                                                     FILED
                                                    October 14, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
                       IN THE COURT OF APPEALS OF TENNESSEE

                                                 AT KNOXVILLE




JOYCE LOUISE WISDOM,                         )      Blount County Circuit
                                )
      Appellant                         )        NO. 03A01-9902-CV-00052
                                )
vs.                                 )
                              HON. W. DALE YOUNG
                      )    JUDGE
JOSEPH MADDRY and BLOUNT      )
MEMORIAL HOSPITAL, INC.,    )
                      )
    Appellees            )      AFFIRMED



J. Mikel Dixon, Knoxville, for Appellant.

Carl P. McDonald, Maryville, for Appellee, Blount Memorial Hospital, Inc.



                                                  OPINION

                                            INMAN, Senior Judge

      Marilyn Roberts and Joyce Wisdom were patients in Blount Memorial Hospital, which employed

Jody Maddry, a male nurse. They filed a joint complaint against the hospital alleging that they were

sexually assaulted by Maddry. Liability of the hospital was alleged to be vicarious, and additionally,

that the hospital was independently negligent because it failed to investigate Maddry’s background

which would have revealed his propensity to sexually abuse females.
      The defendant hospital filed a motion for summary judgment which was granted on all grounds

asserted. Both plaintiffs appealed, and we filed an opinion affirming the dismissal of the Roberts case 1

but reversed the dismissal of the Wisdom case because the motion was based solely on the issue of

the hospital’s vicarious liability. The allegations of independent negligence were not addressed by the

motion, thereby requiring further inquiry.

      Following remand, the hospital filed another motion for summary judgment, alleging that there

were no genuine issues of material fact with respect to the question of whether the hospital knew or

should have known of Maddry’s propensities, and whether it conducted an appropriate investigation

into his background.

      This motion was supported by (1) an affidavit of Kathy Kirkham, of the Fort Sanders Medical

Center 2 that as a matter of policy Fort Sanders does not reveal unfavorable information about a former

employee; (2) an affidavit of Scott Shaffer, of Baptist Hospital 3 who deposed that in the records at

Baptist Hospital there is no unfavorable information about Maddry; (3) a certified file from the

Tennessee Board of Nursing which revealed no unfavorable information about Maddry when he was

licensed; (4) an affidavit of Terry Nichols, Chief of Police of Maryville, that the plaintiff reported the

alleged assault on April 18, 1995. 4

      The plaintiff opposed the motion by relying on the Roberts incident. She also filed a copy of a

hearing conducted by the Department of Health Nursing Board on June 12, 1997, three years after the

assault complained of.

     The motion for summary judgment was granted and the plaintiff appeals. The issue presented for

review is the propriety of the dismissal of the complaint.         Our review being one of law, the

presumption of correctness cannot be indulged. Rule 13(d) T.R.A.P. and cases cited.

       The essential thrust of the plaintiff’s argument on appeal is that the assault on Roberts was

sufficient notice to the hospital that “they had a problem with Maddry,” because the hospital’s
                                                                                                             2
assistant administrator testified that Roberts told her that Maddry had “fondled her inappropriately,

touching her breasts and buttocks.”

       The evidentiary worth of this testimony aside, Roberts did not testify accordingly. To the

contrary, she testified that Maddry only inserted a suppository and that nothing else happened to her

while she was a patient. On the basis of this testimony, the Court, as previously expounded, found

that there was no evidence that Roberts was sexually assaulted. Under familiar principles this finding is

the law of the case and there the matter ends. The Roberts “incident” was not sufficient notice for the

hospital that “they had a problem with Maddry.”

     The supported motion for summary judgment required the plaintiff to present evidence sufficient

to establish the essential elements for which she has the burden of proof.                Blair vs. Allied

Maintenance Corp., 756 S.W.2d 267 (Tenn. App. 1988); White vs. Methodist Hospital South, 844

S.W.2d 642, (Tenn. App. 1992). We have already observed that the Roberts incident is not sufficient

for the purpose. There is no evidence in this record that, from the time Maddry was employed to the

time of the assault complained of, the defendant was on inquiry notice about Maddry’s propensities or

prior inappropriate conduct.

      Our first opinion is clear on the point that any independent negligence of the hospital 5 was not

addressed by the motion for summary judgment. It was for this reason that the judgment was reversed

and the language of the opinion “we are not persuaded that this is an appropriate case for summary

judgment” must be considered in proper context. The principle enunciated in Potter vs. City of

Chattanooga, 556 S.W.2d 543 (Tenn. 1977) was not implicated because the issue of independent

negligence was not addressed, as we have seen. In Potter, the plaintiff alleged that she was mistreated

by a police officer and was unlawfully jailed. She filed suit against the City, alleging, inter alia, that it

negligently hired the police officer. The City moved to dismiss, asserting its immunity under the Act.

The Supreme Court affirmed the dismissal, holding that the true bases of the injuries for which
                                                                                                                3
damages are sought are false arrest and assault and battery, and that the claim of negligent hiring was

ineffective to avoid the immunity granted the City under the Act. In the case at Bar, the plaintiff’s

injuries allegedly arose from the intentional conduct of Maddry. We agree with the defendant that the

immunity of the hospital cannot be circumvented in the manner attempted.

     The judgment is affirmed and costs are assessed to the appellant.




                                _______________________________
                                William H. Inman, Senior Judge
CONCUR:



_______________________________
Charles D. Susano, Jr., Judge



_______________________________
D. Michael Swiney, Judge




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