Crystal Spearman, Individually and as Parent and Next Friend of Kenji Lewis, a Minor v. Shelby County Board of Education

01/15/2021

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

September 16, 2020 Session

CRYSTAL SPEARMAN, Individually and as Parent and Next Fried of

KENJI LEWIS, a Minor v. SHELBY COUNTY BOARD OF EDUCATION

and SHELBY COUNTY SCHOOLS

Appeal from the Circuit Court for Shelby County

No. CT-003144-16 Yolanda R. Kight, Judge

___________________________________

No. W2019-02050-COA-R3-CV

___________________________________

This suit involves an injury sustained by a minor at a track and field tryout at the middle

school he attended. The minor’s mother brought suit individually and on behalf of her

minor child against the county school system and the school board for the minor’s injuries

and subsequent medical expenses. After a bench trial, the trial court found in favor of the

plaintiff and awarded her $200,000 in compensatory damages. The defendants appealed.

We affirm the trial court’s decisions and remand.

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

Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN

STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Andre B. Mathis, Memphis, Tennessee, for the appellants, Shelby County Board of

Education and Shelby County Schools.

Derek Fairchilds, Memphis, Tennessee, for the appellee, Crystal Spearman, individually,

and as the parent and next friend of Kenji Lewis, a minor.

OPINION

I. FACTS & PROCEDURAL HISTORY

This suit involves a claim for personal injuries sustained by a minor, Kenji Lewis

(“Kenji”), and brought by his mother, Crystal Spearman (“Plaintiff”), under the Tennessee

Governmental Tort Liability Act (“the GTLA”). In August 2016, Plaintiff filed a claim for

negligence under the GTLA against the Shelby County Board of Education and Shelby

County Schools (collectively “Defendants”). In her complaint, Plaintiff sought to recover

for Kenji’s injuries, his pain and suffering, his loss of enjoyment of life, his mental anguish,

and for medical bills incurred as a result of the incident.

The events that gave rise to the suit occurred on January 27, 2016, at Geeter Middle

School in Memphis, Tennessee.1 At that time, Kenji was twelve years old and a sixth-

grade student at Geeter Middle School. On the day of the incident, track and field tryouts

were held in a field behind the school. Marcus Mosby, who at the time was a teacher

assistant and track and field coach at the school, was in charge of the tryouts.

Approximately 30 to 40 students attended the tryouts, including Kenji. One event that was

being held as part of the tryouts was the shot put. The shot put event involves a person

holding a heavy metal ball under his or her chin, spinning, and throwing the ball as far as

he or she can. Kenji had played a variety of sports, including football, since he was five or

six years old. However, prior to the tryouts he had not participated in shot put and was not

familiar with the event. Although Mr. Mosby competed in track and field when he was in

high school, he did not compete in the shot put event.

During the tryouts, Mr. Mosby stood approximately 25 feet away from the students.

While Mr. Mosby observed, the students took turns throwing a shot put in his direction.

Two students stood near Mr. Mosby to help retrieve the thrown balls. The shot put being

used during the tryouts was made of metal, approximately the size of an orange, and

weighed between eight and ten pounds. Mr. Mosby testified that before a student would

throw a shot put, he would make sure the other students were behind the person throwing.

At some point during the tryouts, Mr. Mosby stopped the students to demonstrate how to

properly throw the shot put. While Mr. Mosby was still standing across from the group of

students, he verbally instructed and motioned with his hands for the students to move back.

Mr. Mosby testified that prior to throwing the shot put, he also turned and took a few steps

in the other direction. Mr. Mosby testified that the group of students was beginning to

move back when he turned to demonstrate.

With his back facing the group of students, Mr. Mosby turned and threw the shot

put back toward the group of students, now standing approximately 30 to 40 feet away.

Mr. Mosby stated that he intended to have the shot put fall short of the students. However,

Kenji did not move farther away and stood approximately five feet closer to Mr. Mosby

than the other students. Upon Mr. Mosby releasing the shot put, he immediately realized

it was going to strike Kenji. He yelled for Kenji to move, but before Kenji could move,

the shot put struck Kenji in the side of his head, causing him to fall to the ground. Kenji

testified that he did not see his classmates move backward and did not hear Mr. Mosby

1

Geeter Middle School is part of Shelby County Schools, which is controlled and managed by the

Shelby County Board of Education.

-2-

instruct them to move back. Prior to being struck by the shot put, Kenji was facing

sideways in relation to Mr. Mosby and did not see him throw it towards him.

After the shot put hit Kenji in the side of his head, Mr. Mosby rushed to Kenji. Mr.

Mosby stated that he saw blood coming from Kenji’s mouth and could feel an indentation

on the side of Kenji’s head. At trial, Kenji stated that after being struck by the shot put, he

did not know what happened, he was unable to get up from the ground, and he could not

move the right side of his body. Emergency personnel were called to the scene, and Kenji

was taken by ambulance to LeBonheur Children’s Hospital in Memphis. On the way to

the hospital, the emergency personnel recorded that Kenji reported pain of 10 on a scale of

1 to 10.

In total, Kenji spent three days at LeBonheur Children’s Hospital. Kenji’s parents

testified that when he was initially admitted, he had difficulty maintaining consciousness

and speaking. However, the hospital records indicate that Kenji was alert and oriented. At

the hospital, Kenji reported numbness along the right side of his body and was experiencing

pain between 8 and 10 on a scale of 1 to 10. He also stated that he was scared he was going

to die and would not be able to play sports again due to the injury. Dr. Paul Klimo, a

pediatric neurosurgeon, examined Kenji at the hospital. Dr. Klimo determined that Kenji

suffered a cosmetic (meaning easily visible) skull defect in the form of a depressed skull

fracture,2 caused by the shot put striking him. Kenji received prescription medications at

the hospital to manage his pain.

Kenji underwent a CT scan shortly after being admitted to the hospital. The initial

CT scan revealed that Kenji suffered a depressed skull fracture to the left side of his skull,

measuring 4.5 by 4.5 centimeters. The scan showed that Kenji’s skull was depressed by

7.5 millimeters. While later scans showed signs of brain damage, the initial scan on

January 27, 2016, did not show evidence of brain damage or swelling to the brain. After

receiving the results of the CT scan, Kenji was scheduled for surgery to repair his injury

the next morning.

Kenji spent the night before his surgery at the hospital. Throughout his first night

in the hospital, Kenji reported to be in severe pain and was administered several types of

pain medications, including morphine and oxycodone. Kenji and Plaintiff both testified

that he barely slept and spent a significant portion of the night crying and screaming.

Throughout the night, Kenji expressed his worry about the potential of not being able to

play sports again. At trial, Plaintiff testified that Kenji was angry, upset, and made

comments about wanting to die or wanting to pull the medical equipment out of his arms.

2

Dr. Merrill Wise, Plaintiff’s medical expert, testified that a “depressed skull fracture” is a break

in the continuity of a person’s skull that results in the skull’s contour being depressed from its normal

position. In this case, Dr. Wise determined that Kenji’s depressed skull fracture was the result of blunt

force trauma.

-3-

The next morning, January 28, 2016, Dr. Klimo performed surgery on Kenji to

repair his depressed skull. Prior to surgery, Kenji commented that he continued to

experience immense pain, that there was still numbness and “tingling” on the right side of

his body, and that he was nervous about the surgery. The surgery performed by Dr. Klimo

was described as a left parasagittal parietal craniotomy. It involved Dr. Klimo removing

the depressed portion of Kenji’s skull, reducing the depression, and reattaching the repaired

portion of the skull. Titanium plates and screws, known as a Biomet plating system, were

used to reattach the repaired portion of skull. Dr. Klimo testified that the plating system is

permanent and will remain unless an issue arises that requires it to be surgically removed.

When Dr. Klimo first removed the damaged portion of Kenji’s skull, he discovered a

notable hematoma (a collection of blood under the scalp) at the impact site of Kenji’s head.

The surgery was successful, and Kenji remained in the hospital for monitoring until the

next day.

The remainder of the time Kenji spent in LeBonheur Children’s Hospital was

similar to the initial portion of his stay. Kenji’s pain continued, although he testified that

it was less severe after surgery. He had trouble eating and needed assistance from Plaintiff

to walk. Throughout the second night, Kenji remained restless, he would cry out after

having nightmares of the incident, and he remained in varying levels of pain. On January

29, the day Kenji was discharged, he was reported to be in better spirits with his pain being

managed. Throughout his three days at the hospital, Kenji received a consistent and varied

dose of pain medications, including fentanyl, morphine, Percocet, oxycodone, and Tylenol.

To manage his pain at home, Kenji was prescribed Percocet, oxycodone, and ibuprofen.

