                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
                                                               FILED
JOYCE ANN NEAL, Individually          )
                                                                 May 9, 1996
and as parent and next of kin of      )
the minor child, BRANDON              )
                                                              Cecil Crowson, Jr.
DEVORIS NEAL,                         )                       Appellate C ourt Clerk
                                      )
             Plaintiff/Appellant,     ) Fayette Circuit No. 3189
                                      )
VS.                                   ) Appeal No. 02A01-9412-CV-00271
                                      )
FAYETTE COUNTY BOARD OF               )
EDUCATION, DALE SUMMITT,              )
Superintendent of Schools,            )
WILLIAM A. WEDDLE, Principal          )
of Northwest Elementary School,       )
JEAN BELLE, Teacher,                  )
                                      )
             Defendants/Appellees.    )


           APPEAL FROM THE CIRCUIT COURT OF FAYETTE COUNTY
                      AT SOMERVILLE, TENNESSEE
             THE HONORABLE JON KERRY BLACKWOOD, JUDGE




DOROTHY W. MCARTHUR
KIM, WILLCOX & MCARTHUR
Memphis, Tennessee
Attorney for Plaintiff/Appellant


JAMES I. PENTECOST
WALDROP AND HALL, P.A.
Jackson, Tennessee
Attorney for Defendants/Appellees




AFFIRMED


                                                           ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
    This matter arose out of a personal injury action brought against Fayette County
Board of Education by plaintiff, Joyce Ann Neal, as parent and next of kin of Brandon Neal,

a minor. Brandon, age eleven, was injured while playing basketball when his finger

became caught in the goal. Reasoning that the goal was neither dangerous nor defective

and that Brandon caused his own injuries through his misuse of the goal, the trial court

held in favor of the school board. On appeal, plaintiff contends that the evidence

preponderates against the trial court's determination that the goal was not dangerous or

defective. Plaintiff further alleges that the trial court erred in failing to find that the school

board was negligent. For the reasons stated below, we find these contentions to be

without merit; therefore, we affirm the trial court's judgment.



       On May 11, 1992, Brandon Neal, a fifth-grade student, was injured during physical

education period at school when, after making several attempts to dunk the basketball into

the goal, his "pinky" finger became lodged in a crevice in the goal. As a result, his finger

was partially amputated above the first joint.



       At the time of the injury, P.E. class was supervised by two fifth-grade teachers, Ms.

Belle and Ms. Rhea. Ms. Rhea supervised the boys on the playground, while Ms. Belle

supervised the girls inside the classroom and on the adjacent porch. Ms. Rhea was

standing about twelve feet from the goal at the time of Brandon's injury.



       In support of her contentions, plaintiff relies heavily on the fact that two students had

previously suffered similar injuries on the basketball goal. Approximately one year after

the goal was installed in 1981, Daryl Campbell, an eighth-grade student, severed his pinky

finger when it became lodged in the same "V"-shaped crevice that caused Brandon's injury.

Like Brandon, Daryl Campbell was attempting to dunk the ball when his injury occurred.

Ten years later, in 1991, Antwone Taylor, a fifth-grade student at the school, broke his

finger in the crevice of the goal while he was trying to dunk the ball.



       At trial, defendant relied on the doctrine of sovereign immunity to shield it from

liability. Plaintiff argues that defendant was not entitled to immunity because immunity is



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removed for dangerous or defective structures and for some negligent acts and omissions

of employees. The applicable provisions are as follows:

             Removal of immunity for injury from dangerous structures
             -- Exception -- Notice required. -- (a) Immunity from suit of a
             governmental entity is removed for any injury caused by the
             dangerous or defective condition of any public building,
             structure, dam, reservoir or other public improvement owned
             and controlled by such governmental entity.
             (b) Immunity is not removed for latent defective conditions, nor
             shall this section apply unless constructive and/or actual notice
             to the governmental entity of such condition be alleged and
             proved in addition to the procedural notice required by Sec. 29-
             20-302.

T.C.A. § 29-20-204 (1980).

             Removal of immunity caused by negligent act or omission
             of employees -- Exceptions. -- Immunity from suit of all
             governmental entities is removed for injury proximately caused
             by a negligent act or omission of any employee within the
             scope of his employment except if the injury:
             (1) Arises out of the exercise or performance or the failure to
             exercise or perform a discretionary function, whether or not the
             discretion is abused....

T.C.A. § 29-20-205 (1980).



      We will first address plaintiff's contention that governmental immunity is removed

in the present case because the goal was dangerous and/or defective.



      Because this case was tried by the court sitting without a jury, we review the case

de novo upon the record with a presumption of correctness of the trial court's findings of

fact. T.R.A.P. 13(d).



      In the context of the Governmental Tort Liability Act, Tennessee courts have held

that items such as an electrical line, McGaughy v. City of Memphis, 823 S.W. 2d 209

(Tenn. App. 1991), an improperly constructed and installed drainage system, Rediker v.

Gillespie, No. 86-367-II, 1987 WL 11763 (Tenn. App. June 5, 1987), and a broken and

cracked manhole cover, Bradford v. City of Clarksville, 885 S.W. 2d 78 (Tenn. App. 1994),

were defective or dangerous, thereby resulting in removal of governmental immunity.



      In this case, however, the structure at issue is neither inherently dangerous nor

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broken. At the time of the accident, the basketball goal was in the same condition as it was

when it was installed in 1981. There were no cracks, breaks, or other problems with the

goal. In fact, the sole defect that Brandon was able to identify was the fact that the goal

was rusty.    Numerous school officials testified that they did not feel that the goal

constituted any danger or threat to the students. No teacher had ever complained about

the goal or requested its removal. Plaintiff presented no evidence, expert or otherwise, that

the goal was dangerous or defective. The fact that two previous injuries occurred, standing

alone, is insufficient to establish a dangerous or defective condition, especially when the

previous injuries occurred solely due to the students' misuse of the goal.



       An intact basketball goal is completely dissimilar to structures such as power lines

or other structures that of themselves create danger. We hold that a basketball goal is not

a dangerous or defective structure within the meaning of the Governmental Tort Liability

Act when it is not in a defective condition and when it is used in its intended manner.

Consequently, sovereign immunity may not be removed on this basis.



       Plaintiff next contends that the defendant was negligent in failing to adequately

supervise the students, failing to warn Brandon of the goal's dangerous propensities, failing

to properly instruct Brandon on how to use the goal, and failing to remove the goal after

two previous injuries had occurred.



       In order to sustain a claim for negligence, plaintiff must prove that defendants had

a legally recognized duty to him, that such duty was breached, and that the breach caused

his injuries. Roberts v. Robertson County Board of Education, 692 S.W. 2d 863, 869

(Tenn. App. 1985).



       Teachers and school officials are not required to be insurers of the safety of

students. Id. at 870. They are, however, required to exercise such care as ordinarily

reasonable and prudent persons would exercise under the same or similar circumstances.

Id.



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       In the present case, two fifth-grade teachers were supervising the students during

physical education period. There was testimony to the effect that all of the students,

including Brandon, had been instructed not to play rough and not to dunk on the goal.

Although Brandon testified that he was never warned about dunking or rough-housing, one

of plaintiff's witnesses, a classmate of Brandon's and a fellow fifth-grade student, testified

that their teacher had warned them about playing rough on the goal and would chastise

students for dunking the ball. In light of the foregoing, we find no merit in plaintiff's

contention that defendant was negligent in failing to supervise, warn, or instruct Brandon

regarding the basketball goal.



       School children invariably suffer a myriad of injuries on all types of playground

equipment. These injuries can and do occur without regard to the condition of the

equipment. A school cannot anticipate the varied and unexpected acts that occur daily in

and about school premises and courts do not impose upon teachers a duty "to anticipate

or foresee the hundreds of unexpected student acts that occur daily." Roberts, 692

S.W.2d at 872. To hold the school board liable in the present case would be tantamount

to making the school board an insurer of the safety of children, which we decline to do.



       We also agree with the trial court that plaintiff has failed to demonstrate any legal

causal connection between the defendant's alleged actions or inactions and Brandon's

injury. Where the time between a student's act and the resulting injury is so brief that the

teacher has no opportunity to prevent such injury, it cannot be said that the teacher's

negligence is the proximate cause of the injury. It is apparent from the record that

Brandon's misuse of the goal in attempting to slam-dunk the ball caused his injury.



       Finally, any alleged negligence on the part of the defendant in failing to remove the

goal after the previous injuries would not be actionable because the decision whether to

remove the goal would be a discretionary function for which governmental immunity is not

removed. Bowers ex rel. Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992).

See also, O'Guin v. Corbin, 777 S.W.2d 697 (Tenn. App. 1989)(holding that decision as



                                              5
to whether to place a traffic control device at an intersection was discretionary); Doe v.

Board of Education, 799 S.W.2d 246 (Tenn. App. 1990)(holding that decision to leave

school door unlocked was discretionary function).



       Based upon our review of the record, we conclude that the evidence does not

preponderate against the determination of the trial court that the goal was neither

dangerous nor defective, that the defendants did not breach their duty to Brandon, and that

Brandon caused his own injuries. Accordingly, the trial court's judgment is affirmed. Costs

are adjudged against plaintiff.




                                                       HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




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