                                                                                                      01/22/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     August 8, 2017 Session

 C.D. ET AL. V. KEYSTONE CONTINUUM, LLC DBA MOUNTAIN YOUTH
                           ACADEMY

                    Appeal from the Circuit Court for Johnson County
                       No. CC-15-CV-7      Jean A. Stanley, Judge


                                 No. E2016-02528-COA-R3-CV



The plaintiff, C.D., a minor, was a resident of Mountain Youth Academy, a trauma-
focused residential treatment facility,1 when he got into a physical altercation with an
employee of the defendant Keystone Continuum, LLC doing business as Mountain Youth
Academy. The employee, Jacob Spencer, is described by the defendant as a “mental
health associate.” The plaintiffs describe him as a “third shift night guard.” The minor’s
mother filed this action, proceeding both individually and on behalf of her son. The
complaint alleges, among other things, that Spencer pulled the minor plaintiff to the
ground and stomped on his foot, causing him injury. Defendant moved to dismiss and/or
for summary judgment, arguing that the complaint in this case alleges health care liability
claims. Defendant argued that because of plaintiffs’ (1) failure to provide pre-suit notice
under the Tennessee Health Care Liability Act (the THCLA), Tenn. Code Ann. § 29-26-
121 (Supp. 2017), and (2) their failure to file a certificate of good faith with the
complaint, id. § 29-26-122, the lawsuit should be dismissed with prejudice. The trial
court held that plaintiffs’ claims sounded in health care liability. It dismissed the
mother’s action with prejudice. The court also dismissed the minor’s action, but did so
without prejudice.2 Defendant appeals, arguing that the minor’s action should have been
dismissed with prejudice. The plaintiffs also present issues. They argue that the trial
court erred in ruling that their claims are based upon health care liability. Additionally
and alternatively, plaintiffs argue that their claims fall within the “common knowledge”
exception to the general requirement of expert testimony in a health care liability action.
We hold that plaintiffs’ claims for assault and battery are unrelated to the provision of, or

        1
          Mountain Youth Academy “offers individualized treatment utilizing intensive multi-disciplinary
approaches toward the treatment of children.”
        2
          Apparently, the “without prejudice” designation was because the court was dealing with a
minor’s cause of action.
                                                    1
failure to provide, health care services. As a consequence of this, we hold that the
plaintiffs’ assault and battery claims do not fall within the ambit of a “health care liability
action” as defined by the statute. We further hold that plaintiffs’ direct claims against the
defendant, for negligent supervision and/or training of its employees, are health care
liability claims but ones involving matters that ordinary laypersons will be able to assess
by their common knowledge. Hence, expert medical testimony is not required. The trial
court’s judgment dismissing the plaintiffs’ claims for assault and battery is vacated. We
further hold that mother’s failure to provide the defendant with pre-suit notice mandates a
dismissal of her claim for negligent supervision and/or training, but that dismissal should
have been without prejudice rather than with prejudice. Accordingly, the trial court’s
judgment on this part of mother’s claim is modified to reflect that the dismissal is without
prejudice. We affirm the trial court’s judgment dismissing the minor’s claim of negligent
supervision and/or training and further affirm the trial court’s judgment that this dismissal
is without prejudice.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
         Vacated in Part and Affirmed in Part as Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and THOMAS R. FRIERSON, II, J., joined.

Elizabeth M. Hutton and Stephanie E. Stuart, Johnson City, Tennessee, for the appellant,
Keystone Continuum, LLC, dba Mountain Youth Academy.

Thomas C. Jessee, Johnson City, Tennessee, for appellees, C.D., by and through his
mother, J.D., and J.D., individually.


                                              I.

       The minor plaintiff was twelve or thirteen years old at the time of the incident.
His affidavit summarizes his allegations of what happened:

              In 2013, my mother filed a [p]etition asserting that I was an
              unruly child. I was served with the [p]etition and a hearing
              was held on the [p]etition. The matter was continued to
              determine whether my behavior would improve.

              Later, in September 2013, I become defiant towards my
              mother. I also pushed my mother and her boyfriend at the
              time. I called the police. When the police officers came, I
                                              2
               became defiant towards the officers and spit on one of the
               officers. I was placed under arrest by the officers and taken
               to juvenile detention. Two days later, a hearing was held
               before the Juvenile Court for Washington County, Tennessee.
               . . . At the hearing, the judge ordered that my mother take me
               to Mountain Youth Academy. I was given one day to pack
               my belongings and then my mother took me to Mountain
               Youth Academy.