Upon being discharged, Plaintiff stated that Kenji’s primary concern was the appearance

of the scar on the side of his head. Still, Kenji continued to report pain and numbness on

the right side of his body.

Kenji spent the next several weeks at home, without going to school, playing sports,

or playing with his friends. Before returning to school, Kenji remained at home for

approximately two to three weeks. During that time, he was able to keep up with his

schoolwork and maintain good grades. However, his nightmares and ailments continued.

Kenji and Plaintiff testified that Kenji would occasionally wake up screaming in the middle

of the night with images of the incident replaying in his head. They stated that these

incidents occurred frequently when Kenji first returned home and that, up until trial, they

have continued to a lesser degree. While Kenji’s pain was being managed at home, he

testified that he began experiencing headaches, which did not occur prior to his injury. At

trial, he testified that he still experiences headaches to varying degrees of frequency.

Following his release from the hospital, Kenji had several follow-up appointments

with Dr. Klimo. Approximately one month after the incident, Dr. Klimo released Kenji for

participation in track and field. However, Kenji never returned to track and field out of

fear from the incident. At this time, Kenji had returned to school, he reported no major

-4-

problems, and his surgical incision was healing well. In April 2016, approximately three

months after being injured, Plaintiff reported that Kenji was experiencing headaches and

dizziness. At this appointment, Kenji underwent another CT scan that showed a small

amount of hypodensity on Kenji’s brain surrounding the site of impact from the shot put.

Dr. Klimo and Dr. Wise testified that hypodensity on a brain is bruising or scarring that

indicates a permanent injury or brain damage. Dr. Wise further explained that the evidence

of hypodensity likely did not show up on the CT scan from the day of the incident because

bruising of the brain may take weeks or months to develop. Despite the CT scan that

indicated Kenji suffered a small amount of brain damage, Dr. Klimo released Kenji for full

participation in sports, including football.3 At subsequent follow-up appointments,

Plaintiff continued to report that Kenji was experiencing pain on the left side of his head,

dizziness, and headaches. Aside from these complaints, Kenji had no problems with

weakness, loss of sensation, balance, coordination, or reflexes, and his fracture site was

well-healed. At an appointment in February 2017, a CT scan again showed a small amount

of bruising or scarring on the left side of Kenji’s brain.4 Dr. Klimo testified that based on

the results of the CT scan, bruising or scarring on the brain appeared to be the result of

Kenji’s injury.

In preparation for this case, on November 10, 2017, Dr. Wise performed an

independent medical evaluation of Kenji. Dr. Wise testified that during the evaluation,

Kenji stated that he maintained his high grades, primarily receiving As and Bs, and is an

active participant in football and basketball. Kenji did not report problems with his vision,

hearing, balance, appetite, or sleep. He denied having suffered a seizure or having

problems focusing. While Kenji reported that he suffered weekly headaches, he also stated

that over-the-counter medicine helped manage the headaches and that he had not missed

any of his normal activities.

After evaluating Kenji and reviewing his medical records, Dr. Wise developed

several opinions on Kenji’s injuries. He concluded that Kenji suffered blunt force trauma

to his head, causing a depressed skull fracture that resulted in permanent brain damage or

scarring. Based on his review of the records, he found that the injury was caused by Kenji

being struck by the shot put. Dr. Wise also concluded that Kenji’s recurrent headaches are

due to the head trauma and that Kenji is at an elevated risk of developing posttraumatic

seizures and psychiatric problems. However, he also stated that he believed the headaches

to be mild and not a hindrance to Kenji’s normal functions, including participation in

sports. Furthermore, Dr. Wise found the medical services rendered to Kenji were necessary

for the evaluation and treatment of his injury. In total, Plaintiff incurred $63,858.69 in

medical bills. These bills include the emergency services on the day of the incident, the

3

Although Dr. Klimo released Kenji to play football after the April 25 visit, Plaintiff testified that

Kenji only took part in minor, non-physical drills.

4

The report generated from a scan in February 2017 stated that the scan showed encephalomalacia

on the left side of Kenji’s brain. Dr. Wise explained that in the context of this case, hypodensity and

encephalomalacia are synonymous.

-5-

care Kenji received at LeBonheur Children’s Hospital, and the follow-up appointments

with Dr. Klimo. In Dr. Wise’s opinion, the bills were reasonable and consistent with the

customary charges in the Memphis area. He testified that the bills reflect the cost of care

in response to Kenji’s injury.

Amidst the medical care and evaluations that Kenji received, on August 3, 2016,

Plaintiff filed her complaint in this case. Plaintiff filed her claims against Defendants under

the GTLA, claiming that Defendants are vicariously liable for the negligence of Mr.

Mosby. Plaintiff sought actual and compensatory damages for the injuries and expenses

sustained by her and Kenji. Defendants jointly answered on September 12, 2016. Several

years of litigation and discovery followed before the case was set for trial.

Prior to trial, the parties submitted several filings to the trial court. On January 4,

2019, Plaintiff filed a motion to exclude evidence rebutting the presumption under

Tennessee Code Annotated section 24-5-113(b)(1) that the medical expenses are

reasonable. The trial court granted this motion. On January 8, 2019, Defendants moved

to exclude Dr. Wise as an expert or, alternatively, to limit his testimony. In doing so,

Defendants claimed that Dr. Wise was unqualified to speak on the medical issues in this

case and that his opinions are speculative and unreliable. On the day of trial, the trial court

orally denied this motion and allowed Dr. Wise to testify. On January 11, 2019, Defendants

filed an objection to Plaintiff’s designation of Dr. Klimo’s deposition as evidence for trial.

At trial, Defendants objected again to the use of Dr. Klimo’s deposition. Ultimately, Dr.

Klimo was absent from trial, and the trial court allowed Plaintiff to read Dr. Klimo’s

deposition into evidence.

A three-day bench trial took place on January 22, January 23, and February 28,

5

2019. Over these three days, several witnesses testified in-person, including Mr. Mosby,

Kenji, Dr. Wise, and Plaintiff. Additionally, portions of Dr. Klimo’s deposition were read

into evidence by the paralegal for Plaintiff’s counsel.

Mr. Mosby testified on how the incident occurred and events that transpired after

the incident. Shortly after the incident on January 27, 2016, the Shelby County Board of

Education performed an investigation. Representatives for the Board informed Mr. Mosby

that the investigation revealed that Mr. Mosby failed to use proper protocol when he

demonstrated how to throw the shot put. Based on the investigation, the representatives,

including the Superintendent, concluded that Mr. Mosby neglected his duty as a school

employee. At the end of the 2015-2016 school year, Mr. Mosby resigned from his

employment at Geeter Middle School.

Mr. Mosby also testified that he accepted full responsibility for Kenji’s injuries. He

5

The final order of judgment states that trial only took place on January 22 and January 23, 2019.

However, it is clear that additional proceedings took place on February 28, 2019.

-6-

did not fault Kenji for not moving out of the way or not listening to his directions. Instead,

Mr. Mosby agreed that the safest way to throw a shot put was to throw it away from other

people, ensuring others are behind the person throwing. He also stated that he did not

receive proper training on the safety protocols for the shot put event prior to the incident.

While Mr. Mosby took responsibility for injuring Kenji with the shot put, he stressed that

it was an accident and that he did not intend to strike Kenji.

Along with the headaches and nightmares, Kenji testified regarding other ways the

incident has affected him. He stated that it took several months before he was “back” to

his normal routine. While Dr. Klimo cleared him to play football in April 2016, Kenji

testified the he began playing again in August 2016. He stated that he now plays football

and basketball “like everybody else,” with no restrictions. Despite his return to sports,

though, Kenji still worries about the scar on his head from the surgery. He testified that

the scar is still tender to the touch and that other students at his school have made comments

about him “hav[ing] a dent in [his] head.”

In addition to many of the facts previously discussed, Plaintiff testified on Kenji’s

adjustment after the incident. She verified that Kenji has continued playing football, a

sport in which he excels, but he did not return to track and field. Plaintiff also testified that

Kenji is self-conscious about his scar and residual deformity on his head because of how it

may appear later in life. She stated that Kenji’s father, his grandfather, and his uncles all

have gone bald. She claimed that this family history worries Kenji, making him think he

will lose his hair, which will cause his scar and skull depression to show. Despite Kenji’s

fear that his scar will show in the future, Plaintiff, Kenji, and Dr. Klimo (at previous

appointments) stated that, currently, Kenji’s hair covers the scar, making it difficult to see.

At the close of Plaintiff’s proof, Defendants moved for an involuntary dismissal

under Tennessee Rule of Civil Procedure 41.02(2). In doing so, Defendants claimed that

Plaintiff failed to show Mr. Mosby acted negligently. Instead, they asserted that Mr.

Mosby’s actions were intentional, reckless, or grossly negligent. As a result, they claimed

that they were immune from liability under the GTLA. The trial court disagreed and denied

the motion. After the trial court denied the motion for involuntary dismissal, Defendants

rested without putting on proof.

On October 15, 2019, the trial court rendered an oral ruling in favor of Plaintiff.

Two weeks later, it entered a final written order, incorporating the transcript of its oral

ruling by reference. In particular, the court found (1) that Mr. Mosby was acting within

the scope of his employment at Geeter Middle School at the time of the incident; (2) that

Mr. Mosby acted negligently in injuring Kenji; (3) that Mr. Mosby’s actions were the actual

and proximate cause of Kenji’s injuries and damages; and (4) that Defendants are

vicariously liable for Mr. Mosby’s negligent acts and are not immune under the GTLA.

The court further found that no fault should be assessed to Kenji and that Defendants,

through Mr. Mosby, were solely liable. The court awarded Plaintiff $200,000 in

-7-

compensatory damages for Kenji’s injuries and medical expenses.

Defendants timely appealed.6

II. ISSUES PRESENTED

Defendants raise six issues on appeal, which we have reworded and rearranged:

1. Whether the trial court erred in denying Defendants’ motion for involuntary

dismissal;

2. Whether the trial court erred in entering a judgment in favor of Plaintiff;7

3. Whether the trial court erred in admitting the deposition testimony of Dr. Paul

Klimo;

4. Whether the trial court erred in denying Defendants’ motion to exclude Dr.

Merrill Wise’s expert testimony;

5. Whether the trial court erred in admitting Kenji’s medical bills; and

6. Whether the trial court erred in finding that Defendants did not rebut the

presumption that Kenji had no capacity for negligence.

In addition to the issues raised by Defendants, Plaintiff raises one issue:

1. Whether the trial court erred in only awarding Plaintiff $200,000 in

compensatory damages.

For the reasons stated herein, the decisions of the trial court are affirmed and this

case is remanded.

III. STANDARD OF REVIEW

In civil actions where the trial court determines the facts, factual findings are

6

After Defendants filed the notice of appeal, the trial court entered a consent order awarding

Plaintiff $12,077.30 in discretionary costs under Tennessee Rule of Civil Procedure 54.04(2).

7

While Defendants list this as an issue, we find no substantive discussion on the issue in their

principal brief. Therefore, this issue is waived on appeal. See Sneed v. Bd. of Prof’l Responsibility of

Supreme Court, 301 S.W.3d 603, 615 (Tenn. 2010) (stating “[i]t is not the role of the courts . . . to research

or construct a litigant’s case or arguments, . . . and where a party fails to develop an argument in support of

[its] contention . . ., the issue is waived”); Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (stating

“an issue is waived where it is simply raised without any argument regarding its merits”).

-8-

reviewed de novo with a presumption of correctness, unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010).

Questions of law are reviewed de novo with no presumption of correctness. In re Sidney

J., 313 S.W.3d 772, 774 (Tenn. 2010).

Review of a trial court’s ruling on a motion for involuntary dismissal under

Tennessee Rule of Civil Procedure 41.02(2) is governed by Rule 13(d) of the Tennessee

Rules of Appellate Procedure. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706, 711 (Tenn.

2007). When reviewing a decision on a motion for involuntary dismissal, the trial court’s

factual findings are reviewed de novo with a presumption of correctness. Tenn. R. App. P.

13(d); Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). The court’s legal conclusions

are reviewed de novo with no presumption of correctness. Eberbach v. Eberbach, 535

S.W.3d 467, 473 (Tenn. 2017). “The court may dismiss the plaintiff’s claim if the plaintiff

has failed to make out a prima facie case.” Shore v. Maple Lane Farms, LLC, 411 S.W.3d

405, 414 (Tenn. 2013) (citing Bldg. Materials Corp., 211 S.W.3d at 711). Similarly,

dismissal is appropriate under Rule 41.02(2) when “the plaintiff fail[s] to demonstrate a

right to the relief sought.” Id. at 413 (citing City of Columbia v. C.F.W. Constr. Co., 557

S.W.2d 734, 740 (Tenn. 1997)).

“Generally, the admissibility of evidence is within the sound discretion of the trial

court.” Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 294 (Tenn. 2017) (citing

Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)). “[A] trial court’s

decision to admit or exclude evidence will be overturned on appeal only where there is an

abuse of discretion.” Id. Similarly, “questions regarding the admissibility, relevancy, and

competency of expert testimony are left to the discretion of the trial court, and the trial

court’s ruling may only be overturned if that discretion is abused or arbitrarily exercised.”

Mabry v. Bd. of Prof’l Responsibility of Supreme Court, 458 S.W.3d 900, 909 (Tenn. 2014)

(citation omitted). A trial court abuses its discretion “when it ‘applie[s] an incorrect legal

standard, or reache[s] a decision which is against logic or reasoning that cause[s] an

injustice to the party complaining.’” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)

(alterations in original) (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

In a bench trial, a trial court’s calculation of damages is reviewed as a question of

fact. Poole v. Union Planters Bank, N.A., 337 S.W.3d 771, 789 (Tenn. Ct. App. 2010)

(citing Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998), abrogated on other

grounds by Bowen ex rel. Doe v. Arnold, 502 S.W.3d 102, 115 (Tenn. 2016)); Moody v.

Lea, 83 S.W.3d 745, 751 (Tenn. Ct. App. 2001). Therefore, “[t]his Court will modify a

trial court’s award of damages . . . only if the evidence preponderates against the amount

of damages awarded.” Poole, 337 S.W.3d at 789; see also Moody, 83 S.W.3d at 751 (citing

Beaty, 15 S.W.3d at 829). In contrast, a trial court’s measure of damages is a question of

law that is reviewed de novo, without a presumption of correctness. Poole, 337 S.W.3d at

789 (citing Beaty, 15 S.W.3d at 829).

-9-

IV. DISCUSSION

A. Involuntary Dismissal

In their Rule 41.02 motion for involuntary dismissal, Defendants claimed that they

were immune from suit under the GTLA because Mr. Mosby’s actions were intentional,

reckless, or grossly negligent. On appeal, Defendants assert the same reasons for why their

motion should have been granted.

In Tennessee, “the doctrine of sovereign immunity is firmly embedded in our

jurisprudence.” City of Lavergne v. S. Silver, Inc., 872 S.W.2d 687, 689 (Tenn. Ct. App.

1993); see also Sallee v. Barrett, 171 S.W.3d 822, 826 (Tenn. 2005). “[O]ur state

constitution has empowered our legislature to waive the protections of sovereign immunity:

‘Suits may be brought against the State in such manner and in such courts as the Legislature

may by law direct.’” Hughes v. Metro. Gov’t of Nashville & Davidson Cty., 340 S.W.3d

352, 360 (Tenn. 2011) (quoting Tenn. Const. art. I, § 17). Stated differently, in order to

remove immunity from the state, the Legislature “must specifically consent to suit.” Id.

The GTLA, enacted in 1973, “is premised explicitly on the absolute immunity of

governmental entities.” City of Lavergne, 872 S.W.2d at 690. Under the GTLA, unless

otherwise stated, “all governmental entities shall be immune from suit for any injury which

may result from the activities of such governmental entities wherein such governmental

entities are engaged in the exercise and discharge of any of their functions, governmental

or proprietary.” Tenn. Code Ann. § 29-20-201; see also Hughes, 340 S.W.3d at 360.

“When immunity is removed [under the GTLA,] any claim for damages must be brought

in strict compliance with the terms of [the GTLA].” Tenn. Code Ann. § 29-20-201(c).

While there are several exceptions to the general rule of governmental immunity, see Tenn.

Code Ann. §§ 29-20-202 to -205, only one is particularly relevant to this appeal. Under

the GTLA, governmental immunity “is removed for injur[ies] proximately caused by a

negligent act or omission of any employee [acting] within the scope of his employment.”

Id. 29-20-205 (emphasis added); see also Hughes, 340 S.W.3d at 368. In contrast, the

intentional torts of assault and battery that are committed by an employee acting within the

scope of his employment do not remove governmental immunity. See Hughes, 340 S.W.3d

at 368-69.

As our Supreme Court has previously stated:

Because an assault or a battery is not a negligent act, the “negligent act or

omission” required to waive immunity under section 29-20-205 does not

refer to the intentional tort. When, therefore, there has been no showing of

negligence by the governmental entity in supervision of one of its employees

acting within the scope of employment, the exception to sovereign immunity

set forth in section 29-20-205 will not apply.

