### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 18, 2000 Se ssion EDWARD M. TUGGLE, JR., A S EXECUTOR OF THE ESTATE OF MAXINE N. T

UGGLE v. AMIS

UB (SFH), INC., d/b/a ST. FRANCIS HOSPITAL A Direct Appeal from Circuit Court for Shelby County No. 93577 T.D. The Honorable Kay S. Robilio, Judge

No. W1999-02444-COA-R3-CV - Filed November 21, 2000

Patientsued hospital for injuries sustained when she fell after hospital personnel failed to respond to her call for assistance to go to the bathroom. Patient went to the bathroom without incident and then decided to bathe her feet while s he was out of bed. Patient filled a pan of water and sat in a chair bathing her

feet when the telephone rang. When she got up to answer the telephone across the room, her wet feet slipped on the floor, and she fell, sustaining injuries

. The trial court granted hospital summary judgment, and patient has appealed.

Tenn.R.App.P. 3, Appeal as of Right; Judgment of the Circuit Court Affirmed
W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and H OLLY K IRBY L ILLARD , J., joined. Stephen R. Leffler, Memphis, For Appellant, Edward M. Tuggle, Jr. David M. Cook, Karen L. Schlesinger, Greg A. Ziskind, Memphis, For Appellee, AMISUB, Inc.
OPINION
Plai ntiff-appellant

, Maxine Tuggle, sue

d the defendant,

AMISUB, Inc., d/b/a

St. Fr anci s Hospital, for personal inju ries allegedly su

stained while plai

ntiff was a patie

nt i n the hospital. Plaintiff appealed the order of the trial court granting summary judgm ent to defendant,

and while th e appeal was pend

ing, plaintiff died

. Edward M. Tuggle

, Jr., Executor of

her estate , wa s substituted as par

ty plaintiff-appe

llant.
The complaint al lege s that Ms. Tuggle, 82 years of age, wa

s admitted as a pati

ent at St. Francis Hospital in t he late-night hours of February 8, 1998, for a pulmonary problem. The-2-

complaint alleges that she was assigned a room and was instructe

d by the nurses in the

hospital to refrain from moving about the room without the assistance of hospital personnel. At approximately 10:30 a.m. on February 9, 1998, Ms. Tuggle needed assistance in getting f rom her be d to the bathroom. She alleged that she notified the personnel of her need and that af ter wai ting for some periodof time with

no response to the

initial request,

she once again requested assistance and waited for another period of time. No one responded to her second request. The complaint then alleges in pertinent part:
11. Ms. Tuggle eventually could no longer wait for a ssistan ce and

proceeded

to the bathroom on her own. Once she fi nished in t he bathroom, she poured water in to a pan, proceeded to a chair in the room, sat in

the chair and placed her feet in the water. Her feet were both ering her and this was the only thing that she knew that woul d relieve the pain.
12. As she sat with her feet in the water, the telephone rang. Ms. Tuggle rose to answer the telephone and her wet feet slipped on the linoleum floor of th

e hospital room.
13. Ms. Tuggle fell backwards and suffered a compound fracture to her left shoulder and various other injuries to her body as a whole.
The complaint further

alleges that the hospital personnel failed to use reasonable care in responding to Ms. Tuggle’s request and that their negligence was the cause of her suffering the al

leged injuries.
Defendant’s answer denied the material allegations of the complaint as to negligence on the part of the defendant and joined issue thereon. The answer as an affirmative defense relies upon the doctrine of comparative fault as to the actions of the plaintiff.
The trial court granted summary judgment to defendant, and plaintiff has appealed. The only issue presented for review is whether the trial court erred in granting s ummary jud gment to defendant.
A motion for summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the movingparty is entitled to a judgment as a matter of law. Tenn. R. Civ . P. 56 .04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. See Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the evidence in

fav or of the nonmoving party, allow all reasonable inferences in favor of that par ty, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

Once it is shown by the moving party that there is no genuine iss ue of ma te rial fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that th ere is a genuine, material fact-3- dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06] provid es that the nonmoving party cannot simply rely upon hi s pleadings but must set forth specific facts showing that there

is a genuine issue of ma

terial fact for

trial.
Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. See Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court's grant of summary judgment. See Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s gra

nt of summary judgme

nt is de novo on the record before this Court. See Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997).
For purposes of summary judgment, defendant considers the facts undisputed as established by the deposition testimony of plaintiff and a supporting affidavit from her daughter, Virginia Il

ardi. We quote from the plaintiff’s brief:

Maxine Tuggle, age

82, suffered fr

om chronic

obs tructive pulmonary

dis ease , a co ndi tio n al so k now n as emp hys em a. On February 9, 1998 she was admitted to St. Francis Hospital after complaining of breathing difficulties. Her daughter,Virginia Ilardi, brought Ms. Tuggle to the

hospital. At that time

Ilardi could b arely get her mother to the car. Once arriving at the hospital her mother was put in a wheel chair and transported to a stretcher in the emergency

exam room where she remaine d for six hours and was then taken to a private room on a stretcher.
When Ms. Tuggle was admitte d, she was instructed by the nurses at St. Frances to not get out of bed

without someo ne’s assistance. In fact, she was told to refrain from going to the bathroom or anything else unless somebody wa s with her.
Ms. Tuggle was ad

mitte d to the hospital and taken to her ro om sometime after midnight. She slept through the night and awoke that next morning a t ap proximately 6:00 a.m. About 10:30 a.m. Ms. Tuggle nee

ded assis tance g etting from the bed to the bathroom. She pressed the appropriate button to summon the nurse. A voice came on the intercom and askedher what she wanted. She repliedthat she n eeded to g o to the bathroom and needed to have s omeone with her. The voic e on the other end

of the intercom sa

id “OK” and Ms. Tuggle wa ite d for approximately

15 to 20 minutes. She called the nurses’ station again, told them she needed to go to the bathroom and once again she heard the reply “ OK.”-4- After further waiting she gave up on any assistance from the nursing staff and

walked on her own to the bathroom. She used the bathroomfacilities. On her way out of the bathroo m s he poured water in a small basin and c

arried it to a cha

ir so she could

soak her feet. Her feet had been swelling and they felt to her t o be stingi ng, and she hoped that the water could give her some relief.
As Ms. Tuggle sat i

n a ch air soaking her feet, the telephone rang. It was l ocated five or six feet away. She stood to answer the telephone, her wet feet slip ped o n the linoleum and sh e fell, sustaining a compound fracture to her left shoulder. Ms. Tuggle lay on the

floor with

a bone protruding from her left shoulder and blood pouring onto the floor. She s creamed for help. Apparently someone heard her shouts and six

or seven people resp onded by entering the room. One of those present was an orthopaedic s urgeon, Dr. Moffett. Dr. Moffett “jammed [the bone] back down into place and, of

course, I was climbing up his arm and hollering the whole time.” Appellant asserts that the hospital assumed a duty of acting with reasonable care , and when the nurses instructed Ms. Tu ggle not to leave the bed w ithout assistance,

they assume

d a duty to respondto her

calls and assi st her as needed. The appellant f urther asserts th

at it is reasonable

to infer that if the nurses had responded to her call for assistance, Ms. Tuggle could have told them that her feet w ere hurting. They could then have assisted her with treating her foot condition without placing her across the room from the telephone. Defendant,

on the other

hand, asserts tha

t in assuming a duty

to respond to assist

Ms. Tuggle to the bathroom, it is

not foreseeable that she would undertake to soak her feet and then with wet feet get up to answer a telephone across the room on a linoleum floor.
A negligence c

laim requires a pl

aintif f t o prove the following elements: (1) a duty of care owedby the defendant to the plaintiff; (2) conduct by the defendant fal ling below the standard of care amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) p roximate causation. See Rice v. Sabir , 979 S.W.2d 305, 308 (Tenn. 1998).
The general rule is that a hospital must exercise such reasonable care toward a patient as the known condition may require, the extent and character of which depends upon the circumstances of eachcase. See Keeton v. Maury County Hospital , 713 S.W.2d 314, 316 (Tenn. Ct. App. 1986); Spivey v. St. Thomas Hospital , 31 Tenn. App. 12, 211 S.W.2d 450, 455 (1947). In the instant case, the hospital personnel obviou sly instructed Ms. Tuggle not to get out of bed without assistance because of her severe pulmonary deficiency . A somewhat similar situation existed in Keeton v. Maury Coun ty Hos

pital, supra . In Keeton , the 79-year old plaintiff was admitted to the hospital-5-

witha prostate condition. The hospital was advised upon admission that he had a balance proble

m, or vertigo, and would need help when he got out of bed. After

undergoing prostate surgery, he was catheterized

several days, and when the catheter was re moved by his physician, one of the nu rses from the hospital was present. The plaint iff at that time advis ed the nurse of his vert igo condition and the necessity for assistance if he got of bed, and the nurse specifically instructed plaintiff to call for help when he was ge

tting out of bed. Su

bsequently,

the plaintiff, like

Ms. Tuggle, utilized the callsystem seeking assistance to go to the bathroom. A nurse

came to the door and advised him that an orderly would come, but after several attempts to get help, the plaintiff called his son telling him of his distress, and the son’s wife in turn calledthe hospital switch board seeking t

o get him some assistance butto no avail. After receiving no assistance, plaintiff, being in such distr ess that he felt that he was about to wet the bed, got out of bed to go to the bathroom and on his return to bed he

lost his balance, fell and broke his hip.
This Court held that the hospital knew and c ou ld foresee that the plaintiff might sustain injury if he attempted to get up and go to the bathroom un assisted. We pointed out that he was a lucid, mentally co

mpetent patient, a

nd was in great d

istress because

of his need to urina

te. We stated:
Under these circumstances, we feel that the hospital could

reasonably foreseethat if it did not p rovide m eans to take care of the patient’s physical demands, the patie

nt would atte

mpt to take care of them himself. The plaintiff’s course of action in this case could have been reasonably

expected from an average patient and should have been foreseen by

the hospital.
Id. at 318. We, therefore, reasoned that the hospital’s inaction constituted a failure on the part of the hospital to use reasonable and ordinary

care under the

cir cums tances, and this directly and proximately

caused the injury to the plaintiff. W e st ated that the hospital did not exercise such reasonable care toward the plaintiff as his known condition required. See id. at 318.
In the instant case M

s. Tuggle was not injured because she was forced to get up by phy sical demands and negotiate h er way to a

nd from the bath

room. Although the hospital had a d uty to exercise rea s onable care under the circumstances, defendant asserts that this must be gauge d by reasonable

foreseeability by

the hospital “that not escortin g Ms. Tuggle t

o the restroom wou

ld result in her filling a pan with water, arranging the pan to soak her feet, extracting her feet fr om the water, and walking across the room without drying her feet to answ er the telephone.”
In consideri

ng the concept o

f a specific

duty owed when

an entity is c

harged with the

duty of exercising reasonable care under the circumstances, we look to the guidanc e of our Supreme Court in Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992), where the Court stated:

If the defendants

failed to exercise reasonable care under the circumstances then they breached their duty to the plaintiffs. The termreasonable care must be given meaning in relation to the-6- circumstances. McCormick v. Waters , 594 S.W.2d 385, 387 (Tenn. 1980). Ordinary,

or reasonable, car e is to be estimated by the risk entailedthrough probable dangers attending the particular situation and is to be commensurate wit h the risk of injury. Leach v. Asman , 130 Tenn. 510, 514, 172 S.W. 303 (1914). The risk i nvolved isthat which is foreseeable; a

risk is foreseea

ble if a reasona

ble person could foreseethe probability

of its occurrence or if the person was on notice that the likelihood of da

nger to the par

ty to whom is owed aduty is probable. Foreseeability

is the test of negligence. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability

. See Sp ivey v. St. Thomas Hospital , 31 Tenn. App. 12, 211 S.W.2d 450, 456 (1948). “[T]he plaintiff must show t hat t he injury was a

reasonably foreseeable

pro babi lity, not just a

remote possibility

, and that some action within the [defenda nt’s] power more pr

obably than

not would ha ve pre vented the injury.” Tedder , 728 S.W.2d at 348. Foreseeability

must be determinedas of the time of the acts or omissions claimed to

be negligent.

