The opinion
IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
FRANK B. CHADWICK, JR., )
)
Plaintiff/Appellant, ) Montgomery Circuit No. C8-608
)
VS. ) Appeal No. 01A01-9504-CV-00166
)
CLARKSVILLE-MONTGOMERY )
COUNTY UNIFIED SCHOOL SYSTEM, )
and CLARKSVILLE-MONTGOMERY )
FILED
COUNTY UNIFIED SCHOOL BOARD )
December 14,
) 2001
Defendants/Appellees. )
Cecil Crowson, Jr.
Appellate Court Clerk
APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
AT CLARKSVILLE, TENNESSEE
THE HONORABLE JAMES E. WALTON, JUDGE
Thomas N. Bateman
Robert T. Bateman
Bateman & Bateman, P.C.
Clarksville, Tennessee
Attorneys for Appellant
Lela M. Hollabaugh
Manier, Herod, Hollabaugh & Smith
Nashville, Tennessee
Attorney for Appellees
AFFIRMED
ALAN E. HIGHERS, JUDGE
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, JUDGE
This is a negligence case in which the Plaintiff appeals from the trial court's finding
that Defendants did not breach their duty of care.
Plaintiff, Frank B. Chadwick, Jr., was in sixth grade at Montgomery Central
Elementary School at the time of his injury on March 6, 1985. Plaintiff was participating
in a basketball game with other children from his class when another student struck him
in the eye while Plaintiff was trying to throw the basketball inbound. As a result of this
blow, Plaintiff now suffers from double vision.
Ms. Quarles was the teacher in charge of recess in the gym where Plaintiff was
injured. Plaintiff alleged that Ms. Quarles was not present in the gym at the time he was
injured, while Ms. Quarles testified that she was present.
Plaintiff brought this action within one year of his reaching majority. He alleged in
his complaint that the Defendants were negligent in failing to supervise and control the
basketball game for two reasons. First, he argues that the Defendants were negligent
because Ms. Quarles left the gym during recess. Alternatively, he contends that even if
Ms. Quarles was in the gym at the time of the accident, she was negligent in failing to
supervise and control the game.
The trial court, sitting without a jury, ruled in a memorandum opinion that the
Defendants did not breach any duty owed to Plaintiff. Specifically, the court found that the
Defendants did not prove by a preponderance of the evidence that the teacher was absent
from the gym and therefore she did not breach her duty to supervise the children. (T.R.
93) Furthermore, the court held that even if Ms. Quarles had been present, she could not
have prevented the accident. The court noted that this was an unfortunate, but
unforeseeable accidental blow.
Pursuant to T.R.A.P. 13(d), we review the trial court's findings of fact de novo with
a presumption of correctness, unless the evidence preponderates otherwise. Additionally,
we note that the trial court's findings that are based upon its evaluation of the disputed
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evidence and the credibility of the witnesses are given great weight by this Court and will
not be overturned unless there is clear, concrete, and convincing evidence to the contrary.
Weaver v. Nelms, 750 S.W.2d 158 (Tenn. App. 1987); W.F. Holt Co. v. A & E Electric Co.,
665 S.W.2d 722, 733 (Tenn. App. 1983).
Appellant has raised only one issue on appeal: Whether the evidence
preponderates against the trial court's finding that the Defendants did not breach their duty
to supervise the students?
In the absence of special circumstances, the duty of care imposed upon school
teachers is that of reasonable and ordinary care. Roberts v. Robertson County Board of
Education, 692 S.W.2d 863, 870 (Tenn. App. 1985); Hawkins County v. Davis, 216 Tenn.
262, 267, 391 S.W.2d 658, 661 (1965). Teachers are not, however, insurers of the safety
of their students, nor are they expected to supervise all activities of the students all of the
time. Roberts, 692 S.W.2d at 870. Consequently, to hold for Plaintiff, we must find that
Defendants breached their duty of reasonable and ordinary care. This, however, we
cannot do.
Ms. Quarles testified that she was present in the gym and supervised recess at the
time of the accident, while Plaintiff testified that she was not in the gym. Factual
determinations that hinge upon the credibility of witnesses will not be disturbed absent
clear and convincing evidence. Airline Construction, Inc. v. Barr, 807 S.W.2d 247, 264
(Tenn. App. 1990). In the case at bar, the evidence does not preponderate against the
trial court's determination that Ms. Quarles was, in fact, in the gym.
Furthermore, there is insufficient evidence in the record indicating that the game
was excessively rough or rowdy. Plaintiff's expert, Dr. Wayne Gulch, is an instructor of
Health and Physical Education at University of Memphis. He testified that there are
certain precautionary measures that can be taken to ensure the safety of children during
recess; however, he said, accidents and injuries will often happen despite these
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precautions. In this case, Dr. Gulch admitted, it is possible that the accident would have
occurred even if his suggested precautionary measures had been implemented.
Based upon these facts, we do not find that the evidence preponderates against the
trial court's conclusion that Defendants did not breach a duty to Plaintiff. The facts of this
case simply fail to reveal any actionable negligence on the part of the school. It is
apparent that Defendants took all precautions that an ordinarily reasonable and prudent
person would have taken and Ms. Quarles' supervision of the children was adequate under
the circumstances.
For the reasons stated herein, the judgement of the trial court is affirmed. Costs are
assessed to the Plaintiff.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J., W.S.
FARMER, J.
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