                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 3, 1999 Session

                      ANNA LAMB v. STATE OF TENNESSEE

                        Appeal from the Tennessee Claims Commission
                          No. 301696    W.R. Baker, Commissioner



                   No. M1998-00910-COA-R12-CV - Filed October 16, 2002


This appeal stems from a mother’s allegations that her mentally impaired daughter was sexually
abused while in the custody of the Alvin C. York Agricultural Institute. The mother filed a claim
on her daughter’s behalf with the Division of Claims seeking $300,000 in damages. The claim was
transferred to the Tennessee Claims Commission where, following a hearing, a Commissioner
dismissed the claim because the mother had failed to establish that her daughter had been sexually
abused while she was in the State’s custody. The mother asserts on this appeal that the evidence
preponderates against the Commissioner’s findings. We affirm the Commissioner’s dismissal of the
claim.

    Tenn. R. App. P. 12(II) Direct Appellate Review; Judgment of the Tennessee Claims
                                   Commission Affirmed

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

John H. Little and Lynda Simmons, Livingston, Tennessee, and Onnie L. Winebarger, Byrdstown,
Tennessee, for the appellant, Anna Lamb.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Martha
A. Tarleton, Senior Counsel, for the appellee, State of Tennessee.

                                             OPINION

                                                  I.

        Michelle Lamb is a 25-year-old, mentally impaired woman who lives in Jamestown with her
mother, Anna Lamb, and her two younger brothers. She is moderately mentally retarded, and she
functions at the level of a five-year-old. Ms. Lamb also has a severe refractory seizure disorder that
has been treated with surgery and requires medication to control. Ms. Lamb’s conditions have
significantly impaired her cognitive functions. Because she is impaired in the receptive and
expressive language, she has limited communication skills. She has a poor memory and finds it
difficult to concentrate or pay attention either because of brief seizure activity or because she is
sedated by the medication she is required to take.

        Ms. Lamb began having seizures when she was eight months old. Her other impairments
became evident after she enrolled for kindergarten at Pinehaven Elementary School, and she was
placed in a special education class. At the beginning of second grade, Ms. Lamb was transferred to
a special education program at York Elementary School. Her mother objected to the transfer and
requested that Ms. Lamb remain in the special education room at Pinehaven Elementary. Contrary
to Anna Lamb’s wishes, her daughter remained at York Elementary. Her teachers reported that she
was moody, that her progress was slow and difficult, and that her socialization with others was
problematic.

        The first report of sexual abuse involving Ms. Lamb occurred in mid-July 1990 when she told
her mother during a bath that her 16-year-old cousin had engaged in oral sex with her while he was
babysitting. Over one week later, Anna Lamb reported her daughter’s statements to their family
physician, the Department of Human Services, and the District Attorney General. The physician
found what he believed to be physical corroboration of probable sexual abuse, but Ms. Lamb’s
cousin denied engaging in any sort of sexual conduct with her. Even though the Department
suspected that Ms. Lamb had been sexually abused, Ms. Lamb’s cousin was never prosecuted after
he agreed to counseling and pretrial diversion.

         Ms. Lamb transferred to the Alvin C. York Agricultural Institute (“York Institute”) in 1991
and was enrolled in the Tennessee LRE for Life program which was designed to teach “survival
skills” to students like Ms. Lamb to enable them to live in the least restrictive environment possible.
The program included job training and frequent off-campus trips. Ms. Lamb apparently did not
enjoy being at York Institute. In December 1991, she complained to her mother than she had been
paddled at school. After taking her daughter to the emergency room, Ms. Lamb’s mother
complained to the school officials about the paddling. Thereafter, the school officials agreed that
they would not spank Ms. Lamb and that they would try other methods of discipline.

