Joyce Louise Wisdom v. Joseph Maddry & Blount Memorial Hospital ( 1999 )

FILED
October 14, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
JOYCE LOUISE WISDOM, ) Blount County Circuit
)
Appellant ) NO. 03A01-9902-CV-00052
)
vs. )
HON. W. DALE YOUNG
) JUDGE
JOSEPH MADDRY and BLOUNT )
MEMORIAL HOSPITAL, INC., )
)
Appellees ) AFFIRMED
J. Mikel Dixon, Knoxville, for Appellant.
Carl P. McDonald, Maryville, for Appellee, Blount Memorial Hospital, Inc.
OPINION
INMAN, Senior Judge
Marilyn Roberts and Joyce Wisdom were patients in Blount Memorial Hospital, which employed
Jody Maddry, a male nurse. They filed a joint complaint against the hospital alleging that they were
sexually assaulted by Maddry. Liability of the hospital was alleged to be vicarious, and additionally,
that the hospital was independently negligent because it failed to investigate Maddry’s background
which would have revealed his propensity to sexually abuse females.
The defendant hospital filed a motion for summary judgment which was granted on all grounds
asserted. Both plaintiffs appealed, and we filed an opinion affirming the dismissal of the Roberts case 1
but reversed the dismissal of the Wisdom case because the motion was based solely on the issue of
the hospital’s vicarious liability. The allegations of independent negligence were not addressed by the
motion, thereby requiring further inquiry.
Following remand, the hospital filed another motion for summary judgment, alleging that there
were no genuine issues of material fact with respect to the question of whether the hospital knew or
should have known of Maddry’s propensities, and whether it conducted an appropriate investigation
into his background.
This motion was supported by (1) an affidavit of Kathy Kirkham, of the Fort Sanders Medical
Center 2 that as a matter of policy Fort Sanders does not reveal unfavorable information about a former
employee; (2) an affidavit of Scott Shaffer, of Baptist Hospital 3 who deposed that in the records at
Baptist Hospital there is no unfavorable information about Maddry; (3) a certified file from the
Tennessee Board of Nursing which revealed no unfavorable information about Maddry when he was
licensed; (4) an affidavit of Terry Nichols, Chief of Police of Maryville, that the plaintiff reported the
alleged assault on April 18, 1995. 4
The plaintiff opposed the motion by relying on the Roberts incident. She also filed a copy of a
hearing conducted by the Department of Health Nursing Board on June 12, 1997, three years after the
assault complained of.
The motion for summary judgment was granted and the plaintiff appeals. The issue presented for
review is the propriety of the dismissal of the complaint. Our review being one of law, the
presumption of correctness cannot be indulged. Rule 13(d) T.R.A.P. and cases cited.
The essential thrust of the plaintiff’s argument on appeal is that the assault on Roberts was
sufficient notice to the hospital that “they had a problem with Maddry,” because the hospital’s
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assistant administrator testified that Roberts told her that Maddry had “fondled her inappropriately,
touching her breasts and buttocks.”
The evidentiary worth of this testimony aside, Roberts did not testify accordingly. To the
contrary, she testified that Maddry only inserted a suppository and that nothing else happened to her
while she was a patient. On the basis of this testimony, the Court, as previously expounded, found
that there was no evidence that Roberts was sexually assaulted. Under familiar principles this finding is
the law of the case and there the matter ends. The Roberts “incident” was not sufficient notice for the
hospital that “they had a problem with Maddry.”
The supported motion for summary judgment required the plaintiff to present evidence sufficient
to establish the essential elements for which she has the burden of proof. Blair vs. Allied
Maintenance Corp., 756 S.W.2d 267 (Tenn. App. 1988); White vs. Methodist Hospital South, 844
S.W.2d 642, (Tenn. App. 1992). We have already observed that the Roberts incident is not sufficient
for the purpose. There is no evidence in this record that, from the time Maddry was employed to the
time of the assault complained of, the defendant was on inquiry notice about Maddry’s propensities or
prior inappropriate conduct.
Our first opinion is clear on the point that any independent negligence of the hospital 5 was not
addressed by the motion for summary judgment. It was for this reason that the judgment was reversed
and the language of the opinion “we are not persuaded that this is an appropriate case for summary
judgment” must be considered in proper context. The principle enunciated in Potter vs. City of
Chattanooga, 556 S.W.2d 543 (Tenn. 1977) was not implicated because the issue of independent
negligence was not addressed, as we have seen. In Potter, the plaintiff alleged that she was mistreated
by a police officer and was unlawfully jailed. She filed suit against the City, alleging, inter alia, that it
negligently hired the police officer. The City moved to dismiss, asserting its immunity under the Act.
The Supreme Court affirmed the dismissal, holding that the true bases of the injuries for which
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damages are sought are false arrest and assault and battery, and that the claim of negligent hiring was
ineffective to avoid the immunity granted the City under the Act. In the case at Bar, the plaintiff’s
injuries allegedly arose from the intentional conduct of Maddry. We agree with the defendant that the
immunity of the hospital cannot be circumvented in the manner attempted.
The judgment is affirmed and costs are assessed to the appellant.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Charles D. Susano, Jr., Judge
_______________________________
D. Michael Swiney, Judge
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