DEBORAH MURRAY,                 )        DAVIDSON CIRCUIT
    Administrator Ad Litem of the
                                )        No. 95C-1267
    Estate of Terrance Murray   )
    and as Next of Kin of       )
    Terrance Murray,            )
                                )
           Plaintiff/Appellant  )
                                )
VS.                             )        Appeal No.
                                )        01A01-9704-CV-00146
JEREMY A. BRYANT,               )
LILLIAN BRYANT-MILLER,          )
KATHY HERBST, CHARLIE HERBST, )

           Defendants
                                )
                                )
                                              FILED
                                )              October 3, 1997
METROPOLITAN GOVERNMENT         )
OF NASHVILLE and                )             Cecil W. Crowson
DAVIDSON COUNTY, TENNESSEE, )                Appellate Court Clerk
                                )
           Defendants/Appellees )


               IN THE COURT OF APPEALS OF TENNESSEE
                    MIDDLE SECTION AT NASHVILLE


        APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE


               HONORABLE BARBARA N. HAYNES, JUDGE


Jerry L. Maynard, II
1907 Old Murfreesboro Pk.
Nashville, Tennessee 37217
ATTORNEY FOR PLAINTIFF/APPELLANT

James L. Murphy, III, Director
James L. Charles, Associate
Martha Zendlovitz, Associate
Wm. Michael Safley, Associate
Department of Law of the
Metropolitan Government of
Nashville and Davidson County
204 Metropolitan Courthouse
Nashville, TN 37201
ATTORNEYS FOR DEFENDANTS/APPELLEES


                       AFFIRMED AND REMANDED

                                    WILLIAM H. INMAN, SENIOR JUDGE


CONCUR:
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
WILLIAM C. KOCH, JR., JUDGE
DEBORAH MURRAY,                 )                DAVIDSON CIRCUIT
    Administrator Ad Litem of the
                                )                No. 95C-1267
    Estate of Terrance Murray   )
    and as Next of Kin of       )
    Terrance Murray,            )
                                )
           Plaintiff/Appellant  )
                                )
VS.                             )                Appeal No.
                                )                01A01-9704-CV-00146
JEREMY A. BRYANT,               )
LILLIAN BRYANT-MILLER,          )
KATHY HERBST, CHARLIE HERBST, )
                                )
           Defendants           )
                                )
METROPOLITAN GOVERNMENT         )
OF NASHVILLE and                )
DAVIDSON COUNTY, TENNESSEE, )
                                )
           Defendants/Appellees )



                                     OPINION


       This is an action for damages against the Metropolitan Government and other

Defendants, alleging that they are liable for the death of Plaintiff’s son, Terrance

Murray, who was shot and killed by a fellow student while attending J. T. Moore

Middle School in Nashville, Tennessee, on April 21, 1994.

       The case was dismissed as to all defendants except Jeremy A. Bryant, Lillian

Bryant-Miller, Kathy Herbst, and Charlie Herbst, against whom claims are still

pending. The plaintiff appeals only from the dismissal of the Metropolitan

Government and, as to it, the only claims appealed are those brought pursuant to the

Governmental Tort Liability Act. In the present posture of the case, there are three

disparate theories under which Plaintiff seeks to onerate the Metropolitan

Government for the death of Terrance Murray.

       First, Plaintiff alleges that the Metropolitan Government, the Board of

Education, and its Director, Richard C. Benjamin, have a duty to protect students in

the Metropolitan School System from dangers posed by weapons in the hands of

students, and that they breached this duty by failing to develop, implement, and fund


                                            2
policies adequate to protect pupils from death or injury caused by dangerous

weapons and firearms. Specifically, as to these Defendants, the Plaintiff alleges

that:

        “By virtue of the tender age of the pupils attending John Trotwood Moore
        Middle School, by virtue of the fact that the parents of said pupils are
        required by TCA § 49-6-3001 to deliver said pupils into the custody of the
        school during school hours, and by virtue of the fact that the Defendants
        herein stand in loco parentis to such pupils, Defendants, owed a duty to
        the pupils of John Trotwood Moore Middle School, including the decedent,
        Terrance Murray, to exercise reasonable care to protect such pupils from
        dangerous weapons and firearms, and in order to fulfill said duty, owed a
        duty to said pupils to develop, execute, implement, and fund policies to
        adequately protect said pupils from dangerous weapons and firearms with
        regard to the circumstances under which a pupil could safely attend
        school without injury from and/or exposure to dangerous weapons and
        firearms.”

        The Plaintiff alleges that the Metropolitan Government:

        “[H]ad a duty to Plaintiff, Plaintiff’s decedent, and others to protect the
        children enrolled and attending school, from dangerous weapons.”

        [B]reached its duty to Plaintiff by failing to institute, promulgate, publish,
        enforce and/or fund a policy of security in all cases whereby dangerous
        weapons could be detected and where criminal conduct would be
        reasonably assumed.

        [B] reached its duty to Plaintiff by allowing, ratifying, and condoning
        Defendant Board’s inaction in not instituting, promulgating, publishing,
        funding and/or enforcing a policy of security in all cases whereby
        dangerous weapons could be detected and where criminal conduct would
        be reasonably assumed.

        [F]ailed to implement, recommend, and/or fund a policy protecting children
        from dangerous weapons while attending school. By its inaction,
        Defendant Metro chose not to institute, promulgate, recommend, publish,
        fund and/or enforce a policy of security in all cases whereby dangerous
        weapons could be detected and where criminal conduct would be
        reasonably assumed.

        [H]ad a duty to Plaintiff, Plaintiff’s decedent, and others to protect the
        children enrolled and attending public school, from dangerous weapons,
        as a matter incident to the management and control of John Trotwood
        Moore Middle School.”

        The Plaintiff alleges that Defendant Board of Education:

        “[F]ailed to implement and/or fund a policy protecting children from
        dangerous weapons while attending school. By its inaction, Defendant
        Board chose not to institute, promulgate, fund, publish, and/or enforce a
        policy of security in all cases whereby dangerous weapons could be
        detected and where criminal conduct would be reasonably assumed.

        [H]ad a duty to Plaintiff, Plaintiff’s decedent, and others, to protect the
        children enrolled and attending public school, from dangerous weapons,
        as a matter incident to the management and control of John Trotwood
        Moore Middle School.”


                                              3
In reference to Defendant Benjamin, she alleges:

        “Defendant Benjamin failed to implement or recommend a policy
        protecting children from dangerous weapons while attending school. By
        this inaction, Defendant Benjamin chose not to institute, promulgate,
        recommend, publish and/or enforce a policy of security in all cases
        whereby dangerous weapons could be detected and where criminal
        conduct would be reasonably assumed.

        Defendant Benjamin had a duty to Plaintiff, Plaintiff’s decedent, and
        others to protect the children enrolled and attending public school, from
        dangerous weapons, as a matter incident to the management and control
        of John Trotwood Moore Middle School.”

        Second, Plaintiff alleges that Therese Pruitt, an employee of the Metropolitan

Government, was negligent in failing to properly supervise Defendants Herbst,

Bryant, and Terrence Murray, with such negligence being the proximate cause of the

latter’s death. In this regard, she alleges:

        “Defendant Pruitt was charged with supervision of the music class held on
        April 21, 1995 at John Trotwood Moore Middle School, in which decedent
        was enrolled, whereby she failed and neglected to properly supervise
        Defendant Bryant and Defendant Herbst, thereby being the proximate
        cause of decedent’s death.

        According to the Educational Agreement of the Metropolitan Board of
        Public Education and Metropolitan Nashville Education Association,
        Section V Teacher Workday, Responsibilities and Duties, Defendant Pruitt
        is responsible for the general supervision of pupils enrolled in the school
        where the teacher is a member of the faculty. Defendant Pruitt violated
        this rule promulgated by the Board of Education by failing and neglecting
        to properly supervise decedent and Defendant Bryant, thereby being the
        proximate cause of decedent’s death.