               I did not know how long I would have to stay at Mountain
               Youth Academy, but I understood that I would be on “lock
               down” and that I could only have visitors on the weekend.

               Jacob Spencer was a third shift night guard. It was his
               responsibility to take me from my room to the bathroom so I
               could get ready for the day (brush my teeth, etc.). Jacob
               Spencer never counseled me or participated in any group
               counseling sessions with me.

               On March 18, 2014,3 I asked Jacob if I could get my hygiene
               box, which contained my toothbrush. Jacob would not let me
               get my hygiene box and I became upset and started hitting
               things. Jacob then went into my room and started taking my
               personal items, which made me more upset. Jacob tried to
               put me in a hold and I accidentally tore the cuff on his sleeve.
               Jacob grabbed my right shoulder and pushed the back of my
               left shoulder, causing me [to] turn and fall to the ground. As I
               was lying on the ground, Jacob stomped on my right foot.

(Footnote added; numbering in original omitted.)

        Defendant filed a “motion to dismiss and/or motion for summary judgment.” It
argued that all of the plaintiffs’ claims are health care liability causes of action, and that
plaintiffs’ failure to provide pre-suit notice and include a certificate of good faith with the
complaint is fatal to their action. The trial court held that the claims are health care
liability actions and dismissed the mother’s action with prejudice, and the minor
plaintiff’s action without prejudice. Defendant timely filed a notice of appeal.

       3
         The defendant asserts that the actual date of the incident was April 18, 2014. This
discrepancy is not definitively clarified in the record, but neither party asserts it as an issue or
argues that it is pertinent to the issues presented on appeal.
                                                 3
                                                  II.

      The defendant raises the issue of whether the trial court erred in refusing to
dismiss the minor plaintiff’s action with prejudice. The plaintiffs raise the issue of
whether the trial court erred by holding that their suit was one for health care liability.4

                                                 III.

       The well-established general rule is that “[a] motion to dismiss for failure to state a
claim is the proper method for challenging whether a plaintiff has complied with the
THCLA’s pre-suit notice and certificate of good faith requirements.” Youngblood ex rel.
Estate of Vaughn v. River Park Hosp., LLC, No. M2016-02311-COA-R3-CV, 2017 WL
4331042, at *1 (Tenn. Ct. App., filed Sept. 28, 2017), quoting Ellithorpe v. Weismark,
479 S.W.3d 818, 823 (Tenn. 2015); Myers v. AMISUB (SFH), Inc., 382 S.W.3d 300,
307 (Tenn. 2012). Following a hearing on defendant’s initial motion to dismiss and/or
for summary judgment, the trial court entered an order stating:

               upon the filings in this matter and argument of counsel the
               Court finds that there is insufficient evidence before the Court
               to make a ruling at this time. The Defendant’s Motion may
               be reset for hearing once there has been sufficient discovery.

After the entry of this order, the plaintiffs filed several affidavits in support of their
position. Defendant had earlier filed a statement of undisputed material facts based upon
two other affidavits, pursuant to Tenn. R. Civ. P. 56.03. Under Tenn. R. Civ. P. 12.02,

               [i]f, on a motion asserting the defense numbered (6) to
               dismiss for failure to state a claim upon which relief can be
               granted, matters outside the pleading are presented to and not
               excluded by the court, the motion shall be treated as one for
               summary judgment and disposed of as provided in Rule 56,
               and all parties shall be given reasonable opportunity to
               present all material made pertinent to such a motion by Rule
               56.

As this Court has recently stated,

       4
          Plaintiffs assert in the body of their brief that the trial court erred in denying their oral
motion to take a voluntary nonsuit, made during the hearing on the motion to dismiss and/or for
summary judgment. This issue is not properly before us because plaintiffs did not include it in
their statement of issues.
                                                  4
              [a] motion to dismiss is converted to a motion for summary
              judgment when the trial court states, or the evidence shows,
              that it considered matters outside the pleading.

              Furthermore, it has long been the rule that “[i]t is left to the
              discretion of the trial judge whether or not to receive matters
              outside the pleading on a motion to dismiss for failure to state
              a claim,” and “extraneous matter may not be considered if the
              court excludes it.”

