IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

May 14, 2002 Session

EMILY LEWIS v. LIFE CARE CENTERS OF AMERICA, INC.

 Appeal from the Circuit Court for Hamilton County

No. 99C1541 L. Marie Williams, Judge

FILED JULY 12, 2002

No. E2001-01812-COA-R3-CV

Emily Lewis, a student enrolled in a Certified Nursing Assistant’s training program operated and

supervised by Nursetrainers, Inc., sues Life Care Centers of America, Inc. The suit seeks damages

for injuries resulting to Ms. Lewis, who was taking training to become a Certified Nursing Assistant.

As a result of Life Care’s negligence, the original complaint alleged several other causes of action,

all of which have been abandoned on appeal. We affirm.

Tenn.R.App.P. 3 Appeal as of Right ; Judgment of the Circuit Court Affirmed;

Cause Remanded

HOUSTON M.GODDARD, P.J., delivered the opinion of the court, in which HERSCHEL P.FRANKS and

D. MICHAEL SWINEY, JJ., joined.

Jes Beard, Chattanooga, Tennessee, for the Appellant, Emily Lewis

Robert W. Sauser and Alison T. Shaw, Chattanooga, Tennessee, for the Appellee, Life Care Centers

of America, Inc.

OPINION

The Trial Court sustained Life Care’s motion for summary judgment upon the ground that

Life Care had no duty of care as to Ms. Lewis in that the acts resulting in her injury were not

foreseeable.

Ms. Lewis appeals, raising the following issue:

Does a nursing home supervising the practical experience of a

Licensed Practical Nursing student have a duty of care to the students the

nursing home is so supervising?
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A more accurate statement of the issue would be the following: “Under the facts developed

in this case, does a nursing home supervising the practical experience of a Licensed Practical

Nursing Student have a duty of care to the student the nursing home is so supervising?”

The standard of review of a trial court’s action in granting a summary judgment is set out in

the case of Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000), as follows:

The standards governing the assessment of evidence in the summary judgment

context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all reasonable inferences in

the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.

Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when

both the facts and the inferences to be drawn from the facts permit a reasonable

person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153

(Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

We will now review the evidence introduced below in accordance with the dictates of

Staples, and in doing so will accept as true those statements of facts--which would be admissible at

trial--contained in Ms. Lewis’ brief:

FACTS OF THE CASE:

During the period at issue in the lawsuit, the Appellant was a student at

Nursetrainers, Inc, studying to become a Certified Nursing Assistant and was

assigned to the Defendant’s nursing home for practical experience. This

relationship between Nursetrainers and the Appellee was longstanding and the

CNA students from Nursetrainers were assigned to work under the supervision of

CNA’s employed by the Appellee. 

In her Affidavit in support of her response to the Motion for Summary

Judgment, the Appellant swore to the truth and accuracy of all allegations made

in her Complaint to the extent “it would be apparent (she) would have first hand

knowledge.”

On the date of the alleged negligence, the Appellant was a student of

Nursetrainers, Inc., was under the direct supervision of the employees of Lifecare

Center of America at all times, specifically under the supervision of Sandra

Gaston, a Certified Nursing Assistant employed by the Defendant.

On the date of the alleged negligence, the Appellant bathed a resident

named Lou Ann Harrelson at the direction of the Appellant’s staff, being left

entirely alone with Ms. Harrelson to bathe her. Ms. Harrelson was a nursing
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home resident with advanced “Lou Gehrig’s Disease” and unable to see

everything that was happening about her because of her limited range of motion.

The Appellant’s own records for Ms. Harrelson, and the experience of

staff members who reported that experience of their superiors, showed that Ms.

Harrelson was prone tomaking unfounded complaints about imagined grievances,

and also about any changes in her routine, . . . 

At no time did Appellant do anything inappropriate to Ms. Harrelson,

simply performing proper bathing procedures.

After the Appellant bathed Ms. Harrelson and left the facility Ms.

Harrelson appeared calm until an employee of the Appellee told Ms. Harrelson

that the woman who had just bathed her, the Appellant, was a lesbian, and at that

point Ms. Harrelson became upset and agitated. 

