Jackson v. Burrell
| Decision Date | 12 June 2020 |
| Docket Number | No. W2018-00057-SC-R11-CV,W2018-00057-SC-R11-CV |
| Citation | 602 S.W.3d 340 |
| Parties | Lataisha M. JACKSON v. Charles Anthony BURRELL et al. |
| Court | Tennessee Supreme Court |
R. Sadler Bailey and J. Vance Montgomery, Memphis, Tennessee, for the appellant, Lataisha M. Jackson.
Charles W. Hill, Robert B. C. Hale, and Danielle Rassoul, Memphis, Tennessee, for the appellee, Gould's Salons, Inc. d/b/a Gould's Day Spa & Salon.
Warren D. McWhirter, Germantown, Tennessee, for the appellee, Charles Anthony Burrell.
The question presented in this health care liability case is whether the plaintiff's claim against a salon for negligent training, supervision, and retention of a massage therapist should be dismissed because the plaintiff did not file a certificate of good faith with her complaint under section 29-26-122 of the Tennessee Health Care Liability Act ("the Act"). Our answer depends on whether the common knowledge exception applies—that is, whether laypersons using their common knowledge and without expert testimony could decide whether the salon was negligent. If the common knowledge exception does not come into play and expert testimony is necessary, then the plaintiff needed to file a certificate of good faith with her complaint certifying that her negligence claim was supported by a competent expert witness and that there was a good faith basis for the claim. Here, the plaintiff alleged that a massage therapist working for the salon sexually assaulted her during a massage. In support of her claim of negligent training, supervision, and retention, the plaintiff presented evidence that before her assault, the salon had received complaints from two customers that the massage therapist had acted inappropriately and made them feel uncomfortable. The trial court granted summary judgment to the salon because the plaintiff had not filed a certificate of good faith. The Court of Appeals affirmed, ruling that the plaintiff had waived the common knowledge exception and that, in any event, expert testimony was necessary. We reverse and hold that 1) the plaintiff did not waive the common knowledge exception; and 2) the plaintiff's claim against the salon for negligent training, supervision, and retention of the massage therapist was within the common knowledge of laypersons and did not require expert testimony about the standard of care in the massage industry. Thus, the plaintiff did not have to present expert proof to establish her negligence claim against the salon. It follows then that the plaintiff had no reason to file a certificate of good faith under section 29-26-122, and her claim is not subject to dismissal for noncompliance with this section. The trial court's award of summary judgment is vacated.
This case arises out of Lataisha Jackson's claim that Charles Anthony Burrell, a massage therapist for Gould's Day Spa & Salon in Cordova, Tennessee, sexually assaulted Ms. Jackson during an April 2014 massage.
Before the alleged assault, two customers had complained to Gould's about Mr. Burrell's conduct. In December 2013, a customer emailed Gould's claiming that Mr. Burrell had made her extremely uncomfortable during her massage. She stated that he had "[come] way too close to places he had no business touching." This customer told Gould's that Mr. Burrell had not touched her in any inappropriate places, but he had "grazed more than once and that's not ok." And in March 2014, a second customer called Gould's and reported that Mr. Burrell had made her uncomfortable during her massage and "was very inappropriate." Gould's gave these customers gift cards to refund the charges for their massages. Mr. Burrell had been a licensed massage therapist since 2002, began working for Gould's in 2012, and had performed thousands of massages with no complaints. No disciplinary complaints had been filed against him with the Tennessee Board of Massage Licensure, and there had been no criminal charges filed. Mr. Burrell had previously given Ms. Jackson a massage in February 2014 without incident.
In January 2015, Ms. Jackson sued Gould's in the Shelby County Circuit Court alleging that Gould's was negligent in its training, supervision, and retention of Mr. Burrell. Ms. Jackson also raised other claims, including a claim for negligent hiring and vicarious liability against Gould's and claims against Mr. Burrell for assault and battery, intentional or reckless infliction of emotional distress, and false imprisonment. These claims are not at issue in this appeal.2
Gould's is a "health care provider" under the Act.3 In a health care liability case in which expert testimony is required, a plaintiff must file with her complaint a certificate of good faith. In the certificate, the plaintiff or her counsel must confirm that she or her counsel consulted with one or more experts who provided a signed written statement that they were competent to testify under the requirements of Tennessee Code Annotated section 29-26-115 and that there was a good faith basis for the health care liability action. Tenn. Code Ann. § 29-26-122(a) (2012). Failure to file a good faith certificate subjects a complaint to dismissal with prejudice. Id. § 29-26-122(c). Ms. Jackson did not file a certificate of good faith, explaining that her claim against Gould's for negligent training, supervision, and retention of an employee was not a health care liability action in which expert testimony was required by Tennessee Code Annotated section 29-26-115.
