IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE FILED LANE DENSON, a minor, b/n/f JOHN ) August 12, 1999 DENSON, father, and DEBORAH ) DENSON, mother; and JOHN DENSON ) Cecil Crowson, Jr. and wife, DEBORAH DENSON, ) Appellate Court Clerk individually, ) ) Plaintiffs/Appellants, ) ) VS. ) Appeal No. ) 01-A-01-9810-CV-00571 DR. RICHARD C. BENJAMIN, Director ) of Schools for the Metropolitan ) Davidson Circuit Nashville Public Schools; FLORENCE ) No. 96C-4421 KIDD, A Director of Middle Schools ) Responsible for Walter Stokes Middle ) School; EVALINA CHEADLE, Principal ) of Walter Stokes Middle School; ) METROPOLITAN GOVERNMENT OF ) NASHVILLE AND DAVIDSON ) COUNTY, TENNESSEE FOR THE ) METROPOLITAN NASHVILLE PUBLIC ) SCHOOLS; and METROPOLITAN ) BOARD OF PUBLIC EDUCATION, ) ) Defendants/Appellee. )
APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE
THE HONORABLE WALTER C. KURTZ, JUDGE
ALAN MARK TURK P. O. Box 3742 Brentwood, Tennessee 37024-3742 Attorney for Plaintiffs/Appellants
JAMES L. MURPHY, III DIRECTOR OF LAW OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
MARTHA ZENDLOVITZ METROPOLITAN ATTORNEY 204 Metropolitan Courthouse Nashville, Tennessee 37201 Attorney for Defendants/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR: KOCH, J. CAIN, J. OPINION A ten year old boy was seriously injured at a Nashville middle school
when another student tripped him on a stairway during a change of classes. The
injured boy’s parents sued the Metropolitan Government of Nashville, the
Superintendent of Schools, and other school officials for negligent supervision and
negligent protection. The trial court granted summary judgment to the defendants.
We affirm the trial court.
I. Facts and Trial Court Proceedings
Lane Denson and Christopher Herbert were fifth-grade students at
Walter Stokes Middle School in Nashville. On the morning of December 7, 1995,
Lane teased Chris in the cafeteria of the school, by calling him “Chris Sherbert.” After
they left the cafeteria to go to their homerooms, and were ascending a stairway to the
second floor, Chris deliberately grabbed hold of Lane’s ankle from behind, intending
to make him trip. Lane fell backwards down the stairs.
John and Deborah Denson, Lane’s parents, were already at the school
for a scheduled parent/teacher conference. They reached their child within minutes
of the incident. They found him face-down and unconscious in a pool of blood at the
foot of the stairs. The Densons scooped Lane up, carried him to their car, and
brought him to the emergency room, where he was diagnosed with a concussion, a
broken nose and other injuries. The youngster subsequently underwent surgery to
repair his nose and improve his breathing. Further surgery may also be needed.
On December 9, 1996, the Densons filed suit under the Governmental
Tort Liability Act, Tenn. Code Ann. § 29-20-101, et seq., naming Metro Government,
the Board of Education, the Superintendent of Schools, the Principal of Stokes, and
the Director of Middle Schools as defendants. The parents claimed that Chris Herbert
had a history of assaultive behavior towards other students, which the authorities at
Stokes should have been aware of, and that those authorities were guilty of negligent
supervision of Chris Herbert, and negligent protection of Lane Denson.
-2- The Densons’ complaint also included a claim for negligent
misrepresentation and for failure to disclose material facts, directed against defendant
Metro only. They alleged that they were induced to enroll their son at Stokes on the
basis of representations as to safety and discipline found in a packet of materials sent
to them by the school, and that these representations were belied by the failure of
school officials to take appropriate steps to prevent this incident.
On March 13, 1997, the trial court dismissed the individual defendants
pursuant to Tenn. Code Ann. § 29-20-310(b), and dismissed all claims against Metro
except for negligent supervision and protection. The plaintiffs subsequently filed a
motion to amend their complaint, to add an additional claim for negligent investigation
of the incident, and for violation of their constitutional due process rights. The trial
court denied the motion to amend.
The plaintiffs attempted to discover the educational records of Chris
Herbert to determine if the child had a proclivity towards violence that defendant Metro
knew or should have known about. Defendant Metro attempted to limit discovery in
accordance with Tenn. Code Ann. § 10-7-504(a)(4), which declares that “[t]he records
of students in public educational institutions shall be treated as confidential,” by
moving the Court to order that any production of Chris Herbert’s records be under
seal.
The Court granted the motion, and ordered that Chris Herbert’s
cumulative educational record be filed under seal for an in-camera review. The Court
also granted Metro’s subsequent motion for a protective order, which sought to
prohibit the plaintiffs from seeking discovery of any events subsequent to December
7, 1995 in regard to the school’s investigation of the incident or its disciplining of Chris
Herbert.
Following its review of the parties’ arguments and of the sealed records,
the trial court granted the defendant’s motion for summary judgment on the remaining
-3- claims, finding liability could not be imposed upon the school system, because the
injury to Lane Denson was not foreseeable. This appeal followed.
II. Negligent Investigation
The Densons have raised two issues on appeal. They argue that the
trial court erred in dismissing their motion to amend their complaint to add a claim for
negligent investigation, and in granting the defendant’s motion for summary judgment
on their claim for negligent supervision/protection. We will deal with the issue of
negligent investigation first.
After Lane Denson was injured, Mrs. Evalina Cheadle, the principal at
Stokes, called Chris Herbert to her office, and had him write up his account of what
had happened. In his account, he admitted that he grabbed Lane’s leg because Lane
called him Chris Sherbert. Mrs. Cheadle then prepared a Standard Student Accident
Report Form, with the statement of Chris Herbert and that of a student witness
attached.
Lane Denson’s parents argue that Mrs. Cheadle’s report was incomplete
because she failed to interview other witnesses, and that other school officials failed
to follow it up with a thorough investigation of the circumstances surrounding their
son’s injuries, particularly the prior conduct of Chris Herbert as revealed by his school
records. They contend that Lane Denson’s due process rights were violated by the
defendant’s failure to conduct an adequate investigation, as well as by the failure to
report the assault and battery on their son to the Metropolitan Police Department.
They also claimed that they had to expend considerable effort and money to conduct
their own investigation.
With all due respect to the appellants, we believe the argument that their
due process rights were violated by the alleged inadequacies of the defendant’s
investigation is misplaced. Such rights do not arise in favor of an injured party in the
-4- context of school disciplinary proceedings against the party causing the injury. 1 We
do not minimize the grievous injuries Lane Denson suffered as a result of the actions
of Chris Herbert, but the subsequent investigation and the resulting proceedings
against Chris Herbert did not threaten the life, liberty or property of the Densons. An
indication of the appellants’ confusion about this issue was their failure to cite any
constitutional provisions in their proposed amended complaint.
In their brief, the appellants do cite the Fourteenth Amendment, and they
quote with approval language from the case of Goss v. Lopez, 419 U.S. 565 (1975),
which asserts the importance of due process in school disciplinary proceedings. But
Goss involved the due process rights of students who had been suspended for
misbehavior, and who, as the Supreme Court determined in that case, were entitled
to notice and a hearing before the suspension could be ordered. The situation of the
students in Goss is not in any way analogous to that of Lane Denson. Further, we do
not believe the appellants have suffered any damages as a result of the investigation
conducted by the defendant. We note that the cost of conducting an investigation is
a normal part of any lawsuit, but is not a valid element of damages.
A party may amend a complaint or other pleading once as a matter of
course, at any time before a responsive pleading is served. Otherwise, an
amendment requires written consent by the adverse party or leave of the court. Rule
15.01, Tenn. R. Civ. P. The grant or denial of a motion to amend is within the sound
discretion of the trial court. Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn.
App.1970). Among the factors for the court to consider in determining whether or not
to allow a complaint to be amended is the futility of the proposed amendment. Hall
v. Shelby County Retirement Board, 922 S.W.2d 543, 546 (Tenn. App. 1995). In light
of the lack of merit of the additional claims in the proposed amended complaint, we
believe that the trial court did not abuse its discretion in denying the appellants’ motion
to amend. We also believe that the trial court did not err in limiting discovery to events
1 In their brief, appellants refer to the “Victims’ Bill of Rights,” a proposed amendment to the Tennessee Constitution that was ratified by the people in the General Election of November 3, 1998. However, this amendment appears to refer only to the criminal justice system, and in any event, the trial court filed its fina l order in this c ase on Octob er 9, 199 8.
-5- occurring on or before December 7, 1995, since any events after that date are
irrelevant to the appellants’ surviving claim.
III. Negligent Supervision/Protection
A. Standards for Summary Judgment
In light of the severe injuries suffered by Lane Denson within an
environment that all parents hope will be safe for their children, it is not surprising that
the appellants believe that the school failed to perform one of its most fundamental
duties -- that of protecting the students in its charge. Unfortunately, an examination
of cases from this state and others shows that danger cannot be completely excluded
from the schoolhouse or the classroom. Kindred v. Board of Education of Memphis
City Schools, 946 S.W.2d 47 (Tenn. App 1996); Roberts v. Robertson County Board
of Education, 692 S.W.2d 863 (Tenn. App. 1985); Benton v. School Board, 386 So.2d
831 (Fla. 4th DCA 1980); Shante D. by Ada D. v. City of New York Bd. Of Educ., 598
N.Y.S.2d 474 (A.D. 1 Dept. 1993). In recognition of this unfortunate fact, our courts
have stated more than once that schools are not expected to be insurers of the safety
of children while they are at school. 692 S.W.2d at 870. Also see King by King v.
Kartanson, 720 S.W.2d 66, 68 (Tenn. App. 1986).
Nonetheless, schools, teachers and administrators have a duty to
exercise ordinary care for the safety of students, a degree of care which has been
defined as “the care an ordinary prudent person would take under the circumstances.”
Hawkins County v. Davis, 591 S.W.2d 658, 660 (Tenn. 1965); Snider v. Snider, 855
S.W.2d 588, 590 (Tenn. App. 1993). If school officials fail to exercise such ordinary
care, a school system may become liable for injuries foreseeably resulting from such
a failure. Roberts v. Robertson County, supra.
The burden of proving negligence and foreseeability ultimately rests
upon the plaintiff, but in ruling upon a motion for summary judgment, the trial court is
obligated to view the pleadings and the evidence before it in the light most favorable
to the opponent of the motion. Wyatt v. Winnebago Industries, 566 S.W.2d 276
-6- (Tenn. App. 1977). Summary judgment is appropriate only when there are no genuine
issues as to any material facts, and when the moving party is entitled to judgment as
a matter of law. Rule 56.04, Tenn. R. Civ. P.; Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). However, a disputed fact is “material” only if it must be decided in order
to resolve the claim at which the motion is directed. 847 S.W.2d at 215.
In the present case, the appellants’ attorney has conducted an
exhaustive investigation in order to uncover evidence that Chris Herbert had a
tendency towards violent behavior such as should have put the school on notice that
he was a danger to his fellow students in general, or to Lane Denson in particular.
We note that apart from Chris Herbert’s cumulative educational record, which was
filed under seal, the transcript of the record contains 1125 pages of pleadings,
motions, memoranda, orders, affidavits and notices, as well as the depositions of
twelve individuals. The sheer size of the record makes it inevitable that there will be
disputes about some facts. However, such disputes are not necessarily sufficient to
preclude summary judgment for the defendant.
B. The Events of December 7, 1995
The facts immediately surrounding the incident of December 7, 1995 are
for the most part undisputed. Though Chris Herbert and Lane Denson were not
exactly friends, there was no evidence of animosity between them. On the day of the
incident, it appears that they sat near each other in the cafeteria when Lane teased
Chris. At deposition, Chris Herbert testified that he did not intend to make Lane fall
down the stairs or to injure him, but that he intended him to trip and fall forward. The
appellants do not dispute his testimony.
It was customary at Stokes for homeroom teachers to stand outside their
doorways before the beginning of classes to monitor student behavior in the hallway.
-7- Other teachers were generally posted elsewhere in the hallway for the same reason.
These procedures were followed on the day in question. There was some deposition
testimony that the linoleum tiles on the stairway where Lane fell were in poor shape,
but there are no indications in the record that this made the stairs inherently
dangerous, or that the condition of the stairs contributed to Lane’s injury.
Appellants argue that the defendant’s agents were negligent in not
posting an “educational professional” on the stairwell during the change of classes.
While this might conceivably have prevented Lane’s injury, it is self-evident that
teachers cannot be everywhere at once. Moving a teacher from one location in the
hallway to another would still leave a gap where students would have the opportunity,
however briefly, for making mischief. See Chudasama v. Metro Government of
Nashville, 914 S.W.2d 922 (Tenn. App. 1995). Thus it appears to us that the school
cannot be found negligent for not posting a teacher on the stairway where Lane
Denson was injured.
C. Chris Herbert’s History
Chris Herbert was a student at Percy Priest Elementary School from the
first to the fourth grade. When he was in the third grade, he brought a pocketknife to
school. He showed it to some other children, but didn’t wave it around or threaten
anybody with it. In accordance with the policies of the school, he was suspended for
one day. The record shows that he was suspended from riding the bus four times
while he was at Percy Priest, usually for standing up while the bus was moving, but
on one occasion the suspension was for fighting. He also had a fight with another boy
at the bus stop while he was at Percy Priest.
In 1995, Chris Herbert began attending fifth grade at Stokes. Sometime
in the early part of the year, he was suspended from riding the bus for fighting. On
September 13, 1995, his stepfather committed suicide. We need not describe the
-8- circumstances surrounding the suicide here, but they were such as would make a
powerful and disturbing impression on any child, or for that matter, on any adult. He
was already receiving in-school counseling for problems with anger, but after the
suicide additional counseling was supplied through the Metro Police Department.
Chris Herbert’s mother informed Mrs. Cheadle, the principal at Stokes,
about the suicide, and Mrs. Cheadle made most of Chris’s teachers aware of the
unfortunate event. It is apparent that his stepfather’s suicide continued to haunt the
child. He appeared angry much of the time. On one occasion he shoved his desk
and walked out of the classroom, slamming the door; on another, he burst out crying
in class for no apparent reason. Chris Herbert was bigger than most of the other
children, and the appellants have submitted affidavits of a number of students stating
that he had a bad temper, that they were afraid of him, or that they avoided him. But
there is no evidence that his teachers were ever informed of these concerns.
Appellants argue that the school was negligent in failing to adequately
discipline Chris Herbert. Apparently they believe that the defendant’s failure to
separate him from the general student body prior to December 7, 1995 was a cause
in fact of Lane Denson’s injuries. In support of this thesis, they refer us to Tenn. Code
Ann. § 49-6-4001(a), which requires school systems to develop a code of acceptable
behavior for students, and to the Code of Student Conduct, which was adopted by the
Board of Education pursuant to the above statute. Rule 5 of the Code prohibits
students from assaulting other students. Rule 13 (referred to in appellants’ brief as
a zero tolerance policy) reads as follows:
RULE 13. AGGRAVATED ASSAULT BY STUDENT (Amended August 8, 1995)
A student who commits aggravated assault will be excluded from school for one calendar year. A student who intentionally or knowingly commits an assault which causes serious bodily injury to another student/or others will be considered guilty under this rule. Upon determination that a student acted in self-defense, it will not be considered a violation of this rule.
-9- Another section of the Code of Student Conduct lays out the procedural
due process to be followed in case of rule violations. In cases calling for a short-term
suspension, the principal may suspend a student from attending school for up to ten
days. However, a formal hearing, proceeded by a written notice to the student and
his parents, is required before a long term suspension or expulsion can be imposed.
It appears to us that appellants have confounded the defendant’s failure
to institute due process procedures for a one-year suspension of Chris Herbert after
December 7, 1995, with an alleged failure to discipline him adequately prior to that
date. As we have already indicated, the appellants have no standing to object to
actions taken (or not taken) against Chris Herbert after he injured Lane Denson, so
we may only examine the defendant’s conduct before that incident.
It is well-established that “the governing authority in both public and
private schools should have and does have the widest discretion in the matter of
discipline. Patterson v. Hunt, 682 S.W.2d 508, 517 (Tenn. App. 1984); also see Goss
v. Lopez, 419 U.S. 565 (1975). Even if we put this principle aside, there is no
evidence that any of the infractions committed by Chris Herbert before Lane Denson
was injured would have warranted a long-term suspension. Further, there are no
indications that any of them were committed close enough in time to the date of injury
to have even brought into question the principal’s failure to use her discretionary
power to impose a short-term suspension upon him.
It is often stated that hindsight is 20/20. However school administrators
do not have the benefit of hindsight when they make decisions about the children in
their care. Of course, the law defines negligence by the standard of foreseeability, not
that of hindsight. Further, the public schools are obliged to provide an education to
all the children who enroll, not only those whose conduct is above reproach. We are
certain that it is often difficult to determine when the right of a disruptive or disturbed
child to receive a public education is outweighed by the possibility of danger to other
students from that child’s presence in the classroom. School administrators are
granted great discretion in disciplining students because they are the individuals in the
- 10 - best position to make such difficult determinations. It appears that in this case, they
did not abuse that discretion in failing to suspend Chris Herbert before December 7,
1995.
IV.
The judgment of the trial court is affirmed. Remand this cause to the
Circuit Court of Davidson County for further proceedings consistent with this opinion.
Tax the cost on appeal to the appellants.
_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.
CONCUR:
_____________________________ WILLIAM C. KOCH, JR., JUDGE
_____________________________ WILLIAM B. CAIN, JUDGE
- 11 -