Ms. Harrelson then made allegations that the Appellant had raped her

during the shower, with such allegations ultimately resulting in criminal charges

being filed against the Appellant for rape, with such criminal charges

subsequently dismissed on the Appellant’s motion without trial.

In her original Complaint against the Appellee, the Appellant alleged

Appellee was “liable to (her) for negligence in creating a situation where she was

left unsupervised by (Appellant’s) staff members to provide intimate care to a

resident upset by any change in her routine and prone to making baseless

complaints and to imagining offenses to her.” It is only this cause of action at

issue in the instant appeal and Appellant raises no challenge to the trial court’s

grant of the Motion for Summary Judgment on any other alleged cause of action.

 The exact evidence contained in the record regarding Ms. Harrelson’s predisposition to

faultfinding and complaining is contained in the affidavit of Kimbra Dunning, a former employee

of Life Care, which, as pertinent to this appeal, is as follows:

3. Prior to August 20, 1998, while I was so employed my duties and

responsibilities several times included providing care for a resident named Lou

Ann Harrelson, and in the course of such responsibilities I observed Ms.

Harrelson several times make unreasonable demands of staff members, complain

of any changes in her routine, and to imagine grievances which did not exist.

4. At one point in the course of my employment and prior to August 20, 1998,

I specifically recall Ms. Harrelson complaining that staff members were not

giving her all of her medications, and to address this concern nursing supervisors
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at the nursing home instructed staff members to pulverize Ms. Harrelson’s

medication directly in front of her so she could see it being done before the

medication was administered to her. (Ms. Harrelson’s medication sometimes had

to be pulverized to be administered to her because her condition prevented her

from swallowing normally.)

5. Multiple times in the course of employment and prior to August 18, 1998, I

complained to nursing supervisors at the nursing home that Ms. Harrelson was

unreasonable, too demanding, and imagined complaints that were not justified.

In addition to the foregoing, the undisputed proof, as shown by the affidavit of Tammy

Bowers, a Certified Nursing Assistant employed by Life Care is that “Ms. Harrelson had never

made an allegation against anyone on the staff or premises of Life Care in regard to either physical

or sexual abuse.” 

We first note that this affidavit was not timely in that it was an exhibit to a motion to alter

and amend after the Trial Court had decided the case. Moreover, if it had been properly filed, there

is no contention that Ms. Harrelson had ever made any complaint of a sexual nature; consequently,

we agree with the Trial Court that her action was not foreseeable and Life Care was not onerated

with any duty of care as to Ms. Harrelson’s actions in this regard.

Upon reviewing the whole record and in light of the matters hereinbefore stated, we conclude

the Trial Court was correct in dismissing the case on the ground that the action of Ms. Harrelson was

not foreseeable.

Before concluding, we observe that counsel for Life Care does recognize that under the

Restatement of Torts there might be a duty of care if Life Care stood in some special relationship

with Ms. Harrelson or Ms. Lewis. Life Care counters this contention by pointing out that the

Restatement applies only to situations involving physical harm. However that may be, in light of

the fact that no point was made as to this in Ms. Lewis’ brief, we will notice it no further. 

One final matter needs to be addressed. Counsel for Life Care has filed a post-argument

motion requesting that we award attorney fees and costs incident to counsel’s appearance for oral

argument because counsel for Ms. Lewis failed to appear. We first note that counsel also requested

oral argument, although counsel says in the motion that it was over only because counsel for Ms.

Lewis had done so. Of course, it was not necessary for counsel to request oral argument in such a

case. We further note that this assertion is not made in the affidavit seeking attorney fees, but only

in the unsworn motion. In light of the foregoing and the further fact that counsel was permitted to

briefly address the Court in support of Life Care’s position, we are disinclined to grant the motion

and it is accordingly denied.

For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded

for collection of costs below. Costs of appeal are adjudged against Emily Lewis and her surety.
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HOUSTON M. GODDARD, PRESIDING JUDGE