The trial court granted summary judgment to Gould's based on Ms. Jackson's failure to file a certificate of good faith with her complaint.4
Ms. Jackson appealed. First, the Court of Appeals ruled that Ms. Jackson had waived the common knowledge exception by not raising the issue in the trial court or in the appellate court. Jackson v. Burrell , No. W2018-00057-COA-R3-CV, 2019 WL 237347, at *5 (Tenn. Ct. App. Jan. 16, 2019), perm. app. granted (Tenn. Aug. 21, 2019). The Court of Appeals then held that, even if Ms. Jackson had not waived the issue, the common knowledge exception did not apply and that expert proof was needed to establish the applicable standard of care in the massage industry. Id. at *6. Noting that Gould's had received two customer complaints about Mr. Burrell, the Court of Appeals concluded that neither customer had accused Mr. Burrell of sexual assault and that Ms. Jackson failed to establish what Gould's did or did not do after receiving these complaints. Id. The Court of Appeals found that without this evidence, the ordinary layperson lacked the necessary knowledge to decide whether Gould's violated the massage industry standard in training, supervising, or retaining Mr. Burrell. Id.
One member of the Court of Appeals panel disagreed with the majority's ruling on the certificate of good faith issue. Id. at *6 (Stafford, P.J., W.S., concurring in part and dissenting in part). This judge found that Ms. Jackson had raised the common knowledge exception in the trial court and that Gould's, which had the burden of proving waiver, had not asserted the issue. Id. at *7. Finding no waiver, the dissenting judge determined that the common knowledge exception applied because an ordinary layperson could determine whether Gould's, after receiving customer complaints about Mr. Burrell, was negligent in allowing him to keep performing massages on disrobed customers. Id. at *10. In the dissenting judge's view, expert testimony was unnecessary because "this is exactly the type of question that can be answered by ‘practical experience gained in the ordinary affairs of life,’ " and it was "not a complex idea limited to ‘the massage industry.’ " Id. (citation omitted).
This Court granted Ms. Jackson's application for permission to appeal to determine whether Ms. Jackson waived the issue of the common knowledge exception, and if not, whether the common knowledge exception applied to Ms. Jackson's claim for negligent training, supervision, and retention so that she did not need to file a certificate of good faith with her complaint.
The material facts here are not in dispute. The issues of waiver and the application of the common knowledge exception present us with questions of law which we review de novo, with no presumption of correctness or deference to the decisions of the lower courts. Bryant v. Bryant , 522 S.W.3d 392, 399 (Tenn. 2017) (citing Rye v. Women's Care Ctr. of Memphis, MPLLC , 477 S.W.3d 235, 250 (Tenn. 2015) ; Parker v. Holiday Hospitality Franchising , 446 S.W.3d 341, 346 (Tenn. 2014) ).
We first address the matter of waiver because a party may not raise an issue on appeal that was not raised in the trial court.5 The party invoking waiver has the burden of showing that the other party did not raise the issue in the trial court.6 Gould's neither carried this burden nor argued that Ms. Jackson had waived the common knowledge exception. Instead, Gould's argued the merits of the issue—that the common knowledge exception did not apply and that Ms. Jackson had to file a certificate of good faith.
We find that Ms. Jackson raised the common knowledge exception both in the trial court and in the Court of Appeals. Ms. Jackson asserted in her complaint that she was not filing a certificate of good faith because her claim did not arise out of any diagnosis, treatment, or care, but arose out of a sexual battery that occurred while she was on the premises and a patron of Gould's. The complaint alleged, in part, that the negligent training, supervision, and retention of Mr. Burrell by Gould's proximately caused Ms. Jackson's injuries and damages.
In her response to the motion for summary judgment, Ms. Jackson argued that Gould's was negligent in its training, supervision, and retention of Mr. Burrell and had placed Mr. Burrell in a position...
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