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Boyd v. Riley12/19/2003
y evidence as provided by subsection (b):
(1) The recognized standard of acceptable professional practice in the profession and the specialty thereof, if any, that the defendant practices in the community in which the claimant practices or in a similar community at the time the alleged injury or wrongful action occurred;
(2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and
(3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred.
(b) No person in a health care profession requiring licensure under the laws of this state shall be competent to testify in any court of law to establish the facts required to be established by subsection (a), unless the person was licensed to practice in the state or a contiguous bordering state a profession or specialty which would make the person's expert testimony relevant to the issues in the case and had practiced this profession or specialty in one (1) of these states during the year preceding the date that the alleged injury or wrongful act occurred. This rule shall apply to expert witnesses testifying for the defendant as rebutal witnesses. The court may waive this subsection when it determines that the appropriate witnesses otherwise would not be available.
(c) In a malpractice action as described in subsection (a), there shall be no presumption of negligence on the part of the defendant; . . . .
Plaintiffs have the burden of proving by expert testimony: (1) the standard of care; (2) defendant's deviated from that standard, and (3) plaintiff's injuries, which would not otherwise have occurred except as a proximate result of the defendant's negligent act or omission. Dolan v. Cunningham, 648 S.W.2d 652 (Tenn. Ct. App. 1982); Parker v. Vanderbilt University, 767 S.W.2d 412 (Tenn. Ct. App. 1988). No such evidence was presented.
In the negligence case, Plaintiff simply asserted that he bit down on a hamburger containing a piece of hard plastic. No where does he allege that Defendant, Billy Riley, or anyone else had prior knowledge of this piece of plastic in the hamburger or that Riley was actually responsible for the preparation of the food. "The Tennessee Rules of Civil Procedure, while simplifying and liberalizing pleading, do not relieve the plaintiff in a tort action of the burden of averring facts sufficient to show the existence of a duty owed by the defendant, a breach of the duty, and damages resulting therefrom." Swallows v. Western Elec. Co., Inc., 543 S.W.2d 581, 583 (Tenn. 1976). In order for the allegations of the negligence Complaint to be sufficient to state a cause of action in this case, Defendants would have to be insurers and not tort feasors.
The judgment of the trial court is in all respects affirmed, and the cases remanded for such further action as may be necessary under Tennessee Code Annotated section 41-21-801, et seq. Costs are assessed to Appellant.
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