                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                October 15, 2010 Session

      JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                  No. CT-002912-08      Robert L. Childers, Judge


              No. W2009-02235-COA-R3-CV - Filed November 24, 2010


This is an appeal from the grant of Appellees/Defendants’ Tenn. R Civ. P 12.02 motion to
dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens.
In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a
Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a
customer of Walgreens. A co-worker of Ms. Doe’s accessed Ms. Doe’s prescription history
in the Walgreens’ database, and then disseminated her medical information to other co-
workers and to Ms. Doe’s fiancé. Ms. Doe and her fiancé filed suit. The trial court
dismissed the lawsuit, finding that the Does’ exclusive remedy was under the workers’
compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her
employment with Walgreens, and that she has sufficiently pled causes of action outside
workers’ compensation law, we reverse the order of dismissal and remand.


Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
                                     Remanded

J. S TEVEN S TAFFORD, J. , delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

David A. Stowers and Coleman W. Garrett, Memphis, Tennessee, for the appellants, Jane
and John Doe.

Leland M. McNabb and Courtney S. Vest, Memphis, Tennessee, for the appellees, Walgreens
Company, Paris Ghoston and Dr. Grady Saxton.

                                         OPINION

       At the time of the incidents giving rise to the instant appeal, Jane Doe worked as a
pharmacy technician for the Walgreens store on Winchester Road in Memphis. Ms. Doe’s
direct supervisor was the manager of the pharmacy, Dr. Grady Saxton. Jane Doe, who is
HIV positive, was also a customer of Walgreens but had her prescriptions filled at a different
Walgreens store in Memphis. Ms. Doe avers that she did so in order to maintain privacy
concerning her medical condition.

        Walgreens maintains a secure database, and customer information is only authorized
to be accessed in conjunction with filling a customer’s prescription. According to the
Complaint, on August 24, 2004, Dr. Saxton informed Ms. Doe that he had overheard other
employees discussing Ms. Doe’s HIV status. That same day, Dr. Saxton also allegedly
telephoned Ms. Doe’s fiancé, John Doe (together with Jane Doe, “Plaintiffs,” or
“Appellants”) and informed Mr. Doe of Ms. Doe’s condition.1 Four days after Dr. Saxton
made this call, Ms. Doe’s co-worker, Paris Ghoston (together with Walgreens and Dr.
Saxton, “Defendants,” or “Appellees”) allegedly admitted that she had accessed Walgreens’
database in order to confirm Ms. Doe’s HIV status. As a result of the exposure of her HIV
status, Ms. Doe’s co-workers, including Ms. Ghoston, allegedly withdrew their agreement
to participate in Ms. Doe’s wedding (as bridesmaids). Jane Doe subsequently terminated her
job at Walgreens based upon the alleged adverse treatment she received as a result of the fact
that her HIV status had been exposed.

      On June 13, 2008, Ms. Doe filed a complaint against Walgreens, Dr. Saxton, and Ms.
Ghoston.2 The Complaint provides, in pertinent part, as follows:

                8. On or about January 2002, Jane Doe was employed by
                Walgreens as a pharmacist technician at its store located [on]
                Winchester [Road], Memphis, Tennessee.

                9. Walgreens, to protect the privacy of its HIV positive
                pharmacy patients and customers, maintained a secure database
                open only to those employees who serviced these particular
                patients and customers and who had a business reason to know
                the medical status of these individuals.

                10.   Plaintiff, Jane Doe, during the entire course of her


       1
         It is unclear from the record whether John Doe was aware of Ms. Doe’s HIV status prior to Dr.
Saxton’s phone call.
       2
         The Complaint does not indicate whether Dr. Saxton and Ms. Ghoston are being sued individually,
or as employees of Walgreens.

                                                  -2-
employment with Walgreens, was HIV positive.

11. Plaintiff, Jane Doe, in an attempt to remove the need to
know for employees who worked at her store location, had her
prescriptions filled at the Walgreens store located at 3177 S.
Perkins, Memphis, Tennessee.

12. At all times pertinent to this action Plaintiff Jane Doe was
enrolled as a State of Tennessee Tenn Care recipient for
prescription and medical care. Defendant Walgreens accepted
payment for Jane Doe’s prescriptions from said state program.

13. Plaintiff Jane Doe wished to and expected to keep her HIV
status secret and confidential from her co-employees and the
public.

14. Dr. Saxton, who at all time pertinent herein, was a
registered pharmacist, licensed by the State of Tennessee, was
also a full time employee of Walgreens. Moreover, Dr. Saxton
was the immediate supervisor of Plaintiff Jane Doe at the
Walgreen’s store [where she worked].

15. On or about August 24, 2004, Dr. Saxton, without medical
or legal justification, and without it being job related or a
business necessity, telephoned Plaintiff Jane Doe’s fiancé and
informed him of Plaintiff Jane Doe’s HIV status.

16. On or about August 24, 2004, Dr. Saxton stated to
Plaintiff[] that he overheard other employees, who without
medical or legal justification or without it being job related or a
business necessity, discussing her HIV status.

17. On or about August 28, 2004, Ghoston stated to Plaintiff
that she deliberately accessed Walgreens’ database to[] review
Jane Doe’s file to ascertain her medical condition.

18. On or about September 4, 2004, Defendant Ghoston and
another pharmacy department employee who agreed to [be]
bridesmaids in Jane Doe’s wedding, abruptly dropped out of the
wedding, without explanation after the dissemination of

                                -3-
information regarding Jane Doe’s HIV status.

19. On or about February 24, 2005, Plaintiff Jane Doe filed a
health information privacy complaint against Walgreens with
the United States Department of Human Services Office for
Civil Rights (OCR), pursuant to the Health Information
Portability and Accountability Act (HIPPA).

20. As a result of Defendants’ exposure of Plaintiff’s HIV
status to Walgreens’ employees and the public, Plaintiff Jane
Doe, on or about September 2004, was forced to terminate her
employment with Walgreens.

              CAUSES OF ACTION
                   COUNT 1
    DISCLOSURE OF INFORMATION OF PATIENT
        AS PROHIBITED BY T.C.A. §63-10-412

*                              *                         *

22. Defendants by their acts and omissions failed to protect the
privacy and confidentiality of Plaintiff’s HIV status and thus
violated state law:

T.C.A. Section 63-2-101 Release of medical records
       (2) Except for any statutorily required reporting
       to health or government authorities and except for
       access by an interested third-party payer or their
       designees, for the purposes of utilization review,
       case management, peer reviews or other
       administrative functions, the name and address
       and other identifying information of a patient
       shall not be divulged. The name and address and
       other identifying information shall not be sold for
       any purpose. Any violation of this provision shall
       be an invasion of patient’s right of privacy.

23. As a result of the violation of Plaintiff Jane Doe’s right to
privacy as alleged above, Plaintiffs have suffered extreme
embarrassment and humiliation, great emotional distress, mental

                               -4-
anguish, loss of income, and loss of enjoyment of life.

                    COUNT II
    DISCLOSURE OF INFORMATION OF TENN CARE
      PATIENT AS PROHIBITED BY T.C.A. §10-7-504

*                              *                           *

25. Defendants by their acts and omissions failed to protect the
privacy and confidentiality of Plaintiff’s HIV status and thus
violated the following state law:

T.C.A. Section 10-7-504–(a)(1). The medical records of patients
in state, county, and municipal hospitals and medical facilities
and the medical records of persons receiving medical treatment,
in whole or in part, at the expense of the state, county or
municipality, shall be treated as confidential and shall not be
open for inspection by members of the public.

26. As a result of the violation of Plaintiff Jane Doe’s right to
privacy and confidentiality as alleged above, Plaintiffs have
suffered extreme embarrassment and humiliation, great
emotional distress, mental anguish, loss of income, and loss of
enjoyment of life.

                       COUNT III
                   GROSS NEGLIGENCE

*                                  *                   *

28. Plaintiffs allege that Defendants acted with gross negligence
and carelessness by failing to employ the degree of care, skill
and attention, as required of a reasonable and prudent person
under the same or similar circumstances.

29. As a result of Defendants gross negligence, Plaintiffs have
suffered extreme embarrassment and humiliation, great
emotional distress, mental anguish, loss of income, and loss of
enjoyment of life.



                               -5-
                       COUNT IV
                 LOSS OF CONSORTIUM

*                                *                          *

31. As a proximate and direct result of Defendants’ actions as
alleged above, Plaintiffs have suffered a loss of consortium,
affection, society, and enjoyment of life with each other in their
marital relationship.

                     COUNT V
              INTENTIONAL INFLICTION
               OF EMOTIONAL DISTRESS

*                                *                              *

33. The acts and omissions of Defendants alleged herein caused
Plaintiffs to suffer grievous injury and were so outrageous in
character and extreme in degree as to constitute tortious
intentional infliction of emotional distress. As a result of
Defendants’ extreme and outrageous acts, Plaintiffs have
suffered extreme embarrassment and humiliation, great
emotional distress, mental anguish, loss of income, and loss of
enjoyment of life.

                     COUNT VI
              INVASION OF PRIVACY AND
             INTRUSION UPON SECLUSION

*                                    *                          *

35. Plaintiffs reasonably expected that information known to
Defendants, containing her positive HIV status, would remain
private from her co-workers and any other persons. As a result
of Defendants’ invasion of privacy and intrusion upon seclusion,
Plaintiffs have suffered extreme embarrassment and humiliation,
great emotional distress, mental anguish, loss of income, and
loss of enjoyment of life.

                         COUNT VII

                               -6-
                                 CONSTRUCTIVE DISCHARGE

                 *                                          *                              *

                 37. Plaintiff Jane Doe alleges that, as a proximate and direct
                 result of Defendants’ invasion of privacy and intrusion upon
                 seclusion, breach of confidentiality, gross negligence, and
                 infliction of emotional distress, she was forced to terminate her
                 employment, causing a loss of wages and employment.3

(Italics in original).

        Based upon the foregoing pleadings, Jane and John Doe sought compensatory and
punitive damages. On October 6, 2008, and November 18, 2008, respectively, Appellees
filed an original and amended answer to the complaint, wherein they denied the material
allegations contained in the complaint and specifically raised the following, affirmative
defenses: (1) the Does’ complaint fails to state a claim upon which relief may be granted;
(2) John Doe’s claim, and any claims against Ms. Ghoston are barred by the statute of
limitations pursuant to Tenn. Code Ann. § 28-3-104; and (3) the Does’ complaint is barred
by the exclusive remedy provisions of the Tennessee Workers’ Compensation Act, Tenn.
Code Ann. § 50-6-108.

       On February 26, 2009, Appellees filed a motion to dismiss pursuant to Tenn. R. Civ.
P. 12.02(6). In their motion, Appellees aver that “Plaintiffs’ common-law Complaint is
barred by the exclusive remedy provision of the Workers’ Compensation Act, Tenn. Code
Ann. § 50-6-108.” Appellants filed a response to the motion which was heard on July 17,
2009. By order of July 24, 2009, the trial court granted Appellees’ motion to dismiss,
specifically finding that:

                 Plaintiff does not allege any intentional acts on the part of the
                 employer, that the acts alleged against Plaintiff’s co-workers are
                 not sufficient to take it outside of the workers’ compensation
                 law and that under Tennessee Code Annotated § 50-6-108,




        3
           Although the incidents, giving rise to the appeal, occurred in 2004, the Complaint was not filed
until 2008. No reason is given for this delay, nor did the trial court address any statute of limitations issue,
nor is it an issue in this appeal.

                                                      -7-
                 workers compensation is Plaintiff’s exclusive remedy.4

        On August 24, 2009, Appellants filed a motion to alter or amend the judgment, which
was denied by order of September 25, 2009. Appellants raise one issue for review as stated
in their brief:

                 Whether the factual allegations contained in Plaintiffs’
                 complaint, if taken as true, describe injuries that are not covered
                 by the workers’ compensation statutes of Tennessee.

        It is well settled that a Tenn. R. Civ. P. 12.02(6) motion to dismiss a complaint for
failure to state a claim upon which relief can be granted tests the legal sufficiency of the
complaint. It admits the truth of all relevant and material allegations, but asserts that such
allegations do not constitute a cause of action as a matter of law. See Riggs v. Burson, 941
S.W.2d 44 (Tenn. 1997). When considering a motion to dismiss for failure to state a claim
upon which relief can be granted, we are limited to an examination of the complaint alone.
See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App.1990). The
basis for the motion is that the allegations in the complaint, when considered alone and taken
as true, are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 528
S.W.2d 188 (Tenn. 1975). In short, a Tenn. R. Civ. P. 12.02(6) motion to dismiss seeks only
to determine whether the pleadings state a claim upon which relief can be granted, and such
a motion challenges the legal sufficiency of the complaint, not the strength of the plaintiff's
proof. Bell ex rel. Snyder v. Icard, 986 S.W.2d 550, 554 (Tenn. 1999). In considering such
a motion, the court should construe the complaint liberally in favor of the plaintiff, taking all
the allegations of fact therein as true. See Cook ex. rel. Uithoven v. Spinnaker's of
Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994). An appellate court should uphold the grant
of a motion to dismiss only when it appears that the plaintiff can prove no set of facts in
support of a claim that will entitle him or her to relief. Young v. Barrow,130 S.W.3d 59, 63
(Tenn. Ct. App. 2003).


