### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 14, 200 2 Session EMILY LEWIS v. LI FE 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 Lew i s, a student enrolled in a Certified Nursing Assistant’s training program operated a nd supervised by Nursetrainers, Inc., sues Life Care Centers of America, Inc. The suit seeks damage s for injuries resulting to Ms. Lewis, who was takin g training to become

a Certif ied Nursing Assista

nt. As a result of Life Care’s negligence, the original complaint alleged several other causes of action, all of whi ch have

been ab andoned

on appea l. We af firm. Tenn.R.App. P. 3 Appeal as of Right

; Judgment

of the Cir

cuit Cour

t Affir med; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. Jes Bear d, Chattan ooga, Te

nnessee , for the

Appellan t, Emily Le wis 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 ha

d 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 prac tical experience of a L icensed Practic

al Nursing s tudent have a duty of c are to t

he stude nts th e nursing home is so supervising?-2-

A more ac curate

statemen t of the iss ue would b e the fol lowing: “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 setout in the case of Staples v. CBL & Associates, Inc. , 15 S.W.3d 83, 89 (Te

nn. 2000) , as follo ws: The standards governing the assessment of evidence in the summary judgment context are als o well est

ablished . Courts mus t view the evidenc e in the lig

ht most favora ble to the nonmoving party and must also draw all reasonable inferenc es 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 boththe facts and

the infe rences to be draw n from the facts pe rmit a re asonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn.1 995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). We will now review the evidence introduced below in accordanc e with the dictates of Staples , and in doin g so will ac cept as t rue those statements of facts--which would be admissible at trial--contained in Ms. Lewis’ brief: FACTS OF THE C ASE: During the period at issue in the lawsuit, the Appel lant wa s a student at Nurse trainer s, Inc, studying to become a Certified Nursing Assistant and w a s assigned to the Def

endant’ s nursing h ome for p ractica l experi e nce. This relation sh ip be tween Nursetrainers and the Appellee w as 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 appare nt (she) would

have first hand knowledge.” On the date

of the al leged ne gligence , the Appe llant was a student

o f Nursetr ainers, Inc., was under the direct supervision of the employees of Lifecare Center of Ameri ca at al l times, specif ical ly under the supervision of Sandra Gaston, a Certifie d Nursing

Assistant employed

by the Defendant

. On the date of the alleged neg ligence, the Appellant bathed a resident named Lou Ann Ha

rrelson at the dir

ection of the Appella nt’ s staff, being left entirely alone with Ms. Harrel so n to bathe her. Ms. Harrelson was a nursing-3-

home residen

t with advanced “Lou Gehrig’s Disease” and unable to see everything that was happening about her because of her limited range of motion. The Appellan

t’s own records fo

r Ms . Harre lson, and the experience of staff members who re p orted tha t experi ence of

their sup eriors, showed th at Ms. Harrelsonwas prone to making unfoun ded compl aints about imagine d grieva nces, and also about any changes in her routine, . . . At no time did A

ppella nt do any thing inappropriate to Ms. Harrelson, simply per

forming p roper ba thing proc edures. Afte r the Appellant bath

ed Ms. Ha

rrelson and left the fac ility Ms

. Harrelsonappeared calm until an employee of t he A ppellee told Ms. Harrelson that the woman

who had ju st

bathed he

r, the Ap pellant, was a

lesbian, and at that point Ms. Harrelson became upset and agitated. Ms. Harrelson then made allega tions that the Appellant had raped her during the showe

r, with suc

h allega tions ultima

tely resulting in criminal charges being filed against the Ap pellan t for rape, with such criminal charges subseque ntly dismiss ed on the A

ppellant ’s motion without tria l. In her original Complaint against the Appellee, the Appellant alleged Appellee was “liable to (her) for negligence in c reating a situation where she was left unsuperv ised by (A

ppellant ’s) sta

ff mem bers to provide intimate care to a re sidentupset by a

ny chang e in her r

outine an d prone to

makin g baseles s complain ts and to imagining o f

fenses to her.” It is only this cause of action at issue in t he i nstant appeal and Appellant raises no challenge to the trial cour t’s grant of the Mot

ion for Sum

mary Judg ment on an

y other a lleged c ause

of action. The exact evidence contained in the record regarding Ms. Harrelson’ s predispo sition to faultfinding and complaining is contained in the affidavit of Kimbra Dunning, a former employee of Life Ca

re, which, as per

tinent to th

is appea l, is as follows:

3. Prior to August 20, 1998, while I was so employed my duties and resp onsibilities several times included providing care for a re sident named Lou Ann Harrelson, and in the course of such responsibilities I ob served Ms. Harrelsonseveral times make unreasonable demands of staff members, complain of any ch anges in h

er routin e, and to imagine gr

ievance s 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 compl aining that staff members were not giving her all

of her medications, and to address this concern nursing supervisors-4-

at the nursing home instructed staff members to pulverize Ms. Harre lson’s medicati on directly in front of her so she could see it being done befor e th e medication was admin

istered t o her. (M s. Harrelson’s medication sometimes had to be pulverized to be administered to her because her c onditi on 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 M s. Harrelson was unreasonable, too demanding, and imagined complaints that were not justified. In addition to

the fore going, the

undispute d proof, a s shown by t he affi davit of T ammy Bo wers, a Cert ified Nursing Assistant employed by Life Care is that “Ms. Harrelson had neve r made an allegation against anyone on the staff or premises of Life Care in regar d to either physical or sexual abuse.” We first note that this affi davit wasnot timely in that it wa s an exhib it to a motio n 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 c omplaint of a sexual nature; consequently, we agree with the Trial Court that her action was not foreseeable and Life Care was no t onera ted with any duty of care as to Ms. Harrelson’s actions in this regar d. 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 wa s 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 Car e stood in some special relation shi p withMs. Harrelson or Ms. Lewis. Life Care counters this cont en tion 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 Car e has filed a pos t-argumen t motion requesting that we award attorney fee s and costs incident to counsel’s appe a rance for oral argument because counsel for Ms. Lewis failed to appea r. We first note that counsel also requested or al argument, although counsel says in the motion that it was over only because couns el for Ms

. Lewis had done so. Of course, it was not necessa ry for c ounsel to r

equest oral argument in such a case. We further

note that this asser tion is not made i n the aff idavit see king attor ney fee s, but only in the unsworn motion. In light of the fore going and

the furth er fac t that cou

nsel was p ermitted

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 a gainst Emily Lewis and her surety.-5- _________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE