                                                                                                        12/14/2016




                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   November 17, 2016 Session

    K.G.R., BY AND THROUGH HIS PARENTS, RACHEL RIFFE AND
     JEFFREY RIFFE v. UNION CITY SCHOOL DISTRICT, ET AL.

                      Appeal from the Circuit Court for Obion County
                          No. CC-13-CV-20 Jeff Parham, Judge
                         ___________________________________

                               No. W2016-01056-COA-R9-CV
                           ___________________________________


This is a negligence case involving the alleged sexual assault of a 13-year-old special
education student by another 13-year-old special education student in a school bathroom.
The trial court determined that the Appellant school district was not entitled to summary
judgment as a matter of law because there was a question of fact as to whether the
incident was foreseeable. We conclude that there is no dispute of material fact and that
summary judgment in favor of the school district should be granted. Reversed and
remanded.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed
                                  and Remanded.

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN,
J., and DAVID R. FARMER, SP. J., joined.

Jennifer C. Craig, Jackson, Tennessee, for the appellant, Union City School District.

W. Lewis Jenkins, Jr. and Dean P. Dedmon, Dyersburg, Tennessee, for the appellees,
Rachel Ballog-Riffe, and Jeffrey Riffe.


                                               OPINION

                                         I.      Background

      During the 2011-2012 school year, K.G.R., age 13,1 was enrolled in the sixth

      1
          Given the sensitive nature of this case, we redact the parties’ names for purposes of anonymity.
grade as a special education student at Union City Middle School, which is operated by
Union City School District (“UCSD” or “Appellant”). J.R is K.G.R’s father, and R.R
(together with J.R., “Parents” or “Appellees”) is K.G.R’s mother. The case arises from
allegations that K.G.R was sexually assaulted multiple times during the school year by
another sixth grader, Q.B., also a special education student. On May 15, 2012, a student
told Robyn D., K.G.R. and Q.B.’s teacher, that the boys were in the bathroom stall
together. After asking another teacher to watch her class, Ms. D. went to the bathroom.
On her arrival, Q.B. was exiting the bathroom. She called out to K.G.R., and he came out
of the bathroom. Ms. D. then took both boys to the principal’s office.

       The parents first learned of the incident when Michael M., the school principal,
called R.R. to come to the school. When the parents arrived, Mr. M. informed them that
K.G.R. may have been sexually assaulted by Q.B. In the presence of K.G.R.’s parents,
Raphe W., the school’s resource officer, assisted K.G.R. in providing a written statement.
According to K.G.R., Q.B. came into the stall while K.G.R. was using the restroom.
K.G.R. further stated that “[Q.B.] took his private part and stuck it in my butt.”

       It is undisputed that, on April 25, 2012, three weeks prior to the alleged sexual
assault on K.G.R., R.R. wrote a letter to the school principal informing him that K.G.R
was being bullied at school. Specifically R.R. alleged that two named students were
bullying K.G.R “almost everyday” and that K.G.R. was being punched by these students.
R.R. did not name Q.B. as one of the bullies. The majority of the letter addressed the
detention that K.G.R. had received for calling a girl names. Although not discussed
expressly in the letter, R.R. testified that she wrote the letter because other students were
stealing K.G.R.’s pencils, picking on him, and calling him names.

       On April 23, 2013, Appellees filed a complaint for personal injuries against
UCSD.2 According to the complaint, “beginning . . . on or about [April 27], 2012 K.G.R.
was repeatedly sexually victimized by another student in the bathroom at Union City
Middle School.” The parents alleged that Appellant breached a duty to protect K.G.R.
from harm. On May 17, 2013, Appellant filed an answer, denying the material
allegations in the complaint. As an affirmative defense, Appellant raised “all immunities
and defenses” under the Tennessee Governmental Tort Liability Act (“TGTLA”).

       On August 24, 2015, Appellant filed a motion for summary judgment, arguing,
inter alia, that it owed no duty to K.G.R. because the acts against him were not
foreseeable. Appellees filed a response in opposition to the motion for summary
judgment. During the discovery process, UCSD presented testimony from Raphe W., the


       2
          The complaint also named the town of Union City as a party-defendant. On June 11,
2013, the trial court entered a consent order dismissing Union City from the lawsuit. Union City
is not a party to this appeal.
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school resource officer; Michael M., the principal; Brittany K., the special education
supervisor; and Robyn D., the teacher. Both Mr. W. and Mr. M. testified that the alleged
sexual assault against K.G.R. was an isolated incident, and that nothing like it had ever
occurred at Union City Middle School, either between these two students, or any other
students. Mr. W. further testified that, when he interviewed K.G.R., he specifically asked
K.G.R. if this had ever happened before, and K.G.R. said no. K.G.R.’s mother, who was
present for the interview with Mr. W., indicated that perhaps it had happened before. Mr.
W. asked K.G.R. a second time whether anything like this had ever happened before, to
which K.G.R. again responded that it had not happened before. Brittany K., who had
previously taught both K.G.R. and Q.B, testified that neither K.G.R. nor Q.B. had ever
exhibited any need for assistance or supervision in the bathroom. Robyn D., testified
that, although Q.B. could be a disciplinary challenge, she did not remember ever sending
him to the principal’s office prior to the incident that occurred on May 15, 2012.

       On November 16, 2015, the trial court entered an order denying the motion for
summary judgment. Specifically, the trial court held that “a dispute of fact exists as to
whether the school was on notice by virtue of the Mother’s earlier letter and therefore
whether or not the incident was foreseeable.” Appellant filed an application for an
interlocutory appeal under Tennessee Rule of Appellate Procedure 9. This Court granted
interlocutory appeal by order of June 13, 2016.

                                          II. Issues

       Appellant raises the following issue for review, as stated in its brief:

       Whether the trial court erred in denying the [Appellant]’s motion for
       summary judgment when it was not reasonably foreseeable that a sexual
       assault would occur between elementary age students under the
       circumstances.

                                 III. Standard of Review

        Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on
a motion for summary judgment de novo, without a presumption of correctness. Rye v.
Women’s Care Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013);
see also Abshure v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn.
2010); see also Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). In doing so, we make
a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied. Rye 477 S.W.3d at 250 (citing Estate of Brown, 402
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S.W.3d 193, 198 (Tenn. 2013); Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471
(Tenn. 2012)).

      For actions initiated on or after July 1, 2011, the standard of review for summary
judgment is governed by Tennessee Code Annotated Section 20-16-101. The statute
provides:

      In motions for summary judgment in any civil action in Tennessee, the
      moving party who does not bear the burden of proof at trial shall prevail on
      its motion for summary judgment if it:

      (1)  Submits affirmative evidence that negates an essential element of the
      nonmoving party’s claim; or

      (2)    Demonstrates to the court that the nonmoving party’s evidence is
      insufficient to establish an essential element of the nonmoving party’s
      claim.

Tenn. Code Ann. §20-16-101. However, “a moving party seeking summary judgment by
attacking the nonmoving party’s evidence must do more than make a conclusory
assertion that summary judgment is appropriate on this basis.” Rye, 477 S.W.3d at 264.
Rule 56.03 requires that the moving party support its motion with “a separate concise
statement of the material facts as to which the moving party contends there is no genuine
issue for trial.” Tenn. R. Civ. P. 56.03. Each fact is to be set forth in a separate,
numbered paragraph and supported by a specific citation to the record. Id. If the moving
party fails to meet its initial burden of production, the nonmoving party’s burden is not
triggered, and the court should dismiss the motion for summary judgment. Town of
Crossville Hous. Auth., 465 S.W.3d 574, 578-79 (Tenn. Ct. App. 2014)(citing Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008)). As our Supreme Court recently
explained:

      [T]o survive summary judgment, the nonmoving party “may not rest upon
      the mere allegations or denials of [its] pleading,” but must respond, and by
      affidavits or one of the other means provided in Tennessee Rule 56, “set
      forth specific facts” at the summary judgment stage “showing that there is a
      genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
      “must do more than simply show that there is some metaphysical doubt as
      to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
      Ct. 1348. The nonmoving party must demonstrate the existence of specific
      facts in the record which could lead a rational trier of fact to find in favor of
      the nonmoving party.

Rye, 477 S.W.3d at 265 (emphasis in original). If adequate time for discovery has been
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provided and the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the existence of a genuine issue of material fact for trial, then the
motion for summary judgment should be granted. Id. “A grant of summary judgment is
appropriate only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion.” Giggers v. Memphis Hous.
Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (citing Staples v. CBL & Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000)). “The granting or denying of a motion for summary
judgment is a matter of law, and our standard of review is de novo with no presumption
of correctness.” Dick Broad. Co., Inc. of Tennessee v. Oak Ridge FM, Inc., 395 S.W.3d
653, 671 (Tenn. 2013) (quoting Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn.
2010)).

                                        IV. Analysis

       To prevail on a negligence claim, a plaintiff must establish five elements: 1) a duty
of care owed by the defendant to the plaintiff; 2) breach of duty of care by the defendant;
3) injury or loss; 4) causation in fact; and 5) proximate, or legal, cause. King v.
Anderson Cty., 419 S.W.3d 232, 246 (Tenn. 2013); Giggers, 277 S.W.3d at 364; Hale v.
Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005); Bradshaw v. Daniel, 854 S.W.2d 865, 869
(Tenn. 1993). Duty is “a legal obligation to conform to a reasonable person standard of
care in order to protect others against unreasonable risks of harm.” Cullum v. McCool,
432 S.W.3d 829, 832-33 (Tenn. 2013)(quoting Satterfield v. Breeding Insulation Co.,
266 S.W.3d 347, 355 (Tenn. 2008)). An unreasonable risk of harm arises and creates a
legal duty if the foreseeability and gravity of harm caused by a defendant’s conduct
outweighs the burdens placed on a defendant to engage in other conduct that would
prevent such harm. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995) (citing
Restatement (Second) of Torts § 291 (1964)). Whether a defendant owed or assumed a
duty of care to a particular plaintiff is a question of law, which we review de novo.
Cullum, 432 S.W.3d at 832-33; Downs ex rel. Downs v. Bush, 263 S.W.3d 812, 819-20
(Tenn. 2008); Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). Here,
Appellant argues that it owed no duty to K.G.R. as a matter of law.

        As this Court discussed in the recent opinion of Richardson v. Trenton Special
School District, W2015-01608-COA-R3-CV, 2016 WL 3595563 (Tenn. Ct. App. June
27, 2016), there is a question as to “whether foreseeability in negligence law is a question
of duty, which is a matter of law; a question of breach, which is a mixed question of law
and fact; or a question of proximate cause, which is a question of fact.” Id. at *5
(citations omitted). In this case, the trial court did not indicate whether it was applying
the foreseeability determination to the question of duty, breach, or causation. While the
existence of Mother’s letter to the school principal may bear on the question of
foreseeability, as to the causation element of negligence, it may also bear on the question
of whether UCSD owed a duty to K.G.R.. In other words, “[f]oreseeability is the test of
negligence.” West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 552 (Tenn.
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2005)(quoting Linder Constr. Co., 845 S.W.2d at 178); Hale, 166 S.W.3d at 717.
Because foreseeability may bear on duty or causation, we begin our analysis with
foreseeability as it relates to whether the alleged sexual assault is foreseeable so as to
create a duty. If a duty is created, we will then address foreseeability as it bears on
causation.

       The Tennessee Supreme Court has previously addressed the relationship between
duty and foreseeability. In order to determine whether a duty is owed in a particular
circumstance, courts must first establish that the risk is foreseeable, and, if so, must then
apply a balancing test based on principles of fairness to identify whether the risk was
unreasonable. Giggers, 277 S.W.3d at 365; Satterfield, 266 S.W.3d at 366. That is, in
consideration of, among other things, the presence or absence of prior similar incidents,
and other circumstances, does the foreseeability of the harm outweigh the burden of the
duty imposed? McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 901 (Tenn.
1996). “A risk is foreseeable if a reasonable person could foresee the probability of its
occurrence or if the person was on notice that the likelihood of danger to the party to
whom is owed a duty is probable.” Downs, 263 S.W.3d at 820-21. As explained by the
Tennessee Supreme Court:

              Although no duty will arise when a risk of injury is not
              generally foreseeable, foreseeability alone “is not, in and of
              itself, sufficient to create a duty.” Satterfield, 266 S.W.3d at
              366. Rather, when a minimum threshold of foreseeability is
              established, courts must engage in “an analysis of the relevant
              public policy considerations,” id. at 364-65, to determine
              whether a duty enforceable in tort must be imposed. While
              not exclusive, the factors are as follows:

              [T]he foreseeable probability of the harm or injury occurring;
              the possible magnitude of the potential harm or injury; the
              importance or social value of the activity engaged in by
              defendant; the usefulness of the conduct to defendant; the
              feasibility of alternative, safer conduct and the relative costs
              and burdens associated with that conduct; the relative
              usefulness of the safer conduct; and the relative safety of
              alternative conduct.

McCall, 913 S.W.2d at 153; see also Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn.
2003). The pertinent question is whether there was any showing from which it can be
said that the defendants reasonably knew or should have known of the probability of an
occurrence such as the one which caused the plaintiff's injuries. Church v. Charles
Blalock & Sons, Inc., 492 S.W.3d 263, 272 (Tenn. Ct. App. 2015), perm. app. denied
(Tenn. Feb. 18, 2016) (citing Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). If
                                         -6-
the injury that occurred could not have been reasonably foreseen, the duty of care does
not arise, and even though the act of the defendant in fact caused the injury, there is no
negligence and no liability. Rice v. Sabir, 979 S.W.2d 305, 309 (Tenn. 1998) (quoting
Linder Constr. Co., 845 S.W.2d at 178); Church, 492 S.W.3d at 272.

       Although some jurisdictions maintain a standard that student misconduct is to be
expected, Tennessee follows a “more conservative foreseeability approach that student
misconduct is not to be anticipated absent proof of prior misconduct.” Mason ex rel.
Mason v. Metro. Gov't of Nashville & Davidson Cty., 189 S.W.3d 217, 222-223 (Tenn.
Ct. App. 2005) (citing Kindred v. Board of Education of Memphis City Schools, 946
S.W.2d 47 (Tenn. Ct. App. 1996); Chudasama v. Metropolitan Government of
Nashville and Davidson County, 914 S.W.2d 922 (Tenn. Ct. App. 1995)). Society
places a significant responsibility on school officials to provide a safe environment for
our children. However, such a responsibility does not make our school officials insurers
of the safety of its students. To the contrary, teachers and school districts are not
expected to be insurers of the safety of students. Mason, 189 S.W.3d at 221 (citing King
by King v. Kartanson, 720 S.W.2d 65, 68 (Tenn. Ct. App. 1986). Rather, the standard of
care owed by teachers to their students has long been defined by the case of Roberts v.
Robertson Cty. Bd. of Educ., 692 S.W.2d 863 (Tenn. Ct. App. 1985). In Roberts, a high
school student filed a complaint against the school board and his teacher for head injuries
suffered in shop class. This Court explained that Tennessee does not impose on teachers,
the “duty to anticipate or foresee the hundreds of unexpected student acts that occur daily
in our public schools.” Id at 872. However, “we have no hesitation in holding a teacher
or local school system to the duty of safeguarding students while at school from
reasonably foreseeable dangerous conditions including the dangerous acts of fellow
students.” Id. (citations omitted). Accordingly, we have repeatedly upheld the principle
that “schools, teachers, and administrators have a duty to exercise ordinary care for the
safety of their students.” Haney v. Bradley County Bd. of Educ., 160 S.W.3d 886, 897
(Tenn. Ct. App. 2004); see also Rowland v. Metro. Gov't of Nashville, No. M2012-
00776-COA-R3CV, 2013 WL 784582, at *14 (Tenn. Ct. App. Feb. 28, 2013); Lanier v.
City of Dyersburg, No. W2009-00162-COA-R3-CV, 2009 WL 4642601, at *5 (Tenn. Ct.
App. Dec. 9, 2009).

        The cases of Roe v. Catholic Diocese of Memphis, Inc., 950 S.W.2d 27 (Tenn. Ct.
App. 1996), and Lanier, 2009 WL 4642601 (Tenn. Ct. App.) are useful in analyzing the
case at bar. In Roe, a four-year-old boy was sexually assaulted by another four-year-old
boy while both children were unsupervised in the school bathroom. The trial court
granted summary judgment in favor of the Catholic Diocese of Memphis, which ran the
school, and the Roe plaintiffs appealed. The parents of the victim argued that pushing
and shoving between two preschool age boys was foreseeable, and, therefore, the injury
in that case was also foreseeable. Id. at 32. However, in that case we concluded that the
severe and irreparable emotional and physical damage that results from a sexual assault
are not the same injuries that result from a scuffle or pushing and shoving. Id. In
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affirming the trial court’s grant of summary judgment, this Court held that the incident
was unforeseeable, thus negating the prima facie element of proximate causation
necessary to establish school’s liability. Id. at 28.

       The Lanier case is even more factually similar to the instant case. In Lanier, an
eleven-year-old, special education student sexually assaulted a thirteen-year-old, special
education student in a school bathroom. Id. at *1. The City of Dyersburg presented the
affidavits of several school officials; these affidavits indicated that the perpetrator’s
records, including a recent psychological evaluation, had been reviewed. However, none
of the records indicated that the perpetrator demonstrated any physically or sexually
aggressive tendencies prior to the incident. Id. at *5. In affirming the trial court, we held
that summary judgment in favor of the City of Dyersburg was proper because the incident
was unforeseeable, thus negating the prima facie element of causation.

       Here, Mr. W. has been the resource officer at Union City Middle School and
Union City High School since 1999. Both Mr. W. and Mr. M. testified that the sexual
assault against K.G.R. was an isolated incident, and that nothing like it had ever occurred
at Union City Middle School, either between these two students, or any other students.
Mr. W. further testified that, when he interviewed K.G.R., he asked him two times
whether anything like this had happened before, and K.G.R. said no. Furthermore,
Mother testified that, to her knowledge, K.G.R. did not tell anyone about the abuse and
that she was not aware that anyone at the school knew what had occurred until May 15,
2012, when K.G.R. told school officials. The record is void of any indication that anyone
knew about a prior sexual assault against K.G.R. or any other student prior to May 15,
2012.

        Brittany K., testified that neither K.G.R. nor Q.B. had ever exhibited any need for
assistance or supervision in the bathroom. Robyn D. testified that she did not recall ever
sending Q.B. to the principal’s office prior to the May 15, 2012 incident. Here, as in Roe
and Lanier, there is no indication that any sexual misconduct had occurred prior to the
events giving rise to the lawsuit. In both Roe and Lanier, there was no indication that the
school had any reason to foresee that the perpetrator was likely to engage in such
behavior. Here, the same is true as the evidence provides no indication that Q.B. was
likely to sexually assault K.G.R. or any other student.

       Appellees argue that Mother’s note to the principal demonstrates foreseeability of
this type of harm. Mother’s letter states that K.G.R. was being bullied and punched;
however, there was no allegation or implication that K.G.R.. was being assaulted sexually
or was the likely target of a sexual assault by Q.B. or any other student. While we
concede that the foreseeability requirement is not so strict as to require the tortfeasor to
foresee the exact manner in which the injury takes place, if the general manner in which
the injury occurred could have been foreseen, or should have been foreseen through the
exercise of reasonable diligence, the foreseeability requirement will be met. Moore v.
                                          -8-
Houston Cty. Bd. of Educ., 358 S.W.3d 612, 619 (Tenn. Ct. App. 2011); Lanier 2009
WL 4642601, at *4; Mason, 189 S.W.3d at 222 (citing McClenahan, 806 S.W.2d at
775). Nonetheless, “the harm must be foreseeable from the vantage point available to the
defendant at the time that the allegedly negligent conduct occurred.” Crutchfield v. State,
No. M2015-01199-COA-R3-CV, 2016 WL 1601309, at *7 (Tenn. Ct. App. Apr. 18,
2016) (citing Wingo v. Sumner County Board of Education, No. 01A01-9411-CV-0051,
1995 WL 241327, at *3 (Tenn. Ct. App. M.S. April 26, 1995)). Additionally, “the
plaintiff must show that the injury was a reasonably foreseeable probability, not just a
remote possibility, and that some action within the defendant’s power more probably than
not would have prevented the injury.” Rathnow v. Knox County, 209 S.W.3d 629, 633-
34 (Tenn. 2006)(citing Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). “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. . . . the
law defines negligence by the standard of foreseeability, not that of hindsight.” Lanier,
2009 WL 4642601 at *6. Even giving every reasonable inference in favor of the
Appellees, the record simply does not support a finding that a sexual assault against
K.G.R. was foreseeable. Contrary to Mother’s contention, her letter provided Appellant
school district no notice that K.G.R. had been either the victim of a sexual assault at
school, or was likely to be the victim of a sexual assault by Q.B. or any other student. A
sexual assault is very different in nature than the bullying and other behavior complained
of in her letter. Because the incident was not foreseeable, we conclude that Appellant did
not have a duty to protect K.G.R. from this type of assault. Having determined that the
prima facie element of duty is not met, we pretermit discussion of foreseeability as it
bears on the element of causation.

                                     V. Conclusion

       For the foregoing reasons, we reverse the trial court’s order denying summary
judgment in favor of Appellees and remand for entry of judgment in favor of Appellant
and all further proceedings as may be necessary and consistent with this Opinion. Costs
on the appeal are assessed against the Appellees, R.R. and J.R., for all of which execution
may issue if necessary.


                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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