       4
           Tenn. Code Ann. § 50-6-108 provides, in pertinent part, as follows:

                 Exclusive rights and remedies; third party indemnity.
                 (a) The rights and remedies granted to an employee subject to this chapter,
                 on account of personal injury or death by accident, including a minor
                 whether lawfully or unlawfully employed, shall exclude all other rights and
                 remedies of the employee, the employee's personal representative,
                 dependents or next of kin, at common law or otherwise, on account of the
                 injury or death.



                                                    -8-
        The trial court dismissed the Does’ case upon its finding that the alleged injuries
sounded in workers’ compensation, and that the Does’ complaint failed to set out a prima
facie case under the Tennessee Workers’ Compensation Act, Tenn. Code Ann. § 50-6-101,
et seq. (the “Act”). In order to recover benefits under the Act, an employee must prove that
he or she has suffered an “injury by accident arising out of and in the course of employment.”
Tenn. Code Ann. § 50-6-102(12). An injury is considered to be “by accident” when it is
“produced by an ‘unusual combination of fortuitous circumstances.’” Continental Ins. Co.
v. Dowdy, 560 S.W.2d 619, 621 (Tenn. 1978) (quoting Brown Shoe Co. v. Reed, 350 S.W.2d
65, 69 (Tenn. 1961)). An injury is deemed to arise out of the employment “when there is,
apparent to the rational mind ... a causal connection between the conditions under which the
work is... performed and the resulting injury, and [an injury] occurs in the course of one's
employment if it occurs when an employee is performing a duty he was employed to do.”
Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993) (citations omitted). In Tindall v. Waring
Park Ass'n, 725 S.W.2d 935 (Tenn. 1987), our Supreme Court defined the “causal
connection” required before an injury will be held compensable in workers’ compensation:

              “[C]ausal connection” [does] not [mean] proximate cause as
              used in the law of negligence, but cause in the sense that the
              accident had its origin in the hazards to which the employment
              exposed the employee while doing his work. Although absolute
              certainty is not required for proof of causation, medical proof
              that the injury was caused in the course of the employee's work
              must not be speculative or so uncertain regarding the cause of
              the injury that attributing it to the plaintiff's employment would
              be an arbitrary determination or a mere possibility. If, upon
              undisputed proof, it is conjectural whether disability resulted
              from a cause operating within petitioner's employment, or a
              cause operating without employment, there can be no award. If,
              however, equivocal medical evidence combined with other
              evidence supports a finding of causation, such an inference may
              nevertheless be drawn by the trial court under the case law.

Id. at 937 (citations and internal quotation marks omitted).

       While we concede that the Does’ Complaint fails to set out a cause of action sounding
in workers’ compensation because it fails to allege that the Does’ injuries were: (1) caused
by an accident, which (2) arose out of, and (3) in the course of, Ms. Doe’s employment with
Walgreens, this finding does not necessarily negate any claims arising outside workers’
compensation law. Having correctly determined that the Does’ complaint fails to state a
claim for workers’ compensation, the trial court also stated that “the acts alleged against

                                             -9-
Plaintiff’s co-workers are not sufficient to take it outside of the workers’ compensation law,
and that, under Tennessee Code Annotated § 50-6-108, workers’ compensation is Plaintiff’s
exclusive remedy.” Here, we respectfully disagree with the trial court.

       In reaching its conclusion that the Does’ exclusive remedy lay in workers’
compensation, the trial court inferentially determined that the injuries alleged arose out of
and in the course of Ms. Doe’s employment, and that the Does had failed to so plead. In
McAdams v. Canale, 294 S.W.2d 696 (Tenn. 1956), our Supreme Court distinguished the
phrases “arising out of employment,” and “in the course of employment,” as follows:

              “Rising out of employment” refers to the origin of the injury,
              while “in the course of employment” refers to the time, place
              and circumstances.... The injury received must arise “out of” the
              employment as well as “in the course of” employment.

McAdams, 294 S.W.2d at 699 (relying upon Hendrix v. Franklin State Bank, 290 S.W. 30
(Tenn. 1926); Thornton v. RCA Service Co., 221 S.W.2d 954 (Tenn. 1949)). However,
Tennessee law is clear that, if an employee suffers an accident in the course of employment,
it does not necessarily follow that the injury arose out of his or her employment. See Lennon
Co. v. Ridge, 412 S.W.2d 638, 644 (Tenn. 1967) (relying upon Sandlin v. Gentry, 300
S.W.2d 897 (Tenn. 1957)).

        In Knox v. Batson, 399 S.W.2d 765 (Tenn. 1965), our Supreme Court denied recovery
when construction workers died of asphyxiation caused by the leakage of gas from a heater
in a motel room where the employees were staying. In Knox, the employees were given the
option of commuting to the jobsite or finding accommodations nearer their work. The
employees, on their own volition, decided to stay in the motel and, therefore, the lodging was
not a direct incident to the employment. The lodging related “exclusively to the comfort and
convenience of the employees, it being not so far removed from the fixed site of their daily
work.” Id. at 775. In so ruling, the Supreme Court quoted with approval the test laid out in
Free v. Indemnity Ins. Co., 145 S.W.2d 1026, 1028 (Tenn. 1941): “If the business of the
master creates the necessity for the travel, the servant is in the course of his employment.”
        In reaching its decision, the Knox Court stated, in relevant part, that:

              [T]he mere presence of the employee at the place of injury
              because of employment will not alone result in the injury being
              considered as arising out of the employment. Injury or death of
              an employee, to be compensable, must arise out of a risk
              peculiar to the employment. Injury or death of an employee from
              an exposure which is no more or different than that of any other

                                             -10-
              member of the public similarly situated in place and time is not
              compensable.

399 S.W.2d at 770 (relying upon Scott v. Shinn, 105 S.W.2d 103 (Tenn. 1937); Thornton
v. RCA Service Co., 221 S.W.2d 954 (Tenn. 1949); Jackson v. Clark & Fay, Inc., 270
S.W.2d 389 (Tenn. 1954)).

        However, as recently discussed by this Court, in Coleman v. St. Thomas Hosp., No.
M2009-02526-COA-R10-CV, 2010 WL 3059159 (Tenn. Ct. App. Aug. 4, 2010) perm. app.
denied (Tenn. Nov. 15, 2010), there is no bright-line rule for determining whether an injury
arises out of and occurs in the course of employment, to wit:

              Various judicial “tests” and “doctrines” have emerged for
              determining when an injury arises out of and occurs in the
              course of employment, such as the “positional doctrine,” the
              “peculiar hazard doctrine,” the “foreseeability test,” the
              “street-risk doctrine,” and others. See Bell, 597 S.W.2d at 734.
              However, our Supreme Court has “consistently abstained from
              adopting any particular judicial test, doctrine, formula, or label
              that purports to ‘clearly define the line between accidents and
              injuries which arise out of and in the course of employment
              [and] those which do not[.]’” Wait, 240 S.W.3d at 225 (quoting
              Bell, 597 S.W.2d at 734). The Court has repeatedly rejected “the
              use of artificial labels,” stating that “classification and labeling
              is not the best method of determining whether an injury is
              compensable.” Hall v. Mason Dixon Lines, Inc., 743 S.W.2d
              148, 151 (Tenn.1987). The Court has found it “difficult, perhaps
              impossible to compose a formula” which clearly defines those
              accidents resulting in compensable injuries. Id. As such, in
              Tennessee, “[t]here is no formula which will clearly define the
              line between accidents and injuries which arise out of and in the
              course of employment and those which do not.” DeBow v. First
              Inv. Prop., Inc., 623 S.W.2d 273, 275 (Tenn. 1981). Instead,
              “‘each case must be decided with respect to its own attendant
              circumstances and not by resort to some formula.’” Braden v.
              Sears, Roebuck & Co., 833 S.W.2d 496, 499 (Tenn. 1992)
              (quoting Bell, 597 S.W.2d at 734). As a result, “the standards
              employed by [the] Court in deciding whether accidents arise out
              of employment have led to diverse results.” Hudson v. Thurston
              Motor Lines, Inc., 583 S.W.2d 597, 600 (Tenn.1979).

                                             -11-
Id. at *3.

       The Does argue that the alleged injuries stem from Ms. Doe’s status as a customer of
Walgreens, and that the injuries the Does sustained are no different from those injuries that
could be suffered by any member of the public, whose prescription information is held in the
Walgreens’ database. Appellees contend that a customer of Walgreens could not sustain the
particular injuries averred by the Does. Rather, because the Walgreens’ database can only
be accessed by Walgreens employees, on Walgreens’ computers, at Walgreens’ locations,
Appellees argue that the alleged injuries arose out of Ms. Doe’s employment, thus limiting
her cause of action to workers’ compensation.

         Appellees first contend that Ms. Doe has failed to specifically plead her status as a
customer of Walgreens. Concerning her status, the Complaint states, in relevant part, that:
(1) “Doe was employed by Walgreens as a pharmacist technician;” (2) “Doe had her
prescriptions filled at the Walgreens store located at 3177 S. Perkins, Memphis, Tennessee;”
(3) Doe was enrolled as a...Tenn Care recipient for prescription medical care;” (4)
“Walgreens accepted payment for Jane Doe’s prescriptions from the [State].” Appellees
argument that Jane Doe’s Complaint fails to indicate her status as a customer of Walgreens
is, in the opinion of this Court, too myopic in light of these sections of the Complaint. In the
first instance, Appellees’ argument fails to give the Does the reasonable inference of the
foregoing averments. Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31 (Tenn. 2007). Without
stretching the language of the complaint to an untenable point, if Ms. Doe had her
prescriptions filled at Walgreens, and if Walgreens accepted payment for those prescriptions,
the only reasonable inference we can draw from those statements is that Ms. Doe was a
Walgreens’ customer. Moreover, the Does’ Complaint states that, “Walgreens...maintained
a secure database open only to those employees who serviced...patients and customers and
who had a business reason to know the [customers’] medical status.” From this statement,
we can reasonably infer that the sole reason for Walgreens (or its employees) to have access
to Ms. Doe’s prescription history was because she was a customer. If Ms. Doe had not been
a customer of Walgreens (i.e., if she were only an employee of Walgreens), then her records
would not be part of its database.

       Appellees next argue that the Does’ Complaint fails to specify that Appellees acted
with the requisite intent necessary to remove their claims from the workers’ compensation
framework. As noted above, a workers’ compensation claim requires an employee to prove
that he or she has suffered an “injury by accident arising out of and in the course of
employment.” Tenn. Code Ann. § 50-6-102(12) (emphasis added). An injury is considered
to be “by accident” when it is “produced by an unusual combination of fortuitous
circumstances.” Continental Ins. Co. v. Dowdy, 560 S.W.2d at 621 (citation omitted).
However, a judicially created exception to the exclusive remedy requirement of workers’

                                             -12-
compensation law exists where the employer can be said to have acted with the “actual intent”
to injure the employee. Valencia v. Freeland & Lemm Const. Co., 108 S.W.3d 239 (Tenn.
2003). In Valencia, our Supreme Court explained this exception:

               [W]orkers’ compensation law provides the exclusive remedy for
               an employee who is injured during the course and scope of his
               employment, meaning the employee is precluded from seeking
               tort damages for the injury. Liberty Mut. Ins. Co. v. Stevenson,
               212 Tenn. 178, 368 S.W.2d 760 (1963).

               As have other jurisdictions, Tennessee courts have created an
               exception to the exclusivity provision for intentional torts
               committed by an employer against an employee; these torts give
               rise to a common-law tort action for damages. Mize v. Conagra,
               Inc., 734 S.W.2d 334, 336 (Tenn. Ct. App.1987) (Rule 11
               permission to appeal denied)....The court in Mize explained the
               reason for this exception as:

                      Since the legal justification for the common-law
                      action is the non-accidental character of the injury
                      from the defendant employer's standpoint, the
                      common law liability of the employer cannot be
                      stretched to include accidental injuries caused by
                      the gross, wanton, wilful, deliberate, intentional,
                      reckless, culpable, or malicious negligence,
                      breach of statute, or other misconduct of the
                      employer short of general intentional injury....
                      Even if the alleged conduct goes beyond
                      aggravated negligence, and includes such
                      elements as knowingly permitting a hazardous
                      work condition to exist, knowingly ordering
                      claimant to perform an extremely dangerous job,
                      wilfully and unlawfully violating a safety statute,
                      this still falls short of the kind of actual intention
                      to injure that robs the injury of accidental
                      character. [ King,] 684 S.W.2d at 619.

                      Mize, 734 S.W.2d at 336.... Further, proof of
                      actual intent goes beyond that sufficient to prove
                      gross negligence or even criminal negligence.

                                              -13-
                      Gonzales v. Alman Constr. Co., 857 S.W.2d 42,
                      45 (Tenn. Ct. App. 1993) (Rule 11 permission to
                      appeal denied).... While the traditional definition
                      of intent used in tort law denotes the tortfeasor's
                      desire to cause the consequences of his or her
                      actions or the belief that the consequences are
                      substantially certain to result from those actions,
                      Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
                      (Tenn. 1992), that definition is not applicable in
                      workers' compensation cases. Gonzales, 857
                      S.W.2d at 45. Rather, the definition of actual
                      intent is the actual intent to injure the employee.
                      King, 684 S.W.2d at 619.

              Valencia, 108 S.W.3d at 242-43 (some citations omitted).

        Based upon the foregoing, Appellees argue that the Does’ Complaint fails to specify
that Appellees’ actual intent was to injure Ms. Doe. We note that at no point in their
Complaint, do the Does allege that the injuries occurred “by accident.” Tenn. Code Ann. §
50-6-102(12). Rather, the Complaint clearly avers that the injury (i.e., the dissemination of
Ms. Doe’s HIV status, and the direct fallout therefrom) occurred as a result of Ms. Ghoston
“deliberately access[ing] Walgreens’ database,” and as a result of Dr. Saxton’s telephone call
to Ms. Doe’s fiancé. The Does aver that both of these actions were made “without medical
or legal justification, and without [] being job related or a business necessity.” As noted
above, in reviewing a trial court's ruling on a motion to dismiss based on Rule 12.02(6), we
must liberally construe the pleadings, presuming all factual allegations are true and drawing
all reasonable inferences in favor of the complainant. See Tigg, 232 S.W.3d at 31; see also
Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 37 (Tenn. Ct. App. 2006). Based upon the
foregoing factual allegations, we can reasonably infer that the alleged injuries arose from the
deliberate acts of Dr. Saxton and Ms. Ghoston and not as a result of any accidental discovery
or dissemination of Ms. Doe’s prescription records. Further, because these deliberate acts
lacked any medical, legal, business, or job related justification, it is reasonable to infer that
they were made with the actual intent to injure the Appellants.

         Appellees next argue that, but for Ms. Doe’s status as an employee of Walgreens, she
would not have sustained the alleged injuries. Specifically, Appellees contend that the
injuries arose out of Ms. Doe’s employment because the harmful information was obtained
from the Walgreens’ database, at the Walgreens location, and by employees of Walgreens
(who would not have access to those records but for their status as Walgreens employees).
It is true that there must be a causal connection between the conditions under which the work

                                              -14-
is required to be performed and the resulting injury, in order to find that an injury “arises out
of employment.” See Phillips v. A & H Const. Co., Inc., 134 S.W.3d 145, 150 (Tenn. 2004).
Essentially, a court must ask if the origin of the “accident” (here, disclosure of Ms. Doe’s
prescription information), is rooted in a hazard that the employer exposed the employee to
while working. See Wilhelm v. Krogers, 235 S.W.2d 122 (Tenn. 2008). Even if we assume,
arguendo, that Appellees’ argument is sound, it is Ms. Doe’s co-worker’s status as
employees of Walgreens, rather than Ms. Doe’s status as an Walgreens employee, that
provided access to the database. In short, the ability to access Ms. Doe’s prescription records
was based upon the co-workers’ being employees of Walgreens, a fact which, as pled in the
Complaint, may implicate Walgreens on theories of “respondeat superior, [or] agency.”
However, the fact that it was Ms. Doe’s records that were accessed does not hinge upon Ms.
Doe being an employee of Walgreens; rather, it hinges upon her status as a customer, which
is the reason her records were in the system at all. Although the fact that Ms. Doe was an
employee of Walgreens may have provided the reason for her co-workers to access her
information, this does not answer the question of whether Ms. Doe’s injuries arise out of her
employment. In so arguing, Appellees appear to overlook the fact that “the mere presence
of the employee at the place of injury because of employment will not alone result in the
injury being considered as arising out of the employment.” Knox, 399 S.W.2d at 770.
Rather, in order to be compensable in workers’ compensation, the injury must “arise out of
a risk peculiar to the employment.” Id. If, however, the injuries sustained are no more or
different than that of any other member of the public similarly situated in place and time,
then the injuries are not compensable under workers’ compensation law. Id.

        In arguing that the alleged injuries arose out of Ms. Doe’s employment, Appellees
assert that “[e]mployment with a pharmacy necessitates access by employees to confidential
health information.” While this general statement may be true, the question here is not
whether a pharmacy employee must access confidential health information, it is whether the
pharmacy employees, in this case, had a legitimate, work-related reason to access Ms. Doe’s
particular information. From the pleadings, the answer is no. Although the pharmacy
workers at the Walgreens location on Perkins, where Ms. Doe actually had her prescriptions
filled, would, necessarily, need access to Ms. Doe’s records, there appears to be no business
reason for Ms. Doe’s co-workers at the Winchester location to access her prescription
records. In the Complaint, the Does aver that Walgreens, in order “to protect the privacy of
its HIV positive pharmacy patients and customers, maintained a secure database open only
to those employees who serviced these particular patients and customers and who had a
business reason to know the medical status of these individuals.” The Complaint further
states that her co-worker Ms. Ghoston deliberately accessed Ms. Doe’s records, then
disseminated the information “without medical or legal justification [and] without it being
job related or a business necessity.” Moreover, as concerns Dr. Saxton, the Complaint states
that “without medical or legal justification, and without it being job related or a business

                                              -15-
necessity, [Dr. Saxton] telephoned [Ms. Doe’s] fiancé and informed him of [Ms. Doe’s] HIV
status.”

       In defending the grant of their motion to dismiss, Appellees rely upon the case of
Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104 (Tenn. 1987). In Holder, our
Supreme Court affirmed an award of workers’ compensation benefits for an employee who
slipped and fell in his employer’s parking lot, while he was putting his lunch box in his
vehicle after finishing a meal. Id. at 105-107. The Court reasoned that injuries sustained
during personal breaks are compensable under workers’ compensation law because it is
reasonable to conclude that employees would take personal breaks during the course of the
work day.” Id. Based on Holder, Appellees argue that “it is reasonable to conclude that co-
workers will discuss each other throughout the work day.” However, Appellees reliance on
Holder is misguided. Holder, which dealt with an accident that occurred during an on-
premises lunch break, is different in kind from the case presented here, in which the injuries
stem from the alleged intentional acts of co-workers. As noted above, an exception to the
exclusive remedy requirements of workers’ compensation law exists where the employer acts
with the actual intent to injure the employee. Valencia, 108 S.W.3d at 242-43. Having
found that the Does’ alleged sufficient facts that Appellant acted with actual intent to injure,
it would be incongruous for this Court to hold that such allegedly tortious acts must
nevertheless be adjudicated under workers’ compensation simply because it “it is reasonable
to conclude that co-workers” will behave in such a manner. Because the Does’ sufficiently
alleged that Appellee’s acted with the actual intent to injure, Holder does not apply to the
facts of this case.

       As discussed above, no employee of the Walgreens on Winchester had a business
reason to access Ms. Doe’s prescription records. However, taking the factual allegations
contained in the Complaint as true, not only did her co-worker access this information
unnecessarily, but she also disseminated the information to other employees. Moreover, Ms.
Doe’s supervisor, Dr. Saxton, phoned Ms. Doe’s fiancé to spread the information further.
Having determined that there was no business reason for the actions of Ms. Doe’s co-workers
and that, consequently, the injurious activities did not arise out of, or in the course of, Ms.
Doe’s employment, the causes of action averred do not sound in workers’ compensation.
Rather, Ms. Doe has sufficiently pled causes of action arising from her status as a customer
of Walgreens.

      For the foregoing reasons, we reverse the order of the trial court dismissing this case,
and remand for such further proceedings as may be necessary and consistent with this
Opinion. Costs of this appeal are assessed against the Appellees, Walgreens, Paris Ghoston,
and Grady Saxton, for which execution may issue if necessary.



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       _________________________________
       J. STEVEN STAFFORD, JUDGE




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