Moore v. Houston County Board of Education

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 23, 2011 Session

TREVOR MOORE, ET AL. v. HOUSTON COUNTY BOARD OF

EDUCATION, ET AL.

Appeal from the Circuit Court for Houston County

No. 1397 Robert E. Burch, Judge

No. M2010-02166-COA-R3-CV - Filed August 23, 2011

This matter arises from an assault of a student which occurred at Houston County Middle

School. The parents of the victim sued the Houston County Board of Education, two HCMS

students who participated in the assault, and the mothers of the students involved in the

attack. Following a bench trial, the court granted Plaintiffs a judgment for $50,578.97. The

court determined that the school board was 25 percent at fault; the court also found that the

school board was immune pursuant to the discretionary function exception of the Tennessee

Governmental Tort Liability Act and dismissed the case against the board. The court then

granted plaintiffs judgment against the non-governmental defendants jointly and severally

for 75 percent of the monetary award. We affirm the trial court’s holding that the Board was

negligent, reverse the trial court’s ruling that the school board was immune, and modify the

judgment to hold the defendants jointly and severally liable for the entire amount of damages

awarded.

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

Part and Affirmed in Part

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,

P.J., M.S., and A NDY D. B ENNETT, J., joined.

Sheri S. Phillips, Clarksville, Tennessee, for the appellants, Trevor Scott Moore, Ronald

Scott Moore, Heather Lynn Moore.

John David Schwalb, Franklin, Tennessee, and Clifford Knott McGown, Jr., Waverly,

Tennessee, for the appellees, Houston County Board of Education, Tyler Perry and Melissa

Perry.

Bradley Owle, appellee, Pro Se.

Renee Dennis, appellee, Pro Se.

OPINION

I. Factual and Procedural History

Scott and Heather Moore (“Plaintiffs”), individually and on behalf of their son, Trevor

Moore (“Trevor”), filed suit against the Houston County Board of Education (“the Board”),

Tyler Perry (“Tyler”) and his mother Melissa Perry, and Bradley Owle (“Bradley”) and his

mother Renee Dennis (collectively referred to as “Defendants”); they sought to recover

damages arising from an assault on Trevor, a student at Houston County Middle School

(“HCMS”). The plaintiffs alleged that the negligent and intentional acts of the Defendants

“were the sole and proximate cause and legal cause of the injuries to the Plaintiffs.” Tyler

and his mother filed an answer, essentially denying Plaintiffs allegations. Bradley and Renee

Dennis did not appear or file an answer. The Board answered the complaint and asserted

several affirmative defenses. The case proceeded to a non-jury trial on June 28, 2010.

Trevor testified that, beginning in the spring of 2006, Tyler, one of his classmates,

began threatening and harassing him; the harassment continued on several occasions

throughout the 2006–2007 school year and caused Trevor to fear for his safety at HCMS.

The harassment occurred while the two boys were at school, sports functions, while riding

the HCMS school bus, and at a school dance. Specific instances of bullying included Tyler

“lowering his shoulder” to bump into Trevor in the hallways, tripping Trevor during class,

calling Trevor names, and threatening to “beat him up,” or to have others beat him up.

Trevor further testified that, during the 2006–2007 school year he expressed his fear of Tyler

and discussed Tyler’s threats and harassment with his parents1 and other school

administrators; specifically, he spoke with Susan Hendry, the HCMS assistant principal,

Cathy Harvey, the Director of Schools for the 2006–2007 school year, and Sylvia Vinson,

the principal of HCMS, about Tyler’s bullying. Trevor’s father also discussed his concerns

directly with Trevor’s teachers, and he spoke with Ms. Vinson and Ms. Harvey regarding

Tyler’s bullying of his son.

Following an incident between Tyler and Trevor on the school bus in the spring of

2006, Susan Hendry addressed the situation between the boys. The incident report prepared

by Ms. Hendry, dated April 4, 2006 summarized her actions as follows, in pertinent part:

1

Trevor’s father was employed by HCMS when the incident occurred, however, he was not involved

in disciplinary matters involving the bullying of his son.

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I called both boys into the office and talked about their behavior. I explained

that the boys did not have to like each other, however they had to get along

here at school and on the baseball team. I talked to both parents and told them

that I would do what I could to keep the boys separated at school. . . .

