMBAUGH  v. COFFEE MEDICAL CENTER, et al.

Court:TSC

Attorneys:   

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.                 

Judge: BARKER

First Paragraph:

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.

http://www.tba.org/tba_files/TSC/limbaugheddieb_opn.wpd


HOLDER CONCURRING http://www.tba.org/tba_files/TSC/limbaugheddieb_con.wpd
STATE OF TENNESSEE v. CLIFFORD PEELE Court:TSC Attorneys: Kenneth F. Irvine, Jr., Knoxville, Tennessee, for the appellant, Clifford Peele. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Elizabeth B. Marney, Assistant Attorney General, for the appellee, State of Tennessee. Judge: HOLDER First Paragraph: We granted appeal to determine (1) if Tenn. R. App. P. 3(b) permits the appeal of a denial of a motion to withdraw a guilty plea; and (2) whether a Tenn. R. Crim. P. 32(f) motion to set aside a guilty plea filed prior to the time the judgment becomes final tolls the time for filing an appeal to permit the trial court to rule on the motion. We hold (1) that a denial of a motion to set aside a guilty plea may be appealed pursuant to Tenn. R. App. P. 3(b); and (2) that a trial court retains jurisdiction to rule on a motion to set aside a guilty plea if the motion is filed prior to the date the judgment becomes final. Accordingly, the holding of the Court of Criminal Appeals is reversed, and the case is remanded to the intermediate appellate court for proceedings consistent with this opinion. http://www.tba.org/tba_files/TSC/peelecli.wpd
CALVIN EASLEY v. JAMES BRITT Court:TCA Attorneys: Calvin Easley, Nashville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Sohnia W. Hong, Assistant Attorney General, for the appellee James Britt. Judge: KOCH First Paragraph: This appeal involves a dispute between a prisoner and the Tennessee Department of Correction stemming from a disciplinary proceeding. After he was reclassified to a higher security status and transferred to another institution, the prisoner filed a petition for writ of common-law certiorari in the Chancery Court for Davidson County claiming that the disciplinary board and the warden had acted arbitrarily and capriciously by finding him guilty of the disciplinary offense of escape. The trial court dismissed the petition, and the prisoner perfected an appeal to this court. While this appeal was pending, the prisoner was released from prison thereby rendering this appeal moot. Accordingly, we vacate the June 12, 1998 order and remand the case to the trial court with directions to dismiss it on the grounds of mootness. http://www.tba.org/tba_files/TCA/easleyc.wpd
STACY HARRIS v. 4215 HARDING ROAD HOMEOWNERS ASSOCIATION Court:TCA Attorneys: Lawrence Wilson, Nashville, Tennessee, for the appellant, Stacy Harris. Dudley M. West, Nashville, Tennessee, for the appellee, 4215 Harding Road Homeowners Association. Judge: CANTRELL First Paragraph: The appellant, a unit owner in a high-rise condominium, sued the Homeowners Association, claiming that her assessment for common expenses had been too high for the twenty years she had owned the unit. She sought reimbursement of the overpayment and an injunction against further assessments based on the percentage of her ownership stated in the Master Deed. The Chancery Court of Davidson County granted summary judgment to the Association and ordered the appellant to pay attorney's fees and costs. We affirm and remand the cause for the assessment of attorney's fees for the appeal. http://www.tba.org/tba_files/TCA/harriss.wpd
J.D. HICKMAN v. TENNESSEE BOARD OF PAROLES Court:TCA Attorneys: J.D. Hickman, Mountain City, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Stephanie R. Reevers, Senior Counsel (on appeal), for the appellee, Tennessee Board of Paroles. Judge: KOCH First Paragraph: This appeal involves a prisoner's efforts to obtain a mandatory parole date. After the general counsel for the Tennessee Board of Paroles informed him that he was ineligible for mandatory parole, the prisoner filed a common-law writ of certiorari in the Chancery Court for Davidson County seeking a declaration either that he is entitled to a mandatory parole date or that the Board had been employing the wrong legal standards with regard to his parole date and the parole dates of all other prisoners sentenced after 1989. In response to the Board's Tenn. R. Civ. P. 12.02(6) motion, the trial court dismissed the prisoner's petition because it was not timely filed and because the Tennessee Criminal Sentencing Reform Act of 1982 had prospectively repealed mandatory parole by implication. On this appeal, the prisoner asserts that his suit was timely filed and that the trial court erred by concluding that he was not entitled to a mandatory parole date. We have determined that the prisoner's complaint was timely; however, we have also determined that he is not entitled to a mandatory parole date. http://www.tba.org/tba_files/TCA/hickmanjd.wpd
WENDY KING v. TIMOTHY KING Court:TCA Attorneys: Robert W. Newman, John P. Partin, McMinnville, TN, for Appellant Keith S. Smart, McMinnville, TN, for Appellee Judge: HIGHERS First Paragraph: This appeal arises from a divorce and custody dispute. The trial court awarded custody of the parties' four minor children to the father, and the court awarded the mother liberal visitation. The mother appeals the decision of the court below. For the following reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. http://www.tba.org/tba_files/TCA/kingwendy.wpd

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