       The second report of sexual abuse involving Ms. Lamb occurred in June 1992 during the last
week of school. Ms. Lamb told her mother that “somebody came into the room and jerked my pants
down and stuck their finger in my butt.” Her mother would not permit Ms. Lamb to return to school
and requested the school’s special education coordinator to come to her house to discuss the matter.
Ms. Lamb never identified the perpetrator, and the special education coordinator assured her mother
that Ms. Lamb was never left unsupervised. Ms. Lamb’s mother later went to York Institute to tell
Patty Dunn, her daughter’s teacher, and Patsy Peavyhouse, a teacher’s aid, that she wanted one of
them to be with Ms. Lamb during the entire time she was at school. Mses. Dunn and Peavyhouse
assured her that they would not leave Ms. Lamb unsupervised while she was at York Institute.

       Ms. Lamb returned to York Institute in the fall of 1992 but missed a great deal of school
because of her seizures. One of the outings she missed was a trip to Ms. Dunn’s barn to see a new


                                                 -2-
colt. When Ms. Lamb returned to school on Monday, September 14, 1992, Ms. Dunn, with her
superior’s permission, decided to take her to the barn to see the colt. During the trip which lasted
approximately ninety minutes, Ms. Dunn stopped by her house to change clothes because she
planned to take another horse to a veterinarian in Cookeville later that day, and then drove Ms. Lamb
to her barn. After Ms. Dunn returned Ms. Lamb to York Institute, she was with Ms. Peavyhouse at
all times until she was placed on the bus to go home. Ms. Peavyhouse reported that Ms. Lamb
seemed happy and was still talking about the horses when she got on the bus.

        When Ms. Lamb arrived home, both her mother and her brother thought that she was walking
in an unusual manner and that she was having difficulty sitting squarely on her seat. While helping
Ms. Lamb shower that evening, her mother noticed a stain on her underwear that appeared to be
dried blood. She also noticed that her daughter’s rectum appeared to be swollen and torn and that
she had a large bruise on her chest. When Ms. Lamb provided no explanation for these conditions,
her mother decided that her daughter was again the victim of sexual abuse and that Ms. Dunn was
somehow involved because her daughter had told her earlier about going to Ms. Dunn’s barn. Even
though Anna Lamb became distraught, she did not seek medical assistance or report her daughter’s
condition to the authorities that evening.

        Anna Lamb did not permit her daughter to return to York Institute the following day. She
telephoned her sister, Mary Sue Brannon, to tell her that she suspected that Ms. Lamb had again been
molested at school. Ms. Brannon was married to a retired Command Sergeant Major in the United
States Army who was the JROTC instructor at York Institute. When Ms. Brannon related her sister’s
concerns to her husband, Mr. Brannon reported that he had seen Ms. Lamb leaving the school with
Ms. Dunn the previous day. At this point, Anna Lamb and the Brannons became convinced that Ms.
Dunn and her husband, who was also a teacher at York Institute, had molested Ms. Lamb at their
barn. Mr. Brannon arranged for Ms. Lamb to be examined by a physician the following day.

       Ms. Lamb’s physician examined her on Wednesday. While Ms. Lamb did not explain what
had happened to her, her physician concluded that her injuries were probably the result of sexual
abuse and that they were between one day and five days old. To help his sister-in-law, Mr. Brannon
tried without success to contact the Tennessee Bureau of Investigation’s (“TBI”) office in
Cookeville.

       Anna Lamb permitted her daughter to return to York Institute on Thursday. Mr. Brannon
tried unsuccessfully to contact the TBI’s office in Nashville and then passed on the family’s
suspicions about Ms. Lamb’s sexual abuse to Douglas Young, the superintendent of York Institute.
Mr. Young immediately contacted John Galloway, an assistant district attorney general, who
arranged to meet with Ms. Lamb and her mother at Mr. Brannon’s house on Saturday.

        After dropping off her daughter at school on Thursday, Anna Lamb and her two sisters,
dressed in fatigues and armed with a loaded pistol, secreted themselves near the Dunns’ horse barn
in case the Dunns brought Ms. Lamb back to the barn. Their purpose was to shoot Patty Dunn and



                                                -3-
her husband if they returned to the barn with Ms. Lamb. They waited for three to four hours and
finally left when no one arrived at the barn.

        On Saturday, September 19, 1992, Charles Scott, a TBI agent proficient at sexual abuse
investigations, interviewed Ms. Lamb at the Brannon residence. He was unable to obtain any useful
information from her. Mr. Brannon disapproved of Mr. Scott’s investigative techniques, and after
Mr. Scott left, he decided to question Ms. Lamb himself. During this conversation, Mr. Brannon
professes that Ms. Lamb, for the first time, stated that she had been sexually molested by Ms. Dunn
and her husband, and perhaps others, at the Dunns’ home and horse barn. Mr. Brannon then
telephoned Mr. Galloway and offered to bring Ms. Lamb to the sheriff’s office to tell her “secret.”
Once at the sheriff’s office, Mr. Brannon led Ms. Lamb through an account of the events of the
preceding Monday. Both Messrs. Galloway and Scott believed that Ms. Lamb was a compromised
witness because Mr. Brannon repeatedly asked her leading, suggestive, and professionally
inappropriate questions. Neither Mr. Galloway nor Mr. Scott believed that there was any reasonable
basis to suspect that the Dunns had molested Ms. Lamb.

        The Department of Human Services commenced its investigation on September 24, 1992.
During interviews by different caseworkers on September 24 and 28, 1992, Ms. Lamb repeated some
of the information Mr. Brannon had earlier provided to the Department. After interviewing Ms.
Lamb on October 8 and 9, 1992, Gary L. Aebischer, a licensed psychological examiner and certified
school psychologist, concluded that “[t]he current findings are inconclusive and do not point toward
a consistent scenario of sexual abuse . . ..” He noted that “there are no conclusive indications that
this youngster is attempting to cope with serious victimization” and that “mentally retarded
youngsters can easily be influenced into providing answers which are in effect prompted by the
questions posed by the inquirer.”

        Ms. Lamb was subjected to additional interviews and examinations for several more weeks,
including a family nurse practitioner employed by Vanderbilt University School of Medicine. She
remained generally uncommunicative about her injuries. Several examiners concluded that her
physical condition was consistent with sexual penetration but declined to rule out other causes or to
pinpoint when the penetration could have taken place. The Department referred Ms. Lamb to Dr.
Sharon Brandon-Campbell, a psychologist in private practice, for counseling and safety training.
During her ten sessions with Dr. Brandon-Campbell which ended on February 23, 1993, Ms. Lamb
stated that Mr. and Ms. Dunn had touched her in inappropriate ways.1

       The authorities eventually determined that the evidence did not warrant criminally
prosecuting the Dunns for sexual abuse. The Dunns eventually moved to North Dakota. On
September 3, 1993, Anna Lamb filed a claim with the Division of Claims Administration seeking
$300,000 in damages for the negligent care, custody, and control of Ms. Lamb. She alleged that her
daughter had been “raped, sodomized, sexually abused, and assaulted by person or persons unknown


        1
          W e have determined that recounting the specifics of Ms. Lamb’s statements to Dr. Brandon-Campbell serves
no useful purpose.

                                                       -4-
who were at the premises of CRAIG and PATTY DUNN and in the presence of PATTY DUNN.”
The State responded by denying the material allegations of the claim.

        The claim was transferred to the Tennessee Claims Commission for trial. In preparation for
the trial, the State retained Dr. William Bernet, a child and forensic psychiatrist serving as the
medical director of The Psychiatric Hospital at Vanderbilt. Dr. Bernet reviewed Ms. Lamb’s records
and interviewed Ms. Lamb and her mother. He concluded that the physical evidence was consistent
not only with sexual molestation but also with other explanations. He also determined that Ms.
Lamb’s statements regarding sexual abuse were not the products of her independent memory but
rather were “verbal routines” that were “derived from conversations that she had with her mother,
her uncle, and perhaps other relatives.” Accordingly, he concluded that “[i]t is impossible to know
from . . . [Ms. Lamb’s] statements what actually happened to her or who did it.”

        The focus of Anna Lamb’s proof at trial shifted away from the Dunns. She asserted that she
had placed her daughter in the State’s custody when she dropped her off at York Institute on the
morning of September 14, 1992, and that her daughter had somehow been sexually abused by
someone that day while she was in the State’s custody. She reasoned that the State must have been
acting negligently because the sexual abuse could not have occurred otherwise.

