IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 18, 2000 Session

EDWARD M. TUGGLE, JR., AS EXECUTOR OF THE ESTATE OF

MAXINE N. TUGGLE v. AMISUB (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

Patient sued 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 she 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. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and HOLLY KIRBY LILLARD, 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

Plaintiff-appellant, Maxine Tuggle, sued the defendant, AMISUB, Inc., d/b/a St. Francis

Hospital, for personal injuries allegedly sustained while plaintiff was a patient in the hospital.

Plaintiff appealed the order of the trial court granting summary judgment to defendant, and while

the appeal was pending, plaintiff died. Edward M. Tuggle, Jr., Executor of her estate, was

substituted as party plaintiff-appellant.

The complaint alleges that Ms. Tuggle, 82 years of age, was admitted as a patient at St.

Francis Hospital in the late-night hours of February 8, 1998, for a pulmonary problem. The
-2-

complaint alleges that she was assigned a room and was instructed 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 from her bed to the

bathroom. She alleged that she notified the personnel of her need and that after waiting for some

period of 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 assistance and

proceeded to the bathroom on her own. Once she finished in the

bathroom, she poured water into a pan, proceeded to a chair in the

room, sat in the chair and placed her feet in the water. Her feet were

bothering her and this was the only thing that she knew that would

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 the 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 alleged 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 summary judgment 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 moving party 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 favor of the nonmoving party, allow all reasonable inferences in favor of that

party, 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 issue

of material fact, the nonmoving party must then demonstrate, by

affidavits or discovery materials, that there is a genuine, material fact
-3-

dispute to warrant a trial. In this regard, Rule 56.05 [now Rule 56.06]

provides that the nonmoving party cannot simply rely upon his

pleadings but must set forth specific facts showing that there is a

genuine issue of material 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 grant of summary judgment 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 Ilardi.

We quote from the plaintiff’s brief:

Maxine Tuggle, age 82, suffered from chronic obstructive

pulmonary disease, a condition also known as emphysema. 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 barely

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 remained for six hours and was

then taken to a private room on a stretcher. 

When Ms. Tuggle was admitted, she was instructed by the

nurses at St. Frances to not get out of bed without someone’s

assistance. In fact, she was told to refrain from going to the bathroom

or anything else unless somebody was with her.

Ms. Tuggle was admitted to the hospital and taken to her

room sometime after midnight. She slept through the night and

awoke that next morning at approximately 6:00 a.m. About 10:30

a.m. Ms. Tuggle needed assistance getting from the bed to the

bathroom. She pressed the appropriate button to summon the nurse.

A voice came on the intercom and asked her what she wanted. She

replied that she needed to go to the bathroom and needed to have

someone with her. The voice on the other end of the intercom said

“OK” and Ms. Tuggle waited 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

bathroom facilities. On her way out of the bathroom she poured

water in a small basin and carried it to a chair so she could soak her

feet. Her feet had been swelling and they felt to her to be stinging,

and she hoped that the water could give her some relief. 

As Ms. Tuggle sat in a chair soaking her feet, the telephone

rang. It was located five or six feet away. She stood to answer the

telephone, her wet feet slipped on the linoleum and she 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 screamed for

help. Apparently someone heard her shouts and six or seven people

responded by entering the room. One of those present was an

orthopaedic surgeon, 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. Tuggle not to leave the bed without assistance, they assumed a duty to

respond to her calls and assist her as needed. The appellant further asserts that 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 were 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 that 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 claim requires a plaintiff to prove the following elements: (1) a duty of care

owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of

care amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate

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

each case. 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 obviously 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 County Hospital, supra. In Keeton, the 79-year old plaintiff was admitted to the hospital
-5-

with a prostate condition. The hospital was advised upon admission that he had a balance problem,

