                  IN THE COURT OF APPEALS OF TENNESSEE
                      WESTERN SECTION AT NASHVILLE


FRANK B. CHADWICK, JR.,       )
                              )
     Plaintiff/Appellant,     ) Montgomery Circuit No. C8-608
                              )
VS.                           ) Appeal No. 01A01-9504-CV-00166
                              )
CLARKSVILLE-MONTGOMERY        )
COUNTY UNIFIED SCHOOL SYSTEM, )
and CLARKSVILLE-MONTGOMERY )
                                                                                FILED
COUNTY UNIFIED SCHOOL BOARD )
                                                               December 14,
                              )                                      2001
     Defendants/Appellees.    )
                                                              Cecil Crowson, Jr.
                                                                                 Appellate Court Clerk

       APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                     AT CLARKSVILLE, TENNESSEE
               THE HONORABLE JAMES E. WALTON, JUDGE




Thomas N. Bateman
Robert T. Bateman
Bateman & Bateman, P.C.
Clarksville, Tennessee
Attorneys for Appellant

Lela M. Hollabaugh
Manier, Herod, Hollabaugh & Smith
Nashville, Tennessee
Attorney for Appellees




AFFIRMED




                                                       ALAN E. HIGHERS, JUDGE


CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, JUDGE




     This is a negligence case in which the Plaintiff appeals from the trial court's finding
that Defendants did not breach their duty of care.



       Plaintiff, Frank B. Chadwick, Jr., was in sixth grade at Montgomery Central

Elementary School at the time of his injury on March 6, 1985. Plaintiff was participating

in a basketball game with other children from his class when another student struck him

in the eye while Plaintiff was trying to throw the basketball inbound. As a result of this

blow, Plaintiff now suffers from double vision.



       Ms. Quarles was the teacher in charge of recess in the gym where Plaintiff was

injured. Plaintiff alleged that Ms. Quarles was not present in the gym at the time he was

injured, while Ms. Quarles testified that she was present.



       Plaintiff brought this action within one year of his reaching majority. He alleged in

his complaint that the Defendants were negligent in failing to supervise and control the

basketball game for two reasons. First, he argues that the Defendants were negligent

because Ms. Quarles left the gym during recess. Alternatively, he contends that even if

Ms. Quarles was in the gym at the time of the accident, she was negligent in failing to

supervise and control the game.



       The trial court, sitting without a jury, ruled in a memorandum opinion that the

Defendants did not breach any duty owed to Plaintiff. Specifically, the court found that the

Defendants did not prove by a preponderance of the evidence that the teacher was absent

from the gym and therefore she did not breach her duty to supervise the children. (T.R.

93) Furthermore, the court held that even if Ms. Quarles had been present, she could not

have prevented the accident.        The court noted that this was an unfortunate, but

unforeseeable accidental blow.



       Pursuant to T.R.A.P. 13(d), we review the trial court's findings of fact de novo with

a presumption of correctness, unless the evidence preponderates otherwise. Additionally,

we note that the trial court's findings that are based upon its evaluation of the disputed



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evidence and the credibility of the witnesses are given great weight by this Court and will

not be overturned unless there is clear, concrete, and convincing evidence to the contrary.

Weaver v. Nelms, 750 S.W.2d 158 (Tenn. App. 1987); W.F. Holt Co. v. A & E Electric Co.,

665 S.W.2d 722, 733 (Tenn. App. 1983).



       Appellant has raised only one issue on appeal:               Whether the evidence

preponderates against the trial court's finding that the Defendants did not breach their duty

to supervise the students?



       In the absence of special circumstances, the duty of care imposed upon school

teachers is that of reasonable and ordinary care. Roberts v. Robertson County Board of

Education, 692 S.W.2d 863, 870 (Tenn. App. 1985); Hawkins County v. Davis, 216 Tenn.

262, 267, 391 S.W.2d 658, 661 (1965). Teachers are not, however, insurers of the safety

of their students, nor are they expected to supervise all activities of the students all of the

time. Roberts, 692 S.W.2d at 870. Consequently, to hold for Plaintiff, we must find that

Defendants breached their duty of reasonable and ordinary care. This, however, we

cannot do.



       Ms. Quarles testified that she was present in the gym and supervised recess at the

time of the accident, while Plaintiff testified that she was not in the gym.           Factual

determinations that hinge upon the credibility of witnesses will not be disturbed absent

clear and convincing evidence. Airline Construction, Inc. v. Barr, 807 S.W.2d 247, 264

(Tenn. App. 1990). In the case at bar, the evidence does not preponderate against the

trial court's determination that Ms. Quarles was, in fact, in the gym.



        Furthermore, there is insufficient evidence in the record indicating that the game

was excessively rough or rowdy. Plaintiff's expert, Dr. Wayne Gulch, is an instructor of

Health and Physical Education at University of Memphis. He testified that there are

certain precautionary measures that can be taken to ensure the safety of children during

recess; however, he said,       accidents and injuries will often happen despite these



                                              3
precautions. In this case, Dr. Gulch admitted, it is possible that the accident would have

occurred even if his suggested precautionary measures had been implemented.



       Based upon these facts, we do not find that the evidence preponderates against the

trial court's conclusion that Defendants did not breach a duty to Plaintiff. The facts of this

case simply fail to reveal any actionable negligence on the part of the school. It is

apparent that Defendants took all precautions that an ordinarily reasonable and prudent

person would have taken and Ms. Quarles' supervision of the children was adequate under

the circumstances.



       For the reasons stated herein, the judgement of the trial court is affirmed. Costs are

assessed to the Plaintiff.




                                                  HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




FARMER, J.




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