        The Commissioner who presided over the hearing filed a judgment on March 3, 1998.
Following a detailed review of the evidence, the Commissioner concluded that Anna Lamb had
failed to prove by a preponderance of the evidence that her daughter had been sexually abused as a
result of York Institute’s negligence. Specifically, the Commissioner determined:

       (1)     that it is “not clear” that the scarring in Ms. Lamb’s vagina and anus were caused by
               sexual abuse because the medical professionals who had examined Ms. Lamb had
               declined to rule out the possibility of other causes;

       (2)     that Ms. Lamb’s fragmented descriptions of the events of September 14, 1992, did
               not support concluding that she had been sexually abused because they were “the
               product of inexpert questioning by her family which produced suggested responses;”

       (3)     that even if Ms. Lamb had been sexually abused, her mother’s evidence failed to
               establish that this abuse occurred on September 14, 1992, or that it occurred while
               Ms. Lamb was in the State’s custody; and finally

       (4)     that even if Ms. Lamb had been sexually abused on September 14, 1992, while in the
               State’s custody, Ms. Lamb failed to demonstrate how the State had been negligent
               by failing to protect her from sexual abuse.

       Anna Lamb has perfected this appeal. Rather than raising issues of law, her arguments focus
on the evidentiary foundation of the Commissioner’s judgment. She asserts that the evidence
preponderates against the Commissioner’s conclusion that she failed to prove that her daughter was


                                                -5-
sexually abused on September 14, 1992. Invoking the doctrine of res ipsa loquitur, she also asserts
that the State did not adequately rebut the presumption of negligence arising from her daughter’s
injuries because the evidence regarding her daughter’s supervision at school on September 14, 1992
was “sorely lacking with regard to the Third Period between 10:00 am and 11:00 am.”

                                                  II.
          THE EVIDENTIARY FOUNDATION FOR THE COMM ISSIONER’S CONCLUSIONS

         We turn first to Anna Lamb’s argument that the evidence does not support the
Commissioner’s conclusion that she failed to prove that her daughter was sexually abused on
September 14, 1992. She asserts in this regard that “reasonable minds at all times would conclude
that . . . [Ms.] Lamb was indeed sexually abused on September 14, 1992 while under the care,
custody, and control of York Institute.” While the evidence might permit reasonable persons to
conclude that Ms. Lamb was sexually abused on September 14, 1992, it also permits reasonable
persons, including the Commissioner, to conclude that the sexual abuse, if it occurred, did not occur
on September 14, 1992.

                                                  A.

        The Tennessee Claims Commission’s factual findings, like any other non-jury civil
proceeding are reviewed on appeal using the standards contained in Tenn. R. App. P. 13(d). Beare
Co. v. State, 814 S.W.2d 715, 717 (Tenn. 1991); Pool v. State, 987 S.W.2d 566, 569 (Tenn. Ct. App.
1998). These standards are well-settled. With regard to findings of fact, we review the record de
novo and presume that the findings of fact are correct “unless the preponderance of the evidence is
otherwise.” We will also give great weight to any factual findings that rest on determinations of
credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997); B & G Constr., Inc. v. Polk,
37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). However, in the absence of findings of fact on a
particular matter, we will review the record to determine where the preponderance of the evidence
lies without employing a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296
(Tenn. 1997).

         Reviewing findings of fact under Tenn. R. App. P. 13(d) requires an appellate court to weigh
the evidence to determine in which party's favor the weight of the aggregated evidence falls. There
is a “reasonable probability” that a proposition is true when there is more evidence in its favor than
there is against it. Thus, the prevailing party is the one in whose favor the evidentiary scale tips, no
matter how slightly. Parks Props. v. Maury County, 70 S.W.3d 735, 741 (Tenn. Ct. App. 2001);
Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).

