                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 11, 2001 Session

           JAMES S. HILL, ET UX. v. CHARLES LAMBERTH, ET AL.

                 A Direct Appeal from the Circuit Court for Houston County
                No. 1208; The Honorable Walter Kurtz, Judge by Interchange



                    No. M2000-02408-COA-R3-CV - Filed October 2, 2001


       In this negligence action, plaintiff and his wife sued defendants, county school board and
parents of several juveniles, for damages resulting from an eye injury he sustained when he was
struck by a rock while attending a high school football game. The trial court granted summary
judgment to defendant school board. Plaintiff appeals. We affirm.

    Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed and
                                      Remanded

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

John b. Link, III, Nashville; Jerre M. Hood, Winchester, For Appellants

Kent Krause, Lisa D. York, Nashville, For Appellees

Gregory D. Smith, Clarksville, For Appellee, Sheila Cathey

                                              OPINION

        On October 10, 1997, Plaintiff/Appellant James Hill was struck in the eye by a rock while
attending a football game at Houston County High School. The record indicates that a group of
juveniles was playing in the area of the spectator stands and that one of the children threw the rock
which struck Mr. Hill. The rock shattered Mr. Hill’s eyeglasses and a piece of glass became
embedded in Mr. Hill’s eye. As a result of his injuries, Mr. Hill suffered severe sight loss and has
a permanently dilated pupil.

        On June 29, 1998, Plaintiff Hill and his wife, Karen Hill, filed this action against the Houston
County School Board (“School Board”) and various co-defendants, who are not parties to this
appeal. In their Complaint, the Hills allege that the School Board, through its school principal, knew
of previous incidents involving rock-throwing but nevertheless failed to provide security sufficient
to protect spectators at school football games. On December 8, 1999, the School Board filed a
Motion for Summary Judgment on the basis of immunity from liability under the Tennessee
Governmental Tort Liability Act, T.C.A. § 29-20-201, et seq. (“TGTLA”). On August 8, 2000,
following the completion of written discovery and after Plaintiffs had taken several depositions, the
trial court entered an order granting summary judgment to the School Board.1 In its Order, the trial
court, rather than addressing governmental immunity, found that foreseeability was the “controlling
issue.”

        Plaintiffs appeal the trial court’s order granting the defendant school board summary
judgment and present what we perceive to be two issues on appeal: (1) Whether Defendant School
Board is immune from liability because the decision whether to provide security and the extent
thereof at a school football game is a discretionary function; and (2) Whether the trial court erred in
finding that Defendant School Board did not owe Plaintiffs a duty to provide security at the football
game because the rock-throwing incident was unforeseeable. We affirm the Order of the trial court,
however, we do so on the basis that the School Board is immune from suit under the Tennessee
Governmental Tort Liability Act.

        A motion for summary judgment should be granted when the movant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847 S.W.2d 208 (Tenn.
1993), our Supreme Court stated:

                    Once it is shown by the moving party that there is no genuine issue
                    of material fact, the nonmoving party must then demonstrate, by
                    affidavits or discovery materials, that there is a genuine, material fact
                    dispute to warrant a trial. In this regard, Rule 56.05 provides that the
                    nonmoving party cannot simply rely upon his pleadings but must set
                    forth specific facts showing that there is a genuine issue of material
                    fact for trial.

Id. at 210-11 (citations omitted) (emphasis in original).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn from
the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.
1995). Since only questions of law are involved, there is no presumption of correctness regarding

          1
             This order was made final pursuant to Tenn.R.Civ.P. 54.02. We should note at this point that another
defendant in the trial court, Sh elia Cathey, filed an app ellate brief in this cas e, although p laintiffs did not appeal the order
of the trial court granting summary ju dgment to defendan t Cathey. Ob viously, Defe ndants did not file a notice of appeal
as to defendant Cathey, because the order is not a final judgment appealable as of right at this time.

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a trial court's grant of summary judgment. See Bain, 936 S.W.2d at 622. Therefore, our review of
the trial court’s grant of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       The TGTLA governs this case, and courts are required to strictly construe the Act, because
the Act is in derogation of the common law. See, e.g., Lockhart v. Jackson-Madison County
General Hospital, 793 S.W.2d 943, 945 (Tenn. Ct. App. 1990); Doe v. Board of Educ. of Memphis
City Schools, 799 S.W.2d 246, 247 (Tenn. Ct. App. 1990). The TGTLA provides that the
government is immune from tort liability unless the Act specifically removes immunity. See T.C.A.
§ 29-20-201 (West 2000). Pertinent to the inquiry before the Court, is T.C.A. § 29-20-205, which
provides in pertinent part:

               29-20-205. Removal of immunity for injury caused by negligent
               act or omission of employees - Exceptions - Immunity for year
               2000 computer calculation errors. - 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 arises out of:

               (1) 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 (1) (2000).

        The first issue is appropriate for summary judgment because there is no factual dispute
concerning the Board’s action, acting through the school principal. The determinative issue in this
case is whether Principal Bell’s decision not to provide uniformed security personnel at the football
game in question was a “discretionary act.” The benchmark for consideration of this issue is the
decision of our Supreme Court in Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427
(Tenn. 1992) adopting the planning/operational test for determining if the alleged negligent conduct
of the governmental entity arises out of the performance of a discretionary function. The Court said:

                        Under the planning-operational test, decisions that rise to the
               level of planning or policy-making are considered discretionary acts
               which do not give rise to tort liability, while decisions that are merely
               operational are not considered discretionary acts and, therefore, do
               not give rise to immunity. See Carlson v. State, 598 P.2d 969, 972
               (Alaska 1979). The distinction between planning and operational
               depends on the type of decision rather than merely the identity of the
               decision maker. See id. We caution that this distinction serves only
               to aid in determining when discretionary function immunity applies;
               discretionary function immunity attaches to all conduct properly
               involving the balancing of policy considerations. Therefore, there
               may be occasions where an “operational act” is entitled to immunity,

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              where, for instance, the operational actor is properly charged with
              balancing policy considerations. See United States v. Gaubert, 499
              U.S. _____, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (recognizing
              that operational activities grounded in policy are entitled to
              discretionary function immunity).

Id. at 430-31 (emphasis added).

       In Doe v. Coffee County Bd. of Education, 852 S.W.2d 899 (Tenn. Ct. App. 1992), this
Court said:

                      Identifying the governmental decisions and actions that
              involve policy judgment requires a consideration of the original
              purpose of the discretionary function exemption. The purpose of the
              Tennessee Governmental Tort Liability Act is to define the
              circumstances when local governmental entities may be sued for
              negligence as if they were a private person. Tenn. Code Ann. § 29-
              20-206 (1980). In recognition of the constitutional principle of
              separation of powers, the discretionary function exception was
              intended to prevent the use of tort actions to second-guess what are
              essentially executive or legislative decisions involving social,
              political, economic, scientific, or professional policies or some
              mixture of these policies.

852 S.W.2d at 907 (citations omitted).

       The Bowers Court recognized the propriety of judicial review of the questioned decision:

              The discretionary function exception “recognizes that courts are ill-
              equipped to investigate and balance the numerous factors that go into
              an executive or legislative decision” and therefore allows the
              government to operate without undue interference by the courts. See
              Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982).

826 S.W.2d at 431.

       The football game at issue in this case was held under the auspices of the Tennessee
Secondary School Athletic Association (the “TSSAA”). The record in this case establishes that
Principal Bell was the person charged with making decisions regarding security measures for
football games under the TSSAA Bylaws. Article IV, §§ 7 and 8 of the Bylaws provide, in relevant
part:
               All games shall be properly supervised to insure sportsmanlike
               contests. The host school shall be responsible for providing
               sufficient security to insure orderly conduct on the part of all

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                spectators. If the game is played on a neutral field and neither team
                is designated as the host team, the competing schools shall share the
                responsibility of providing sufficient security.

                                         *         *          *

                The principal of each school, in all matters pertaining to the athletic
                relations of his school, is responsible to this Association. The
                principal shall exercise control over all finances, the scheduling of
                contests, and all other matters involved in the management of the
                school’s athletic program.

(emphasis added). Principal Bell testified in deposition that he considered many factors in
determining what “sufficient security” was under the guidelines, including: (1) the size of the crowd
anticipated at the ball game; (2) the fact that the teams playing were not rival teams; (3) the potential
negative influence the use of uniformed security personnel would have on students; (4) his fifteen
years of experience; and (5) the cost of providing added security. We believe that Principal Bell’s
decision reflects his position as the “individual . . . charged with the formulation of plans or policies”
under the Bowers analysis above.

       We also believe that judicial second-guessing of executive decisions is inappropriate in this
case. This Court has recognized that:

                School administrators are the only persons aware of the particular
                needs of the school. . . and are therefore in the unique position of
                being the only persons qualified to make informed decisions about
                school security. This decision-making duty cannot be deemed a
                simply ministerial task.

Doe v. Board of Educ. of Memphis City Schools, 799 S.W.2d at 248. Similarly this Court has held
that a school principal’s decision not to allocate limited financial resources for added security is not
actionable under the TGTLA, in spite of the fact that such a decision may have been unwise. See
Chudasama v. Metropolitan Gov’t of Nashville & Davidson County, 914 S.W.2d 922, 925 (Tenn.
Ct. App. 1995). The correctness of Principal Bell’s decision is subject to debate, but the courts are
ill-equipped to review the decision.

         Although the trial court granted summary judgment on the basis of foreseeability, this Court
may affirm the trial court’s decision when rendered on different grounds. See Wood v. Parker, 901
S.W.2d 374 (Tenn. Ct. App. 1995). Accordingly, the order of the trial court granting the school
board summary judgment is affirmed on the basis of discretionary function immunity under the
TGTLA. The second issue set out above presented on appeal is pretermitted. The case is remanded
to the trial court for such further proceedings as may be necessary. Costs of the appeal are assessed
to appellants, James S. Hill and Karen Hill, and their surety.


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__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




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