            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE
                                                FILED
MILES NICKELSON and              )
MARY JOYCE NICKELSON,            )              September 29, 1999
as parents and next of friend,   )
                                                Cecil Crowson, Jr.
NAKESHA S. NICKELSON,            )             Appellate Court Clerk
a minor                          )
                                 )
      Plaintiffs/Appellants,     )       Appeal No.
                                 )       01A01-9807-CV-00375
v.                               )
                                 )       Sumner County Circuit
SUMNER COUNTY BOARD              )       No. 17122-C
OF EDUCATION                     )
                                 )
      Defendant/Appellee.        )

                  COURT OF APPEALS OF TENNESSEE

                  APPEAL FROM THE CIRCUIT COURT
                       FOR SUMNER COUNTY
                     AT GALLATIN, TENNESSEE

         THE HONORABLE THOMAS GOODALL PRESIDING


KENNETH M. SWITZER
WILLIAMS & ASSOCIATES, P.C.
SUITE 1425 FIRST AMERICAN CENTER
315 DEADERICK STREET
NASHVILLE, TENNESSEE 37238-1425

ATTORNEY FOR PLAINTIFFS/APPELLANTS

WILLIAM R. WRIGHT
LEAH MAY DENNEN
OFFICE OF THE LAW DIRECTOR
SUMNER COUNTY ADMINISTRATION BUILDING
355 NORTH BELVEDERE DRIVE, ROOM 208
GALLATIN, TENNESSEE 37066

ATTORNEYS FOR DEFENDANT/APPELLEE

                     AFFIRMED AND REMANDED

                                     PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, P. J.
CAIN, J.
                                  OPINION

       In this case Plaintiffs, Miles Nickelson and Mary Nickelson, sued the

Sumner County Board of Education for injuries their daughter, Nakesha

Nickelson, sustained when she was struck in the eye with a metal meter stick or

ruler which was swung by a classmate. Plaintiffs now appeal the trial court’s

order granting the defendant school system summary judgment. We affirm the

order of the trial court.

       Nakesha Nickelson was a thirteen year old seventh grader at Rucker-

Stewart Middle School in Sumner County on the day of the accident. She was

in a classroom when two other students were allegedly having a tug-of-war over

a metal ruler. The ruler struck Nakesha Nickelson in the eye causing permanent

eye damage. Ms. Nickelson admits that shortly before she was wounded, she

too had been playing with the ruler, and used it to tap another student. In the

moments immediately before she was struck, Ms. Nickelson was facing away

from the other students while they were grappling over the ruler. Ms. Nickelson

turned around just in time to be hit in the eye. She suffered serious injury to her

eye.

       At the time of this incident, Ms. Blades, a teacher with eleven years of

teaching experience, was in the classroom. There were between twenty-five (25)

and thirty-two (32) students in the class. In her deposition, Ms. Blades testified

that she saw the children with the ruler, but never observed the girls tugging over

it. Ms. Blades testified that at the time of the incident she was sitting at her desk

“putting books in a bag.” While there is some dispute over how long after the

beginning of a class-changing interval this event happened, both parties agree

that it happened before the teacher had commenced instruction of the class.

       Plaintiffs sued the Sumner County Board of Education under the

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Governmental Tort Liability Act for damages based on their daughter’s bodily

injury, pain and suffering and lost future earning capacity. The trial court

granted Defendant’s motion for summary judgment based on findings that (1)

the teacher’s action at the time and date of the injury did not amount to a

deviation from what a reasonable and prudent person would do under the

circumstances; (2) school systems are not the insurers of the safety of students;

and (3) the student’s own fault/negligence caused or contributed to her damages

and constituted fifty percent (50%) or more of the total fault/negligence causing

the damages.

                                       I.

      Summary judgments do not enjoy a presumption of correctness on appeal.

See City of Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn.1997);

McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn.1996).

Accordingly, we must make a fresh determination concerning whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. See Hunter v. Brown,

955 S.W.2d 49, 50-51 (Tenn.1997); Mason v. Seaton, 942 S.W.2d 470, 472

(Tenn.1997). Summary judgments are appropriate only when there are no

genuine factual disputes with regard to the claim or defense embodied in the

motion and when the moving party is entitled to a judgment as a matter of law.

See Tenn. R. Civ. P. 56; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997);

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

      Courts reviewing summary judgments must view the evidence in the light

most favorable to the nonmoving party and must also draw all reasonable

inferences in the nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d

423, 426 (Tenn.1997);      Mike v. Po Group, Inc., 937 S.W.2d 790, 792

(Tenn.1996). Thus, a summary judgment should be granted only when the

                                       -3-
undisputed facts reasonably support one conclusion--that the moving party is

entitled to a judgment as a matter of law. See McCall v. Wilder, 913 S.W.2d

150, 153 (Tenn.1995); Carvell, 900 S.W.2d at 26. A party may obtain a

summary judgment by demonstrating that the nonmoving party will be unable to

prove an essential element of its case. See Byrd v. Hall, 847 S.W.2d 208,

212-13 (Tenn.1993); see also Coln v. City of Savannah, 966 S.W.2d 34, 44

(Tenn. 1998).

                                        II.

      In this case, the summary judgment for the Defendant school system

should be affirmed if, after weighing all the undisputed facts in the light most

favorable to Plaintiffs, this court concludes that Plaintiffs will be unable to

establish an essential element of their claim.

      No negligence claim can succeed without proof of (1) a duty of care owed

by the defendant to the plaintiff; (2) conduct falling below the standard of care

that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and

(5) proximate cause. See McClung, 937 S.W.2d at 894. Duty is the legal

obligation a defendant owes to a plaintiff to exercise reasonable care in order to

protect against unreasonable risks of harm. See McCall, 913 S.W.2d at 153.

This duty of reasonable care must be considered in relation to all the relevant

circumstances, and the degree of foreseeability needed to establish a duty of care

decreases in proportion to increases in the magnitude of the foreseeable harm.

See Pittman v. Upjohn Co., 890 S.W.2d 425, 433 (Tenn.1994); Doe v. Linder

Constr. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992). The nature and scope of

a person's duty in a particular situation is a question of law to be decided by the

court. See Blair v. Campbell, 924 S.W.2d 75, 78 (Tenn.1996); Bradshaw v.



                                        -4-
Daniel, 854 S.W.2d 865, 869 (Tenn.1993). Thus, a motion for summary

judgment is an appropriate mechanism for determining a defendant's duty when

the facts are undisputed. See Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn.

App.1992).

                                      III.

      Tennessee courts have previously examined the duty owed to students by

teachers and other school personnel. It has been often stated that teachers and

local school districts are not expected to be insurers of the safety of students

while they are at school. See King by King v. Kartanson, 720 S.W.2d 65 (Tenn.

App. 1986); Roberts v. Robertson Co. Bd. Of Educ., 692 S.W.2d 863 (Tenn. App.

1985); Cadorette v. Sumner Co. Bd. Of Educ., No. 01A01-9510-CV-00441, 1996

WL 187586 at * 2 (Tenn. App. April 19, 1996) (no Tenn.R.App.P. 11 application

filed); McCann v. Coleman, (no case number given) 1990 WL 97860 at * 2

(Tenn. App. July 17, 1990).

      However, teachers and other school personnel must conform to a standard

of reasonable and ordinary care under the circumstances. See Hawkins County

v. Davis, 216 Tenn. 262, 267, 391 S.W.2d 568, 660 (1965); Murray v. Bryant,

No. 01A01-9704-CV-00146, 1997 WL 607518 at * 6 (Tenn. App. Oct. 3, 1997)

(no Tenn.R.App.P. 11 application filed).      The standard of care for school

teachers and administrators is that of a reasonable person in such a position

acting under the same or similar circumstances. Roberts, 692 S.W.2d at 870.