        Tenn. R. App. P. 13(d)’s presumption of correctness requires appellate courts to defer to a
trial court's findings of fact. Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000). Because
of the presumption, an appellate court is bound to leave a trial court's finding of fact undisturbed
unless it determines that the aggregate weight of the evidence demonstrates that a finding of fact
other than the one found by the trial court is more probably true. Parks Props. v. Maury County, 70


                                                  -6-
S.W.3d at 742. Thus, for the evidence to preponderate against a trial court's finding of fact, it must
support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs.,
40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

         These standards for reviewing the weight of the evidence in a non-jury proceeding must
necessarily be objective. In cases like this one, they cannot be colored by the vulnerability of the
victim or the inherently heinous nature of the alleged conduct. Persons seeking monetary damages
from the state for negligence must shoulder the same burden of proof as persons seeking monetary
damages against private parties. They must establish each of the necessary elements of their claim
by a preponderance of the evidence. Branch v. McCroskey, No. 03A01-9709-CV-00385, 1998 WL
47873, at *2 (Tenn. Ct. App. Feb. 5, 1998) (No Tenn. R. App. P. 11 application filed) (stating that
“the plaintiff is not entitled to a judgment unless the plaintiff has carried his initial burden of proof,
i.e., proof on all issues necessary to establish his claim”).

                                                      B.

       The claim that Ms. Lamb was sexually abused on September 14, 1992, stands or falls on the
testimony of three witnesses – Dr. R. Leonard Carroll, Ms. Julie E. Rosof, and Dr. Sharon Brandon-
Campbell. Dr. Carroll physically examined Ms. Lamb on September 16, 1992, at the Fentress
County Hospital. Ms. Rosof, a family nurse practitioner, physically examined Ms. Lamb at
Vanderbilt University School of Medicine on October 15, 1992. Dr. Brandon-Campbell provided
psychological counseling to Ms. Lamb from November 18, 1992 through February 23, 1993.

        Anna Lamb introduced the results of Dr. Carroll’s and Ms. Rosof’s physical examinations
of her daughter to substantiate her claim that her daughter had been sexually abused on September
14, 1992. Both Dr. Carroll and Ms. Rosof testified that the condition of Ms. Lamb’s vagina and
rectum were consistent with sexual penetration, but they declined to state that sexual abuse was the
only cause of the conditions they observed. Dr. Carroll testified that he observed a fresh tear in Ms.
Lamb’s rectum. However, by stating that the tear could have been four to five days old, he could not
rule out the possibility that it had occurred prior to September 14, 1992.

       Ms. Rosof’s examination revealed rectal tears in different locations than the tear observed
by Dr. Carroll, thereby raising the possibility that the tears she observed occurred after Anna Lamb
withdrew her daughter from school. She also concluded that the conditions she observed could have
been as little as one week or as long as one year old. Most significantly, Ms. Rosof conceded that
her opinion regarding the results of physical examinations in sexual abuse cases had changed since
she examined Ms. Lamb in October 1992. Since a biopsy of the scar tissue had not been performed,
she was no longer comfortable with her original conclusion that the conditions she observed were
consistent with sexual penetration and that they were consistent with severe constipation.2




        2
            Ms. Lamb has a history of constipation.

                                                      -7-
        Anna Lamb introduced Dr. Brandon-Campbell’s testimony to prove that her daughter had
identified the Dodds as persons who had abused her sexually. Ms. Lamb made these statements
more than two months after the alleged abuse occurred after she had been exposed to repeated
suggestive questioning by the members of her family. This repeated questioning undermined the
probative value of Ms. Lamb’s statements. Both Mr. Galloway and Mr. Scott found these statements
unreliable as early as September 19, 1992. Mr. Aebischer likewise discounted them in October
1992. Dr. Bernet concluded that they were “verbal routines,” not derived from Ms. Lamb’s
independent memory, but rather from her conversations with her mother, uncle, and other family
members.

        After reviewing this record de novo, we have determined that the State presented strong,
probative evidence that undermined the testimony of Dr. Carroll, Ms. Rosof, and Dr. Brandon-
Campbell. Reasonable persons considering this evidence could easily conclude that it does not
establish by a preponderance of the evidence that Ms. Lamb had been sexually abused on September
14, 1992. Accordingly, the evidence does not preponderate against the Commissioner’s conclusion
that Anna Lamb had failed to prove that her daughter had been sexually abused on September 14,
1992.

                                                III.
              ANNA LAMB’S INVOCATION OF THE RES IPSA LOQUITUR DOCTRINE

         Anna Lamb’s claim was originally premised on the assertion that the Dunns had sexually
abused her daughter on September 14, 1992. As this theory began to unravel, she broadened her
claim to a more general one based on the doctrine of res ipsa loquitur. Instead of identifying the
Dunns as the wrongdoers, she asserted that her daughter had been sexually molested on September
14, 1992 while in the custody of the staff of York Institute and that sexual molestation can occur at
York Institute only when the staff negligently fails to supervise the students. On this appeal, she
insists that the Commissioner’s decision should be vacated because the State failed to demonstrate
that the staff of York Institute took adequate precautions to safeguard her daughter on September 14,
1992, specifically between 10:00 a.m. and 11:00 a.m. This argument fails for two reasons. First,
Anna Lamb’s case was not strong enough to require the State to explain how it was acting with due
care to protect her daughter on September 14, 1992. Second, the State presented evidence from
which a reasonable person could easily conclude that the staff of York Institute was not negligent
with regard to its supervision of Ms. Lamb on September 14, 1992.

                                                 A.

       The res ipsa loquitur doctrine is a rule of evidence, not a rule of law. Quinley v. Cocke, 183
Tenn. 428, 438, 192 S.W.2d 992, 996 (1946). It is intended to come to the aid of plaintiffs who have
no direct evidence of a defendant’s negligence, Provident Life & Accident Ins. Co. v. Professional
Cleaning Serv., Inc., 217 Tenn. 199, 208, 396 S.W.2d 351, 356 (1965), by providing a specialized
vehicle for considering circumstantial evidence in negligence cases. Poor Sisters of St. Francis v.
Long, 190 Tenn. 434, 442-43, 230 S.W.2d 659, 663 (1950). It permits, but does not require, a fact


                                                -8-
finder “to infer negligence from the circumstances of an injury.” Seavers v. Methodist Med. Ctr.,
9 S.W.3d 86, 91 (Tenn. 1999); Shivers v. Ramsey, 937 S.W.2d 945, 949 (Tenn. Ct. App. 1996).

        Persons relying on the res ipsa loquitur doctrine need not prove specific acts of negligence
by the defendant. Summit Hill Assocs. v. Knoxville Utils. Bd., 667 S.W.2d 91, 96 (Tenn. Ct. App.
1983); Parker v. Warren, 503 S.W.2d 938, 942 (Tenn. Ct. App. 1973). They may instead base their
case on the circumstances surrounding the injury if common experience indicates “(1) that the injury
was probably the result of negligence, even though the exact nature of the negligence is unknown,
and (2) that it was probably the defendant who was the negligent person.” Burton v. Warren
Farmers Coop., No. M1999-00486-COA-R3-CV, 2002 WL 31039345, at *6 (Tenn. Ct. App. Sept.
12, 2002).

        The courts must take care to avoid applying the res ipsa loquitur doctrine in a way that
undermines our system of tort liability based on fault. Fowler V. Harper et al., The Law of Torts §
19.5, at 27-30 (2d ed. 1986) (“Harper”). It is not enough for a plaintiff to prove that he or she was
injured by some unidentified person’s negligence. Even though there is beyond all reasonable doubt
“negligence in the air,” the plaintiff must still bring the negligence home to the defendant. W. Page
Keeton, Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984). The plaintiff must
present evidence that affords a rational basis for concluding that the negligent conduct that caused
the injury is probably attributable to the defendant. 1 Dan B. Dobbs, The Law of Torts § 157, at 378
(2001); Harper § 19.7, at 45-46.

         The presumption of negligence arising from the operation of the res ipsa loquitur doctrine
is rebuttable. Schindler v. Southern Coach Lines, Inc., 188 Tenn. 169, 173, 217 S.W.2d 775, 777
(1949); Shivers v. Ramsey, 937 S.W.2d at 949. Thus, if a plaintiff satisfies all the elements of a res
ipsa loquitur claim, the burden of going forward shifts to the defendant to explain or demonstrate
that it acted with reasonable care under the circumstances. Summit Hill Assocs. v. Knoxville Utils.
Bd., 667 S.W.2d at 96; Parker v. Warren, 503 S.W.2d at 943. If the defendant offers no explanation
of its conduct, the fact finder may justifiably conclude that the defendant is liable for the plaintiff’s
injuries. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 662, 355 S.W.2d 436, 446 (1962);
Armes v. Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992).

         The res ipsa loquitur doctrine addresses only two of the five elements of a common-law
negligence claim.3 “It permits an inference that the defendant breached a duty it owed to the
plaintiff. It also permits an inference that the defendant’s conduct, whatever it was, caused the
plaintiff’s injury. Thus, to succeed with a negligence claim, a plaintiff relying on the doctrine must
still prove: (1) that the defendant owed a duty to him or her and that the apparent cause of the injury
lies within the scope of this duty; (2) that the plaintiff suffered an injury; and (3) that the defendant’s


         3
           A person seeking damages for negligence must prove: (1) that the defendant owed him or her a duty of care,
(2) that the defendant’s conduct breached this duty, (3) that the person see king damages suffered an injury o r loss, (4)
that the defendant’s conduct was the cause-in-fact of his or her injury or loss, and (5) that no existing rule of law relieves
the defendant from liability for its negligence. McCall v. Wilder, 913 S.W .2d 1 50, 1 53 (Tenn. 19 95).

                                                             -9-
conduct, whatever it may have been, was the legal cause of the plaintiff’s injury.” Burton v. Warren
Farmers Coop., 2002 WL 31039345, at *8.

                                                         B.

        Anna Lamb’s evidence falls short of establishing a prima facie res ipsa loquitur claim. It is
missing several key ingredients. First, her evidence does not establish that her daughter was, in fact,
injured on September 14, 1992 while in the care of the staff of York Institute.4 Second, even if the
physical evidence is consistent with past sexual abuse, Anna Lamb has not established that Ms.
Lamb’s injuries were probably caused by negligence and that this negligence is attributable to the
staff of York Institute. Thus, because Anna Lamb failed to satisfy the requirements for a res ipsa
loquitur claim, the State never assumed the burden of demonstrating that the staff of York Institute
was using due care in its supervision of Ms. Lamb on September 14, 1992.

        Anna Lamb’s claim fares no better even if we overlook the shortcomings of her res ipsa
loquitur evidence and examine the State’s proof regarding her daughter’s supervision on September
14, 1992. Anna Lamb challenges the adequacy of her daughter’s supervision between 10:00 a.m.
and 11:00 a.m. and for the three to five minutes sometime after noon when Ms. Dunn left her
unattended. The State concedes, as it must, that it owed a duty to Ms. Lamb while she was at York
Institute and offered detailed testimony regarding its supervision of Ms. Lamb from the time she
arrived at school on September 14, 1992, until the time she was placed on the bus to go home. This
evidence, consisting of the testimony of Mses. Dunn and Peavyhouse, provides more than an ample
basis for a fact finder to determine that the staff at York Institute was not negligent in the manner
in which they were supervising Ms. Lamb on September 14, 1992.

                                                         IV.

        We affirm the Commissioner’s judgment dismissing Anna Lamb’s claim and remand the
claim to the Tennessee Claims Commission for whatever further proceedings may be required. We
tax the costs of this appeal to Anna Lamb and her surety for which execution, if necessary, may
issue.



                                                               _____________________________
                                                               WILLIAM C. KOCH, JR., JUDGE




         4
          Even if we were to find that the evidence establishes that Ms. Lamb had been sexually molested at some time,
the evidence is not sufficient to pinpoint September 14, 1992 as the date on which the molestation occurred.

                                                        -10-