England v. Schnur, No. E2017-00085-COA-R3-CV, 2017 WL 5901019, at *2-3 (Tenn.
Ct. App., filed Nov. 29, 2017) (internal quotation marks and citations omitted). In the
present case, the trial court clearly evinced an intent to consider matters presented outside
the pleadings. Accordingly, the trial court considered the motion before it as one for
summary judgment.

      Our standard of review of a grant of summary judgment is as stated by the
Supreme Court:

              Summary judgment is appropriate when “the pleadings,
              depositions, answers to interrogatories, and admissions on
              file, together with the affidavits, if any, show that there is no
              genuine issue as to any material fact and that the moving
              party is entitled to a judgment as a matter of law.” Tenn. R.
              Civ. P. 56.04. We review a trial court’s ruling on a motion
              for summary judgment de novo, without a presumption of
              correctness.

                                   *      *       *

              [I]n Tennessee, as in the federal system, when the moving
              party does not bear the burden of proof at trial, the moving
              party may satisfy its burden of production either (1) by
              affirmatively negating an essential element of the nonmoving
              party’s claim or (2) by demonstrating that the nonmoving
              party’s evidence at the summary judgment stage is
              insufficient to establish the nonmoving party’s claim or
              defense. . . . The nonmoving party must demonstrate the
              existence of specific facts in the record which could lead a
              rational trier of fact to find in favor of the nonmoving party.

                                              5
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).

In making the determination of whether summary judgment was correctly granted,

              [w]e must view all of the evidence in the light most favorable
              to the nonmoving party and resolve all factual inferences in
              the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
              271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
              S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
              of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
              facts support only one conclusion, then the court’s summary
              judgment will be upheld because the moving party was
              entitled to judgment as a matter of law. See White v.
              Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
              Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745
at *2 (Tenn. Ct. App., filed Apr. 24, 2014).

                                            IV.

                                             A.


       The dispositive issue is whether the trial court erred in determining that plaintiffs’
claims fall within the statutory definition of a health care liability action:

              any civil action, . . . alleging that a health care provider or
              providers have caused an injury related to the provision of, or
              failure to provide, health care services to a person, regardless
              of the theory of liability on which the action is based[.]

Tenn. Code Ann. § 29-26-101(a)(1). It is undisputed that defendant is a “health care
provider.” That concept is defined by section 101(2)(C) as “[a] nongovernmental health
facility licensed under the Mental Health, Developmental Disability, and Personal
Support Services Licensure Law, compiled in title 33, chapter 2, part 4[.]” We have
observed that

              [t]his statutory definition [of § 29-26-101(a)(1)] is conclusive,
              and it casts a wide net over civil claims that arise within a
                                             6
              medical setting. In fact, this Court has previously remarked
              that “it should not be surprising if most claims now arising
              within a medical setting constitute health care liability
              actions.” Osunde [v. Delta Med. Ctr., 505 S.W.3d 875, 884-
              85 (Tenn. Ct. App. 2016)]. We hasten to add, however, that
              “whether a health care liability action is implicated is entirely
              dependent on whether the factual allegations meet the
              definition outlined in the statute.” Id. at [885] n.6.

Cordell v. Cleveland Tenn. Hosp., LLC, No. M2016-01466-COA-R3-CV, 2017 WL
830434, at *5 (Tenn. Ct. App., filed Feb. 27, 2017).

        The factual allegations supporting plaintiffs’ claims are simple and
straightforward: they allege that Spencer, acting as an employee of defendant, pushed or
pulled the minor plaintiff to the ground and “stomped on his right foot.” In determining
whether these allegations involve “an injury related to the provision of, or failure to
provide, health care services,” we are guided by a trio of opinions recently released by
this Court.5 In Lacy v. Mitchell, No. M2016-00677-COA-R3-CV, 2016 WL 6996366
(Tenn. Ct. App., filed Nov. 30, 2016) (Lacy I), the plaintiff alleged a chiropractor injured
her by (1) jumping on her back while she was on a chiropractic table, and (2) hitting her
with a medical folder as the chiropractor exited the room. The plaintiff argued that her
claims “were for ‘beating and assault,’ rather than health care liability.” Id. at *1. We
stated in Lacy I that the first allegation

              indicates that Ms. Lacy was injured while lying on a
              chiropractic table, during a chiropractic appointment, when a
              chiropractor (Dr. Mitchell) applied force to her back by
              jumping on it. In our view, such an injury would undeniably
              be related to the provision of chiropractic health care services.