        According to the Education Agreement of the Metropolitan Board of Public
        Education and Metropolitan Nashville Education Association, Section II
        (1), a teacher is responsible for maintaining discipline and a climate for
        good instruction in the classroom through effective teaching, leadership
        techniques, and application of classroom management procedures in
        accordance with the policies, rules and regulations of the Board of
        Education. Defendant Pruitt violated this rule promulgated by the Board
        of Education by failing and neglecting to properly supervise decedent and
        Defendant Bryant, thereby being the proximate cause of decedent’s
        death.”

        The Plaintiff’s third theory concerns the actions of L. C. Batson. She alleges

that:

        “Defendant Batson breached his duty to supervise and manage the
        personnel of John Trotwood Moore Middle School, specifically Defendant
        Pruitt who failed and neglected to properly supervise decedent and
        Defendant Bryant, thereby being the proximate cause of decedent’s
        death.




                                               4
      Defendant Batson had full knowledge that Defendant Herbst had
      previously committed acts of misconduct and violence and that such acts
      indicated a persistent course of violent conduct. Defendant Batson,
      nevertheless, negligently allowed Defendant Herbst to transport a loaded
      firearm to John Trotwood Moore Middle School on or about April 21, 1994,
      and thereby recklessly facilitated, sanctioned, ratified and consented to
      the wrongful acts committed against decedent by Defendant Bryant.”

      The material facts are not markedly in controversy.

      On April 21, 1994, Defendant Charlie Herbst brought a .25 caliber firearm to J.

T. Moore Middle School. He gave it to a fellow student, Defendant Jeremy Bryant.

Terrance Murray and Defendant Bryant were attending a regularly scheduled

seventh grade music class taught by Therese A. Pruitt, during which they were

viewing a video tape of Beauty and the Beast. At some point during the class,

Defendant Bryant took the gun out of his pocket, covered it with his jacket, and

placed it on his desk. He then began handling the firearm and it discharged. The

bullet struck Terrance Murray in the head, killing him.

       L. C. Batson was the principal at J. T. Moore. During his twelve years as

principal at that school, he had dealt with the report of a gun being brought into the

school on three occasions. Charlie Herbst did not know of any student, other than

himself, who had brought a weapon into the school, and he had never heard about

weapons being brought into the school. He said that Jeremy Bryant asked him to

bring the gun to school, which he carried in his pocket. He was wearing shorts that

“sag off a lot.” He travels to school in a wheelchair which is loaded and unloaded on

the bus by lift, and he never gets out of the chair. He gave the gun to Jeremy Bryant

in the bathroom at the start of the school day. Bryant removed the clip and placed it

in a zippered pocket on his jacket, but he placed the gun in another pocket.

       There is no evidence that Batson or any of the teachers at J. T. Moore knew

that Charlie Herbst had brought a gun to school. Neither Batson nor Pruitt had any

knowledge that Charlie Herbst or Jeremy Bryant had ever brought a gun into J. T.

Moore or any other school. Other than an incident in March 1992 involving a gun

replica that was not fireable, Batson “ . . . had never retrieved one, seen one,

confiscated one, or had one turned in to [him].” Guns were never a problem at J. T.

Moore Middle School, according to the unrefuted evidence.



                                           5
       Jeremy Bryant had never demonstrated any sort of violent behavior at J. T.

Moore. The only problem Ms. Pruitt ever encountered with him was one incident of

rudeness. He had only two other office referrals -- one for lying and one for walking

off when the teacher told him to stay in a particular location.

       Although Charlie Herbst was a student in another of Therese Pruitt’s music

classes, she had never had any problems with him. L.C. Batson was aware of

problems with Charlie Herbst regarding a failure to do homework. He did not,

however, have any knowledge of violent behavior by Charlie Herbst at the school or

of any history of violent behavior at any other school.

       The foregoing recitations constituted the factual posture of the case against

the Metropolitan Government upon the filing of the motion to dismiss or alternatively

for summary judgment pursuant to RULES 12.02(6) and 56, TENN. R. CIV. P. The

defendant asserted that there is no genuine issue as to any material fact, thus

entitling it to a dismissal under RULE 56, and that it was immune from liability under

the Tennessee Governmental Tort Liability Act, TENN. CODE ANN . § 29-20-201 et seq.,

thus entitling it to a dismissal under RULE 12.02(6).

       The trial judge ruled:

       “The Metropolitan Government has not waived its immunity from suit for
       injury proximately caused by a negligent act or omission of any employee
       within the scope of his employment if the injury arises out of the exercise
       or performance, or the failure to exercise a discretionary function, whether
       or not the discretion is abused. The Metropolitan Government, pursuant
       to T.C.A. § 29-20-205(1), is entitled to discretionary function immunity
       because the decision to implement security measures involves planning
       or policy-making decisions. Further, before random searches of lockers
       or students can be conducted, T.C.A. § 49-6-4204 and T.C.A. § 4205
       require that the principal of a school make a determination, in his
       discretion, that individual circumstances at his school warrant such a
       search. The proof before the Court is that the principal, Dr. L. C. Batson,
       did not consider weapons to be a problem at John Trotwood Moore Middle
       School and that he did not believe individual circumstances at his school
       justified random searches of lockers or students.

       The Metropolitan Government is also immune from liability pursuant to the
       public duty doctrine because the Metropolitan Government did not owe a
       special duty to Terrance Murray, beyond that owed to all students, to
       protect him from the acts of third parties in illegally carrying a gun to
       school, possessing one on school grounds and shooting it.

       The allegation of infliction of mental anguish must be dismissed because
       the Metropolitan Government has not waived its immunity from suit for the
       negligent infliction of mental anguish by its employees as set forth in
       T.C.A. § 29-20-205(2).


                                            6
      Finally, it was not foreseeable that Terrence Murray would be shot at John
      Trotwood Moore Middle School by fellow student, Jeremy Bryant. Thus,
      the actions of Dr. Richard Benjamin, Dr. L.C. Batson, and/or Therese A.
      Pruitt were not the proximate cause of any injuries suffered by the
      Plaintiff.

      For all of the reasons stated herein, the Metropolitan Government is
      entitled to the granting of their motion for summary judgment and the
      dismissal of all claims.”

       The plaintiff appeals and presents for review the issues of:

       I.     “Whether the trial Court erred in finding that the
              Defendant is immune from liability for the shooting death
              of Terrance Murray under Discretionary Function
              Immunity.”

       II.    “Whether the Trial Court Erred in finding that Defendant’s
              negligent acts and omissions were not the proximate
              cause of Plaintiff’s injuries.

       Our review is de novo, with no presumption of correctness of the decision of

the trial court. Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995).

       The appellant argues that the School Security Act of 1981 requires each

school district to implement security measures by searching persons, lockers,

containers, and automobiles for dangerous weapons and drugs “to secure order and

protect students from harm while in their custody.” She says that she placed her

son’s life and safety into the care of the school system and that he was slain

because the system failed to implement any policy or measure for the removal of or

to assure the absence of weapons on school property.

       This action is governed by the Tennessee Governmental Tort Liability Act,

TENN. CODE ANN . § 29-20-10 et seq. Because the Act is in derogation of the

immunity enjoyed by the government under common law, it must be strictly

construed. Lockhart v. Jackson-Madison, 793 S.W.2d 943 (Tenn. Ct. App. 1990).

The government is immune from liability for a tort unless its immunity is removed by

the Act. TENN. CODE ANN . § 29-20-201. But immunity is not removed for injuries

caused by discretionary actions of employees. TENN. CODE ANN . § 29-20-205. As

stated in Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992), the

classification of functions as governmental/proprietary or discretionary/ministerial is

imprecise; accordingly, the Court in Bowers pronounced a test to determine which




                                           7
acts give rise to immunity by distinguishing those performed at the ‘planning’ level

from those performed at the ‘operational’ level. The Court stated:

      “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, 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.)

       Under the planning-operational test, discretionary function immunity does
       not automatically attach to all acts involving choice or judgment. Such an
       analysis recognizes that, to some extent, every act involves discretion.
       Rather, the underlying policy of governmental immunity is better served
       by examining (1) the decision-making process and (2) the propriety of
       judicial review of the resulting decision. Cf. Peavler, 528 N.E.2d at 46
       (examining the nature of the conduct, its effect on governmental
       operations, and the capacity of a court to evaluate the decision).