- 10 -

Id. (citations omitted).8 Similarly, when an employee’s actions constitute more than

ordinary negligence, such as recklessness or gross negligence, immunity from suit is not

removed under section 29-20-205. See Harp v. Metro. Gov’t of Nashville, No. M2012-

02047-COA-R3-CV, 2014 WL 265713, at *3 (Tenn. Ct. App. Jan. 22, 2014). Therefore,

in addition to the requirements to successfully assert a claim for negligence under section

29-20-205, as with any negligence claim, the plaintiff must prove five essential elements:

“(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.” Giggers v. Memphis Hous. Auth., 277 S.W.3d

359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

In the present case, there are several critical facts that are undisputed. The Shelby

County Board of Education and Shelby County Schools are clearly “governmental entities”

within the meaning of the GTLA. See Tenn. Code Ann. § 29-20-102(3)(A). Additionally,

there is no dispute that Mr. Mosby was an employee of these entities at the time of the

incident and was acting within the scope of that employment at the time Kenji was injured.

Further, the trial court explicitly stated that Defendants are not entitled to governmental

immunity because Mr. Mosby’s actions constituted ordinary negligence rather than an

intentional tort, recklessness, or gross negligence.

At trial and on appeal, Defendants’ only contention with the trial court’s decision to

deny their motion for involuntary dismissal relates to whether they are immune from suit

under the GTLA. As a result, rather than addressing all of the required elements for a

negligence claim under the GTLA, our review will be limited to the issue of governmental

immunity. See Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012) (stating “[a]ppellate

review is generally limited to the issues that have been presented for review”); Bean, 40

S.W.3d at 56 (stating “an issue is waived where it is simply raised without any argument

regarding its merits”).

1. Intentional Torts – Assault and Battery

Defendants first assert that they are immune from suit under the GTLA because Mr.

Mosby’s actions constitute an assault or battery. In addressing a case alleging assault, this

Court “draw[s] upon the definition of assault in our criminal statutes and the cases

interpreting it.” Hughes, 340 S.W.3d at 371. Accordingly, criminal assault is defined as

occurring when someone: “(1) [i]ntentionally, knowingly or recklessly causes bodily injury

to another; (2) [i]ntentionally or knowingly causes another to reasonably fear imminent

bodily injury; or (3) [i]ntentionally or knowingly causes physical contact with another and

a reasonable person would regard the contact as extremely offensive or provocative.”

Tenn. Code Ann. § 39-13-101(a). “This Court has defined the tort of battery as ‘an

8

Plaintiff’s complaint did not include a claim for negligent supervision by Defendants.

- 11 -

intentional act that causes an unpermitted, harmful or offensive bodily contact.’” Lacy v.

Hallmark Volkswagen Inc. of Rivergate, No. M2016-02366-COA-R3-CV, 2017 WL

2929502, at *4 (Tenn. Ct. App. July 10, 2017) (quoting Doe v. Mama Taori’s Premium

Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *4 (Tenn. Ct. App. Apr.

5, 2001)). Based on the Supreme Court’s directive in Hughes, 340 S.W.3d at 370-71, and

its subsequent cases, we find that Mr. Mosby did not commit an assault or battery in this

case.

Under both the criminal and civil applications of assault, an assault does not take

place unless the person intends to cause harmful or offensive contact with another or

intends to create an apprehension of harm. Hughes, 340 S.W.3d at 370-71 (discussing

State v. Wilson, 924 S.W.2d 648 (Tenn. 1996)). It is clear from the record that Mr. Mosby

intended neither in this case. While the end result of Mr. Mosby throwing the shot put was

tragic, he clearly testified that he did not intend to strike Kenji. His intent was not to cause

Kenji or another student harm or to cause fear of getting injured by the shot put. Instead,

he threw the shotput with the sole intention of demonstrating for the students how to

properly throw the shot put. There is no evidence to indicate otherwise.

In their appellate brief, Defendants admit that Mr. Mosby did not intend to strike

any of the students with the shot put. Yet, they vehemently assert that several prior cases

involving assault and battery are analogous to the case at bar. We find these cases to be

distinguishable to the facts at hand.

In Saunders v. State, a criminal defendant was convicted of assault and battery after

firing a shotgun from the window of his home and hitting a victim. 345 S.W.2d 899, 900-

01 (Tenn. 1961). At trial, the defendant testified that he did not intend to kill the victim

when he fired the shotgun. Id. at 902. Regardless, the court upheld his conviction, holding

that specific intent to cause harm was not necessary to constitute an assault and battery

when the defendant acted with general malevolence or recklessness. Id. In contrast, Mr.

Mosby throwing the shot put was not “malum in se,” an act where an “injury is a natural

or probable consequence of the act.” Id. The natural result or consequence of hurling a

shot put is to accomplish athletic achievement, not to frighten or injure another.

State v. James, No. 01C01-9505-CC-00132, 1995 WL 761316 (Tenn. Crim. App.

Dec. 19, 1995), is also discussed by Defendants. In James, a jail inmate was convicted of

assault after throwing a jar of hair grease out of his cell door and striking a security officer

standing down a flight of stairs. Id. at *1-2. The inmate claimed that he did not intend to

strike the officer with the jar and could not even see where the jar landed. Id. at *2.

However, the court stated that “assault includes the intentional, knowing, or reckless

causing of bodily injury to another.” Id. (emphasis added) (citing Tenn. Code Ann. § 39-

13-101). As a result, the court upheld the inmate’s guilty verdict of assault for recklessly

committing assault by throwing the jar. Id. As we will discuss below, we cannot say that

Mr. Mosby acted recklessly when he threw the shot put. Therefore, the holding in James

- 12 -

is not applicable in the case before us.

Defendants also compare the facts in Hughes, 340 S.W.3d 352, to this case.

Although their comparison is conclusory in nature, it bears discussing. In Hughes, an

employee of the Nashville Public Works Department revved the engine of a front-end

loader, startling the plaintiff who was nearby. Id. at 355. The plaintiff fell and suffered

serious injuries as a result of the incident. Id. Unlike Mr. Mosby, in Hughes, the employee

intended to frighten the plaintiff by engaging in “horseplay.” Id. at 371. As a result, the

Supreme Court determined that he committed the intentional tort of assault despite not

intending to injure the plaintiff. Id. Again, there is no evidence in the present case that

would suggest Mr. Mosby intended to frighten Kenji or another student by throwing the

shot put. In the absence of such evidence, the facts in Hughes are not analogous to the

present circumstances.

The results of Defendants’ own investigation concluded that Mr. Mosby did not

commit an intentional tort. The investigation resulted in a conclusion that Mr. Mosby

neglected his duty as the track and field coach. Dorsey Hopson, II, the Superintendent of

Shelby County Schools, adopted this finding. The investigation and subsequent findings

did not mention an assault or battery by Mr. Mosby. Further, school officials in Tennessee

are required to report a child’s injury to the Department of Children’s Services or to other

appropriate authorities if it appears that the injury was the result of abuse, brutality, or

neglect. See Tenn. Code Ann. § 37-1-403(a), (i). Yet, there is no indication that school

officials reported the incident under this section. The absence of such a report indicates

that Superintendent Hopson and Defendants by proxy did not believe Mr. Mosby

committed an abusive act of assault or battery by accidently striking Kenji with the shot

put. We also note that Mr. Mosby was not terminated but continued his employment

through the remainder of the school year.

For these reasons, we agree with the trial court that Mr. Mosby did not act

intentionally when he threw the shot put towards Kenji.

2. Recklessness

A person acts with reckless intent “when the person is aware of but consciously

disregards a substantial and unjustifiable risk.” Tenn. Code Ann. § 39-11-302(c); see also

Brown v. Hamilton Cty., 126 S.W.3d 43, 49 (Tenn. Ct. App. 2003). To be reckless, “[t]he

risk must be of such a nature and degree that its disregard constitutes a gross deviation

from the standard of care that an ordinary person would exercise under all the

circumstances as viewed from the accused person’s standpoint.” Tenn. Code Ann. § 39-

11-302(c); see also Brown, 126 S.W.3d at 49.

The circumstances and actions that led to a finding of recklessness in State v. James

are not analogous to Mr. Mosby’s in this case. In James, the defendant inmate knew that

- 13 -

an officer was standing nearby outside of his cell when he threw the jar of grease. See

James, 1995 WL 761316, at *1-2. Unlike Mr. Mosby demonstrating proper technique in

a sport, the inmate threw the jar out of frustration. Id. at *2. He took no precautions to

ensure that the jar would not hit someone nearby. See id. He threw the jar out of his cell

and towards the officer without any concern for the potential that doing so may injure

others nearby. Id. Therefore, regardless of whether the inmate truly did not intend to strike

the nearby officer, he disregarded the risk of hitting someone with the jar when he threw it

out of his cell. Id. at *1-2. As a result, the court concluded that he acted recklessly. Id. at

*2.

Based on the uncontroverted testimony of Mr. Mosby, we find that he did not

consciously disregard a substantial risk when throwing the shot put towards the group of

students. While his efforts were obviously futile, Mr. Mosby did make efforts to safely

throw the shot put towards the students. He testified that he moved farther away from the

students before throwing. Additionally, he stated that he verbally instructed and motioned

for the students to also move farther away. After Mr. Mosby and the students moved farther

apart, he estimated they were separated by approximately 35 to 40 feet, 10 to 15 feet farther

than before they moved. Understanding that he could throw the shot put farther than the

students, Mr. Mosby testified that he did not throw it as hard as he could. Taken together,

the evidence shows that Mr. Mosby did not “consciously disregard” the risk of throwing

the shot put. He made several efforts, albeit unsuccessfully, to limit the risk of harm.

In determining whether Mr. Mosby was reckless, his actions must also be viewed

from his untrained perspective. See Tenn. Code Ann. § 39-11-302(c); Brown, 126 S.W.3d

at 49. Mr. Mosby was not a seasoned expert in the sport of shot put. Although he

participated in track and field in his youth, he was only vaguely familiar with shot put.

Further, Mr. Mosby testified that he was not trained in shot put prior to Kenji being injured.

Even as a coach, Mr. Mosby’s experience was slim. He only worked at Geeter Middle

School for one year, and the date of the incident was the first day of the track and field

tryouts.

After considering Mr. Mosby’s lack of experience and training, we find that his

actions were not a gross deviation from the standard of care that a person in his

circumstances would exercise. Mr. Mosby did not act recklessly when he distanced himself

from the students, instructed them to move back, and threw the shot put with less than full

force.9

9

In her complaint, Plaintiff alleges that Mr. Mosby was negligent and reckless. Defendants argue

that this statement is a judicial admission against Plaintiff, establishing that Mr. Mosby acted recklessly.

“However, the inferences to be drawn from the facts or the legal conclusions as set forth in a complaint are

not required to be taken as true.” Hurd v. Woolfork, 959 S.W.2d 578, 581 (Tenn. Ct. App. 1997) (citing

Dobbs v. Guenther, 846 S.W.2d 270, 273 (Tenn. App. 1992)). Additionally, an allegation of “reckless”

conduct is a legal conclusion that is reviewed de novo. See Eberbach v. Eberbach, 535 S.W.3d at 473;

Hurd, 959 S.W.2d at 581 (stating “the inferences to be drawn from the facts or the legal conclusions as set

- 14 -

3. Gross Negligence

Gross negligence is conduct that amounts to “a conscious neglect of duty or a callous

indifference to the consequences.” Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d

934, 938 (Tenn. 1994) (quoting Thomason v. Wayne Cty., 611 S.W.2d 585, 587 (Tenn. Ct.

App. 1980)). Gross negligence is more than acting inadvertently. See Conroy v. City of

Dickson, 49 S.W.3d 868, 871 (Tenn. Ct. App. 2001) (quoting Odum v. Haynes, 494 S.W.2d

795, 807 (Tenn. Ct. App. 1972)). To successfully assert a gross negligence claim, the party

must “prov[e] that the defendant has committed a negligent act” and “must prove that the

act was ‘done with utter unconcern for the safety of others, or one done with such a reckless

disregard for the rights of others that a conscious indifference to consequences is implied

in law.’” Thrasher v. Riverbend Stables, No. M2007-01237-COA-R3-CV, 2008 WL

2165194, at *5 (Tenn. Ct. App. May 21, 2008) (quoting Ruff v. Memphis Light, Gas, and

Water Div., 619 S.W.2d 526, 528 (Tenn. Ct. App. 1981)). “An act which otherwise would

be nothing more than simple negligence may amount to gross negligence if the defendant’s

negligent conduct also involves a dangerous instrumentality.” Id. at *6 (citing Cook, 878

S.W.2d at 938; Phelps v. Magnavox Co., 497 S.W.2d 898, 906 (Tenn. Ct. App. 1972)).

Again, although Mr. Mosby failed to take the greatest precautions when he injured

Kenji, he did not act with a “callous indifference” to potentially harming a student. See

Cook, 878 S.W.2d at 938. Mr. Mosby’s precautions, although minor, showed a concern

for the safety of the students. Mr. Mosby also testified that as soon as he turned and

released the shot put, he realized it was going to strike Kenji, so he yelled out for him to

move. As soon as the shot put struck Kenji, Mr. Mosby ran to his aid. While Mr. Mosby

inadvertently struck Kenji with the shot put, inadvertence on its own does not amount to

gross negligence. See Conroy, 49 S.W.3d at 871.

In its order denying Defendants’ motion for involuntary dismissal, the trial court

found that Mr. Mosby acted negligently rather than intentionally, recklessly, or with gross

negligence. For the reasons we have previously discussed herein, we agree. To the extent

the trial court relied on Mr. Mosby’s testimony in making this finding, its assessment of

Mr. Mosby’s credibility is not disturbed on appeal. Hughes, 340 S.W.3d at 360 (stating

“[b]ecause trial courts are able to observe the witnesses, assess their demeanor, and

evaluate other indicators of credibility, an assessment of credibility will not be overturned

on appeal absent clear and convincing evidence to the contrary”). The events and decisions

that led to Kenji being struck in the head by the shot put were fraught with questionable

judgment. However, despite the questionable judgment and Kenji’s serious injuries, Mr.

Mosby’s actions did not amount to gross negligence.

Because Mr. Mosby did not act intentionally, recklessly or with gross negligence

forth in a complaint are not required to be taken as true”).

- 15 -

when Kenji was injured, Defendants are not immune from suit under the GTLA. Instead,

we agree with the trial court that immunity has been stripped by the negligence of Mr.

Mosby under Tennessee Code Annotated section 29-20-205. Accordingly, we affirm the

trial court’s decision to deny Defendants’ motion for involuntary dismissal.

Based on our decision to affirm the denial of Defendants’ motion for involuntary

dismissal, the remaining issues raised by Plaintiff related to this motion are pretermitted.10

B. Admitting Dr. Klimo’s Deposition

Defendants argue that the trial court erred in admitting into evidence portions of the

transcript from Dr. Klimo’s deposition. Thirteen days before trial, Plaintiff filed her

designation of deposition testimony for use at trial. Included in her designation were

portions of the transcript from Dr. Klimo’s deposition. Over Defendants’ objection, the

trial court allowed the deposition testimony to be read into evidence. Defendants argue

that Plaintiff did not prove that Dr. Klimo was “unavailable” to testify as defined by

Tennessee Rule of Evidence 804(a), so his deposition transcript could not be admitted

under Tennessee Rule of Civil Procedure 32.01(3). We disagree.

Tennessee Code Annotated section 24-9-101 states that deponents such as “[a]

practicing physician, physician assistant, . . . or attorney” are “exempt from subpoena to

trial but [are] subject to subpoena to deposition.” Tenn. Code Ann. § 24-9-101(a)(6). Rule

32.01(3) of the Tennessee Rules of Civil Procedure permits the use of a deposition

transcript at trial if the witness is “unavailable,” as defined by Tennessee Rule of Evidence

804(a). Tenn. R. Civ. P. 32.01(3). Rule 804(a) lists several situations in which a witness

may be unavailable to testify. One situation includes the witness being “absent from the

hearing and the proponent of a statement has been unable to procure the [witness’s]

attendance by process.” Tenn. R. Evid. 804(a)(5).

Defendants’ argument that the trial subpoena exemption under section 24-9-101 is

not a ground for “unavailability” under Rule 804(a) is simply an erroneous statement of

10

In Defendants’ answer to Plaintiff’s complaint, they asserted that they were immune from suit

under the GTLA. However, the first time Defendants claimed that Mr. Mosby acted intentionally,

recklessly, or with gross negligence was after Plaintiff presented her case-in-chief, which was three years

after the injury. At oral argument on appeal, Defendants’ counsel admitted that they did not submit a

pleading prior to trial that suggested Mr. Mosby acted in such a fashion. To the contrary, throughout this

case, Defendants placed the entirety of the blame on Kenji, claiming that he was at fault for failing to follow

Mr. Mosby’s directions. While Mr. Mosby was no longer an employee of Defendants at the time of trial,

and he was never named as a defendant or represented by counsel for Defendants, this Court questions the

sincerity of Defendants’ apparent decision to forgo informing Mr. Mosby that they would allege he acted

intentionally, recklessly, or with gross negligence. At trial, counsel for Defendants indicated that this

argument and the written motion to dismiss was prepared several days before trial, indicating a premeditated

decision to present the issue at the eleventh hour. This last-minute and suspect trial tactic raises concern

with this Court. However, it is not an issue that warrants full discussion herein.