      As stated in Cadorette:

      Negligence can be established only upon a showing that the
      teacher’s or supervisor’s actions amounted to a deviation from what
      a reasonable and prudent person would do under the same or similar
      circumstances. See Grace Provision Co. v. Dortch, 350 S.W.2d
      409, 413 (Tenn. App. 1961). Simply stated, there is no liability for
      the results of an accident that could not have been foreseen by a


                                      -5-
       reasonably prudent person. Brackman v. Adrian, 472 S.W.2d 725,
       739 (Tenn. App. 1971). However, an adult’s standard of care
       toward children should be tempered by the recognition of children’s
       impulsiveness and inexperience. Roberts v. Robertson County Bd.
       Of Education, 692 S.W.2d 863 (Tenn. App. 1985); citing Townsley
       v. Yellow Cab Co., 237 S.W.58 (1922). We believe that Ms. Yeary
       owed Todd Cadorette, as well as all of her pupils, a duty to act
       reasonably under the circumstances. More specifically, in order for
       Ms. Yeary to discharge this duty she must instruct and supervise her
       students in a manner which recognizes their age and maturity.

Cadorette, 1996 WL 187586 at *2.

       In Cadorette, an art teacher asked for a volunteer to stand upon a four foot

high table and model for the class. A fifteen-year old ninth grade student

volunteered, stood on the table for about ten minutes, and then fainted and fell,

injuring his head. This court found that the teacher was not negligent since the

accident and injury were not foreseeable, stating “with specific reference to the

conduct of teachers, we do not impose upon them the duty to anticipate or

foresee the hundreds of unexpected student acts that occur daily in our public

schools.” Id. at *3 (citing Roberts, 692 S.W.2d at 863).

       In King by King v. Kartanson, 720 S.W.2d at 65, this court reversed a

lower court’s judgment finding two teachers negligent when they allowed a

thirteen year old eighth grade student under their care on a field trip to cross a

street unsupervised. The student had asked and obtained permission. Observing

that a child’s age and ability to look after his or her own safety is often the

dominant factor in determining whether a duty exists in this type of situation, this

court held that the teachers had no duty to personally escort the student across

the street.

       In Cadorette, Kartanson, and McCann, the teachers were aware of the

activity the students were engaged in prior to their injuries, and in all three cases,

this court found the teachers had not been negligent in their supervision. In the


                                         -6-
case before us, however, the teacher was not even aware the students were

tugging on the ruler. Plaintiffs assert this failure to observe the activity is the

omission by which the teacher breached her duty to Ms. Nickelson.

       In Chudasama v. Metropolitan Government, 914 S.W.2d 922 (Tenn. App.

1995), plaintiffs alleged that a gym teacher’s action in letting seventh grade

students go to their locker rooms fifteen minutes before class ended was

negligent and resulted in one of the students being attacked in the unsupervised

locker room. Because there was no evidence in the record of antagonism

between the student attacked and her attackers, this court found, “It would place

an unrealistic burden of foresight upon the teacher to conclude that he should

have anticipated the events that occurred.” Chudasama at 914 S.W.2d at 925;

see also Murray v. Bryant, 1997 WL 607518 (Tenn. App. 1997) (neither teacher

nor supervisor breached the standard of reasonable care because, under the facts

presented, neither should have foreseen that a seventh grade student would bring

a gun to school.)

       Unlike the drill bit and drill press which injured a student in Roberts v.

Robertson Co. Bd. Of Educ., a metal meter stick, while obviously capable of

inflicting injury as it did here, is not, in and of itself, a dangerous instrumentality

and is used routinely in classrooms. The fact that the teacher saw the students

with the ruler does not mean she should have foreseen the tugging and the

subsequent injury. We find nothing in this record to suggest otherwise.

       Plaintiffs assert that the classroom teacher was negligent in failing to

observe and stop the tug-of-war behavior. Under Plaintiffs’ theory, the teacher

was required to continuously observe the seventh grade students as they came

into her classroom and at all times they were therein. We do not agree that such



                                          -7-
a duty exists, because, taken to its logical conclusion, it would preclude a teacher

from performing any task which required his or her attention elsewhere, e.g.,

individual conferences with students, reading from a text, or writing on the

blackboard.

       Having found there was no duty, our inquiry ends. Kartanson, 720

S.W.2d at 69. We need not consider the other elements of negligence or the

relative fault of the parties.

       We affirm the trial court’s grant of summary judgment to the Board of

Education. This case is remanded to the trial court for whatever further

proceedings may be necessary. Costs of this appeal are taxed to the appellant.


                                               ___________________________
                                               PATRICIA J. COTTRELL, JUDGE


___________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M. S.


___________________________
WILLIAM B. CAIN, JUDGE




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