John Richardson v. Trenton Special School District

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 20, 2016 Session

JOHN RICHARDSON, ET AL. v. TRENTON SPECIAL SCHOOL

DISTRICT

Appeal from the Circuit Court for Gibson County

No. 8587 Clayburn Peeples, Judge

________________________________

No. W2015-01608-COA-R3-CV – Filed June 27, 2016

______________________________

This is a negligence case involving the alleged sexual assault of a six-year-old boy

by another six-year-old boy in the bathroom of an elementary school. The trial

court determined that the Appellee school district was entitled to summary

judgment as a matter of law because the assault was not foreseeable. We conclude

that there are disputes of material fact, which preclude the grant of summary

judgment. Accordingly, we reverse and remand.

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

Reversed and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which ANDY D.

BENNETT and BRANDON O. GIBSON, JJ., joined.

W. Lewis Jenkins, Jr. and Dean P. Dedmon, Dyersburg, Tennessee, for the

appellants, J.R. and P.R.

Jennifer C. Craig, Jackson, Tennessee, for the appellee, Trenton Special School

District.

OPINION

I. Background

During the 2006-2007 school year, C.N.R., age six,1 was enrolled in

kindergarten in a school operated by Trenton Special School District (“TSSD,” or

“Appellee”). J.R. is C.N.R.‟s father, and P.R.(together with J.R., “Parents” or

“Appellants”) is C.N.R.‟s mother. The case arises from allegations that C.N.R.

was sexually assaulted five times during the school year by another kindergarten

student, B.S. The assault first came to the Parents‟ attention when C.N.R. told his

mother that he was afraid to go to the bathroom at school. P.R. initially thought

that the other student, B.S., was bullying C.N.R. Mother suspected that B.S. was

using foul language, showing his private parts, writing on the bathroom walls, and

throwing paper wads. P.R. first learned that C.N.R. may have been sexually

assaulted by B.S. when the school principal called P.R. to say that he was

informed of the alleged incident by the school guidance counselor, who had been

notified by the children‟s teacher. The teacher was told, by another student who

was in the bathroom at the time of the alleged assault, that B.S. and C.N.R. were in

the stall together. After questioning B.S. and C.N.R., B.S. allegedly admitted to

the teacher that B.S. had put his mouth on C.N.R.‟s private parts.

It is undisputed that, prior to the alleged assault on C.N.R., there was an

incident at the school where one student sexually assaulted another child in the

bathroom during after-school care. Concerning this incident, the principal

testified, in his deposition, that the children involved in the after-school care

incident were in first or second grade, as opposed to the children involved in the

instant case, who were in kindergarten. Furthermore, the principal testified that

the after-school incident occurred when the two students were alone in the

bathroom. The incident at issue here occurred when the students were in the

bathroom with other students. When C.N.R. was allegedly assaulted, the

children‟s teacher was standing in the hallway between two bathrooms so that she

could monitor what was happening in either facility. Regardless, it is undisputed

that the elementary school changed its bathroom policy in the after-school care

program in direct response to the prior assault such that teachers accompanied

students into the bathrooms. However, the school did not change its policy

concerning the main school day. At the time of the alleged assault on C.N.R., the

school policy applicable to C.N.R. and B.S.‟s teacher provided:

While on duty, you are responsible for the children in your group.

Their safety and well being are your most important consideration.

CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your

students in the halls and bathrooms (emphasis in original).

1

Given the sensitive nature of this case, we redact the parties‟ names for purposes of anonymity.

2

On September 29, 2011, Appellants filed suit against TSSD.2 Appellants

claimed that TSSD was negligent because its employee had violated the school‟s

policy and that this violation resulted in a failure to protect C.N.R. Following

discovery, on January 13, 2015, TSSD filed a motion for summary judgment

alleging that TSSD did not owe a duty to C.N.R. Appellants opposed the motion

for summary judgment. Following hearing, the trial court granted TSSD‟s motion

by order of July 30, 2015. In relevant part, the trial court held that the “alleged

sexual assault against the six-year-old minor . . . by another six-year-old student in

the boys bathroom . . . was unforeseeable as a matter of law.” Appellants appeal.

II. Issues

Appellants raise two issues for review; however, we perceive that there is one

dispositive issue, which we state as follows:

Whether the trial court erred in granting summary judgment to the Appellee

school district upon its finding that the sexual assault of a six-year-old child

by another six-year-old child was not reasonably foreseeable under the

circumstances.

III. Standard of Review

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We

review a trial court‟s ruling on a motion for summary judgment de novo, without a

presumption of correctness. Rye v. Women’s Care Center of Memphis, MPLLC,

477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co., Inc. of Tenn. v. Oak Ridge

FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013); see also Abshure v. Methodist

Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010); and Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In doing so, we make a fresh

determination of whether the requirements of Rule 56 of the Tennessee Rules of

Civil Procedure have been satisfied. Rye 477 S.W.3d at 250 (citing Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013); Hughes v. New Life Dev. Corp., 387

S.W.3d 453, 471 (Tenn. 2012)).

For actions initiated on or after July 1, 2011, the standard of review for

summary judgment is governed by Tennessee Code Annotated Section 20-16-101.

The statute provides:

2

The complaint also named the Town of Trenton, TN as a party-defendant. On February 27, 2012, the trial

court entered a consent order dismissing Trenton from the lawsuit. Trenton is not a party to this appeal.

3

In motions for summary judgment in any civil action in Tennessee,

the moving party who does not bear the burden of proof at trial shall

prevail on its motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential

element of the nonmoving party‟s claim; or

(2) Demonstrates to the court that the nonmoving party‟s

evidence is insufficient to establish an essential element of the

nonmoving party‟s claim.

Tenn. Code Ann. §20-16-101. However, “a moving party seeking summary

judgment by attacking the nonmoving party‟s evidence must do more than make a

conclusory assertion that summary judgment is appropriate on this basis.” Rye,

477 S.W.3d at 264. Rule 56.03 requires that the moving party support its motion

with “a separate concise statement of the material facts as to which the moving

party contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. Each

fact is to be set forth in a separate, numbered paragraph and supported by a

specific citation to the record. Id. If the moving party fails to meet its initial

burden of production, the nonmoving party‟s burden is not triggered, and the court

should dismiss the motion for summary judgment. Town of Crossville Hous.

Auth., 465 S.W.3d 574, 578-79 (Tenn. Ct. App. 2014)(citing Martin v. Norfolk S.

Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008)). As our Supreme Court recently

opined:

[T]o survive summary judgment, the nonmoving party “may not rest

upon the mere allegations or denials of [its] pleading,” but must

respond, and by affidavits or one of the other means provided in

Tennessee Rule 56, “set forth specific facts” at the summary

judgment stage “showing that there is a genuine issue for trial.”

Tenn. R. Civ. P. 56.06. The nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the material

facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct.

1348. The nonmoving party must demonstrate the existence of

specific facts in the record which could lead a rational trier of fact to

find in favor of the nonmoving party.

Rye, 477 S.W.3d at 265 (emphasis in original). If adequate time for discovery has

been provided and the nonmoving party‟s evidence at the summary judgment

stage is insufficient to establish the existence of a genuine issue of material fact for

trial, then the motion for summary judgment should be granted. Id. Thus, even

where the determinative issue is ordinarily a question of fact for the jury, summary

judgment is still appropriate if the evidence is uncontroverted and the facts and

4

inferences to be drawn therefrom make it clear that reasonable persons must agree

on the proper outcome or draw only one conclusion. White v. Lawrence, 975

S.W.2d 525, 529-30 (Tenn. 1998).

However, if there is any uncertainty concerning a material fact, then

summary judgment is not the appropriate disposition. As stated by our Supreme

Court in EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975):

The summary judgment procedure was designed to provide a quick,

inexpensive means of concluding cases, in whole or in part, upon

issues as to which there is no dispute regarding the material facts.

Where there does exist a dispute as to facts which are deemed

material by the trial court, however, or where there is uncertainty as

to whether there may be such a dispute, the duty of the trial court is

clear. He [or she] is to overrule any motion for summary judgment in

such cases, because summary judgment proceedings are not in any

sense to be viewed as a substitute for a trial of disputed factual

issues.

Id. at 24-25.

IV. Analysis

In a cause of action for negligence, a plaintiff must establish five elements:

(1) a duty of care owed by the defendant to the plaintiff; (2) breach by the

defendant of that duty of care; (3) injury or loss; (4) cause in fact; and (5)

proximate or legal cause. Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005);

Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993). Duty is the legal

obligation a defendant owes to a plaintiff to conform to the reasonable person

standard of care in order to protect against unreasonable risks of harm. Cullum v.

McCool, 432 S.W.3d 829, 833 (Tenn. 2013); Satterfield v. Breeding Insulation

Co., 266 S.W.3d 347, 355 (Tenn. 2008); McCall v. Wilder, 913 S.W.2d 150, 153

(Tenn. 1995). Whether a defendant owed or assumed a duty of care to a particular

plaintiff is a question of law. Downs ex rel. Downs v. Bush, 263 S.W.3d 812,

819-20 (Tenn. 2008); Bradshaw, 854 S.W.2d at 869. Appellee argues that it has

no duty to C.N.R as a matter of law.

In Giggers v. Memphis Housing Authority, et al., 277 S.W.3d 359 (Tenn.

2009), the Tennessee Supreme Court discussed the relationship between duty and

foreseeability in the context of a landlord tenant dispute. Although factually

distinguishable from the instant case, the Giggers opinion is, nonetheless, helpful

in terms of the question of foreseeability. The Supreme Court explained, in

relevant part:

5

Traditionally, the question of whether a defendant owes a

duty of care to the plaintiff is a question of law to be determined by

the courts. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550

(Tenn. 2005) (“Although not a part of the early English common

law, the concept of duty has become an essential element in all

negligence claims,” as well as a question of law for the courts);

Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994); Glenn v.

Conner, 533 S.W.2d 297, 302 (Tenn.1976). In its determination of

the legal issue, “[a] decision by the court that, upon any version of

the facts, there is no duty, must necessarily result in judgment for the

defendant. A decision that if certain facts are found to be true, a duty

exists, leaves open the other questions [as to the presence of

negligence].” Lindsey, 689 S.W.2d at 859 (quoting Prosser, § 37 at

236). In McCall, we held that “[a] risk is unreasonable and gives rise

to a duty to act with due care if the foreseeable probability and

gravity of harm posed by defendant‟s conduct outweigh the burden

upon defendant to engage in alternative conduct that would have

prevented the harm.” McCall, 913 S.W.2d at 153. “[T]he imposition

of a legal duty reflects society‟s contemporary policies and social

requirements concerning the right of individuals and the general

public to be protected from another‟s act or conduct.” Bradshaw v.

Daniel, 854 S.W.2d 865, 870 (Tenn.1993). . . .

In order to determine whether a duty is owed in a particular

circumstance, courts must first establish that the risk is foreseeable,

and, if so, must then apply a balancing test based upon principles of

fairness to identify whether the risk was unreasonable. Satterfield v.

Breeding Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008). That

is, in consideration of, among other things, the presence or absence

of prior similar incidents, and other circumstances, does the

foreseeability of the harm outweigh the burden of the duty imposed?

McClung, 937 S.W.2d at 901. In Downs ex rel. Downs v. Bush, 263

S.W.3d 812, 820 (Tenn. 2008), we held as follows:

The foreseeability of the harm is a key factor in

the equation because, in general terms,

“[f]oreseeability is the test of negligence.” West, 172

S.W.3d at 552 (quoting Linder Constr. Co., 845

S.W.2d at 178); Hale v. Ostrow, 166 S.W.3d 713,

716–17 (Tenn. 2005). “„A risk is foreseeable if a

reasonable person could foresee the probability of its

occurrence or if the person was on notice that the

likelihood of danger to the party to whom is owed a

6

duty is probable.‟” West, 172 S.W.3d at 551 (quoting

Linder Constr. Co., 845 S.W.2d at 178). However,

foreseeability alone does not create a duty to exercise

reasonable care. McClung, 937 S.W.2d at 904. If the

risk is foreseeable, then courts should weigh the

remaining factors to determine if an imposition of duty

is justified.

Although no duty will arise when a risk of

injury is not generally foreseeable, foreseeability alone

“is not, in and of itself, sufficient to create a duty.”

Satterfield, 266 S.W.3d at 366. Rather, when a

minimum threshold of foreseeability is established,

courts must engage in “an analysis of the relevant

public policy considerations,” id. at 364-65, to

determine whether a duty enforceable in tort must be

imposed. While not exclusive, the factors are as

follows:

[T]he foreseeable probability of the harm or injury

occurring; the possible magnitude of the potential

harm or injury; the importance or social value of the

activity engaged in by defendant; the usefulness of the

conduct to defendant; the feasibility of alternative,

safer conduct and the relative costs and burdens

associated with that conduct; the relative usefulness of

the safer conduct; and the relative safety of alternative

conduct.

McCall, 913 S.W.2d at 153. See also Burroughs, 118 S.W.3d at

329.

When and if the trial court determines that the foreseeability

of the harm and its particular gravity outweigh the burden of taking

reasonable protective measures, the question “of duty and of whether

defendants have breached that duty ... is one for the jury to

determine based upon proof presented at trial.” McClung, 937

S.W.2d at 904. As previously stated, whether a defendant owed a

duty of care is a question of law for the court to decide. West, 172

S.W.3d at 550; Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000).

Nevertheless, courts should take precautions to avoid any invasion

of the province of the jury. Satterfield, 266 S.W.3d at 367-68.

7

Giggers, 277 S.W.3d at 365-66.

There has been debate as to whether foreseeability in negligence law is a

question of duty, which is a matter of law; a question of breach, which is a mixed

question of law and fact; or a question of proximate cause, which is a question of

fact. See, e.g., James R. Adams, From Babel to Reason: An Examination of the

Duty Issue, 31 McGeorge L. Rev. 25 (1999); Benjamin C. Zipursky, Rights,

Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1 (1998). Here, the

trial court‟s order merely states the trial court‟s finding that the “alleged sexual

assault against the six-year-old minor . . . was unforeseeable as a matter of law.”

The court does not, however, indicate whether it is applying the foreseeability

determination to the question of duty, breach, or causation. However, in reaching

its determination that the assault against C.N.R. was unforeseeable, the trial court

relies on two cases from this Court. The first, Roe v. Catholic Diocese of

Memphis, Inc., 950 S.W.2d 27 (Tenn. Ct. App. 1996), is similar in fact to the

instant case. In Roe, a four-year-old boy was sexually assaulted by another four-

year-old boy while both children were unsupervised in the bathroom of a school

run by the Catholic Diocese of Memphis. The trial court granted summary

judgment in favor of the Catholic Diocese of Memphis, and the Roe plaintiffs

appealed. In affirming the trial court‟s grant of summary judgment, this Court

held that the incident was unforeseeable to the school, thus negating the prima

facie element of proximate causation necessary to establish school's liability. Id.

at 28.

The trial court also relied on this Court‟s opinion in Lanier v. City of

Dyersburg, No. W2009–00162–COA–R3–CV, 2009 WL 4642601 (Tenn. Ct.

App. Dec. 9, 2009). In Lanier, an eleven-year-old, special education student

sexually assaulted a thirteen-year-old, special education student in a school

bathroom between classes. Id. at *1. The City of Dyersburg presented the

affidavits of several school officials; these affidavits indicated that the

perpetrator‟s records, including a recent psychological evaluation, had been

reviewed. However, none of the records indicated that the perpetrator had

demonstrated any physically or sexually aggressive tendencies prior to the

incident. Id. at *5. In affirming the trial court, we held that summary judgment in

favor of the City of Dyersburg was proper because the incident was unforeseeable,

thus negating the prima facie element of causation.

Because of the trial court‟s reliance on Roe and Lanier, we glean, by

inference, that the trial court concluded that the causation element of the

negligence claim was negated. However, as noted above, the question of

foreseeability can also bear on the element of duty, see infra. Regardless, it

appears that Appellees interpret Roe and Lanier to stand for the proposition that

any sexual assault between children is unforeseeable as a matter of law. Such an

8

interpretation, however, is entirely too broad. This is especially so in light of the

fact that the Roe and Lanier cases are readily distinguishable from the case at bar.

In both Roe and Lanier, there was no indication that the type of assault at issue

had occurred prior to the events giving rise to the respective lawsuits.

Furthermore, in Lanier, there was no indication that the defendant had any reason

to foresee that the tortfeasor had the proclivity to engage in such assault. Here,

however, it is undisputed that, prior to the assault on C.N.R., a first or second

grader sexually assaulted another first or second grader in a bathroom at the same

school. Moreover, in Roe and Lanier, the facts do not indicate whether either

school had enacted any policy that could be deemed relevant to the question of

foreseeability, duty, or causation.

Here, it is undisputed that the school‟s after-school bathroom policy was

amended following the first sexual assault. It is also undisputed that, at the time of

the assault on C.N.R., there was a policy in place for the regular school day, i.e.,

“CHILDREN MUST NEVER BE OUT OF SIGHT!!! Monitor your students in

the halls and bathrooms.” What is unanswered in the record, however, is the

question of when the foregoing policy was put into effect and whether the

enactment of the policy was precipitated by the after-school care assault.

Foreseeability is ordinarily a question of fact. McClung, 937 S.W.2d at 900. In

this regard, the existence of the policy creates at least a question of fact regarding

whether the school anticipated these types of assault. The policy itself may bear

on the question of whether the assault on C.N.R. was foreseeable. In

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991), the Tennessee

Supreme Court outlined a three-pronged test for determining 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.

(Emphasis added). As discussed above, there are questions of fact surrounding the

policy and its bearing on the question of foreseeability. Because, under

McClenahan, causation cannot exist without foreseeability, there is, ipso facto,

also a dispute of fact concerning the element of causation in this case. While we

concede that the foreseeability requirement is not so strict as to require the

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

general manner in which the injury occurred could have been foreseen, or should

have been foreseen through the exercise of reasonable diligence, the foreseeability

requirement will be met. Moore v. Houston Cty. Bd. of Educ., 358 S.W.3d 612,

9

619 (Tenn. Ct. App. 2011); Lanier 2009 WL 4642601, at *4; Mason, 189 S.W.3d

at 222 (citing McClenahan, 806 S.W.2d at 775). “It is sufficient that harm in the

abstract could reasonably be foreseen.” McClenahan, 806 S.W.2d at 775.

Nonetheless, “the harm must be foreseeable from the vantage point available to

the defendant at the time that the allegedly negligent conduct occurred.”

Crutchfield v. State, No. M2015-01199-COA-R3-CV, 2016 WL 1601309, at *7

(Tenn. Ct. App. Apr. 18, 2016) (citing Wingo v. Sumner County Board of

Education, No. 01A01–9411–CV–0051, 1995 WL 241327, at *3 (Tenn. Ct. App.

M.S. April 26, 1995)). Additionally, “the plaintiff must show that the injury was a

reasonably foreseeable probability, not just a remote possibility, and that some

action within the defendant's power more probably than not would have prevented

the injury.” Rathnow, 209 S.W.3d at 633-34 (citing Eaton v. McLain, 891 S.W.2d

587, 594 (Tenn. 1994)).

While the existence of a policy in this case may bear on the question of

foreseeability vis-à-vis the causation element of negligence, it may also bear on

the question of whether TDDS owed a duty to C.N.R. that was breached. For over

thirty years, the case of Roberts v. Robertson Cty. Bd. of Educ., 692 S.W.2d 863

(Tenn. Ct. App. 1985) has defined the standard of care owed by teachers to their

students. In the Roberts case, a high school student filed a complaint against his

school board and his teacher for head injuries suffered in shop class. School

districts and teachers “are not expected to be insurers of the safety of students

while they are at school.” Id. at 870. We do not impose upon teachers the “duty to

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

our public schools.” Id at 872. However, “we have no hesitation in holding a

teacher or local school system to the duty of safeguarding students while at school

from reasonably foreseeable dangerous conditions including the dangerous acts of

fellow students.” Id. (citations omitted). Accordingly, we have repeatedly upheld

the principle that “schools, teachers, and administrators have a duty to exercise

ordinary care for the safety of their students.” Haney v. Bradley County Bd. of

Educ., 160 S.W.3d 886, 897 (Tenn. Ct. App. 2004); see also Rowland v. Metro.

Gov't of Nashville, No. M2012-00776-COA-R3CV, 2013 WL 784582, at *14

(Tenn. Ct. App. Feb. 28, 2013); Lanier v. City of Dyersburg, No. W2009-00162-

COA-R3-CV, 2009 WL 4642601, at *5 (Tenn. Ct. App. Dec. 9, 2009). Based on

Roberts and its progeny, we conclude that the Appellee school district and its staff

owe a duty of reasonable care to CNR. However, the extent to which a teacher

must supervise the activities of his or her students must be determined with

reference to the age and inexperience of the students, their maturity, and the

dangers to which they may be exposed. King by King v. Kartanson, 720 S.W.2d

65, 68 (Tenn. Ct. App. 1986) (citations omitted). Here, Appellants argue that the

school‟s knowledge of prior incidents and its own policy demonstrates

foreseeability of this type of harm, and thus creates duty. In Haney, 160 S.W.3d

886, we held that:

10

“The policy is neither a statute nor an ordinance. Rather, it is a rule

adopted by the Board of Education intended to regulate the conduct

of school employees . . . . The applicable standard of care owed by

the Board and the School is established by law, not the Policy.”

Id. at 892-93.

Although, based on Roberts and its progeny, a school district and staff

typically owe students only a duty of reasonable care, because the duty owed by a

teacher to his or her student may vary based on the maturity level of child, the

policy may bear on the question of whether the duty to C.N.R. was breached. On

that subject, even if the policy at issue was enacted in response to the earlier after-

school care assault, because the children involved in that incident were slightly

older than the children involved in the instant appeal, this distinction creates

additional dispute of fact concerning foreseeability and duty.

Courts in Tennessee generally hold that summary judgment is inappropriate

in negligence cases. Roe, 950 S.W.2d at 31 (citing Gonzales v. Alman Constr.

Co., 857 S.W.2d 42, 45 (Tenn. Ct. App. 1993)). In order to survive summary

judgment, the nonmoving party must demonstrate the existence of specific facts in

the record which could lead a rational trier of fact to find in favor of the

nonmoving party. Rye, 477 S.W.3d at 265. As previously stated, if there is any

uncertainty concerning a material fact, then summary judgment is not the

appropriate disposition. “Where there does exist a dispute as to [material] facts . .

. or where there is uncertainty as to whether there may be such a dispute, the duty

of the trial court . . .is to overrule any motion for summary judgment. . . .” EVCO,

528 S.W.2d at 25. We conclude that the question of whether this assault was

foreseeable based on the school‟s supervision policy is a question to be determined

at trial, and that summary judgment is premature here.

V. Conclusion

For the foregoing reasons, we reverse the trial court‟s order granting

summary judgment. The case is remanded to the trial court for further

proceedings as may be necessary and are consistent with this Opinion. Costs on

the appeal are assessed against the Appellee, Trenton Special School District, for

all of which execution may issue if necessary.

______________________________

KENNY ARMSTRONG, JUDGE

11