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Limbaugh v. Coffee Medical Center5/31/2000
the trial court's grant of summary judgment on the issues relating to the hospital's independent negligence, and we remanded for further proceedings. See Roberts, 963 S.W.2d at 748-49.
On remand, the hospital filed another motion for summary judgment, and the trial court again granted the hospital's motion. See Wisdom v. Maddry, No. 03A01-9902-CV-00052, 1999 WL 894596, at *1 (Tenn. Ct. App. Oct. 14, 1999) (no perm. app. filed). On appeal, therefore, this court was required to address the 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 that
the plaintiff's injuries allegedly arose from the intentional conduct of [the hospital's employee]. We agree with the defendant that the immunity of the hospital cannot be circumvented in the manner attempted.
Id.
In the present case, the Plaintiff alleged, and the trial court found, that the Medical Center's employee, Louise Ray, committed an intentional tort, assault and battery, upon Emma Ruth Limbaugh. Inasmuch as the GTLA does not permit a plaintiff to recover for the intentional torts of governmental employees, and inasmuch as our supreme court's decision in Potter does 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 entered against the Medical Center in this case must be reversed.
In reversing the trial court's judgment against the Medical Center, we reject the Plaintiff's argument that the Medical Center somehow waived the defense of governmental immunity. See City of Lavergne v. Southern Silver, Inc., 872 S.W.2d 687, 690 (Tenn. Ct. App. 1993) (indicating that defense of governmental immunity cannot be waived because it goes to court's jurisdiction to entertain suit); see also Morris v. City of Memphis, No. 02A01-9403-CV-00041, 1995 WL 72539, at *2 (Tenn. Ct. App. Feb. 22, 1995) (no perm. app. filed) (indicating that governmental immunity defense is jurisdictional question that may be raised for first time on appeal). In any event, we note that the Medical Center raised this defense in its answer, its motion to dismiss, and its motion for summary judgment.
On the other hand, we affirm the trial court's judgment entered against Ray. Ray has submitted a brief on appeal in which she challenges the judgment against her on evidentiary grounds. Our review of the trial court's judgment is governed by rule 13(d) of the Tennessee Rules 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, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). Under this standard, " 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 credibility" and that "its findings of credibility are entitled to great weight" on appeal. Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423, 426 (Tenn. 1989). This court defers to the trial court's findings of credibility "because the trial court alone has 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.
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