                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs April 25, 2006

    BROOKE RATHNOW b/n/f/ RICH and DIANE RATHNOW v. KNOX
                      COUNTY, ET AL.

                        Appeal from the Circuit Court for Knox County
                           No. 1-730-04 Dale C. Workman, Judge



                    No. E2005-02515-COA-R3-CV - FILED MAY 30, 2006




Charles D. Susano, Jr., J., concurring.


      I agree completely with Judge Lee’s well-thought-out opinion. I write separately to
emphasize what I believe is the linchpin of the reasoning in this case.

        When Ms. Rathnow left the classroom unattended, she did not verbalize that she felt sick or
queasy and she did not exhibit any signs of instability. In my judgment, a reasonable person in
Coach Allen’s position would have had no reason to foresee that Ms. Rathnow would have an
emotional reaction to the video and fall. While it can be argued that a fall was possible, a possible
occurrence, without more, is not enough to warrant a finding of foreseeability. If the test of liability
was whether something untoward might happen – a possibility – then, under such a test, Coach
Allen, and thus Knox County, would be responsible and liable for Ms. Rathnow’s injuries. But the
very broad concept of “what might possibly happen” and the concomitant “insurer” role placed upon
the teacher and the school system by such a rule are not the law in Tennessee. The test of
foreseeability is based upon probability, not possibility. This concept has been stated by the
Supreme Court on a number of occasions. In Doe v. Linder Const. Co., Inc., 845 S.W.2d 173
(Tenn. 1992), the High Court said the following:

               If the defendants failed to exercise reasonable care under the
               circumstances then they breached their duty to the plaintiffs. The
               term reasonable care must be given meaning in relation to the
               circumstances. Ordinary, or reasonable, care is to be estimated by the
               risk entailed through probable dangers attending the particular
               situation and is to be commensurate with the risk of injury. The risk
               involved is that which is foreseeable; 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. Foreseeability is the test of
               negligence. If the injury which 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. 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. Foreseeability must be
               determined as of the time of the acts or omissions claimed to be
               negligent.

Id. at 178 (citations and internal quotation marks omitted).

        The instant case would be different if Ms. Rathnow had indicated, in response to Coach
Allen’s question, that she was not all right or indicated that she was not feeling okay or was feeling
dizzy or light-headed or if she appeared shaky on her feet, or the facts presented some combination
of these things and/or other signs of instability. If these were the facts, then one would have to
conclude that letting Ms. Rathnow leave the classroom without help would be doing so in the face
of the probability that she would fall and suffer an injury of some kind. However, these are not the
facts before us.

        The question before us is simply this: Should a reasonable person in Coach Allen’s situation
have foreseen, given the facts before her, that it was more likely than not – in other words, probable
– that Ms. Rathnow, without an escort, was going to fall and injure herself? In terms of probabilities,
I do not believe that the occurrence of a fall and subsequent injury was any more probable than that
nothing of an unfortunate nature would occur as a result of Ms. Rathnow’s leaving the classroom by
herself. In other words, in my judgment, the occurrence of a fall and injury was not more likely than
that there would be no fall. Possible? Maybe so. Probable? Absolutely not. Foreseeability – an
essential element of an action based upon a theory of negligence – is grounded upon a finding that
an injury is probable. I agree with Judge Lee that Ms. Rathnow’s fall and injury, collectively, was
not a probable consequence of her leaving the classroom without the aid of someone else.

       Accordingly, I concur.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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