Certificate of Good Faith Required for Negligent Supervision Claim

When a plaintiff filed suit against a massage therapist and his employer alleging various claims based on an intentional sexual assault, the requirements of the HCLA did not apply to the intentional tort claims against the massage therapist. For the negligent retention or supervision claim against the employer, however, a certificate of good faith was required under the HCLA.

In Jackson v. Burrell, No. W2018-00057-COA-R3-CV (Tenn. Ct. App. Jan. 16, 2019), plaintiff alleged that during a massage, defendant massage therapist sexually assaulted her, which resulted in a genital infection and eventual outpatient surgery. Plaintiff filed suit against the therapist and his day spa employer, alleging assault and battery, intentional infliction of emotional distress, and false imprisonment against the therapist, and asserting claims for vicarious liability and negligent supervision, retention and training against the employer. Plaintiff gave pre-suit notice of her claims pursuant to the HCLA, but she did not file a certificate of good faith with her complaint. Defendants both filed motions for summary judgment based on the lack of a certificate of good faith, and the trial court granted the motions. On appeal, summary judgment as to the therapist was reversed, but the ruling for the employer was affirmed.

In its analysis, the Court first ruled that both the therapist and the employer were “licensed and regulated under Tennessee Code Annotated sections 63-18-101 through 63-18-116,” and that they were, therefore, health care providers covered by the HCLA. This determination meant that the requirements of the HCLA, including pre-suit notice and a certificate of good faith, were at issue in this case.

The Court first looked at the claims against defendant therapist, all of which were intentional tort claims. The defendant conceded, and the Court agreed, that dismissal of these intentional torts should be reversed, as “[a]llegations of willful and tortious actions—including, but not limited to, assault, battery, and rape—do not fall within the ambit of the THCLA.” (internal citations omitted). The Court found that these claims were “clearly not related to the provision of, or the failure to provide, health care services,” and that the claims were accordingly not subject to the requirements of the HCLA. Summary judgment on these claims based on the failure to file a certificate of good faith was reversed.

The analysis regarding the claims against the employer, however, was more complicated. For plaintiff’s vicarious liability claims, the court noted that plaintiff would have to prove that the employee was “acting within the scope of his or her employment when the injury occurred,” and it ruled that “it strains credulity to view a massage therapist’s acts of sexual assault to be within the scope of employment.” Summary judgment on the vicarious liability claim was thus affirmed.

As to the negligent supervision, retention and training claims, the Court first noted that such claims did fall under the HCLA, and were thus subject to the certificate of good faith requirement unless an exception applied. Plaintiff argued that all of her claims fell within the common knowledge exception, but the Court disagreed. The Court ruled that plaintiff did not make a proper argument regarding the common knowledge exception for her claims against the employer, reasoning:

Plaintiff conflates the applicability of the common knowledge exception, as it pertains to the negligence claims against [employer], with her intentional tort claims against [therapist]. …While we agree that an expert would not be required to prove a sexual assault claim, this reasoning is applicable only to the intentional tort claims against [therapist]. The Plaintiff’s claims against [employer], however, are not for sexual assault but rather that [employer] negligently hired, retained, and supervised its employee. As such, the proper application of the exception is whether expert proof is required to prove Plaintiff’s negligence claims against [employer]—an argument which Plaintiff did not make.

In response to the dissent filed in this case, the majority opinion went on to find that even if plaintiff had properly raised the argument, the common knowledge exception would not have applied here. The Court noted that plaintiff showed that employer had received two prior complaints about defendant therapist making clients feel “uncomfortable,” and it ruled that under those circumstances, “the ordinary layman does not possess the knowledge required to determine whether or not [the employer] violated the massage industry standard in retaining or supervising [the therapist].” The Court stated that “expert proof is required to establish the recognized standard of acceptable professional practice in the massage industry.” (internal citation omitted). Summary judgment for defendant employer was thus affirmed.

Judge Stafford filed a partial dissent here, stating that he believed the common knowledge exception did apply to the negligent supervision claims against defendant employer. First, he noted that though it was not done as clearly as would be preferred, he found that plaintiff did raise this argument in the trial court and on appeal, and he specifically pointed out that defendant employer “clearly perceived that plaintiff was raising the common knowledge exception as a defense to its request for summary judgment and provided amble response to that argument.” He then went on to explain why he felt the exception applied in this case, pointing out that while the claims here fell within the ambit of the HCLA, they were “simply not medical negligence claims subject to the same proof requirements.” The dissent stated:

[T]his Court has held that a plaintiff in Tennessee may recover for negligent hiring, supervision or retention of an employee if he establishes, in addition to the elements of a negligence claim, that the employer had knowledge of the employee’s unfitness for the job. Neither [defendant] nor the trial court cited any law that mandates expert proof in all claims of this type, nor has our research revealed any. Thus, we have generally allowed the trier of fact to determine, based on common knowledge, that the direct allegations against a defendant constitute negligence when this type of claim is at issue. To impose an expert proof requirement in a negligent hiring, supervision, or retention claim would therefore be in contrast to the typical case[.]

Judge Stafford compared this case to another recent Court of Appeals opinion where the Court found that expert proof was not required for claims that fell within the HCLA but generally focused on the conduct of an employee and “pertained to inadequate security and protection for the residents.” (citing C.D. v. Keystone Continuum, LLC, No. E2016-02528-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2017)). The dissent concluded by noting that it was “entirely unclear…what scientific, technical or other specialized knowledge could substantially assist the trier of fact in determining this question.” (internal citation and quotation omitted).

This case reminds us of the potential pitfalls when dealing with a case that falls under the HCLA. While plaintiff here complied with the pre-suit notice requirement, the failure to consult with an expert and file a certificate of good faith ultimately proved fatal, even though her case was against a massage day spa and not a doctor’s office. The HCLA applies to those other than doctors and hospitals.

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