Despite her efforts, however, the bullying continued throughout the ensuing school year.

On January 30, 2007, while school was in session, Trevor was attacked and severely

beaten by Bradley, who had been paid $5.00 by Tyler to carry out the attack. As a result of

this attack, Trevor suffered a broken nose and jaw which required surgery and his mouth to

be wired shut. Trevor testified that he has trouble breathing and severe headaches as residual

effects of the attack.

At the conclusion of trial, the trial court announced its ruling and subsequently entered

an order: granting a default judgment against Renee Dennis and Bradley, dismissing Melissa

Perry as a party, and granting Plaintiffs a judgment totaling $50,578.97, comprised of

$15,578.97 for medical expenses incurred and $35,000 for pain and suffering and loss of

enjoyment of life. The trial court apportioned fault between the Defendants, holding:

[t]he Houston County Board of Education is negligent and assigned 25% fault,

however, the Houston County Board of Education is dismissed with Prejudice,

the Court being of the Opinion that any fault on the part of the board involves

the exercise of a discretionary function for which there has been no waiver of

sovereign immunity under the Tennessee Governmental Tort Liability Act.

That a judgment shall be granted in favor of the Plaintiffs for 75% of the total

judgement against Tyler Perry, Bradley Owle and Rene Dennis jointly and

severally under the principles of agency and vicarious liability for which

execution may issue.

Plaintiffs filed a timely appeal and raise the following issues for our review:

I. Whether the trial court erred in finding that the acts or omissions by the

Defendant constituted a discretionary function under the Tennessee

Governmental Tort Liability Act.

II. Whether the trial court erred in dismissing the Houston County Board

of Education after making a finding that the acts complained of were

foreseeable and that the Houston County Board of Education was

negligent.

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III. Whether the trial court erred by inappropriately applying comparative

fault rather than joint and several liability.

The Board raises the following issue:

I. Whether the trial court erred in finding the attack foreseeable and in

assigning fault to the Board.

II. Standard of Review

In a civil case heard without a jury, we review the trial court’s findings of fact de novo

upon the record accompanied by a presumption of correctness unless the preponderance of

the evidence is otherwise. Tenn. R. App. P. 13(d). Questions of law are subject to de novo

review with no presumption of correctness. Graham v. Caples, 325 S.W.3d 578, 581 (Tenn.

2010). The construction of a statute and its application to the facts are questions of law

which we review de novo without a presumption of correctness. Gautreaux v. Internal Med.

Educ. Found., Inc., 336 S.W.3d 526, 531 (Tenn. 2011).

III. Discussion

A. Immunity under the Tennessee Governmental Tort Liability Act

The first issue we address is whether the Board is immune from suit pursuant to the

discretionary function exception in the Tennessee Governmental Tort Liability Act

(“TGTLA”). Tenn. Code Ann. § 29-20-201 codifies the common law rule that “all

governmental entities shall be immune from suit for any injury which may result from the

activities of such governmental entities.” Exceptions to the immunity are set forth at Tenn.

Code Ann. §§ 29-20-202–205. The statute at issue in this case, Tenn. Code Ann. § 29-20-

205(1), provides as follows:

Immunity from suit of all governmental entities is removed for injury

proximately caused by a negligent act or omission of any employee within the

scope of his employment except if the injury arises out of:

(1) the exercise or performance or the failure to exercise or perform a

discretionary function, whether or not the discretion is abused; . . .

The TGTLA does not define the term “discretionary function.” See Lucas v. State, 141

S.W.3d 121, 128 (Tenn. Ct. App. 2004). However, our Supreme Court, in Bowers v. City of

Chattanooga, 826 S.W.2d 427 (Tenn. 1992), adopted the planning-operational test to assist

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courts in analyzing whether the negligent act or omission of a governmental entity is a

discretionary function. Bowers, 826 S.W.2d at 430–31. Under the planning-operational test,

courts are to distinguish governmental acts that are performed at the “planning” level from

those performed at the “operational” level:

decisions that rise to the level of planning or policy-making are considered

discretionary acts which do not give rise to tort liability, while decisions that

are merely operational are not considered discretionary acts and, therefore, do

not give rise to immunity.

Bowers, 826 S.W.2d at 430.

Plaintiffs contend that the Board’s failure to follow disciplinary procedure and

policies was an operational decision, not a discretionary function, and, consequently, the trial

court erred in finding the Board immune from suit. The Board argues that the trial court

appropriately determined that the school’s disciplinary decisions were a discretionary

function.

Our Supreme Court applied the planning-operational test in Limbaugh v. Coffee

Medical Center, 59 S.W.3d 73 (Tenn. 2001), to determine whether a nursing home’s failure

to follow employee disciplinary guidelines was a discretionary function for which immunity

was available under the TGTLA. In Limbaugh, a nursing assistant employed by a state

nursing home, physically assaulted and seriously injured Mrs. Limbaugh, a ninety-year-old

resident at the facility. Prior to assaulting Mrs. Limbaugh, the employee had demonstrated

a propensity for violence toward patients. The administrator of the nursing home testified

that the home had standards for disciplining an employee who had exhibited combative

behavior; the Court found that the standards were not followed in the case of the employee

who assaulted Ms. Limbaugh. In analyzing whether the nursing home’s failure to implement

its disciplinary policy was a discretionary function, the Court discussed the planning-

operational test and noted:

Decisions that rise to the level of planning or policy-making are considered to

be discretionary acts requiring judicial restraint and are, therefore, not subject

to tort liability. On the other hand, decisions that merely implement pre-

existing policies and regulations are considered to be operational in nature and

require the decision-maker to act reasonably in implementing the established

policy. If the policy, regulation, or other standard of procedure mandates

specific conduct, then any employee reasonably complying with that direction

will not abrogate the entity's immunity if the action furthers the underlying

policies of the regulation.

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Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001) (citing Chase v. City of

Memphis, 971 S.W.2d 380, 384 (Tenn. 1998)). The Court ultimately reasoned that because

the nursing home “negligently failed to follow the guidelines designed to prescribe the proper

disciplinary measures to impose,” the discretionary function did not bar recovery. Id. at

85–86; see also Haney v. Bradley County Bd. of Educ., 160 S.W.3d 886, 900 (Tenn. Ct. App.

2004) (finding that the failure to implement an early-dismissal policy adopted by the board

of education was an operational decision not a discretionary decision). With these principles

in mind, we must determine whether the HCMS administrators implemented existing policies

and regulations or whether their decisions rose to the level of planning or policy-making.

The policies and procedures at issue in this case arise from state law. Tenn. Code

Ann. § 49-6-1016, in effect at the time of this incident, required each school district to adopt

a policy prohibiting harassment, intimidation, or bullying.2 In compliance with the

requirements of the statute, the Board enacted certain policies and procedures contained in

the Houston County Schools Student Handbook. The “Bully/Intimidation” policy in the

2006–2007 version of the handbook states:

Students shall be provided a safe learning environment. It shall be a violation

of this policy for any student to bully, intimidate or create a hostile educational

environment for another student. Bullying and intimidations are defined as

either physically harming a student or damaging his/her property, or knowingly

placing the student in reasonable fear of such, or creating a hostile educational

environment. The policy addresses conduct taking place on school grounds,

at any school-sponsored activity, on school-provided transportation, or at any

official school bus stop immediately before boarding and immediately

following deboarding. [footnote omitted]

Alleged victims of the above-referenced offenses shall report these incidents

immediately to a teacher, counselor or building administrator. [footnote

omitted] Any allegations shall be fully investigated by a complaint manager (as

set forth in Student Concerns, Complains and Grievances 6.305).

In a separate section, the Student Handbook outlines a “Discipline Policy”which provides,

in pertinent part, as follows:

2

Although not at issue in this case, we note that our Legislature has recently added “cyber-bullying”

to the list of prohibited conduct in Tenn. Code Ann. § 49-6-1016. H.B. 301, 107 Gen. Assem. (Tenn. 2011).

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DISCIPLINE-GENERAL

When it has been determined by the principal that a student has been guilty of

a violation of the provisions of this policy, the principal shall impose

appropriate disciplinary measures. It is the intention of the Board of Education

that this policy be viewed as cumulative so that repeat or persistent violations

of the policy should result in enhanced punishment. A discipline record will

be maintained on each student. Disciplinary offenses have been assigned

various point ratings in this policy. Whenever a child is found guilty of a

violation of this policy, the principal will, in addition to issuing appropriate

discipline, assign points for the offense. A principal may recommend for

expulsion any student who has accumulated over one hundred forty-nine (149)

disciplinary points at any time within the school year.

The Student Handbook goes on to list “threats” and “bullying/harassment” as a “Category

III” offense. “Threats” are defined as “[t]hreatening or implying physical violence against

any other student.” The “Disciplinary Action” for a “Category III Offense” is listed as

follows:

1st Offense: (10 points) At discretion of the principal, not to exceed ten (10)

days suspension.

2nd Offense: (15 points) Suspension, alternative school.

3rd Offense: (20 points) Suspension, alternative school, expulsion.

4th Offense: (30 points) Expulsion.

The policies in the Student Handbook prohibited bullying and harassment, set forth

the procedure to be followed when a student or parent complains of a violation of the

harassment policy,3 and described the punishment for students who violate the policies. The

3

The procedure for filing a grievance or complaint for an alleged incident of bullying and the

procedure for the school’s investigation of the complaint are set forth in the Student Handbook as follows:

Filing a Complaint - Any student of this school district who wishes to file a

discrimination/harassment grievance against another student or employee of the district may

file a written or oral (recorded, if possible) complaint with a complaint manager. Students

may also report an allegation of discrimination/harassment to any teacher or other adult

employed in the school who shall inform a complaint manager of the allegation. The

(continued...)

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role of the HCMS administrators was to implement the polices established by the Board.

Like the administrators at the nursing home in Limbaugh, the administrators at HCMS were

charged with implementing existing policy and were not engaged in policy-making. Thus,

the HCMS administrators’ decisions were operational in nature, not discretionary, and

immunity was removed. See Limbaugh, 59 S.W.3d at 85.

B. Foreseeability

The trial court stated the following regarding the foreseeability of the attack:

With regard to the Defendant Houston County Board of Education, the

Court finds that they were given notice of the possibility of trouble and

possible injury to the plaintiff, Trevor Moore. This injury was reasonably

foreseeable. . . .

3

(...continued)

complaint should include the following information:

Identity of the alleged victim and person accused;

Location, date, time and circumstances surrounding the alleged incident;

Description of what happened;

Identity of witnesses; and

Any other evidence available.

Investigation - Within twenty-four hours of receiving the student’s complaint, the complaint

manager shall notify the complaining student’s parent/guardian or legal custodian and the

principal who shall inform the director of schools. The parent/guardian or legal custodian

shall be given notice of the right to attend an interview of the student in a non-intimidating

environment in order to elicit full disclosure of the student’s allegations. This interview

shall take place with [sic] five (5) days from the time the complaint was first made. If no

parent/guardian or legal custodian attends the interview, another adult, mutually agreed upon

by the student and the complaint manager, shall attend and may serve as the student’s

advocate. After a complete investigation, if the allegations are substantiated, immediate and

appropriate corrective or disciplinary action shall be initiated. The complaint and identity

of the complainant will not be disclosed except (1) as required by law or this policy; or (2)

as necessary to fully investigate the complaint; or (3) as authorized by the complainant. A

school representative will meet with and advise the complainant regarding the findings, and

whether corrective measures and/or disciplinary action were taken. The investigation and

response to the complainant will be completed within thirty (30) school days. Copies of the

report will be sent to the student, principal, Federal Rights Coordinator and the director of

schools. One copy shall be kept in the complaint manager’s file of one (1) year beyond the

student’s eighteenth (18th ) birthday. The director of schools shall keep the Board informed

of all complaints.

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The Court is not at all impressed with the fact that a defendant other

than Tyler Perry actually inflicted the injury. The Court finds that Bradley

Owle was the agent of Tyler Perry and that what one did the other did; they are

vicariously liable. Whether Tyler Perry did the action himself or solicited

another to do the action is of academic interest. They are liable for that.

It isn’t necessary to predict the exact mechanism of the injury or even

its extent if the general mechanism of injury is reasonably foreseeable. So the

Houston County Board of Education is negligent.

The Board contends that the trial court erred in finding the Board negligent because it was

unforeseeable that Bradley would carry out the attack against Trevor.

In order for a plaintiff to prevail on a claim of negligence, the following elements

must be established: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the

applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4)

cause in fact; and (5) proximate, or legal, cause.” McCall v. Wilder, 913 S.W.2d 150, 153

(Tenn. 1995). Foreseeability is one element of a three-pronged test of proximate causation:

1) the tortfeasor's conduct must have been a “substantial factor” in bringing

about the harm being complained of; and (2) there is no rule or policy that

should relieve the wrongdoer from liability because of the manner in which the

negligence has resulted in the harm; and (3) the harm giving rise to the action

could have reasonably been foreseen or anticipated by a person of ordinary

intelligence and prudence.

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (citations omitted). If the injury

giving rise to the plaintiff’s cause of action was not reasonably foreseeable, then there is no

proximate cause and no liability for negligence. Ray Carter, Inc. v. Edwards, 436 S.W.2d

864, 867 (1969). Foreseeability is a question of fact, thus the trial court’s findings regarding

foreseeability are entitled to a presumption of correctness. Kindred v. Board of Educ. of

Memphis City Schools, 946 S.W.2d 47, 49 (Tenn. Ct. App. 1997) (citing Cox v. State, 844

S.W.2d 173, 178; Tenn. R. App. P. 13(d)); see also McClung v. Delta Square Ltd. P’ship,

937 S.W.2d 891, 900 (Tenn. 1996).

When discussing foreseeability in the context of our state’s educational systems, this

Court has previously explained:

Tennessee does not impose upon teachers and school systems the duty to

anticipate or foresee the hundreds of unexpected student acts that occur daily

in our public schools. Roberts, 692 S.W.2d at 872 (citation omitted); however,

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we have no hesitation in holding a teacher or local school system to the duty

of safeguarding students from reasonably foreseeable dangerous conditions

including the dangerous acts of fellow students.

Mason ex rel. Mason v. Metro. Gov't of Nashville and Davidson County, 189 S.W.3d 217,

224 (Tenn. Ct. App. 2005). Moreover, “the foreseeability requirement is not so strict as to

require the tortfeasor to foresee the exact manner in which the injury takes place, provided

it is determined that the tortfeasor could foresee, or through the exercise of reasonable

diligence should have foreseen, the general manner in which the injury or loss occurred.”

Id. at 222 (citing McClenahan, 806 S.W.2d at 775).

Based on our review of the record, we agree with the trial court that Bradley’s attack

on Trevor was foreseeable; the fact that Tyler solicited Bradley to carry out his threat does

not make the assault unforeseeable. HCMS administrators were on notice that Tyler intended

to harm Trevor. The evidence shows that Trevor and his father complained to HCMS

administrators throughout the 2006–2007 school year regarding the bullying and harassing

behavior Tyler exhibited toward Trevor. Also, Tyler threatened Trevor numerous times,

stating that he would beat him up or that he would have his brother or other friends beat him

up.4 Bradley’s attack on Trevor was consistent with Tyler’s threats. Finally, the HCMS

administrators did not follow the policy regarding bullying and harassment which is designed

to eliminate hostility and maintain a safe learning environment.5 Specifically, the

4

One incident of bullying between Tyler and Trevor occurred at the HCMS Christmas dance. When

testifying about the incident, Trevor stated as follows:

Q: Okay. What happened at the Christmas dance in December of ‘06?

A: I got there and it was fine for a little while. And then I had Tyler Perry and some of his

friends following me around saying that they was going to beat me up and – that they was

going to beat me up. And I went straight to a chaperone and said I just need to call my

parents.

Q: Were you afraid of Tyler Perry?

A: Yes, ma’am.

Q: And would he always have somebody with him?

A: Yes, ma’am.

Frances Reid, the chaperone who Trevor complained to, testified that she alerted other teachers of Tyler’s

threatening behavior and the chaperones “kept an eye” on the situation. Stacy Tomlinson, another teacher

who knew of the incident at the dance testified that she told the HCMS principal “there could possibly be

an altercation between [Tyler and Trevor] and that we just made everyone aware.” Mrs. Tomlinson testified

that the principal responded and that the teachers were handling it “appropriately” at the time.

5

Susan Hendry, the assistant principal at HCMS for the 2006–2007 school year testified that she

(continued...)

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administrators did not assign a complaint manager to investigate Trevor’s complaints, nor

did they follow disciplinary guidelines for “Category III” offenses. As a result, Trevor was

subjected to continued bullying and harassment and the possibility that Tyler would carry out

his threats. The Board was not required to foresee the exact manner in which the attack

would be carried out in order to be held negligent; however, it was foreseeable that Tyler, a

child who had previously exhibited aggressive tendencies, would follow through with the

threats he had made throughout the school year.

The Board argues that Chudasama v. Metro. Government of Nashville and Davidson

County, is analogous to the instant case and necessitates a different analysis and outcome.

Chudasama v. Metro. Gov’t of Nashville and Davidson County, 914 S.W.2d 922 (Tenn. Ct.

App. 1995). Although Chudasama is somewhat similar to the instant case—a student

attacked a fellow student—the facts are distinguishable. In Chudasama, a fight broke out

in an unsupervised locker room after a teacher dismissed students from his class early in

violation of a school rule. Id. at 924–25. The court found the coach’s negligence in letting

the students go to the locker room early insufficient to impose liability on the school system,

reasoning that “there is no evidence in the record that [the teacher] was aware of the

antagonism between [the children involved in the attack], or that he knew a fight between

the two girls was widely anticipated by his students.” Id. at 925. The history of Tyler’s

bullying of Trevor distinguishes Chudasma from the instant case. Unlike the teacher in

Chudasama, the HCMS administrators were aware of the history of bullying and that Tyler

had threatened to attack Trevor himself or get a friend or his older brother to carry out the

attack. In addition, the assault on Trevor was not a locker room fight or a random act but,

rather, was the culmination of a course of conduct violative of the school’s bullying policy.

We affirm the trial court’s finding that the attack was foreseeable.

5

(...continued)

did not implement the bullying/harassment policy when dealing with the complaints from Trevor and his

father. Her testimony regarding the policy is as follows:

Q: Are you familiar with the bullying and intimidation policy?

A: Yes.

Q: Are you familiar that there is supposed to be a complaint manager that handles these?

A: I would have to look back over that. I’m not as familiar now as I would have been in the

past.

Q: Did you refer this to a complaint manager?

A: No, ma’am.

Q: And if there is a policy that says that was the proper procedure, would you admit that you

didn’t do that?

A: Yes, because I didn’t do that.

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C. Comparative Fault

Next we consider whether the trial court erred in applying comparative fault in this

case, where plaintiffs sued five defendants under theories of negligence and intentional tort.

In its ruling from the bench the trial court stated the following:

Defendant, Tyler Perry, Bradley Owle, and Renee Dennis are all

likewise negligent. Tyler Perry and Bradley Owle are directly responsible,

principal and agent. Their liability is vicarious. Joint and several liability in

that situation. Renee Dennis, basically the same thing that – by the terms of

the default judgment.

Now, with regard to comparative negligence/fault, the court assigns the

fault of the Houston County Board of Education at 25 percent. . . .

But the fault here is on the defendants Tyler Perry and Bradley Owle.

They were the actors. They essentially did this, essentially crime and this tort.

And the court assigns fault to them of 75 percent. Renee Dennis is vicariously

liable for that , and Tyler Perry, of course, is vicariously liable for the acts of

his agent, Bradley Owle.

Now, since the fault of the Board of Education is less that 50 percent,

judgment will be entered for the Defendant Houston County Board of

Education.

Initially, we find it necessary to clarify the trial court’s ruling. The entire proof at trial

was that the assault on Trevor that served as the basis of this suit was an intentional act

perpetrated by Bradley Owle in concert with Tyler Perry.6 The court correctly held that

Bradley was the agent of Tyler and Tyler was thereby responsible for the acts of Bradley.

The trial court was also correct in holding that Renee Dennis, as mother of Bradley, was

vicariously liable for his acts.7

6

Counsel for the Board acknowledged at argument that Tyler and Bradley were intentional

tortfeasors.

7

The complaint alleged the following with specific reference to Renee Dennis:

22. That the Defendant, Renee Dennis, is the custodial parent/guardian of Bradley

Owle and had knowledge of his propensity to commit the acts complained of herein and

failed to supervise her son, therefore, she is responsible for the actions of Bradley Owle and

liable to the plaintiffs. This defendant was further negligent for failure to supervise her son.

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In analyzing this issue, we again turn to Limbaugh v. Coffee Medical Center, 59

S.W.3d 73, 85 (Tenn. 2001) for guidance. In Limbaugh, the resident, through her

conservator, sued both the nursing assistant who assaulted her and the nursing home for

negligence. The Court concluded that, “where the intentional actor and the negligent actor

are both named defendants and each are found to be responsible for the plaintiff's injuries,

then each defendant will be jointly and severally responsible for the plaintiff's total

damages.” Limbaugh, 59 S.W.3d at 87 (citing Restatement (Third) of Torts § 24 (1999)).

When explaining its reasoning for this holding, the Court stated:

the legal conception of “fault” necessarily precluded the allocation of fault

between negligent and intentional actors because “negligent and intentional

torts are different in degree, in kind, and in society's view of the relative

culpability of each act.” Second, we expressed our concern that allowing

comparison would reduce the negligent person's incentive to comply with the

applicable duty of care and thus prevent further wrongdoing. Finally, we

recognized that when a defendant breaches a duty to prevent the foreseeable

risk of harm by a nonparty intentional actor, that negligent co-tortfeasor cannot

reduce his or her liability by relying on the foreseeable risk of harm that he or

she had a duty to prevent.

Limbaugh, 59 S.W.3d at 86–87 (citing Turner v. Jordan, 957 S.W.2d 815, 823 (Tenn. 1997))

(internal citations and footnotes omitted). More recently, our Supreme Court summarized

its holding in Limbaugh as follows: “tortfeasors who have a duty to protect others from the

foreseeable intentional acts of third persons are jointly and severally liable with the third

person for the injuries caused by the third person's intentional acts.” Banks v. Elks Club

Pride of Tennessee 1102, 301 S.W.3d 214, 220 (Tenn. 2010) (citing Limbaugh, 59 S.W.3d

73 at 87 (Tenn.2001); White v. Lawrence, 975 S.W.2d 525, 531 (Tenn.1998); Turner v.

Jordan, 957 S.W.2d 815, 823 (Tenn.1997)).

The Board contends that the holding of Limbaugh should not apply here, because in

Limbaugh, there was only one negligent defendant and one intentional defendant, and in this

case, according to the Board, the trial court apportioned fault between two negligent

tortfeasors—Renee Dennis and the Board—due to the default judgment entered against

Renee Dennis. We do not agree with this characterization of the court’s action. To the

contrary, the trial court apportioned fault between Bradley and Tyler, the intentional

tortfeasors, and the Board, the negligent torfeasor; Renee Dennis was held vicariously liable

for the judgment against the boys.8

8

The following excerpt from the trial court’s bench ruling illustrates that the trial court did not

(continued...)

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We do not read Limbaugh to limit the application of joint and several liability based

on the number of negligent tortfeasors involved. Rather, the holding of that case is that each

tortfeasor—intentional or negligent—is responsible for the loss or damage suffered. We find

that the trial court erred in applying comparative fault in this case. Here, the harm arising

from the attack against Trevor was a foreseeable risk created by the negligence of the Board.

The negligent and intentional tortfeasors were parties to the suit and were found responsible

for the injuries suffered by Trevor; each is jointly and severally liable for the total amount

of plaintiffs’ damages. See Limbaugh, 59 S.W.3d at 87–88.

IV. Conclusion

For the foregoing reasons, we affirm the court’s finding of negligence on the part of

the Board, reverse the holding that the Board is immune from suit and modify the judgment

to hold the defendants jointly and severally liable for the damages awarded.

_________________________________

RICHARD H. DINKINS, JUDGE

8

(...continued)

apportion fault against Renee Dennis as a negligent tortfeasor when allocating the percentages of fault

amongst the Defendants:

But the fault here is on the defendants Tyler Perry and Bradley Owle. They were the actors.

They actually did this, essentially crime and this tort. And the Court assigns fault to them

of 75 percent. Renee Dennis is vicariously liable for that, and Tyler Perry, of course, is

vicariously liable for the acts of his agent, Bradley Owle.

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