- 16 -

law. Time and again, this Court has held that the term “unavailable” under Rule of

Evidence 804(a)(5) includes a deponent subject to the subpoena exemption under section

24-9-101. See, e.g., In re Madison M., No. M2013-02561-COA-R3-JV, 2014 WL

4792793, at *4 (Tenn. Ct. App. Sept. 25, 2014) (citing Cullum v. Baptist Hosp. System,

Inc., No. M2012-02640-COA-R3-CV, 2014 WL 576012, at *3 (Tenn. Ct. App. Feb. 12,

2014)); Citadel Invs., Inc. v. White Fox Inc., No. M2003-00741-COA-R3-CV, 2005 WL

1183084, at *9 (Tenn. Ct. App. May 17, 2005).

It is clear that Dr. Klimo is a “practicing physician” and therefore exempt from

subpoena to trial under section 24-9-101(a). He is a licensed neurosurgeon in seven

different states, including Tennessee. He has been a full-time neurosurgeon since 2010,

currently performing surgeries at LeBonheur Children’s Hospital in Memphis. His primary

focus is pediatric neurosurgery. To no avail, Defendants argue that Plaintiff failed to

satisfy the requirements of section 24-9-101(a) because they did not attempt to serve Dr.

Klimo with a subpoena to trial. They claim that a party must attempt to serve the witness

with a subpoena before the deposition can be admitted, regardless of whether the witness

would inevitably exercise the exemption. There is no such requirement in Tennessee.

The facts related to this issue are analogous to those in Citadel Invs. Inc. v. White

Fox Inc., 2005 WL 1183084. In Citadel Invs., a practicing attorney was deposed prior to

trial. Id. at *8. The parties did not attempt to subpoena the attorney for trial, and the

attorney did not appear to testify. Id. at *9. Regardless, the defendants in Citadel Invs.

argued that the attorney’s deposition should have been allowed to be admitted into evidence

on the basis that he was “unavailable” under Rule 804(a). Id. This Court agreed, stating

that “because he could have exercised his exemption as a practicing attorney under

[section] 24-9-101,” he was exempt from appearing to testify at trial and his deposition

should have been admitted. Id. (emphasis added).

Dr. Klimo, just like the attorney in Citadel Invs., was deposed but was not issued a

subpoena to testify at trial. See id. at *8-9. As a practicing physician, Dr. Klimo was

exempt from a trial subpoena regardless of whether he was actually served with a subpoena.

See Tenn. Code Ann. § 24-9-101(a)(6); Citadel Invs. Inc., at *11. Therefore, the trial court

was correct in admitting Dr. Klimo’s deposition transcript. He was “unavailable” to testify

under Tennessee Rule of Evidence 804(a)(5) due to his statutory exemption, and because

of his unavailability, Plaintiff was permitted to use his deposition transcript under

Tennessee Rule of Civil Procedure 32.01(3).

C. Dr. Wise’s Expert Testimony

Prior to trial, Defendants filed a motion to exclude or limit Dr. Merrill Wise’s

testimony. The trial court denied this motion, finding that Dr. Wise’s knowledge,

experience, training, and education would assist the court and that the facts and data relied

upon by Dr. Wise was trustworthy. On appeal, Defendants again argue that Dr. Wise is

- 17 -

not an expert in pediatric neurology and that his testimony should not have been admitted.

Tennessee Rules of Evidence 702 and 703 govern the admissibility of scientific

proof. See McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264 (Tenn. 1997). Rule 702

states, “[i]f scientific, technical, or other specialized knowledge will substantially assist the

trier of fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education may testify in the form

of an opinion or otherwise.” Tenn. R. Evid. 702. The facts relied upon by an expert may

be learned by the expert at or prior to the final hearing. Tenn. R. Evid. 703. “The court

shall disallow testimony in the form of an opinion or inference if the underlying facts or

data indicate lack of trustworthiness.” McDaniel, 955 S.W.2d at 264 (quoting Tenn. R.

Evid. 703). “In general, questions regarding the admissibility, qualifications, relevancy

and competency of expert testimony are left to the discretion of the trial court.” McDaniel,

955 S.W.2d at 263 (citing State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)).

In accordance with Rule 702 and 703, a trial court applies five non-exhaustive

factors in determining whether an expert’s testimony is reliable and admissible:

(1) whether [the] evidence has been tested and the methodology with which

it has been tested; (2) whether the evidence has been subjected to peer review

or publication; (3) whether a potential rate of error is known; (4) whether . .

. the evidence is generally accepted in the scientific community; and (5)

whether the expert’s research in the field has been conducted independent of

litigation.

Payne v. CSX Transp., Inc., 467 S.W.3d 413, 455 (Tenn. 2015) (alteration and omission in

original) (quoting McDaniel, 955 S.W.2d at 265). Courts are not required to rigidly apply

these factors. See id.; Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 272-73 (Tenn.

2009). Instead, the two most important considerations are whether the testimony is reliable

and whether it will substantially assist the trier of fact. Payne, 467 S.W.3d at 455. Once

testimony is admitted, it is then “tested with the crucible of vigorous cross-examination

and countervailing proof.” McDaniel, 955 S.W.2d at 265.

After a thorough review of the record, we agree that Dr. Wise was qualified to testify

as a medical expert under Rules 702 and 703. Dr. Wise is a licensed medical doctor in

three different states, including Tennessee, and specializes in pediatrics. In the past, he

worked first-hand as a child neurologist, treating patients with a wide range of neurological

issues, including those that stem from head trauma. He has also held faculty positions at

Baylor College of Medicine and the University of Alabama at Birmingham School of

Medicine, focusing on neurology. While employed at Baylor College, he held a

subspecialty in sleep neurophysiology and epilepsy. Currently he practices in Memphis as

a specialist in sleep medicine. Although he is not certified in neurosurgery, he has

maintained his board certification in child neurology. As a child neurologist, he testified

- 18 -

that it is within his training and expertise to evaluate issues in this case, such as Kenji’s

susceptibility to future headaches as a result of the incident. Additionally, before forming

his opinions in this case, Dr. Wise reviewed Kenji’s medical records and performed an

independent medical evaluation.

Dr. Wise was also qualified to testify on Kenji’s medical bills. To be qualified to

give opinions on the necessity and reasonableness of medical bills, the testifying physician

must exhibit: “(1) knowledge of the party’s condition, (2) knowledge of the treatment the

party received, (3) knowledge of the customary treatment options for the condition in the

medical community where the treatment was rendered, and (4) knowledge of the customary

charges for the treatment.” Dedmon v. Steelman, 535, S.W.3d 431, 438 (Tenn. 2017)

(quoting Long v. Mattingly, 797 S.W.2d 889, 893 (Tenn. Ct. App. 1990)).

When applied to Dr. Wise in this case, the factors show that he was qualified to

testify on Kenji’s medical bills. Through the independent medical exam, the review, and

his background in neurology, Dr. Wise was familiar with the surgery and subsequent

treatment rendered to Kenji as a result of the incident. Dr. Wise testified that he was also

familiar with the treatment options for a depressed skull fracture in the Memphis area. To

his knowledge, he did not know of any alternatives to surgery and the subsequent follow-

up rendered to Kenji for his injury. Instead, he testified that the surgery to repair Kenji’s

depressed skull fracture is the accepted approach. Finally, he testified that he was familiar

with the usual and customary charges in the Memphis area for the medical services in this

case. He testified that his familiarity with the charges was based on his training and

experience as a child neurologist. Although he has never practiced as a neurosurgeon, he

has worked and consulted with neurosurgeons.

Based on Dr. Wise’s background, knowledge, and experience, the trial court found

that the underlying facts and data relied upon by Dr. Wise were reliable and that his

testimony would assist the court in determining the factual issues of the case. Acting as

the “gatekeeper” of evidence, the trial court did not abuse its discretion in deciding whether

to allow Dr. Wise to testify with no limitations. Payne, 467 S.W.3d at 455 (quoting Brown

v. Crown Equip. Corp., 181 S.W.3d 268, 275 (Tenn. 2005)); Mabry, 458 S.W.3d at 909.

D. Admitting Plaintiff’s Medical Bills

As we stated in the previous section, Dr. Wise was qualified to testify on the medical

bills that Plaintiff incurred on behalf of Kenji. In addition to the arguments previously

discussed, Defendants also contend that these medical bills were improperly admitted.

At the outset of this discussion, we note that Defendants do not dispute that the

medical bills were reasonable. In personal injury actions, Tennessee Code Annotated

section 24-5-113(b) details the procedure for establishing a rebuttable presumption that

medical bills of $4,000 or greater are reasonable. See Tenn. Code Ann. § 24-5-113(b)

- 19 -

(stating “if an itemization of or copies of the medical, hospital or doctor bills . . . are served

upon the other parties at least ninety (90) days prior to the date set for trial, there shall be

a rebuttable presumption that such medical, hospital or doctor bills are reasonable”). Prior

to trial, Plaintiff satisfied the requirements of section 24-5-113(b), and there is nothing in

the record to indicate that Defendants attempted to rebut the presumption. The trial court

found that Plaintiff was entitled to a presumption that the medical expenses incurred on

Kenji’s behalf are reasonable. Defendants were prohibited from presenting evidence to

rebut this presumption, and they do not attempt to argue otherwise on appeal. Instead, they

argue that the medical bills were improperly admitted because they were not properly

authenticated by Dr. Wise and because Plaintiff did not show that the bills were necessary.

“For [past medical expenses], a plaintiff must prove that the medical bills paid or

accrued . . . were both ‘necessary and reasonable.’” Dedmon, 535 S.W.3d at 438 (quoting

Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009)). “In all but the most obvious and

routine cases, plaintiffs must present competent expert testimony to meet this burden of

proof.” Id. “A physician who is familiar with the extent and nature of the medical

treatment a party has received may give an opinion concerning the necessity of another

physician’s services and the reasonableness of the charge.” Id. (emphasis added) (quoting

Long, 797 S.W.2d at 893).

Defendants rely on Tennessee Rule of Evidence 901 for the assertion that Dr. Wise’s

testimony did not authenticate the medical bills incurred by Plaintiff. Rule 901 states that,

in order to be admitted, evidence must be properly authenticated or identified. Tenn. R.

Evid. 901(a). Rule 901 also states that a witness with knowledge of the evidence may

satisfy the authentication requirement by testifying that the evidence “is what it is claimed

to be.” Tenn. R. Evid. 901(b). On appeal, Defendants appear to argue that only a plaintiff

or treating physician can authenticate medical bills and that Dr. Wise did not have firsthand

knowledge to testify on the bills. This assertion is a clear misstatement of settled law.

The Supreme Court in Long v. Mattingly clearly stated that a physician must be

familiar with the medical treatment provided by another physician in order to testify on

the resulting medical bills. See Dedmon, 535 S.W.3d at 438 (quoting Long, 797 S.W.2d at

893). As long as the testifying physician meets the qualification requirements stated in

Long, the physician may testify on the reasonableness and necessity of medical charges,

regardless of whether he or she rendered the services. See id. As we explained above, Dr.

Wise satisfied the requirements of Long and was, therefore, qualified to testify on the

medical bills that Plaintiff incurred.

Dr. Wise and Dr. Klimo (the treating physician) both testified that the medical

services provided for Kenji were necessary. Plaintiff stresses Kenji’s injuries were so

obvious and extreme that this was a “routine case,” and as a result, that she was not required

to present competent expert testimony on his medical expenses. See id. (quoting Borner,

284 S.W.3d at 218). We need not address this issue. Dr. Wise’s and Dr. Klimo’s testimony

- 20 -

on the necessity of medical services provided to Kenji satisfied Plaintiff’s burden of proof.

The medical bills that Plaintiff incurred on behalf of Kenji were proven to be

necessary and reasonable. As a result, we affirm the trial court’s decision to admit the

medical bills at trial.

E. Comparative Fault

Defendants also argue that they rebutted the presumption that Kenji had no capacity

for negligence and, as a result, comparative fault should be applied against him.

Under standard modified comparative fault principles, “so long as a plaintiff’s

negligence remains less than the defendant’s negligence the plaintiff may recover.” Mann

v. Alpha Tau Omega Fraternity, 380 S.W.3d 42, 46 (Tenn. 2012) (quoting McIntyre v.

Balentine, 833 S.W.2d 52, 57 (Tenn. 1992)). If the plaintiff was also negligent, the

“plaintiff’s damages are to be reduced in proportion to the percentage of the total

negligence attributable to the plaintiff.” Id. However, this system is modified when a child

is the plaintiff in a negligence action.

“In a negligence action where a child is a plaintiff and the defense of comparative

negligence is raised, the ‘Rule of Sevens’ is used to determine the extent to which the

child’s negligence, if any, would reduce the child’s recovery.” Durham ex rel. Durham v.

Noble, No. M2011-01579-COA-R3-CV, 2012 WL 3041296, at *3 (Tenn. Ct. App. July 25,

2012) (citing McGlothin v. Bristol Obstetrics, Gynecology & Family Planning, Inc., No.

03A01-9706-CV-00236, 1998 WL 65459, at *5 (Tenn. Ct. App. Feb.11, 1998); Roddy v.

Volunteer Med. Clinic, 926 S.W.2d 572, 576 (Tenn. Ct. App. 1996); Cardwell v. Bechtol,

724 S.W.2d 739, 749 (Tenn. 1987)). The Rule of Sevens is applied in three scenarios

involving a minor plaintiff: (1) if the child is under seven, the child has no capacity for

negligence; (2) if the child is between ages seven and fourteen, there is a rebuttable

presumption that the child does not have the capacity for negligence; and (3) if the child is

ages fourteen to majority, there is a rebuttable presumption that the child does have the

capacity for negligence. Crockett v. Sumner Cty. Bd. of Educ., No. M2015-02227-COA-

R3-CV, 2016 WL 6995483, at *5 (Tenn. Ct. App. Nov. 30, 2016) (citing Cardwell, 724

S.W.2d at 745; Durham, 2012 WL 3041296, at *3). Whether a child has the capacity for

negligence under the final two scenarios “is to be judged in the light of [the child’s] age,

ability, intelligence, training and experience and the complexity of the danger with which

he is confronted.” Id. (quoting Cardwell, 724 S.W.2d at 748). Whether a minor has the

capacity for negligence is a question of fact. Durham, 2012 WL 3041296, at *3. Therefore,

in bench trials, the trial court’s findings on whether a child has the capacity for negligence

is reviewed de novo with a presumption of correctness. See Tenn. R. App. P. 13(d); Barnes,

193 S.W.3d at 498.

At the time the incident occurred on January 27, 2016, Kenji was twelve years old.

- 21 -

In its answer and throughout this case, Defendants alleged that comparative fault should

be assessed against Kenji. As a result, the Rule of Sevens applies with the rebuttable

presumption that Kenji, as a twelve-year-old, did not have the capacity for negligence. See

Crockett, 2016 WL 6995483, at *5; Durham, 2012 WL 3041296, at *3.

Viewing the circumstances in light of Kenji’s youthful perspective, we find that

Defendants did not rebut the presumption that Kenji did not have the capacity for

negligence at the time of the incident. It appears undisputed that Kenji is a successful

athlete and a bright child. He has always received good grades in school, consistently

earning As and Bs. Mr. Mosby described him as a “good kid” and a good student.

Although Kenji has been involved in sports such as football and basketball since he was a

young child, he testified that the date of the incident was the first time he was exposed to

the shot put exercise. Kenji also testified, and the trial court found, that before the tryouts

began, Mr. Mosby did not explain safety rules or the risk of injury by getting hit with a

shot put. Additionally, there is no proof that indicates Kenji disregarded any of Mr.

Mosby’s instructions. Instead, Kenji stated that he did not hear Mr. Mosby instruct the

students to move back and did not see the other students move away from Mr. Mosby.

Kenji’s unfamiliarity with the shot put exercise and his unawareness of its danger is

distinguishable from prior cases where the Rule of Sevens presumption was rebutted.

In Durham ex rel. Durham v. Noble, an eleven-year-old child was struck by a school

bus while riding his bicycle. Durham, 2012 WL 3041296, at *1, *4. Prior to being injured

by the school bus, the child lived in the neighborhood for approximately two years and

frequently rode his bicycle throughout the neighborhood. Id. at *4. Prior to being injured,

the child was taught to stop and look both ways when crossing the street, even when riding

a bicycle. Id. As a result of the child’s familiarity in riding a bicycle in the neighborhood,

and his familiarity with the safety rules of the road, this Court found that the presumption

that he did not have the capacity for negligence was rebutted. Id.

Similarly, in Crockett v. Sumner Cty. Bd. of Educ., a thirteen-year-old child was

injured after falling off of bleacher seats. Crockett, 2016 WL 6995483, at *1, *6. The

child frequently used the bleacher seats as steps despite knowing that he was not supposed

to walk across the seats. Id. at *6. The testimony in Crockett showed that multiple

witnesses informed the child on several occasions to use the stairs rather than the steps to

traverse the bleachers. Id. Taken together, this Court found that the child understood the

risks and potential consequences of using the seats as steps. Id. As a result, this Court

affirmed the conclusion that the defendant rebutted the presumption that the child did not

have the capacity for negligence. Id.

Unlike the minor children in Durham and Crockett, who were familiar with and

experienced in the activities that caused their injuries, Kenji was unfamiliar with the risks

and safety procedures for the shot put exercise. Kenji’s success and knowledge in other

sports did not equip him with an understanding of or familiarity with shot put. Although

- 22 -

he is a bright child and a successful student, taken together, the facts show that he did not

have the capacity for negligence.

After considering all of the underlying circumstances, we agree with the trial court

that Defendants did not rebut the presumption that Kenji did not have the capacity for

negligence. As a result, we affirm its decision to hold that Defendants are solely at fault

for Kenji’s injuries.

F. Damages

On appeal, in addition to the issues raised by Defendants, Plaintiff asserts that the

trial court erred in awarding her only $200,000 in compensatory damages. She claims that

the $200,000 award does not sufficiently compensate her for Kenji’s injuries and medical

bills. Instead, she requests an award to the full extent allowed under the GTLA.

Previously, our supreme court has detailed the rules that govern a plaintiff’s claim

for damages in a personal injury action:

“A person who is injured by another’s negligence may recover

damages from the other person for all past, present, and prospective harm.”

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 267 (Tenn.

2015) (quoting Singh v. Larry Fowler Trucking, Inc., 390 S.W.3d 280, 287-

88 (Tenn. Ct. App. 2012)). “An award of damages, which is intended to

make a plaintiff whole, compensates the plaintiff for damage or injury caused

by a defendant’s wrongful conduct.” Meals ex rel. Meals v. Ford Motor Co.,

417 S.W.3d 414, 419 (Tenn. 2013) (citing Inland Container Corp. v. March,

529 S.W.2d 43, 44 (Tenn. 1975)). “The party seeking damages has the

burden of proving them.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 703

(Tenn. Ct. App. 1999).

A plaintiff who is injured by another’s negligence is entitled to

recover two types of damages: economic (or pecuniary) damages and non-

economic (or personal) damages. Meals, 417 S.W.3d at 419-20. Economic

damages include past medical expenses, future medical expenses, lost wages,

and lost earning potential. Id. at 419. A plaintiff may seek recovery for all

“economic losses that naturally result from the defendant’s wrongful

conduct.” Id.

“Non-economic damages include pain and suffering, permanent

impairment and/or disfigurement, and loss of enjoyment of life.” Id. at 420

(quoting Elliott v. Cobb, 320 S.W.3d 246, 247 (Tenn. 2010)). Non-economic

damages are often highly subjective and are not susceptible to proof by a

specific dollar amount. While there must be some evidence to justify the

- 23 -

amount awarded, plaintiffs are not required to prove the monetary value of

non-economic damages because such injuries are not easily quantified in

economic terms. For this reason, the trier of fact is given broad latitude in

fixing the monetary amount of non-economic damages.

Dedmon, 535 S.W.3d at 437-38 (footnote omitted).

Unless otherwise waived, the maximum amount allowed to be collected by a

plaintiff who brings suit under the GTLA is $300,000.00. See Tenn. Code Ann. §§ 29-20-

403(b)(4), -403(c), -404(a). In cases tried solely by the trial court and without a jury, this

Court reviews the amount of damages awarded de novo with a presumption of correctness.

Moody, 83 S.W.3d at 751. The amount of damages awarded is a question of fact, id., but

the measure of damages is a question of law that is reviewed de novo. Poole, 337 S.W.3d

at 789. Accordingly, “[t]his Court will modify a trial court’s award of damages based on

the proper measure only if the evidence preponderates against the amount of damages

awarded.” Id.

In the present case, the trial court awarded Plaintiff $200,000 in compensatory

damages. The court awarded Plaintiff the full amount of $63,858.69 for her past medical

expenses. The trial court’s final order does not mention future medical expenses, lost

wages, or lost earning potential. By the court’s omission, it can be assumed the remaining

$136,141.31 in compensatory damages was awarded as non-economic damages.11 As part

of its award for Plaintiff’s past medical bills, the trial court found that the bills were

reasonable, consistent with customary charges for similar treatment in Memphis, and

incurred as a result of necessary medical treatment. For the reasons that we have already

discussed, we agree.

Although Plaintiff may disagree with the amount of damages awarded by the trial

court, we find that the court properly applied the correct measure of damages. In its own

purview, the trial court considered the relevant evidence related to Kenji’s pain and

suffering, any permanent impairment or disfigurement, and any loss of enjoyment of life.

In its final order, the trial court detailed several facts that related to Kenji’s pain and

suffering directly after and well beyond being struck by the shot put. The court found that,

after being struck by the shot put, Kenji suffered a depressed skull fracture, requiring

surgery, and experienced severe pain and discomfort in his head and the right side of his

body. The court also stated that Kenji’s severe pain continued throughout his stay at the

hospital, with only a slight reprieve in severity after surgery. The trial court also considered

the headaches, dizziness, and recurring tenderness at the site of his surgical incision that

Kenji reported after being discharged from the hospital. While Kenji reportedly continues

11

It is evident from the parties’ briefs that they agree the trial court awarded Plaintiff $63,858.69

in economic damages for Kenji’s medical expenses.

- 24 -

to suffer headaches, the trial court noted that this issue was questionable, but that he was

still experiencing some pain and suffering.

Kenji’s initial and ongoing anguish and worry was also thoroughly discussed by the

trial court. The trial court noted Kenji’s statements in the hospital about fearing death,

fearing that he would not be able to play sports again, and being nervous about the surgery.

The court considered Kenji’s nightmares about the accident that he experienced at the

hospital and since being discharged. In its order, the court stated that the nightmares

continue to occur, but that they are less frequent.

As to loss of enjoyment of life, the trial court noted that Kenji continued to receive

good grades after the incident and has returned to an otherwise normal routine. The court

considered his temporary loss of enjoyment of life in the initial months following the

accident, but noted that Kenji has resumed all activities, including football.

Plaintiff asserts that the trial court did not properly consider Kenji’s permanent

impairment or disfigurement, particularly Kenji’s reported brain damage and scarring. In

the court’s oral ruling—which was incorporated into its final order—the court listed several

of the elements of non-economic damages. Although the trial court did not specifically list

permanent injury, disfigurement, or scarring in its oral statement of non-economic

damages, its subsequent findings clearly indicate that these elements were considered. In

particular, the court noted that, although Kenji is self-conscious of the scar on his scalp and

the residual depression of his skull, neither are visible because Kenji’s hair currently covers

the area. Additionally, the court noted that CT scans of Kenji’s brain indicated areas of

bruising or scarring to his brain, which was caused by the shot put’s impact. Dr. Wise and

Dr. Klimo testified that the bruising or scarring indicated permanent brain damage. The

court did not disregard this testimony. Instead, it stated that Kenji’s permanent brain

damage did not appear to be worrisome since he was released for sports without limitations,

including football. As a result, the court did not place significant weight on the issue.

Again, we find that the court applied the proper measure of damages to the facts of

this case. See Poole, 337 S.W.3d at 789. The facts do not preponderate against the amount

of damages awarded. Although Plaintiff may be dissatisfied with the amount of damages

awarded by the trial court, that is not the standard by which this Court reviews an award

for non-economic damages. “Assigning a compensable, monetary value to non-economic

damages can be difficult. The assessment of non-economic damages is not an exact

science, nor is there a precise mathematical formula to apply in determining the amount of

damages an injured party has incurred.” Meals, 417 S.W.3d at 420 (citation omitted).

Plaintiff may place more weight on the severity of some of Kenji’s injuries, but the trial

court properly considered the elements of non-economic damages in measuring and

awarding damages in this case.

Based on the foregoing discussion, we affirm the trial court’s award of damages to

- 25 -

Plaintiff in the amount of $200,000.

V. CONCLUSION

For the reasons stated herein, the decisions of the circuit court are hereby affirmed

and remanded. Costs of this appeal are taxed equally to the appellants, Shelby County

Board of Education and Shelby County Schools, for which execution may issue if

necessary.

_________________________________

CARMA DENNIS MCGEE, JUDGE

- 26 -