* * *
The pertinent question is whether there was any showing from which it can be said that the defendants rea s onably knew or should have known of the probability of an occurrenc e such as the one which caused the plaintiff’s injuries. Corbitt , 496 S.W.2d at 918.
Id. at 178.
In this case, as in Keeton , the hospital personnel cou ld eas ily foresee that a patient in dire distress because of a compelling need to exercise a bodily function, would attempt to g et to the bathroom. However, at this point the similarity to Keeton ends. Ms. Tuggle successfully negotiated her trip to and from the

bathroom, and in do

ing so decided on

another endeav

or - soaking her

feet. She did not call the nurses’ station or otherwise seek assistance for this endeavor; thus, she was not deniedassistance. There was no compelling reason for Ms. Tuggle

to get out of bed to

soak her feet, nor should the defendant be charged with foreseeability that she would attempt to wa

lk barefoot with wet feet across the floor to answer the telephone. Assuming for the purposes of argument that pla int iff has est abl ish ed a d uty, brea ch o f du ty, and injury, the last two elements for such an action, cause in fact and proximate cause, must be established. In Snyder v. Ltg. Lufttechnische GMbh , 955 S.W.2d 252 (Tenn. 1997), our Supreme Courtexplained the distinction between cause in fact and proximate or legal cause. The Court said:
The distinction betwee

n cause in fact and proximate, or legal, cause is not merely an exercise in seman tics. The terms are not interchangeable. Although both ca use in fact and proximate, or legal,-7- cause are elements of negligence that the plaintiff must prove, they are very diffe

rent concepts. Ridings , 914 S.W.2d at 83; Kilpatrick v. Bryant , 868 S.W.2d 594, 598 (T enn. 1993). Cause

in fact refers t

o the cause and effect relationship between the defend an t’s tortious conduct and the plaintiff’s injury or loss. T hus, cause

in fact deals with the “but

for” consequences of an act. The defendant’s conduct is a cause of th

e event if the event would not have occurred but for that conduct. Kilpatrick , 868 S.W.2d at 598. In contrast, proximate caus e, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. Id. Proximate or legal cause is a policy decision made by the legislatureor the courts to deny liability for ot he rwise actionable conduct ba sed on con sid erat ion s of logi c, co mmo n se nse , po lic y, precedent and “our more or less inadequately expressed ideas of what justice demands or of what is adm in istratively possible and convenient.” Bain v. Wells , 936 S.W.2d 618, 625 (Tenn. 1997); George v. Alexander , 931 S.W.2d 517, 521 (Tenn. 1996); Kilpatrick , 868 S.W.2d at 598; Smith v. Go re , 728 S.W.2d 738, 749 (Tenn. 1987).
Id. at 256 n.6.
In the instant c

ase, as previous

ly noted, Ms. Tuggle embarked upon a endeavor of her own wit houtseeking the assistance of hospital personnel, and Ms. Tuggle’s action resulted in her fa ll

. The failure of the hospital personnel to respond to her call for assistance to go to the bathroom did not cause her to undertake to soak her feet and then attempt to walk across the floor to answer the telephone.
Acco rdi ngly, we affirm

the order of the trial court granting summary judgment to defe

ndant. The case is remanded to the trial court for such further proceedings asmay be necessary. Costs of the app eal are a sse sse d to app ell ant , Ed ward M. T uggl e, J r., and his sur ety.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE,