The opinion
IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
AT NASHVILLE
_______________________________________________________
)
INA KATHERINE WARREN and ) Davidson County Circuit Court
husband, KARL STANLEY ) No. 90C-3564
DAVIDSON, )
)
Plaintiffs/Appellants )
)
VS. ) C. A. NO. 01A01-9606-CV-00277
)
METROPOLITAN GOVERNMENT )
OF NASHVILLE AND DAVIDSON )
COUNTY, TENNESSEE, )
Defendant/Appellee
)
)
)
FILED
AND )
) April 11, 1997
THE METROPOLITAN NASHVILLE )
EDUCATION ASSOCIATION, ) Cecil W. Crowson
) Appellate Court Clerk
Defendant. )
)
______________________________________________________________________________
From the Circuit Court of Davidson County at Nashville.
Honorable Thomas W. Brothers, Judge
David Randolph Smith, Nashville, Tennessee
Joseph H. Johnson, Nashville, Tennessee
Attorneys for Plaintiffs/Appellants.
James L. Murphy, III, Director of Law, Nashville, Tennessee
William Michael Safley, Metropolitan Attorney, Nashville, Tennessee
Attorneys for Defendant/Appellee Metropolitan Government of Nashville and Davidson County,
Tennessee.
OPINION FILED:
AFFIRMED AND REMANDED
FARMER, J.
CRAWFORD, P.J.,W.S.: (Concurs)
LILLARD, J.: (Concurs)
This action stems from most unfortunate circumstances involving a physical assault
upon a teacher by a fifteen year old student (hereinafter referred to as “Student”). The incident
occurred on December 4, 1989 when Appellant, Ina Katherine Warren, intervened in a fight between
two students, at West End Middle School, where she was employed as a guidance counselor. During
her attempt to break up the fight Student struck Warren in the face causing permanent head injury.
Warren, as an employee of the Metropolitan Public School System, filed suit against various
defendants, including the appellee, Metropolitan Government of Nashville and Davidson County
(Metro), alleging negligence, a violation of her civil rights, assault and battery and a third party
beneficiary claim for breach of contract.1 The trial court dismissed all theories of recovery as to
Metro except the claim for breach of contract. Metro filed a motion for summary judgment as to the
remaining theory which was granted by the trial court. Appellants assert on appeal that the trial
court’s summary disposition of their claim for breach of contract was error. Upon review of the
record, we conclude that the trial court was correct in its decision and affirm.
The record establishes that at the time of the assault, Mrs. Warren was 46 years old
and had been employed by the Metro school system for approximately eighteen years. Student
initially enrolled at West End in the 1989-90 school year. Previously, he attended another junior
high, W. A. Bass Middle School. He was suspended there, however, prior to the completion of the
1987-88 school year for its remainder due to violation of school policy. He reentered Bass in the
fall (1988-89) but was again suspended in November 1988 for “[t]hrowing a brick and breaking a
window . . . in a house on his way home from school and repeated violations of school rules.” After
a disciplinary hearing or “staffing,” the school recommended that Student be excluded from any
Metro school for the remaining school year, with the exception of attending the Alternative Learning
Center, and that he be transferred to another school upon reentry. Student was staffed and
1
Warren’s husband, Karl Stanley Davidson, filed a claim for loss of consortium and is an
appellant in this appeal. The lawsuit as to Jim Wells, Juvenile Court Probation Officer, the
Metropolitan Board of Education of Nashville and Davidson County, and the two students was
voluntarily dismissed. The suit as to Metropolitan Nashville Education Association (MNEA) was
dismissed, upon motion, by the trial court. Although the appellants have appealed from this
ruling and have designated MNEA as an appellee in their brief, MNEA has not filed a brief with
this Court. Therefore, for purposes of this opinion, all references to the “appellee” pertain to
Metro. The record also shows that defendants State of Tennessee and State of Tennessee
Department of Youth Development moved to dismiss the action as to them. The record does not
reflect a ruling thereon. However, the judgment of the trial court was rendered final as to Metro
in accordance with Rule 54.02 T.R.C.P. and is properly before us.
subsequently assigned by Metropolitan Public Schools to West End “on strict probation.”
At the time of his arrival at West End, Student had a history of criminal activity and
a propensity for violence, including hitting a fellow female student in the face, shoplifting, burglary
into Bass Middle School (for which a police report was filed and charges brought), malicious
destruction of property and receiving and concealing stolen property.2 In addition, just weeks before
the attack on Warren, the principal of Bass Middle School, James Turbeville, reported Student to the
Metropolitan Police Department for criminal trespass at the school on November 22, 1989. It is not
disputed that Turbeville did not inform West End’s principal, Paul Mays, of the incident.
Appellants’ complaint, as amended, asserts that Warren’s injuries were the result of
Metro’s breach of its “Educational Agreement 1989-1990" (Agreement) with the MNEA, of which
Warren is a member. It is alleged that the Agreement was executed for the express benefit of
professional personnel employed by Metro and, thus, makes Warren a third party beneficiary of the
contract. Appellants allege that Metro specifically breached the agreement by: failing to advise
Warren of the histories of criminal misconduct or propensities for violence of certain students, thus
creating a highly dangerous working environment; failing to provide specific training to faculty and
staff to handle student fights; and/or failing to provide trained security personnel to assist the faculty
and staff in maintaining discipline. The complaint was further amended to allege a breach by Metro
due to Principal Turbeville’s failure to warn Principal Mays of Student’s two alleged break-ins at
Bass so that Student could have been disciplined in accordance with school policy as set forth in the
Agreement and in the Student Code of Conduct. Appellants allege that the latter was incorporated
by reference and necessity into the Agreement and is “an integral part” of the contract. It was also
alleged that Metro’s failure to take appropriate disciplinary action in response to Student’s criminal
activities and violations of school policy constituted a breach.3 Appellants assert that Student’s
2
The record reflects that Student was followed by a juvenile probation officer and was on
legal probation.
3
The “known criminal acts” for which Metro allegedly failed to properly discipline
Student were cited as an April 1989 incident (breaking and entering at Bass school), November
16, 1989 incident (assault on female student), November 17, 1989 (burglary/forced entry) and a
November 22, 1989 incident (criminal trespass at Bass). It was also alleged that Metro failed to
properly discipline Student for repeated violation of school disciplinary rules, 9 office referrals to
be exact, in the fall semester of 1989.
“violent behavior” coupled with the fact “of his strict probationary status at [West End], required
Metro to suspend this student and seek further staffing for his removal from the school system.”
The trial court entered a summary judgment for Metro upon determining the
following:
[T]he Court determined that there is no genuine issue of material fact
and that the Defendant is entitled to a judgment as a matter of law.
Specifically, the Court determined that the Defendant was entitled to
dismissal of this Complaint based upon the grounds that the
Education Agreement and the facts of this case do not support a
breach of contract claim; the Plaintiffs’ damages are too remote,
unforeseeable, and uncertain to reasonably have been within the
contemplation of the parties to the Agreement; and applicable state
law prevents Plaintiffs from maintaining this action under a breach of
contract theory. The Court further determined that dismissal of the
breach of contract claim warrants dismissal of Plaintiff Davidson’s
loss of consortium claim.
Appellants raise the following issues for review:
1. Whether the Educational Agreement in question creates
certain duties on the part of defendant Metropolitan Government
owed to plaintiff Warren to do one or more of the following:
A. To discipline minor defendant [Student] for his
criminal misconduct prior to December 4, 1989;
B. To warn Plaintiff of [Student’s] past criminal
activity;
C. To train Plaintiff to intervene in student fights;
and/or
D. To provide trained security personnel on school
premises.
2. Whether Plaintiffs’ injuries resulting from the breach of
contract by defendant Metropolitan Government were foreseeable and
certain so as to have been within the contemplation of the parties to
the contract.
3. Whether Plaintiffs’ cause of action against defendant
Metropolitan Government for breach of contract is proper under
applicable state law.4
Resolution of our first issue naturally entails a proper interpretation of the Agreement.
4
We note that Appellants have also raised issues regarding Warren’s contractual status
and the exhaustion of administrative remedies doctrine. Appellee concedes that, for purposes of
summary judgment, Warren is a third party beneficiary of the Agreement and that the latter issue
is moot. Consequently, these issues will not be considered on appeal.
It is contended that Metro’s failure to appropriately discipline Student for his prior criminal
misconduct, to warn Warren of his past criminal activity, to train Warren in proper intervention of
student fights and/or to provide trained security personnel constitutes a breach of the following
provisions of the Agreement:
I. STUDENT DISCIPLINE
1. System-wide discipline regulations shall be published and
made known. The Administration shall clearly indicate the intent of
the Board to enforce these regulations and maintain an orderly
learning environment in the schools. Teachers enforcing these
regulations will have the support of the Board and Administration.
The behavior of students will be in conformance with system-wide
regulations. Failure to conform shall subject a student to disciplinary
action.
2. The Board recognizes that effective classroom teaching is
dependent upon teacher management of the classroom and the
absence of disruptive behavior on the part of the students. The Board
hereby assures teachers that it will give support and assistance to
teachers with respect to the maintenance of control and discipline in
the school within the framework of Board Policy.
3. Whenever it appears that a particular pupil requires the
attention of special counselors, social workers, law enforcement
personnel, physicians, or other professional personnel, the
Administration will take positive steps to assist the teacher.
....
5. Individual records on student discipline will be made
available to teachers concerned as an aid for determining disciplinary
recommendations concerning particular pupils.
6. The Association recognizes the teacher’s responsibility to
maintain discipline and a climate for good instruction in the
classroom through effective teaching and leadership techniques and
through application of appropriate classroom management procedures
in accordance with the policies and regulations of the Board. The
Administration recognizes its responsibility to support teachers in all
reasonable disciplinary measures in accordance with the policies and
regulations of the Board.
In addition, Appellants rely upon the “Student Conduct” manual which provides, as
pertinent here:
PART I
Code of Student Conduct
A. Introduction
....
. . . . Disciplinary action for violation of the rules of the school
community may be taken by the school regardless of whether
criminal or civil charges result.
....
The initial judgment that certain conduct violates one of these rules
is made by the principal. The principal is authorized by statute to
suspend students for cause up to ten days. . . . A student found to be
in violation of one of these rules is subject to long-term suspension.
PART II
Procedural Due Process Code
For Dealing With Alleged Violations
....
Alleged misconduct shall be dealt with by the principal or the
principal’s designee:
....
(b) whenever the alleged misconduct constitutes a violation of the
rule(s); or
(c) whenever the principal deems it advisable that he/she deal
personally with the misconduct.
Section 2. Principal’s Investigation
In dealing with alleged misconduct, the principal or the principal’s
designee shall investigate the incident. . . . The student shall be given
an opportunity to present his/her side of the incident and given an
opportunity to deny or explain the allegations.
If the student requests that other witnesses be questioned, the
principal shall talk to those witnesses, if possible. If the student
makes a reasonable explanation of his/her side of the incident that, if
true, would free the student from blame but evidence of the truth of
the explanation is not immediately available, the principal should
postpone disciplinary action for a reasonable time until such evidence
may be presented to him/her.
....
Section 4. Limitation on Principal’s Power
to Suspend or to Request a Hearing
If the principal investigates a student’s alleged misconduct and
decides to take disciplinary action, the principal must investigate and
take action only upon all alleged misconduct known to him/her at the
time. Consequently, the most serious action the principal can take on
his/her own authority for any and all misconduct by a particular
student, known to the principal at any one time, is to give suspension
for ten (10) school days. . . .
Section 5. Summary Suspension
If the principal witnesses or has knowledge of any serious student
misconduct and the principal thinks that immediate removal of the
student is necessary to restore order or to protect persons on the
school grounds, the principal may suspend the student immediately
for not more than two (2) school days.
In such cases, the principal is not required to conduct the
investigation described in Section 2 before he/she suspends; the
principal shall carry out such an investigation and decide on further
disciplinary action, if any, at least by the end of the school day
following the summary suspension. If the principal thinks an
additional suspension is necessary, the total suspended time shall not
exceed ten (10) school days.
....
C. SECTIONS APPLICABLE TO LONG-TERM
SUSPENSION AND EXPULSION
....
If, after the principal’s investigation, the principal decides that a
penalty more severe than any within his/her own authority is
warranted, the principal shall refer the matter to the Coordinator of
Student Disciplinary Referrals.
We begin our analysis with the basic principles of contract construction which control
our decision. Courts are to interpret and enforce the contract as written, according to its plain terms.
Petty v. Sloan, 277 S.W.2d 355, 358 (Tenn. 1955); Home Beneficial Ass’n v. White, 177 S.W.2d
545, 546 (Tenn. 1944). We are precluded from making new contracts for the parties by adding or
deleting provisions. Central Adjustment Bureau, Inc. v. Ingram, 678 S.W.2d 28, 37 (Tenn. 1984);
Shell Oil Co. v. Prescott, 398 F.2d 592 (6th Cir. 1968). When clear contract language reveals the
intent of the parties, there is no need to apply rules of construction. An ambiguity does not arise in
a contract merely because the parties may differ as to interpretation of certain of its provisions.
Oman Constr. Co. v. Tennessee Valley Auth., 486 F.Supp. 375 (M.D. Tenn. 1979). A contract is
ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than
one; a strained construction may not be placed on the language used to find an ambiguity where none
exists. Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190-91 (Tenn. 1973).
We are to consider the agreement as a whole in determining whether the meaning of the contract is
clear or ambiguous. Gredig v. Tennessee Farmers Mut. Ins. Co., 891 S.W.2d 909, 912 (Tenn. App.
1994). If a contract is plain and unambiguous, the meaning thereof is a question of law for the court.
Petty v. Sloan, 277 S.W.2d at 358.
Appellants argue that under the provisions of the Agreement as set forth above, Metro
was obligated to appropriately discipline Student for his criminal misconduct occurring prior to the
incident in question and that its failure to do so directly resulted in Warren’s injuries. Appellants
specifically contend, in their brief, that “[g]iven the nature of the violation [criminal trespass on
November 22], Mr. Mays had an obligation to impose a ten-day suspension on [Student]. Had Mr.
Mays not breached his contractual duty, [Student] would not have even been in school on December
4, 1989 . . . .” In turn, Appellants argue that Turbeville had a corresponding duty to inform Mays
of Student’s misconduct so as to ensure that Student would be disciplined appropriately.
The Agreement provides that “[s]ystem-wide discipline regulations shall be published
and made known” and that failure of a student to conform thereto “shall subject a student to
disciplinary action.” Under the express language of the Code of Student Conduct (Code), it is a
violation of school rule to “cause or attempt to cause damage to school property or steal or attempt
to steal school property.” Clearly, the alleged misconduct by Student on November 22 is in violation
of school rule. Under the plain language of the Code, the “principal or principal’s designee” is
required to deal with any “alleged misconduct” constituting a violation of school rules. To this end,
the principal must conduct an “investigation.” No specific time limit is imposed regarding the
completion of such investigation. The Code does provide that if certain evidence exonerating the
student is not immediately available, the principal should delay disciplinary action for a “reasonable
time.” The Code also makes clear that for any short-term suspension (not longer than 10 school
days), it is the principal’s decision as to whether disciplinary action is to be taken after an
investigation. If, after an investigation, the principal determines that long-term suspension is
appropriate, the matter is to be handled by the Coordinator of Student Disciplinary Referrals after
notice and a hearing. The notice to the student and his/her parent(s) is to be given within 5 school
days after the principal learns of the alleged misconduct. If a hearing is not waived it “should” be
scheduled within 6 school days “after the request of the parents has been received for a hearing . .
. .” If a hearing is waived, the Coordinator shall take steps to determine whether the student has
violated a rule of serious misconduct and determine the penalty to be imposed within 6 school days
“of the date that the principal referred the case to him/her.” The Code further provides that the
principal “may” summarily suspend a student for not longer than 2 school days, if the principal
“thinks that immediate removal . . . is necessary.” An investigation must then occur to determine
whether further disciplinary action is needed “by the end of the school day following the summary
suspension.” The Code provides that “[i]f the principal thinks an additional suspension is necessary,
the total suspended time shall not exceed ten . . . school days.”
It is evident under the Code that whether disciplinary measures are to be taken and
to what extent is a decision that lies initially with the principal who, in most instances, is required
to first conduct an investigation prior to implementing any disciplinary action. The school rules,
with the exception of those pertaining to the use of tobacco, alcohol or drugs, do not specify the
punishment to be imposed for a violation thereof.5 The Code provides for summary suspension and
short and long-term suspension. The Code unmistakably leaves such at first instance to the
discretion and judgment of the principal. Moreover, the language of the Code, with the exception
of that pertaining to the conducting of an investigation, is permissive in nature and not mandatory.
The Code also establishes built-in time delays in the disciplinary process. We therefore conclude
that the Agreement does not impose a duty upon Mays to discipline Student for the alleged
misconduct in a specific manner which would have guaranteed Student’s absence from the school
on December 4. Contrary to Appellants’ assertion, the Code does not provide for an automatic
suspension of 10 school days for the type violation with which Student was charged (criminal
trespass).6 Granted, the maximum suspension seems befitting under the circumstances (assuming
Student’s guilt), but the Code is clear that it is not mandatory.
Significant here, too, is the undisputed fact that Mays was not informed of Student’s
alleged misconduct and was, thus, prevented from contemplating any disciplinary action. We,
however, do not find the Agreement to impose a duty upon Turbeville to relate such information.
To support their argument, Appellants have relied upon the general language in the Agreement
regarding the school board’s assurance to teachers that it will provide “support and assistance” to
teachers regarding student discipline. However, as will be discussed in more detail hereinafter, we
find that it would be a strained interpretation of the contract to impose a duty upon Turbeville
(Metro) to inform Mays of Student’s alleged misdeed given the language utilized.
It is also argued that the Agreement imposed a duty upon Metro to warn Mrs. Warren
5
The record reflects that during the fall semester of the 1989-90 school year, disciplinary
action against Student included the following: paddling for using unacceptable language,
cafeteria clean-up for 3 days for hitting female student, staying late after school for 3 days for
forging principal’s signature and suspension for 3 days for fighting.
6
The Code defines a “short-term suspension” as “a denial to a student of the right to
attend school . . . for any period up to and including ten (10) school days.”
of Student’s past criminal activity, to train her to intervene in student fights and/or provide trained
security personnel. As to the latter, we find no language in the Agreement to remotely suggest that
Metro was under a duty to afford faculty and staff with trained security personnel at the school. As
to the personal training of Mrs. Warren, we find the Agreement to state:
Teachers are expected to exert their best efforts and
professional judgment to maintain discipline in the school. If fights
involving students do occur on school property, a teacher is expected
to do what any reasonable person would do under the circumstances.
If circumstances warrant and permit, a teacher may use physical
restraint to stop the fight.
If the teacher is unable to stop the fight, assistance should be
requested. . . .
We do not find the Agreement to obligate Metro to provide personal training to Mrs. Warren on
student fight intervention. The fact that the school board and administration are obligated to provide
“support” to teachers in maintaining discipline cannot be interpreted to include personal training
absent a strained construction of the contract and a rewriting by this Court.
With respect to Metro’s alleged duty to warn Mrs. Warren of Student’s past criminal
conduct, Appellants rely particularly on paragraph 5 of the student discipline section providing that
“individual records on student discipline will be made available to teachers concerned as an aid to
determining disciplinary recommendations concerning particular pupils.” It is argued that “[t]his
provision, in conjunction with subsection I(2) and the general intent of the parties to jointly create
a safe and orderly learning environment, creates a duty on the part of [the] Board and/or
Administration to provide teachers and faculty with information about a student’s background . . .
sufficient to let them make [an] informed judgment on how to interact with that student . . . .”
Paragraph I(7) states that the “general purpose of this provision shall be to provide
concise information for both teacher and principal to assist them in cooperatively maintaining the
best possible learning environment.” As we interpret the clear language of Paragraph (5), the
“concise information” to be conveyed pertains to individual student discipline records to those
teachers “concerned” with determining disciplinary recommendations for particular students.
Paragraph (5) cannot be interpreted to mean or imply that individual student discipline records are
made available to all teachers as a matter of routine, but to only those “concerned” teachers in aiding
a determination of disciplinary recommendations for specific pupils.
We find that the “Student Discipline” section of the Agreement, when read as a
whole, is written from the standpoint of the teacher and his/her role in “enforcing these [system-wide
discipline] regulations.” The Agreement provides that the school board and administration will
support the teacher in his/her enforcement of the regulations (Paragraph 1) and in the teacher’s
“management of the classroom” to promote “effective classroom teaching” (Paragraph 2). Under
paragraph 6, the Administration has the “responsibility to support teachers in all reasonable
disciplinary measures” taken by the teacher to fulfill his/her “responsibility to maintain discipline
and a climate for good instruction.” Teachers “concerned” with “determining disciplinary
recommendations” for “particular pupils” will be given access to those students’ individual records
on discipline. Finally, under paragraph 3, the Administration is obligated to “take positive steps to
assist the teacher” in ascertaining the appropriate personnel for those students in need of specialized
attention. To interpret this paragraph otherwise would render the words “will take positive steps”
overly vague and meaningless.
We conclude that no fair interpretation of the Agreement can be said to legally
impose upon Metro the contractual duties as alleged by Appellants. Certainly, the provision of
trained security personnel on school grounds, individual training of faculty and staff regarding
student fight intervention and routine notice to teachers of children with propensities for violence
and/or a criminal history is commendable conduct which would undoubtedly benefit the public
education system and go further in promoting a safe and orderly learning environment. We,
however, do not find the Agreement before us to legally require such obligations of Metro. A
summary judgment is an appropriate means of disposing of claims capable of resolution on legal
issues alone. McReynolds v. Cherokee Ins. Co., 896 S.W.2d 137 (Tenn. App. 1994); Nichols v.
Atnip, 844 S.W.2d 655, 658 (Tenn. App. 1992). As we have determined as a matter of law that the
Agreement does not impose upon Metro the contractual duties as alleged by Appellants, we conclude
that a summary judgment was properly granted in Metro’s favor. In view of our decision, we
pretermit the remaining issues.
The judgment of the trial court is affirmed and this cause remanded for any further
proceedings consistent with this opinion. Costs are taxed to the appellants, for which execution may
issue if necessary.
_______________________________
FARMER, J.
______________________________
CRAWFORD, P.J., W.S. (Concurs)
______________________________
LILLARD, J. (Concurs)