Donald Crockett v. Sumner County Board of Education

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2016 Session

DONALD CROCKETT, ET AL. v. SUMNER COUNTY BOARD OF

EDUCATION, ET AL.

Appeal from the Circuit Court for Sumner County

No. 83CC12013CV325 Joe Thompson, Judge

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No. M2015-02227-COA-R3-CV – Filed November 30, 2016

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A thirteen year-old child slipped off bleacher seats at a middle school and injured his leg

when he was using the seats as steps in July 2012. The child and his parents sued the

school for negligence, and the school asserted the defense of comparative negligence.

The trial court applied the Rule of Sevens, concluded the school rebutted the presumption

of no capacity for negligence, and determined that the child was solely responsible for his

injury. The trial court also determined that the school was not liable for negligent

supervision of the child. The parents and child appeal, and we affirm the trial court’s

judgment.

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

Affirmed

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Donald Capparella and Sean Martin, Nashville, Tennessee, for the appellants, Donald and

Melissa Crockett.

Leah May Dennen, Gallatin, Tennessee, and A. Scott Derrick, Thomas B. Russell, and

Sarah L. Blood, Nashville, Tennessee, for the appellee, Sumner County Board of

Education.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Andrew Crockett was thirteen years old in July 2012 when he was attending

summer school at T.W. Hunter Middle School. On the final day of summer school,

Andrew slipped off of a bleacher seat on which he was walking and fractured his lower

leg above the ankle. Andrew was transported by ambulance to a hospital where he

underwent surgery. His parents, Melissa and Donald Crockett, filed a complaint on

behalf of themselves and Andrew against the Sumner County Board of Education d/b/a

T.W. Hunter Middle School (“T.W. Hunter” or “the School”) and William Lowe, who

was one of Andrew’s summer school teachers. The Crocketts asserted claims for

negligence, negligent infliction of emotional distress, negligence per se, premises

liability, and vicarious liability. They subsequently dismissed Mr. Lowe as a named

defendant, and the case continued against T.W. Hunter. In its answer, the School

asserted that Andrew’s injuries were a result of his own negligence. In the alternative,

the School contended that Andrew was more than fifty percent at fault for his accident,

and that under the doctrine of comparative fault, the Crocketts were barred from

recovering any damages from T.W. Hunter.

The parties engaged in discovery, and when discovery was completed, both the

Crocketts and T.W. Hunter filed motions for summary judgment. The trial court granted

the School’s motion on the issue of premises liability and dismissed that claim, but it

denied both motions with respect to negligence. The parties tried the remaining claims

before the court, without a jury, on September 28, 2015.

At trial, Andrew testified that he had to attend summer school in the summer of

2012 because he had failed the eighth grade. He did not testify that he was unable to do

the work assigned to him; rather, he explained that he chose to spend time with his

friends instead:

It was my last year of middle school. I had - - I was excited about going to

high school, so I kind of was - - just fell off on my grades and kind of

traded off hanging out with friends and stuff like that.

Andrew then testified about the events leading up to his accident. He explained that on

the second to last day of summer school, someone stuck a roll of toilet paper down a

toilet in the boys’ bathroom located in the gymnasium, causing the toilet to overflow and

creating a mess in the bathroom. Coach William Lowe and Coach Clinton Niehaus were

two of Andrew’s summer school teachers, and they asked the boys to tell them who was

responsible for the vandalism. When no one was willing to confess or identify the

perpetrator(s), Coaches Lowe and Niehaus decided on a collective punishment and told

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the boys they would all be required to clean up the mess the following day, June 28,

2012, before they would be excused for the remainder of the summer.

Andrew testified that after he and his classmates finished their final exams on the

last day of summer school, the boys reported to the gym, where Coach Niehaus was

waiting for them. According to Andrew, Coach Niehaus told the boys that everyone was

required both to mop the bathroom and pick up trash in the bleachers. Andrew offered to

mop first, and after he finished mopping, Andrew joined the boys in the bleachers to help

pick up trash.

Andrew testified that he was wearing sneakers that day and that they were wet

when he finished mopping. Andrew did not know whether Coach Niehaus realized

Andrew’s shoes were wet when he directed Andrew to start cleaning up the trash in the

bleachers. Andrew testified that the other boys were using the blue bleacher seats as

steps while they collected the trash, and Andrew did the same:

Q: [H]ow were you going about picking up - - traveling to pick up that

trash?

A: I was just standing on the blue part, and I would step down to get the

trash, and so on and so forth.

Q: Okay. Is that what the kids were doing before you came - - or when

you had first arrived at the gym?

A: Yes, sir.

Q: They were walking on the blue part?

A: Yes, sir.

Q: Okay. And Coach Niehaus was there?

A: Yes, sir.

Q: Did you hear Coach Niehaus tell any of those kids not to walk on the

blue part?

A: No, sir.

Q: At what point - - Well, did Coach Niehaus supervise you as you

were cleaning the bleachers?

A: Yes, sir. . . . He was standing in the same location as before, with

his arms crossed, facing the bleachers, watching us pick up trash.

Q: He saw you step on the blue part of the bleacher?

A: Yes, sir.

Andrew then explained that Coach Niehaus left the gym for a few minutes, and that is

when he fell. Andrew explained how he fell:

I was walking down the bleachers. I went to take a step, and I slipped, and

I guess I came down on my leg. And I knew I fell and it hurt. Because

there were kids around me, I didn’t want to look like a - - cry or look weak

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or anything, because it didn’t really hurt at first until I looked at it. And

when I looked at it, I saw my bone sticking out and I really didn’t see my

foot. And once I saw it, all the pain hit and I had started screaming.

When Andrew was asked whether he usually used the blue bleacher seats as steps, he

responded, “Yes, sir. It was an everyday thing.” Andrew explained, “I thought nothing

of it. It’s just a way of getting up and down the bleachers.”

On cross examination, Andrew admitted that he knew from the time he was “a

little kid” that he was not supposed to use the bleacher seats as steps. He said that when

he started playing baseball, when he was “probably five years old . . . [m]y mom told me,

don’t walk on the seat part.” Andrew testified he just “wasn’t thinking about it” when he

fell in the summer of 2012.

Coaches Lowe and Niehaus also testified at the trial. Coach Lowe described

Andrew as a “[v]ery polite young man, quiet. . . . Overall kind of a good kid.” Coach

Lowe testified that he went into the boys’ bathroom the day after the toilet overflowed,

before the boys were directed to mop and clean up the bleachers. By that time, according

to Coach Lowe, the floor was “95 percent dry.” He explained that there was “a little

glaze,” but the pieces of paper that were scattered around the floor “had all dried up”

overnight.

Coach Lowe testified that he told the students “daily” not to use the blue seats as

steps to go up and down the bleachers. He said, though, that the students used the seats

as steps anyway: “You tell them to do things, you instruct them to do things, but they do

things that they want to do sometimes.” Coach Lowe testified that the students walked

on the bleacher seats regardless of whether they were being supervised or not.

Coach Niehaus was the teacher supervising the boys in the gymnasium on the day

Andrew injured himself. Contrary to Andrew’s testimony, Coach Niehaus testified that

the boys who mopped the bathroom were not also required to clean the bleachers. As he

explained,

It wasn’t necessarily a choice. But the options were, you know, some of

you are going to mop, some of you are going to clean the bleachers, and

[Andrew] volunteered to mop; therefore, he would not have been expected

to clean the bleachers.

Coach Niehaus described Andrew as “an average student, kept to himself, well-behaved

boy,” without any discipline issues. Like Coach Lowe, Coach Niehaus testified that he

also warned the students not to use the bleacher seats as steps:

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We would make statements such as, use the walkway, you know, try not to

use the plastic part, use the walkway; go take the steps where it’s got the

sandpaper.

According to Coach Niehaus, the students walked on the seats as a short cut, but they

knew they were supposed to go up and down the bleachers using the stairs, not the seats.

Coach Niehaus testified that he was in the gymnasium when Andrew slipped and

hurt his leg. He had gone down the hall to find another mop and was gone for just two or

three minutes. He had just returned to the gymnasium when he heard the commotion

surrounding Andrew’s fall. Coach Niehaus did not see Andrew slip, but he heard

“crashes” and “yelling” and immediately went over to where Andrew was lying to assess

the situation and calm him down.

Once all the evidence was in, T.W. Hunter moved for an involuntary dismissal of

the Crocketts’ complaint, which the trial court denied. The court then issued a

memorandum opinion in which it concluded that Andrew was negligent in falling and

that his negligence “was the sole cause of his fall on June 28, 2012.” The trial court

made the following findings of fact:

1. In June, 2012, Andrew Crockett (“Andrew”) attended summer school at

T.W. Hunter Middle School.

2. In June, 2012, Coach William Lowe (“Coach Lowe”) and Coach Clint

Niehaus (“Coach Niehaus”) were teaching summer school at T.W. Hunter

Middle School. Andrew was one of their students.

3. At the time of the accident which forms the basis for this claim, Andrew

was thirteen (13) years old and getting ready to enter high school.

4. On June 27, 2012, one of the 7th or 8th grade boys flooded the boys’

bathroom located in the gym by placing toilet paper in the toilet to cause an

overflow.

5. At the end of the school day on June 27, 2012, Coaches Lowe and

Niehaus sat the 7th and 8th grade boys down and asked them to tell the

Coaches which student flooded the bathroom. None of the students

responded with a name.

6. The following day, June 28, 2012, was the last day of summer school.

7. The students were scheduled to be released around 11:00 or 11:30 a.m.

on June 28, 2012.

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8. The students next took their final tests and were given another chance to

confess. Again no student confessed.

9. The Coaches gave the students a choice: they could stay and clean the

bathroom and leave at noon, or they could stay a full day and be released at

3:00. The students chose to stay and clean.

10. On June 28, 2012, the previously flooded bathroom was almost dry,

although it may have had some damp spots here and there.

11. The students were broken up into two groups: the 8th grade boys went

to a classroom with Coach Lowe while Coach Niehaus stayed in the gym

with the 7th grade boys who picked up trash from the bleachers located in

the gym. The 7th grade boys also picked up dry toilet paper from the

bathroom floor.

12. Once the 7th grade boys were finished, they went to the classroom with

Coach Lowe, and the 8th grade boys came to the gym with Coach Niehaus.

13. Coach Niehaus split the boys into two groups: one group would clean

and mop the bathroom while the other group would pick up trash in the

bleachers.

14. Andrew volunteered to mop the bathroom.

15. There is no evidence in the record of how Andrew mopped the

bathroom or that he mopped the bathroom in an incorrect manner.

16. After Andrew volunteered to mop the bathroom, Coach Niehaus left the

gym to get a dry mop.

17. After mopping, Andrew decided to clean the bleachers on his own.

Neither Coach Niehaus nor Coach Lowe told Andrew to clean the

bleachers.

18. The bleachers located in the gym have several stairways that lead to the

top. Each of the steps is covered in a non-slip material. The bleacher seats

are made of plastic and run between the stairways.

19. During summer school, both Coaches Niehaus and Lowe informed the

boys in the proper use of the bleachers, which is to use the stairways to go

up and down the bleachers and not to use the bleacher seats as steps.

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20. Andrew had known, since he was little, that he was not to use the

bleacher seats as steps.

21. Andrew testified that the reason he was told not to use the bleacher

seats as steps was because it could result in injury.

22. Despite this knowledge, Andrew decided to walk down the bleacher

seats as steps.

23. While using the bleacher seats as steps, Andrew fell and was injured.

Andrew was aware that this could happen, as he testified walking on the

bleacher seats as steps could result in an injury.

24. There is no credible evidence in the record that Andrew’s shoes were

wet after he completed the mopping assignment and left the bathroom area.

His shoes did not leave prints on the gym floor, and Andrew testified that at

the time of his fall, he did not even think about whether moisture on the

bottom of his shoes had an impact on his fall.

25. Coach Niehaus had already returned to the gym when Andrew fell on

the bleacher seats, but was not in a position to see the bleacher area.

26. Andrew testified that if he had used the bleachers as he was told, which

was to walk up and down them using the stairway, he would not have fallen

and would not have been injured.

27. It is impossible for any teacher, including Coaches Niehaus and Lowe,

to constantly supervise all students at all times.

Based on its findings of fact, the trial court concluded:

[A]s Andrew was warned about not using the bleacher seats as steps, and as

he knew that such an action could cause injury, the Defendant has rebutted

the presumption that Andrew could not be negligent. Andrew’s negligence

was the sole cause of his fall on June 28, 2012.

The Crocketts appeal, arguing that the evidence preponderates against the trial

court’s finding that: (1) Andrew was 100% at fault for his injuries; and (2) T.W. Hunter

did not breach its duty of supervision to Andrew.

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II. ANALYSIS

A. Standard of Review

We review a trial court’s findings of fact de novo based on the record, applying a

presumption of correctness unless the evidence preponderates otherwise. TENN. R. APP.

P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). If the trial court has not

made a specific finding of fact on a particular issue, we will review the record to

determine where the preponderance of the evidence lies. In re Valentine, 79 S.W.3d at

546; Durham v. Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296, at *2 (Tenn.

Ct. App. July 25, 2012); Forrest Constr. Co., LLC v. Laughlin, 337 S.W.3d 211, 220

(Tenn. Ct. App. 2009). The apportionment of fault constitutes a question of fact that we

review applying a presumption of correctness. Durham, 2012 WL 3041296, at *3.

B. Comparative Negligence

To establish a claim for negligence, the Crocketts must prove T.W. Hunter owed

Andrew a duty of care, that it engaged in conduct below the applicable standard of care in

the circumstances, that Andrew suffered an injury, and that there was “cause in fact” as

well as “proximate cause.”1 King v. Anderson Cnty., 419 S.W.3d 232, 246 (Tenn. 2013);

Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005); Lewis v. State, 73 S.W.3d 88, 92

(Tenn. Ct. App. 2001). “Comparative negligence” involves a comparison of a plaintiff’s

and a defendant’s negligence. Lanier v. Bane, No. M2000-03199-COA-R3-CV, 2004

WL 1268956, at *4 (Tenn. Ct. App. June 8, 2004) (citing Owens v. Truckstops of Am.,

915 S.W.2d 420, 425-26 n.7 (Tenn. 1996), and McIntyre v. Balentine, 833 S.W.2d 52, 56

(Tenn. 1992)). If a plaintiff’s negligence is equal to or greater than a defendant’s, the

plaintiff is precluded from recovering any damages from the defendant. Lewis, 73

S.W.3d at 94.

When a plaintiff in a negligence action is a minor child and the defendant raises

the affirmative defense of comparative negligence, as here, courts apply a doctrine called

“The Rule of Sevens” to determine whether the child’s negligence, if any exists, should

reduce the child’s damages. Durham, 2012 WL 3041296, at *3. The Rule of Sevens is

essentially a rule of capacity and provides that a child under the age of seven has no

capacity for negligence; that there is a rebuttable presumption of no capacity for a child

between the ages of seven and fourteen; and that there is a rebuttable presumption in

favor of capacity for a child between the ages of fourteen and the age of majority.

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“Cause in fact” asks whether the harm would have occurred if not for the defendant’s conduct,

and “proximate cause” asks whether the defendant should be held liable for the plaintiff’s injury once

cause in fact has been established, and includes issues of foreseeability. King, 419 S.W.3d at 246-47;

Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).

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Cardwell v. Bechtol, 724 S.W.2d 739, 745 (Tenn. 1987); Durham, 2012 WL 3041296, at

*3. The Rule of Sevens is sometimes referred to as the mature minor exception,

Cardwell, 724 S.W.2d at 748-49, or the mature minor rule, Doe v. Mama Taori’s

Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *6 (Tenn.

Ct. App. Apr. 5, 2001). The Cardwell Court described the Rule of Sevens as follows:

“The rule with respect to a minor’s capacity for negligence is that the

question is to be judged in the light of his age, ability, intelligence, training

and experience and the complexity of the danger with which he is

confronted.”

Cardwell, 724 S.W.2d at 748 (quoting Bailey v. Williams, 346 S.W.2d 285, 287 (Tenn.

Ct. App. 1960)).

The Rule of Sevens was formally recognized by our Supreme Court in a case

where the issue was whether a minor child could give informed consent to a medical

procedure. Cardwell, 724 S.W.2d at 748-49. It has been applied to determine whether a

minor can consent to sexual contact, Doe, 2001 WL 327906, at *4-5, whether a minor

can be held liable for the commission of a crime, Juvenile Court of Shelby County v. State

ex rel. Humphrey, 201 S.W. 771, 773 (Tenn. 1918), and whether a minor can be liable for

damages resulting from negligence, Puryear v. Stuart, No. 70, 1990 WL 38348, at *1

(Tenn. Ct. App. Apr. 6, 1990). The Court of Appeals has applied the rule to a case in

which the issue was whether an eleven year-old boy had the capacity for negligence, and

it described the rule as follows:

“Whether a minor has the capacity to [be negligent] depends on the age,

ability, experience, education, training, and degree of maturity or judgment

obtained by the minor, as well as upon the conduct and demeanor of the

minor at the time of the incident involved. Moreover, the totality of the

circumstances, the [minor’s conduct at issue] and its risks or probable

consequences, and the minor’s ability to appreciate the risks and

consequences are to be considered. Guided by the presumptions in the Rule

of Sevens, these are questions of fact for the jury to decide.”

Durham, 2012 WL 3041296, at *3 (quoting Cardwell, 724 S.W.2d at 748).

The plaintiff in Durham was riding a bicycle, crossed a street without looking, and

got hit by a bus. Id. at *1. The boy’s parents sued the City of Murfreesboro and the

driver of the bus, and the defendants asserted the affirmative defense of comparative

negligence. Id. After reviewing the evidence presented at trial, the Durham court wrote:

The evidence recounted above shows that Ulysses was knowledgeable in

the operation of a bicycle, was familiar with the rules of the road, that he

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should stop at stop signs, and that he knew to look both ways before

crossing the street. The evidence also shows that he was familiar with the

neighborhood, that he had a level of understanding commensurate with his

age to understand the dangers associated with riding a bicycle, and that he

had been cautioned immediately before the accident to stop at the stop sign.

Id. at *4. The Durham court concluded that the evidence rebutted the presumption that

the boy was not capable of negligence at the time of the accident. Id.

In this case, Andrew was thirteen when he fell off the bleachers, which is less than

one year from the time the presumption in the Rule of Sevens changes from having no

capacity for negligence to having the capacity for negligence. Both coaches testified that

they warned the students often not to use the bleacher seats as steps. Andrew testified

that he had known since he was five years old that he was not supposed to use the

bleacher seats as steps and that the reason for this is the potential for falling and hurting

himself.

Mr. and Mrs. Crockett contend Andrew was immature for his age and lacked the

capacity of an average thirteen year-old. However, Coach Niehaus testified that Andrew

was an average student and was “well-behaved,” and Coach Lowe testified that Andrew

was a “good kid” who did not cause any trouble. According to Andrew’s father, the

principal of Andrew’s middle school thought Andrew should attend summer school

rather than be held back because Andrew was “a smart kid.” Evidence was also

introduced that Andrew’s parents permitted him to use a BB gun by the time he was

thirteen years old. Andrew testified that he failed the eighth grade because he chose to

spend time with his friends rather than focus on his school work, not because he was

unable to understand the material.

Andrew testified that he often used the bleacher seats as steps despite knowing he

was not supposed to do this, and the coaches both testified that the students often used the

seats as steps even though they were told they should use the stairs to go up and down the

bleachers. No evidence was introduced that Andrew was less capable than other students

his age of understanding the dangers of using the bleacher seats as steps.

The Crocketts complain the trial court failed to find Andrew had the “capacity” to

appreciate the danger of using the bleacher seats as steps. We determine, based on our

review of the record, that Andrew understood the risks and probable consequences of

using the seats as steps and that he had the capacity to be negligent when he fell while

using the seats as steps. Therefore, we affirm the trial court’s determination that the

school rebutted the presumption that Andrew did not have the capacity to be negligent

based on his age.

The trial court ruled that Andrew was the sole cause of his fall, and, thus, was

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100% negligent. For T.W. Hunter to prevail on its defense of comparative negligence, it

only needed to prove Andrew was more than fifty percent negligent. See Lewis, 73

S.W.3d at 94 (noting that plaintiff may not recover any damages from defendant if

plaintiff’s negligence is equal to or greater than that of defendant). We agree with the

trial court that the preponderance of the evidence establishes that Andrew’s negligence

was more than fifty percent and that pursuant to the doctrine of comparative negligence,

Andrew is precluded from recovering any damages from T.W. Hunter.

C. Negligent Supervision

Teachers have a duty to supervise their students to protect them from harm, but

this does not mean that a teacher has breached this duty whenever a student gets injured

while at school. Cadorette v. Sumner Cnty. Bd. of Educ., No. 01A01-9510-CV-00441,

1996 WL 187586, at *2 (Tenn. Ct. App. Apr. 19, 1996). Teachers and other school

officials are required to exercise the standard of care that is “reasonable and ordinary care

under the circumstances.” Nickelson v. Sumner Cnty. Bd. of Educ., No. 01A01-9807-CV-

00375, 1999 WL 767813, at *3 (Tenn. Ct. App. Sept. 29, 1999) (citing Hawkins Cnty. v.

Davis, 391 S.W.2d 658, 660 (Tenn. 1965)); see also Snider v. Snider, 855 S.W.2d 588,

590 (Tenn. Ct. App. 1993). However, “teachers and local school districts are not

expected to be insurers of the safety of students while they are at school.” Nickelson,

1999 WL 767813, at *2; see also Cadorette, 1996 WL 187586, at *2; King v. Kartanson,

720 S.W.2d 65, 68 (Tenn. Ct. App. 1986). A teacher’s “duty of reasonable care must be

considered in relation to all the relevant circumstances, and the degree of foreseeability

needed to establish a duty of care decreases in proportion to increases in the magnitude of

the foreseeable harm.” Nickelson, 1999 WL 767813, at *2. The amount of supervision a

teacher is required to exercise is based on the age and experience of the students, their

maturity level, and the dangers of a particular situation. King, 720 S.W.2d at 68.

Coach Niehaus was supervising the students while they were picking up trash in

the bleachers. He testified that he was gone for just a few minutes to find another mop

before Andrew fell, and that he was in the gymnasium at the time Andrew fell. The

evidence was disputed regarding whether Andrew was required to clean up the trash from

the bleachers after mopping the bathroom or whether he elected to join his classmates in

the bleachers. The evidence was also disputed regarding whether Andrew’s shoes were

wet enough to leave marks on the floor after mopping the bathroom such that he would

be more likely to slip in the bleachers. The trial court found that Andrew decided on his

own to clean the bleachers without being required to do so by either Coach Lowe or

Coach Niehaus. The court also found “no credible evidence” that Andrew’s shoes were

wet after he finished mopping. A trial court judge is in a better position than we are to

determine witness credibility because he or she is able to observe the witnesses and

evaluate their demeanor. Madden Phillips Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d

800, 820 (Tenn. Ct. App. 2009). Therefore, we will not disturb a trial court’s findings of

fact based on witnesses’ credibility unless clear and convincing evidence convinces us

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otherwise. Id.; Forrest Constr., 337 S.W.3d at 220. There is no clear and convincing

evidence to the contrary here.

A teacher cannot supervise all of his or her students every minute of the day. See

Nickelson, 1999 WL 767813, at *4. “[T]aken to its logical conclusion, [a duty to observe

his or her students continuously] would preclude a teacher from performing any task

which required his or her attention elsewhere.” Id. Coach Lowe was asked why he was

not able to supervise the students “constantly,” and he replied:

You can’t be everywhere at once, which is impossible. You know, if I

wanted to move these eighth graders around everywhere we went like a

gaggle of geese, you know, if we went to the restroom, we all go together,

but I still can only supervise half of them because I’m not going into the

girls’ bathroom. So there is going to be times when students just aren’t

supervised 100 percent of the time. If my back was turned to a student

while I’m helping a student behind me, I may be in his midst, but I’m not

seeing what he’s doing.

The Crocketts contend Andrew would not have hurt himself in the bleachers if he

had not been required to pick trash up from the bleachers after mopping the bathroom.

The trial court found, however, that the evidence did not show Andrew’s shoes were wet

after he finished mopping or that he was required to clean the bleachers. As discussed

above, we defer to the trial court’s findings on these issues because the testimony was

disputed and the trial court was in the best position to determine the witnesses’

credibility. Based on these findings of fact, the Crocketts are unable establish cause in

fact or proximate cause. See King, 419 S.W.3d at 246-47 (providing thorough discussion

of cause in fact and proximate cause).

For all of these reasons, we find the preponderance of the evidence supports the

trial court’s judgment that T.W. Hunter is not liable for negligently supervising Andrew

when he fell and hurt his leg.

III. CONCLUSION

The trial court’s judgment is affirmed. Costs of this appeal shall be taxed against

the appellants, Donald and Melissa Crockett, for which execution shall issue, if

necessary.

_________________________

ANDY D. BENNETT, JUDGE

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