       A consideration of the decision-making process, as well as the factors
       influencing a particular decision, will often reveal whether that decision is
       to be viewed as planning or operational. If a particular course of conduct
       is determined after consideration or debate by an individual or group
       charged with the formulation of plans or policies, it strongly suggests the
       result is a planning decision. These decisions often result from assessing
       priorities; allocating resources; developing policies; or establishing plans,
       specifications, or schedules. See id.

       On the other hand, a decision resulting from a determination based on
       preexisting laws, regulations, policies, or standards, usually indicates that
       its maker is performing an operational act. Similarly operational are those
       ad hoc decisions made by an individual or group not charged with the
       development of plans or policies. These operational acts, which often
       implement prior planning decisions, are not “discretionary functions” within
       the meaning of the Tennessee Governmental Tort Liability Act. In other
       words, “the discretionary function exception [will] not apply to a claim that
       government employees failed to comply with regulations or policies
       designed to guide their actions in a particular situation. Aslakson v.
       United States, 790 F.2d 688, 692 (8th Cir.1986).

       Another factor bearing on whether an act should be considered planning
       or operational is whether the decision is the type properly reviewable by
       the courts. 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.




                                             8
       An injury which arguably arises from a decision of the Board of Education or

its employees with regard to the formulation and implementation of a security policy

requiring the allocation of time and resources may not be redressed in a tort action

because it falls within discretionary function immunity. See Doe v. Bd. of Ed. of

Memphis City Schools, 799 S.W.2d 246 (Tenn. Ct. App. 1990).

       The appellant argues that since Tenn. Code Ann. § 49-6-4203(a)(1) provides

that “the removal of dangerous weapons . . . from school property is necessary to

lessen the hazards to students” and that such removal can only be accomplished by

searches of areas of the school buildings or grounds where such materials may be

stored, the failure of the government to establish a search policy or to implement a

search is a violation of the Act and thus was a proximate cause of the death of her

son. But the Act itself recognizes the need for reposed discretion. Tenn. Code Ann.

§ 49-6-4203(e)(2) provides that “on occasions when the use of dangerous weapons

. . . has reached a life or health threatening level, searches of the students

themselves may be necessary . . . .” The section immediately following provides that

“individual circumstances . . . require that . . . principals must be relied on to exercise

their professionally trained judgments in determining what action is appropriate . . .”

       The evidence clearly reveals that the use of dangerous weapons had not

reached a life or health threatening level at the J. T. Moore School. Even so, we

agree with the appellees that the Act does not require the local school system to

provide measures for the removal of weapons and does not require the search of

lockers, persons, or vehicles to determine if dangerous weapons are present.

       Lastly, the appellant charges that the teacher, Ms. Pruitt, negligently failed to

supervise Herbst, Bryant, and Murray, which failure is alleged to have been the

proximate cause of the death of her son. Concomitantly, she alleges that a

supervising employer, Mr. Batson, breached his duty to supervise her son and

Bryant, in that Batson negligently allowed Herbst to transport a loaded firearm to the

school.

       In the first instance, there is no evidence of negligent supervision. Moreover,

the evidence affirmatively shows that these supervisors were free of negligence and



                                             9
had no reason to believe that Herbst brought a pistol to school. It is true that

teachers must conform to a ‘standard of reasonable and ordinary care’ under the

circumstances to their students, Hawkins County v. Davis, 391 S.W.2d 568 (Tenn.

1965), but there was no showing in this record that the standard was breached.

There is no evidence that the supervisors should have foreseen that Herbst would

bring a pistol to school, and foreseeability is the test for negligence. Lancaster v.

Montese, 390 S.W.2d 217 (Tenn. 1965). See, Chudasama v. Metropolitan Govt.,

914 S.W.2d 922 (Tenn. Ct. App. 1996).

       We affirm the judgment at the costs of the appellant.



                                   ________________________________
                                   William H. Inman, Senior Judge




CONCUR:



______________________________________
Henry F. Todd, Presiding Judge, Middle Section



____________________________________
William C. Koch, Jr., Judge




                                           10