Id. at *3. However, regarding the claim that the chiropractor hit the plaintiff with a
medical folder, the Lacy I Court stated:

              While that statement also alleges that Ms. Lacy was injured
              during a chiropractic appointment when a chiropractor
              applied force to her back, it does not contain any other
              indication that the alleged wrongful act was related to the
              provision of chiropractic health care services. Rather, it

       5
          In fairness to the trial court and the parties, we note that these three opinions were
released after the trial court made its ruling in the present case.
                                               7
              alleges that the act took place after Dr. Mitchell finished
              jumping on her back—an act that we determined was related
              to the provision of health care services. Additionally, unlike
              the first claim, it does not state that Ms. Lacy was lying on the
              chiropractic table when Dr. Mitchell hit her in the back with
              her medical folder. Rather, it states only that Dr. Mitchell
              struck Ms. Lacy with the folder “as he walked out the door.”
              Thus, while it is still reasonable to infer that the alleged act
              was related to the provision of heath care services, it is
              equally reasonable, in our view, to infer that the act took
              place after Dr. Mitchell finished providing health care
              services to Ms. Lacy and was leaving the appointment. As
              such, it is not apparent from the face of Ms. Lacy’s complaint
              that the second claim fits the THCLA’s definition of a “health
              care liability action.”

Id. at *4 (emphasis in original).

        In Lacy v. St. Thomas Hosp. West, No. M2016-01272-COA-R3-CV, 2017 WL
1827021 (Tenn. Ct. App., filed May 4, 2017) (Lacy II), the same plaintiff brought
another separate action against a different set of health care providers, again asserting
“several distinct claims, some of which are health care liability claims and some are not.”
Id. at *1. We held as follows:

              Ms. Lacy makes additional allegations against the Appellees
              that are not clearly defined as health care liability claims. Ms.
              Lacy alleges that “[Dr. Clendenin] physically beat [her] after
              the shock” hitting her four times on the front part of her right
              shoulder. Likewise, Ms. Lacy alleges that Mr. Bragdon “beat
              her three to four times in the shoulder” and that he took her
              medical file and “beat [her] from head to ankle up and down
              never saying a word.” In regard to Premier Radiology, Ms.
              Lacy alleges that the MRI technician “beat” her leg four times
              causing bruising. Under Tennessee Rule of Civil Procedure
              12.02, we must presume that Ms. Lacy’s allegations are true,
              and we must give her the benefit of all reasonable inferences.
              Using the plain and ordinary meaning of the language
              contained in Ms. Lacy’s complaints, we cannot conclude that
              the alleged willful and malicious “beatings” by Dr.
              Clendenin, Mr. Bragdon, and the MRI technician constitute
              health care liability claims under the THCLA. It strains
                                             8
              credulity to view a willful assault as being related to the
              provision of health care services.

Id. at *4 (brackets in original; emphasis added).

        In the Cordell case, the plaintiff alleged that she had been raped and battered by
hospital employees while she was unconscious at the hospital. 2017 WL 830434, at *1.
The defendant hospital argued that her claims fell within the definition of a health care
liability action. This Court disagreed, reasoning and ruling as follows:

              we see no facts alleging that a health care provider caused an
              injury related to the provision of, or failure to provide, health
              care services. In seeking relief against the Appellees, Ms.
              Cordell’s original complaint asserted three separate causes of
              action.

                                    *      *        *

              each of these legal theories is based on the same factual
              predicate. Each count alleges that an injury has occurred due
              to the purported rape perpetrated by Mr. Parsons and potential
              other unnamed individuals working for SkyRidge.

                                    *      *        *

              Here, the threshold question is whether the alleged rape
              perpetrated by Mr. Parsons is related to the provision of, or
              failure to provide, health care services. . . . Under the statute,
              health care services “includes care by health care providers”
              and “also includes staffing, custodial or basic care,
              positioning, hydration and similar patient services.” Tenn.
              Code Ann. § 29–26–101(b). In our view, it strains credulity
              to view the willful and malicious actions such as those
              alleged here as being related to the provision of, or failure to
              provide, health care services. . . . [W]ere we to say otherwise,
              this would essentially mean that any actions or deeds by a
              health care provider, if committed within the confines of a
              medical facility, give rise to a health care liability action.
                                    *       *       *



                                               9
              Just as the act of hitting a plaintiff on the back with a medical
              folder does not involve an injury related to the provision of,
              or failure to provide, health care services, we fail to see how a
              defendant’s alleged rape of a patient is related to the
              provision of, or failure to provide, health care services.

Cordell, 2017 WL 830434, at *5, *6, *7 (emphasis in original; footnotes in original
omitted).

        As similar to these three cases, the allegations in the present action against the
employer, based on the actions of its employee, do not allege that a health care provider
caused an injury related to the provision of, or failure to provide, health care services.
The plaintiffs’ claims are for willful assault and battery. They have alleged that the
employee Spencer’s role was essentially that of a security guard. Defendant
characterizes his position differently; at the summary judgment hearing, its counsel stated
the following about its employee:

              He was a mental health associate. He’d held that position for
              about seven months. He’d been certified through Crisis
              Prevention Institute. He’s been trained extensively to deal
              with behavioral issues that may arise while caring for
              children. He’s in a facility, a locked unit with about twelve
              minor children that all have mental health issues. He doesn’t
              have to deal with ‒ he’s not there to counsel the child. He’s
              not a Ph.D. or an M.D. He’s there to maintain the safety of
              these children, and he is trained to do so while dealing with
              children with mental health diagnoses.

In our review of a grant of summary judgment, it is axiomatic that we must view the
evidence in the light most favorable to the plaintiff and resolve all factual inferences in
his/her favor. However, even if we were to conclude that Spencer’s role was more of a
professional “mental health associate” as opposed to a “third shift night guard,” both
Lacy opinions teach that this distinction is not dispositive. In Lacy I, the defendant was
unquestionably a professionally trained and certified medical provider ‒ a licensed
chiropractor. 2016 WL 6996366, at *1. In Lacy II, the defendants included an M.D., a
certified physician assistant, and an MRI technician. 2017 WL 1827021, at *1, *4.
Despite their positions or training, the conduct the Lacy defendants were accused of did
not involve an allegation of injury caused by the provision of health care services or lack
thereof. We held in Lacy II that “[i]t strains credulity to view a willful assault as being
related to the provision of health care services.” Id. at *4. That holding is applicable in
this case to the plaintiffs’ allegations of assault and battery, based on the respondeat
                                             10
superior doctrine. We vacate the trial court’s judgment dismissing these claims. (Italics
in original.)

                                                B.

       As to the remaining allegations in the complaint, those charges allege that
defendant negligently failed to supervise or train the employees of Mountain Youth
Academy “in order to ensure the safety of the minor residents.” We discussed such an
allegation, albeit in dicta, in Cordell, stating in pertinent part:

              Negligence is not charged against [the hospital] for failing to
              protect or monitor [the plaintiff]. As far as the original
              complaint will admit, the liability of [the hospital] appears to
              be predicated entirely on the doctrine of respondeat superior.

                                    *       *        *

              [H]ad the original complaint brought a negligence claim
              against [the hospital] directly and asserted that it was liable
              due to its failure to provide appropriate care, supervision, or
              monitoring, the complaint would have alleged that a “health
              care provider . . . caused an injury related to the . . . failure to
              provide . . . health care services.” . . .

              In this vein, although we would not dispute that Mr. Parsons’
              duties in watching over Ms. Cordell’s hospital room involved
              health care services as that term is defined by statute, see
              Tenn. Code Ann. § 29–26–101(b) (stating that health care
              services include “staffing, custodial or basic care”), we do not
              see anything in the original complaint alleging that Mr.
              Parsons’ failure to provide proper security or monitoring
              resulted in an injury to Ms. Cordell.

2017 WL 830434, at *6, *7; accord Youngblood, 2017 WL 4331042, at *3-*4 (quoting
Cordell and holding allegation that hospital negligently failed to provide appropriate
supervision and monitoring of patient left with hot coffee presents a health care liability
action).

       In the present case, we agree with the trial court’s ruling that the claims of
negligent supervision and training fall within the definition of “health care services,”
defined at Tenn. Code Ann. § 29-26-101(b) as including “staffing, custodial or basic care
                                                11
. . . and similar patient services.” However, as we observed in Zink v. Rural/Metro of
Tenn., L.P., 531 S.W.3d 698, 706 (Tenn. Ct. App. 2017),

             a determination that a claim falls within the THCLA does not
             automatically trigger all of the statute’s requirements. The
             need for expert proof will not lie if the matter is within the
             common knowledge of a layperson, and if there is no need for
             expert proof, a plaintiff’s complaint will not fail for failure to
             attach a certificate of good faith under section 29–26–122.
             See Tenn. Code Ann. 29–26–122(a) (2012) (“In any health
             care liability action in which expert testimony is required by §
             29–26–115, the plaintiff or plaintiff's counsel shall file a
             certificate of good faith with the complaint.”) (emphasis
             added). Thus, although determining that a claim constitutes a
             health care liability action will subject it to the pre-suit notice
             requirement in section 29–26–121, additional analysis is
             needed to determine whether expert proof is necessary.

(Emphasis in original.) Zink also involved a claim of assault and battery, allegedly by an
EMT who struck a patient while he was strapped to a gurney. Id. at 703. However, the
issue of whether the allegation that the EMT battered the plaintiff stated a health care
liability claim was not before this Court in that case. Id. (“Mr. Zink has raised no issue
on appeal with regard to the trial court’s determination that Mr. Zink’s complaint alleged
a health care liability claim”). Instead, the Zink plaintiff argues that “his claims would
fall within the ‘common knowledge’ exception to the requirement of expert testimony . . .
because the alleged act of negligence was within the common knowledge of a layperson.”
Id. at 704. After reviewing pertinent case law authorities discussing and applying the
common knowledge exception, we held:

             we determine that it would be within the common knowledge
             of a layperson whether an EMT’s alleged negligent, reckless,
             or intentional striking of a patient’s face while the patient is
             strapped to a gurney would fall below the standard of care.
             Because this alleged act would not require expert proof to
             “aid in the understanding of this issue,” the trial court erred
             by failing to determine that this case fell within the common
             knowledge exception.         Because no expert proof was
             necessary to establish negligence, no certificate of good faith
             would be required pursuant to Tennessee Code Annotated §
             29–26–122. Therefore, the trial court should not have

                                             12
              dismissed Mr. Zink’s action with prejudice for failing to file a
              certificate of good faith.

Id. at 707; see also Osunde, 505 S.W.3d at 888-89 (allegation that radiology technician’s
provision of a faulty, uneven stool injured plaintiff is within the common knowledge of a
layperson); Redick v. St. Thomas Midtown Hosp., 515 S.W.3d 853, 859 (Tenn. Ct. App.
2016) (allegations that “Hospital’s employee failed to comply with the fall precautions by
placing the commode out of reach of the bed and then failing to assist Plaintiff to transfer
from the commode back to the bed . . . are within the common knowledge of
laypersons”).

       In the present case, plaintiffs argue that, as in the above cited cases, their
allegations of Mountain Youth Academy’s negligent failure to supervise and/or train its
employees involve matters that ordinary laypersons are able to assess by their common
knowledge, without the need for expert medical testimony assistance. We agree. The
allegations essentially state a claim that the defendant failed to provide adequate security
or protection for its child residents. The evidence presented in the record suggests that
Mountain Youth Academy is in some ways a mental health treatment facility, and, at the
same time, in other ways, a juvenile detention facility. We believe the trier of fact will be
able to review and assess the proof of defendant’s measures to provide security for the
residents and determine whether they were adequate and appropriate, without the
assistance of expert testimony. As we observed in Newman v. Guardian Healthcare
Providers, Inc., No. M2015-01315-COA-R3-CV, 2016 WL 4069052, at *4 (Tenn. Ct.
App., filed July 27, 2016),

              [d]ismissal without prejudice is the proper sanction for
              noncompliance with the pre-suit notice requirement of Tenn.
              Code Ann. § 29-26-121. Ellithorpe v. Weismark, 479
              S.W.3d 818, 829 (Tenn. 2015) (quoting Foster v. Chiles, 467
              S.W.3d 911, 916 (Tenn. 2015)). However, failure to comply
              with the certificate of good faith requirement codified at
              Tenn. Code Ann § 29-26-122, results in dismissal of the
              complaint with prejudice. Id.

                                             V.

       In summary, we dismiss the plaintiffs’ claim against Keystone based on negligent
supervision and/or training, but we do so without prejudice. Also, we vacate the trial
court’s judgment dismissing the plaintiffs’ assault and battery claims; hence, those claims
will proceed. The case is remanded for further action consistent with this opinion. Costs

                                             13
on appeal are assessed to the appellant, Keystone Continuum, LLC, dba Mountain Youth
Academy.

                                      _______________________________
                                      CHARLES D. SUSANO, JR., JUDGE




                                         14