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 removed by his physician, one of the nurses

from the hospital was present. The plaintiff at that time advised the nurse of his vertigo condition

and the necessity for assistance if he got of bed, and the nurse specifically instructed plaintiff to call

for help when he was getting out of bed. Subsequently, the plaintiff, like Ms. Tuggle, utilized the

call system 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 called the hospital switch board seeking to get him some

assistance but to no avail. After receiving no assistance, plaintiff, being in such distress 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 could foresee that the plaintiff might sustain injury

if he attempted to get up and go to the bathroom unassisted. We pointed out that he was a lucid,

mentally competent patient, and was in great distress because of his need to urinate. We stated: 

Under these circumstances, we feel that the hospital could reasonably

foresee that if it did not provide means to take care of the patient’s

physical demands, the patient would attempt 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 circumstances, and this directly and

proximately caused the injury to the plaintiff. We stated 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 Ms. Tuggle was not injured because she was forced to get up by physical

demands and negotiate her way to and from the bathroom. Although the hospital had a duty to

exercise reasonable care under the circumstances, defendant asserts that this must be gauged by

reasonable foreseeability by the hospital “that not escorting Ms. Tuggle to the restroom would result

in her filling a pan with water, arranging the pan to soak her feet, extracting her feet from the water,

and walking across the room without drying her feet to answer the telephone.” 

In considering the concept of a specific duty owed when an entity is charged with the duty

of exercising reasonable care under the circumstances, we look to the guidance 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

term reasonable 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, care is to be estimated by the risk

entailed through probable dangers attending the particular situation

and is to be commensurate with the risk of injury. Leach v. Asman,

130 Tenn. 510, 514, 172 S.W. 303 (1914). The risk involved is that

which is foreseeable; a risk is foreseeable if a reasonable person could

foresee the probability of its occurrence or if the person was on notice

that the likelihood of danger to the party to whom is owed a duty 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 Spivey v. St.

Thomas Hospital, 31 Tenn. App. 12, 211 S.W.2d 450, 456 (1948).

“[T]he plaintiff must show that the injury was a reasonably

foreseeable probability, not just a remote possibility, and that some

action within the [defendant’s] power more probably than not would

have prevented the injury.” Tedder, 728 S.W.2d at 348.

Foreseeability must be determined as 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 reasonably knew or should have

known of the probability of an occurrence 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 could easily foresee that a patient in dire

distress because of a compelling need to exercise a bodily function, would attempt to get 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 doing so decided on another endeavor - soaking her feet.

She did not call the nurses’ station or otherwise seek assistance for this endeavor; thus, she was not

denied assistance. 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 walk barefoot with

wet feet across the floor to answer the telephone. 

Assuming for the purposes of argument that plaintiff has established a duty, breach of duty,

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

Court explained the distinction between cause in fact and proximate or legal cause. The Court said:

The distinction between cause in fact and proximate, or legal, cause

is not merely an exercise in semantics. The terms are not

interchangeable. Although both cause in fact and proximate, or legal,
-7-

cause are elements of negligence that the plaintiff must prove, they

are very different concepts. Ridings, 914 S.W.2d at 83; Kilpatrick v.

Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact refers to

the cause and effect relationship between the defendant’s tortious

conduct and the plaintiff’s injury or loss. Thus, cause in fact deals

with the “but for” consequences of an act. The defendant’s conduct

is a cause of the event if the event would not have occurred but for

that conduct. Kilpatrick, 868 S.W.2d at 598. In contrast, proximate

cause, 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

legislature or the courts to deny liability for otherwise actionable

conduct based on considerations of logic, common sense, policy,

precedent and “our more or less inadequately expressed ideas of what

justice demands or of what is administratively 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. Gore, 728 S.W.2d 738, 749 (Tenn.

1987).

Id. at 256 n.6.

In the instant case, as previously noted, Ms. Tuggle embarked upon a endeavor of her own

without seeking the assistance of hospital personnel, and Ms. Tuggle’s action resulted in her fall.

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.

Accordingly, we affirm the order of the trial court granting summary judgment to defendant.

The case is remanded to the trial court for such further proceedings as may be necessary. Costs of

the appeal are assessed to appellant, Edward M. Tuggle, Jr., and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE,