1 The Plaintiff originally filed this action as the conservator for his mother. While th

is action
w as pending, Limbaugh d ied, and the Plainti

ff moved to revive

the action as the e

xecutor of his mother’s estate. 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE EDDIE BROWN LIMBAUGH, Executo r of the Estate of EMMA RU TH LIMBAUGH v. COFFEE MEDICAL CENTER, ET AL 

### . Direct Appeal from the Circuit Court for Coffee County No. 28-936 John W. Rollins, Judge

No. M1999-01181-COA-R3-CV - Decided May 31, 2000

In January

1997, Emma Ruth Limbaugh, an Alzheimer’s patient in Coffee Medical Center’s nursing home, received injuri

es to her face and arm during an altercation with one of the Medical Center’s certified nursing assistants, Louise Ray. Limbaug h’s son, Eddie Brown Limbaugh (Plaintiff) , 1 subsequently

filed a complaint a

gainst the Medic

al Center and Ray

in which he all

eged that his mother’s injuries were caused when she wasassaulted by Ray. The Medical Center filed an answer,
a mot ion to d ism iss , an d a m oti on f or s umm ary j udgment r aising the affirmative defense of governmentalimm uni ty. The trial court dismissed the Plaintiff’s claim that the Medical Center was vicariously

liable for Ray’s “intentional assault;” however, the court permitte d the Plaintiff to proceed to trial on his claim that the Medical Center was negl igen t in hir ing a nd/ or r eta ini ng Ra y. At th e conclusion of a bench trial, the trial court found that Limbaugh’s injuries were ca used by Ray’s “assault

and battery.” The trial court also found that the Medical Center had prior notice of Ray’s propensity for “physical ag gressiveness” and that the Medical Center’s failur e to take correctiveaction was th e “direct and proximate legal cause” of Limbaugh’s injuries. B ased upon these fi ndings, the trial court entered a judgment against Ray in the amount of $25,000 and a judgment against the Medical Center in the amount of $40,000. We affirm the trial court’s judgment against Ray based upon our conclusion that the evidence does not preponderate against the court’s decision; however, we reverse the trial court’s judgment against the Medical Center be cause we conclude that, regardle

ss of whether the

Plaintiff’s claim w

as based upon th

e t heory of vicarious liability or the theory

of negligent r

etentio n, the Governmental Tort Liability Act (GTL A) did not permit the Plaintiff

to sue the Medical

Center for Ray ’s intentional tort

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of t

he Circuit Court A

ffirmed in part; Reversed in Part; and Remanded

### -2-

F ARMER , J., delivered the opinion of the court, in which C RA WFORD , P. J., W.S., and H IGHERS , J., joined. Michael M. Castellarin, Nashville, Tennessee, for the appellant, Coffee Medical Center.

H. Thomas Parsons, Ma

nchester, Tenne

ssee, for the app

ellee, Eddie

Brown Limbaugh, Executor of the Estate of Emma Ruth Limbaugh. Louise Ray, Manchester, Tennessee, appellee, Pro Se

. OPINION

On the aft erno on o f Ja nua ry 19 , 19 97, Loui se R ay’ s supervis or, Betty Adams, a licensed practical nurse, was pushing a medicine cart down the hall of the Medical Cent er’s nursin

g home when she heard a noise co ming from Emma

Ruth Limbaugh’s room. When Adams entered the room to investigate, she

saw Ray and

Limbaugh en

gaged in some

sort of struggle on Limbaugh’s bed. Ray
was using her left hand t o grab at Lim baugh’s arms, a

nd Ray’s rig

ht hand was clenc

hed in a fist. Adams yelled, “No, Louise,” because she “felt like there might be a potential for a lick”; however, Adams did not see Ray strike Limbaugh.

Adams soon noticed that L imbaugh had a he

matoma near her righ

t eyebrow a

nd a lumpon her right jaw. Blood

ran from Limba

ugh’s mouth and r

ight nostril, so

Adams packed Limbaugh’s nostril with Vaseline and gauze to stop the bleeding. Later that afternoon, Adams noticed tha t Limbaugh had another hematoma near her left eyebrow. A da ms report ed the incident to Medical Center administrators. A subsequent examination by Limbaugh’s treating phy sician at the Medical Center, Harrison Yang, revealed that Limbaugh had bruises around both eyes, a bruise on the right side of her face, and a skin tear on her right forearm. Dr. Yang also observed that L imbaugh had

a deviatedseptum, but he noted that this condition could have existed at Li mbaugh’s birth or been
caus ed b y a pre vio us i nju ry. Shortly after the incident, Limbaugh’s relatives were called to the nursing home. When Limbaugh’s daughter, Lina Baker, arrived, she observed that Limbaugh’s face and neck were black and blue, her

nose was “over to one side,” she was bleeding from her nose and mouth, she had a big knoton the right side of her face, and her right arm was bleeding from where someone had dug her fingernails

into the arm . Limbaugh’s son, the Plaintiff, indicated that his mother looked like “[a] lady that had the hell

beat out of her.”

According to

the Plaintiff, Limbaugh’s face was bruised, she had a cut over her right eye, and her nose was “a little crooked.”

The Plaintiff and Baker acknowledged that their mother suffered from Alzheimer’s d

isease and that on some day

s she appeared c

onfused and did not

recognize fami

ly members. In December 199 6, Limbau gh had suffered other more serious facial injuries, including a fracture d nose and maxillarysinus, when she fell after escaping from her bed restraints. Moreover, a couple of weeks after the January 19, 1997, incident, Limbaugh beg an to suffer from a series of mini-strokes.2 The Medical Center’s monthly summaries, however, indicated that Limbaugh was eating a diet of pureed food as early as December 1996. 

### -3- Despite Limbaugh’s previous facial injuries and her other health problems, the Plaintiff and Baker insisted that they noticed a marked chan ge in their mother’s condition due to the January 19, 1997, incident. At trial, Baker testified that

there was a definite change in Mother. You had to speak to her before you got real close or she would just start with her hands like a baby, you know. . . . She wouldn’t talk. She was withdrawn, and she was just afraid, genuinely afr aid of people.

Baker testified that, after the January 19, 1997, inc ident, Limbaugh could eat only pureed food becaus e hersinus problems caused her to choke easily. Limbaug h also had difficulty breathing through her nose after the incident. Because she was forced to breathe through her mouth all of the time, her tongue became so dry that it cracked and ble d.

The Plaintiff corroborated his sister’s testimony regarding their mother’s labored bre athing, dry mouth, and diet of pureed food. 2 The Plaintiff added that

it seemed like that a

fter this incident

she had a lot more t

imes t hat she w as, you know, more or less out of

it, ina stupor. She was [kind of] incoherent. She wouldn’t really recognize y

ou and this kind of stuff, a lot more of that afterwards.

Louise Ray repre

sented herself a

t trial. After taking the

witness stand, Ray testified that she didnot know how Limbaugh wasinjured. Ray acknowledged that she and Limbaugh engaged in a struggle of sorts on Limb

augh’s bed. Ray

maintained, howe

ver, that she mer

ely grabbed Limbaugh in an attempt to prevent her from falling off of the bed. As Ray attempted to reposit ion Limbaugh
on the bed, Limbaugh suddenly became combative a nd struck Ray in the ear. When Betty Adam

s entered the room, R ay was trying to grab Lim baugh’s arms to prevent Li mbaugh from striking her again.

In suppo rt of his negligent retention claim, the Plaintiff sought to show that the Medical Center had prior notice of

Ray’s propensity for violence bec ause of an incident

that occurred in

early January 199 7. Jennie Louise Cox, whose mother-in-law was a patient at the Medical Center’s nursing home, testified that she had an altercat ion with Louise Ray on January 1, 1997. A ccording to Cox, she jokingly admonished and s hook her finger at Ray after Ray complained that a patient expected her to wa sh th e patient’s dishes. Ray reportedly re sponded by grabbing Cox’s finger, digging in her fingerna

ils, and bending Cox’s hand backwards. Ray finally released Cox’s finger, butCox still had a faint scar on her th umb from where one of Ray’s fingernails dug into the skin. Cox reported this incident to Shirley Price, the Medical Center’s Dire ctor of Nursing, and Price completed a “Record of Complaint” on the incident.

### -4-

Due to the Cox incident, two of Ray’s supervisors, Betty Adams and Mary Arwood, were askedto submit written eva luati ons of Ray’s work.

Although these e

valuations include

d some positive observations of Ray’s work, Betty Adams reported that Ray was “short with residents,” that she did not “use enoug

h patience,” an

d that her tone of v

oice was t

oo “ harsh” at times. Mary Arwoodsimilarly not

ed that at times Ray

’s tone of voice in

dicated a “lack

of patience with residents.”

Instead of terminating Ray for the Cox incident, the Med ical Cent er disciplined Ray by placing her on probation for one year. Less than three weeks later, Ray was involved in the incident in which Limbaugh was injured. Limbaugh died in April 1998 from causes that were unrela

ted to the January 19, 1997, incident.

Both the P l aintiff and the Medical Center filed notices that they were appea ling the trial court’s judgment. In its br ief, the Me dical Center has raised the following issues for this court’s review:

1. Should the trial court ha

ve dismissed the pla

intiff’s claims against Coffee Medical Center

upon motion to dismiss at the end of the plaintiff’s proof or at th e end of all

proof based upon the plaintiff’s failure to show by competent evidence th at Coffe e Medical Center failed to meet the relevant standard of professional practice in

regard to the alleged

negligent hiri

ng or retention o

f Louise Ray and/or based upon t he plaintiff’s failure to prove that Ms. Louise Ray, had a history of tortious conduct toward patients with whom she had previously worke d.

2. Was the trial court in error in ho l ding that the defendant, Coffee Medical Center, has “a fiduciary duty to protect the lives and safety of its residents”
as opposed to applying the standard set out in

the Tennessee Medical Malpractice Act at [Tennessee Code Ann otated sect ion] 29-26-115 and a duty of ordin

ary care to follow that standard.

3. Were the damages aw arded in this c as e excessive for the injuries sustained and was

fault appropria

tely alloca

ted between the d

efendants.

4. Was the trial court in error in questioning witnesses concerning the adequacy of staffing at Coffee MedicalCenter thereby introducing this issue into the trial when the issue had not been raised in the plaintiff’s pleadings.

We conclude that

the third issue is dis

positive of the Med

ical Center’s ap

peal. In arguing that the trial court

improperly allocated fault in this case, the Medical Center argue s, inter alia , that none of the fault for

Limbaugh’s injuries should have been allocated to the Medical Center because , under3 See Tenn. Code Ann. §§ 29-20-101 to -407 (1980 & Supp. 1996).

4 The language of

this provision has not changed since Potterwas decided. See Tenn. Code Ann. § 29-20-205(2) (Supp. 1999). 

### -5- the Governmental Tort Liability Act (GTL A), 3 the Medical Cente

r cannot be held li

able for th e intentional tort of one of its employees.

Based on the decision of o

ur supreme court

in Potter v. City of Chattanooga , 556 S.W.2d 543 (Tenn. 1977), we find this argumen t persu asive. In Potter , the court considered whether the GTLA removed the defense of governmental immunity for injuries arising out of i n tentional torts committed by governmental employee s. There, the plaintiff’s complaint alleged that a police officer employed by the City of Chattanooga arrested the plaintiff for publ

ic drunkenness wi

thout probable
cause. Se e Potter , 556 S.W.2d at 544. An other officer,

while forcing th

e plaintiff into a c

ell, battered the plaintiff about the face, causing her to suffer lacerations and broken bones and bre aking her dentures. See id

. The supre me cou rt obs erved that t he GTLA removed “the immunity of governmental entities from suit for damages where an injury [was] proximately ca used by a negligent

act or omission of any employee within the scope of his employment.” Id . By its own provisions, however, the GT LA didnot remove governmental immunity where the injury arose out of “false imprisonment pursuant to a mittimus from a

court, false

arrest, maliciou

s prosecution, inte

ntional trespass,

abuse of proces s, libel, slander, deceit

, interference

withcontract rights, infliction of mental anguish, invasion of right of pri vacy, or civil rights.” Id . (quoting Tenn. Code Ann. § 23-3311(2)). 4 Citing this provision, the court held that [t]he injuries for which recovery is sought in this case

arose out of the f

alse arrest and battery described in the complaint and are wi th in the exceptions to municipal liability

set forth in [Tennes see Code A

nnotated section] 23 -3311 . It fol low s th at t he t ria l ju dge c orr ect ly di smi sse d th e act ion agai nst the Cit y.
Potter , 556 S.W.2d at 546. Following the Potterdecision, the app ellate courts of t

his state have repeated

ly affirmed the principle that the GTLA does not permit plaintiffs to recover against g overnmental entities for injuries caused by the intentional torts of governmental employ ees. See, e.g. , T

ipton County Bd. of Educ. v. De nnis , 561 S.W.2d 148, 152 (Tenn. 1978) (“Like many other statutes permitting recovery from governmental entities for tortious injuries, the [GTLA] contains several exceptions. It does not authorize any recovery at all for m ost willful o r intentional torts .”); Belk v. Obion Co unty , 7 S.W.3d 34, 40 (Tenn. Ct. App. 1999) (“The GTLA allows suit against county an d municipal governments fo r negligent a

cts of its employ

ees; however, ne

ither intentional t

orts n or violations of civil rights are covered under the GTLA.”); Gifford v. City of Gatlinburg , 900 S.W.2d 293, 296 (Tenn. Ct. App. 1995) (“[T]here is no waiver of immunity under the [GTLA] for intentional

### -6-

tort.”); see also Cu zick v . Bass , No. 02A01-9809- CV-00244, 1999 WL

145209, at *4 (Ten

n. Ct. App. Mar. 18, 1999) ( no perm. app. filed ) (“Claims involving allegedly intentional acts fall within the purview of the [GTLA] and are barred.”). As our supreme court explained in one such c ase, [t]he GTLA codif

ied the general common law rule that “all governmental entities [are] immune from suit for any injury which may result from the activities of said governmental entities,” [Tenn. Code Ann.] § 29-20-201, . . . . After stating the general rule of immu

nity, re moval of immunity is provided in spec

ific instances. See, e.g. , [Tenn. Code Ann.] §§ 29-20-202 (neg ligent operation of vehicles but continuing certain statutory exceptions), 29-20-203 (unsafe streets and highway s), 29-20-204 (dangerous structures). A general waiver of immunity from suit is then provided by [Tennesse

e Code Annotated s

ection] 29-20-205 “

for injury p

roximately caused by a negli

g ent act or omission o

f any employ

ee within the scop

e of his employment,” but an extensive list of exception s to this removal of immu nity is appended to this section, including any injury that “[a]rises out of false imprisonment pursuant to a mittimus from a c

ourt, false arrest, malicious prosecution, intentional trespass, abuse of proces s, libel, slander, deceit, interfe

rence with contr

act rights, infliction of mental anguish, invasion of right of privacy, or civil rights. . . .” [Tenn. Code Ann.] § 29-20-205 (2). The se exceptions and the others contained in this provision make it evident that, while the Legislature did envision a comprehensive scheme, the scope of

the GTLA is generally intended to exclude intentional torts
as well as certain other torts involving intervening events (riots, etc.) or discretionary or necessary

governmental a

ctivities.
Jenkins v. Loudon County , 736 S.W.2d 603, 608 (Tenn. 1987) ( emphasis added) (cit ing Potter v. City of Chattano oga , 556 S.W.2d 543, 544-46 (Tenn. 1977)); accord Montgomery v. Mayor of Covington , 778 S.W.2d 444, 445 (Tenn. Ct. App. 1988).

In recent ye

ars, some decisions of this court have suggested that, although a plaintiff cannot
recover under the GTLA for a g overnmental empl

oyee’s inte

ntional tort, a plai

ntiff might be ab

le to recover for a governmental entity’s independent negligence in hiring the employee who caused the plaintiff’s injuries. See, e.g. , Roberts v. Blount Mem’l Hosp. , 963 S.W.2d 744, 748 (T enn. Ct. App. 1997); Doe v. Coffee County Bd. of Educ. , 852 S.W.2d 899, 907-09 (Tenn. Ct. App. 1992);
see also Doe ex rel. Doe v . Rogers , No. 03A01-9606-CV-00212, 1997 WL 36834, at *1, *3 (Tenn. Ct. App. Jan. 31, 1997) ( no perm. app. filed ). We find the logic of this approach appealing because, in such cases, the plaintiffs are not merely attempting to recover damages for the intentional torts of governmentalemployees. Rather, they

are attempting

to recover dama

ges for the def

endants’ negligence in hirin g the intentional tortfeasors and, specifically, their failure to ade quat ely investigat e the tortfeasors’ backgrounds.

In our view, howeve

r, this approach was specifically considered and rejected by

the supreme court in Potter . In that case, after the City of Chattanooga filed its motion to dismiss, the plaintiff amended her complaint to allege that5 For reasons not perti

nent to our present analysis, the style of the case changed on remand.


### -7- [t] hroughout

this entire episode

and prior theret

o, defendant at n

o ti m e screened its employees to adequately determine the psy

chological ca

pabilities of its employees to han dle the jobs to which they were

assigned, and f

urther failed to adequately

test, screen an d control its employees, to the point that at least one of defendant’s employees during the i nstance previously alleged acted in a [berserk] and callous manner in violation of the duties of the def endant tothe plaintiff, which actions defendants should haveknown or reasonably could have known were likely to have occurred.

Potter , 556 S.W.2d at 544. The sup reme court rejected the plaintiff’s contention that her amended complaint stated a cause of action for negligence under the GTL A. The court reasoned that
[i]t is ap pa rent from a reading of the complaint, as amended, that the true bases of the i njuries for which recovery of damages is soug ht are false arrest and assault and battery. The amendment to the com plain t, while levelling additional charges of negligence against the City, does not alter the fact that the injuries that are the subject of the action “arose out of” the battery and

the false arrest, and was not effecti ve to avoi d the immun

ity gr anted the City und er [the GT

LA].
Id

. at 545. In so holding, the supr e me court cited decisions from other jurisdictions that rejected attempts by plaintiffs to circumvent the defense of governmental immunity where plaintiffs had asserted that governmentalentities were negligent in hiring or retaining intentional tortfeasors. See id . (citing Little v. Schafer , 319 F. Supp. 190 (S.D. Tex. 1970) (negli gent hiring); Salerno v. City of Racine , 214 N.W.2d 446 (Wis. 1974) (negligent retention)).
Moreover, we n ote that, re lying on Potter , this court recently affirmed the dismissal of a negligent hiring claim brought under the GTLA. As previously indicated, our

decision in Roberts v. Blount Memorial Hospital , 963 S.W.2d 744, 748 (Tenn. Ct. App. 1997) , suggested t hat, altho ugh the plaintiff could not recover under t he GTLA for a

hospital employee’s intentional tort (sexual assault), the plaintiff mig ht be able to reco

ver for the hospit

al’s in dependent negligence in failing to adequately investigate the employ ee’s background before hiring him. Because the hospital’s initial motion for summary judgment addressed only the e mployee’s intentional acts, we reversed the trial court’s gr

ant of summary

judgment on the iss

ues relating to t

he hosp ita l’s independent negligence, and we remanded for further procee dings. See Roberts , 963 S.W.2d at 748-49.

On remand, the hospital filed another motion for summary judgment, and the

trial court aga

in granted the hospital’s motion. See Wi sdom v. Maddry , No. 03A0 1-9902-CV -00052, 19

99 WL 894596, at *1 (Tenn. Ct. App. Oct. 14, 1999) ( no perm. app. filed ). 5 On appeal, there fore, this court was required to

addressthe viability of the plaintiff’s negligent hiring claim. See Wisdom , 1999 WL 894596, at *2. After discussing the supreme court’s decision in Potter , we affirmed the dismissal of the plaintiff’s claim. See id . In doing so, we reasoned that6 The Potterdecision was not mentionedin Roberts

. In Wisdom , we explained this omission

by stating that
[o]ur

first opinion [ Roberts ] is c lear on the point that any independent negligence of the hospital 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 summar

y judgment” must be conside red 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.
Wisdom , 1999 WL 894596, at *2.

7 Although Ray did

not file a notice th

at she was appea

ling the trial cour

t’s judgment again

st her, we note that

the Tennessee Rules o

f Appellate Proc

edure did not req

uire her to file a

separate 

### -8- the plaintiff’s injuri

es allegedly

arose from the intentional conduct of [the hospital’s employ ee]. We agree with

the defendant that the immunity of the hospital cannot be circumvented in the manner attempted.
Id

. 6

In the present case, the Plaintiff alleged, and the trial court found, that the Medical Center’s employee, Louise Ray

, committed an inten

tional tort, assaul

t and battery

, upon Emma Ruth Limbaugh. Inasmuch as t he GTLA does n

ot permit a plaintif

f to recover for the

intentional torts of governmentalemployees, and inasmuch as our supreme court’s decision in Potterdoes not permit
a plaintiff to circumvent the defense of governmental immunity by asserting a claim for negligent hiring or retention, we

conclude that the

judgment entere

d against the Med

ical Center in this c

ase must be reversed.

In reversing the trial court’s judgment against the Medical Center, we reject the Plaintiff’s argument that the Medica l C enter somehow waived the defense of governmental immunity. See City of Lavergne v. Southern Silver, Inc. , 872 S.W.2d 687, 690 (T enn. Ct. App. 1993) (indicating that defense of governmental immunity cannot be waived because it goe s to court’s jur isdicti on to entertain suit); see also Morris v. City of Memphis , No. 02A01 -9403-CV -00041, 19

95 WL 72539, at *2 (Tenn. Ct. App. Feb. 22, 1995) (no perm. app. filed ) (indicating tha t governmental i

mmunity defense is jurisdictional qu

estion that may

be raised for fi

rst time on appeal). I

n any event

, we note that the Medical Cente

r raised this defe

nse in its answer, i

ts motion to

dis miss, and its motion for summary judgment.

On the other hand, we affirm the trial court’s judgment e ntered against Ray. Ray has submitted a brief on appea l in which she chal

lenges the ju

dgment aga inst her on evidentiary grounds. 7 Our review of the trial court’s judgment is governed

by rule 13(d) of the Tennessee Rulesnotice of appeal. Rule 13(a) provides that, “[e]xcept as otherwise provided in Rule 3(e) [regarding

appealsfrom jury trials], any question of law may be brought up for review and relief by any party. Cross-appeals,

separate appeals, and separate applications for permission to appeal are not required.” Tenn. R. App. P. 13(a). “ The result of elimi

nating any requir

ement that an appe

lle e file t he appellee’s own notice of appeal is that once any party files a

notice of appeal the appellate court may consider the case as a whole.” Id . advisory commission’s comment. As we previously indicated, boththe Plaintiff and the Medical Center filed notices of appeal in this case. Consequently, Ray was not required to fi

le a separate no

tice of appeal.

In his brief, the Plaintiff has raised issues concerning the trial court’s allocation of

fault. Our reversal of the trial court

’s judgment agains

tthe Medical Center, however, renders these issues moot
as to the Medical Cent

er. Inasmuch as t

he Plaintiff’s bri

ef does not reque

st any additio

n al relief against Ray, we decline to address the issues raised by the Plaintiff. 

### -9- of Appellate Procedure, which provides that, in civil actions, the appellate court’s review of the trial court’s findings of fact “shall be de novo upon the record of the trial court, acc ompanied by a presumpt ion of the correctn ess of the finding, unless the prepo nderance of the

evidence is otherwise.” Tenn. R. App. P. 13(d). Under this standard, “[w]here the issue for decision depends
on the determination of the credibility of witnesses,” this court recognizes that “the trial court is the best judge of the cr

edibility” a

nd that “its finding

s of credibili

tyare entitled to great weight” on appeal. Tenn-Tex Properties v. Brownell-Electro, Inc. , 778 S.W.2d 423, 426 (T enn. 1989). This court de fer s to the trial court’s findings of credibility “because the trial court alone ha s the opportunity to observe the appearance and the demeanor of the witnesses.” Id

. Accordingly , this court will affirm

the trial court’s judgment unless the evidence preponderates against the trial court’s findings or unless the trial court has erred

in applying the law. See Dailey v. Bateman , 937 S.W.2d 927, 930 (Tenn. Ct. App. 1996). Applying the foregoing standard, we conclude that the ev iden ce does not prepo

nderate against the trial court’s finding that Limbaugh’s injuries werecaus ed b y Ray’ s as sau lt a nd b att ery. We recognize that the record contains evidence to support Ray’s version of events, just as the record contains evidence to support the Plaintiff’s version. As the trier of fact, the trial court was required to consider the testimony presented by the parties and to decide which of the competing versions was
more credible. While Ray’s testimony provided a plausible explanation as to how the strugg

le betweenher and Limba

ugh developed,

significantly

, Ray’s v ersion o f events did not explain the
source of Limbaugh ’s facial injurie s. Ult ima tel y, the trial court found that the weight of the evidence supported the Plaintiff’s version of events, and, given the limited scope of our review, we are not in a position to second-guess the trial court’s decision.

The trial court ’s jud gment again st th e Medi cal Ce nter i s reve rsed. In all other respects, the trial court’s judgment

is affirmed, and

this cause is remande

d for further pr

oceedings cons

istent with t his opinion. Costs of this appeal are taxed one-half to the appellee, Eddie Brown Limbaugh , Executor of the Estate of Emma Ruth Limbaugh, and one-half to the appellee, L ouise Ray, for which
exe cut ion may i ssu e if nece ssa ry.