                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                             September 9, 2008 Session

 RICKY LEE WILSON, and KIMBERLY WILSON, as guardians and next
     friends of BRANDON WILSON, a minor, v. METROPOLITAN
    GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY,
   TENNESSEE, TOM MADDOX, TIMOTHY JOHN McKNIGHT and
                    JUSTIN LEJUAN DUNNIGAN

                  Direct Appeal from the Circuit Court for Davidson County
                      No. 06C-1720    Hon. Thomas W. Brothers, Judge


                   No. M2008-00327-COA-R3-CV - Filed January 27, 2009



The minor plaintiff and his parents sued for damages for serious bodily injury resulting from an
assault, and at the conclusion of the trial the Trial Judge held the defendants liable for the injuries
and awarded damages. The defendants have appealed, insisting the assault was not foreseeable. We
affirm the Judgment of the Trial Court.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, SP.J., joined.


Sue B. Cain, Director of Law, The Department of Law of the Metropolitan Government of Nashville
and Davidson County, and Kevin C. Klein and Andrew D. McClanahan, Nashville, Tennessee, for
Appellant, Metropolitan Government of Nashville and Davidson County.

D. Andrew Saulters, Nashville, Tennessee, for Appellees, Ricky Lee Wilson and Kimberly Wilson,
as Guardians and Next Friends of Brandon Wilson.
                                             OPINION



               Plaintiffs, Ricky Lee Wilson and Kimberly Wilson, as guardians and next friends of
Brandon Wilson, brought this action against the Metropolitan Government of Nashville and
Davidson County, Tom Maddox, Timothy McKnight, and Justin Dunnigan, asserting claims of
personal injury and Government Tort Liability Act claims.

                The Complaint identified Maddox as a school bus driver employed by Metro, and that
Brandon Wilson was riding the bus on November 4, 2005, when he was attacked by McKnight and
Dunnigan, resulting in severe personal injuries. He alleged that the two were guilty of aggravated
assault and reckless endangerment, and that Maddox was guilty of negligence/recklessness in failing
to take action to prevent harm to Wilson.

                Defendant Metro moved to dismiss Tom Maddox, asserting that there was no need
to bring official capacity claims against him, as they were redundant of the claims against Metro.
The parties then entered an Agreed Order dismissing Maddox and summary judgment motions were
overruled and a trial on the issues ensued.

                Brandon Wilson was the first witness. He testified that in November 2005, he was
a sophomore at Hunters Lane High School, and was riding the bus home on November 4, a Friday
afternoon. He testified the bus was not crowded, and as a fire truck went by he said, “fire, fire”, and
Timothy McKnight turned around and told him to “shut the f___ up”. He testified that McKnight
then walked back to him, and Dunnigan followed. Wilson testified that he was scared, and had never
spoken to the pair before. He said that McKnight began to pick on him and “put him in his place”
for the next 3 or 4 minutes. He said that McKnight was cussing him and calling him names, and
Wilson told him to just leave him alone and he didn’t want to fight. Wilson testified that he told
McKnight to go back to his seat and he did, and Wilson then turned around to talk to his friends
about what had happened. Less than a minute later he saw Dunnigan walking back toward him.
Wilson testified that one of his friends had his legs in the aisle and Dunnigan told him to move them,
and when the friend refused, Dunnigan kicked his legs out of the way. Wilson testified that Dunnigan
then hit him 3 times, and then got off the bus. He had not anticipated that Dunnigan was going to
assault him. He than testified to the seriousness of his injuries.

               Wilson testified that he had ridden Maddox’s bus all semester and had seen students
standing, throwing things and cussing, and that Maddox did nothing.

                Robert Epley testified that he was a driver supervisor with Metro, and at the time of
the incident, he was Maddox’s supervisor. Epley testified he had previously driven a school bus,
and had been involved in the industry for 10 years, and that his duty was to review the bus videotape
if there was an incident, to determine if the driver acted appropriately. He testified that he had
reviewed the tape in this case.


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                Epley testified that Metro had a handbook for bus drivers, which set out Metro’s
policies and procedures for drivers. He testified that students were not allowed to stand on the bus
while it was in motion, and that if a driver noticed the same, he should ask the student to be seated.
Epley testified that the driver was responsible for discipline and conduct on the bus, and had
authority to assign students seats.

                Epley testified that drivers were trained to glance at all their mirrors in a constant
rotation, and that part of the rotation was to check on the students in their rearview mirror. Epley
testified that Maddox should have been able to see Wilson where he was sitting on the day in
question, and that if a driver noticed a student stand and move toward the back of the bus and begin
picking on another student, the driver should ask the student to be seated, and if the student did not
comply, the driver should stop the bus and address the situation.

                Epley testified the tape in this case revealed that there were few students on the bus,
and the driver should have been able to better watch them. Epley testified that if Maddox saw
McKnight picking on Wilson, he should have asked him to be seated, and admitted that the tape
showed that McKnight was standing and talking to Wilson for at least three minutes, which Maddox
should have noticed. Epley testified that if Maddox saw McKnight pushing Wilson’s head and
putting his finger in his face, he should have appreciated the fact that Wilson might be in danger.
Epley testified the tape showed that McKnight was quite a bit larger than Wilson, and that this also
should have alerted Maddox to the fact that Wilson could be in danger.

                 Epley admitted that the tape showed that a female student sitting right behind Maddox
was talking excitedly, and that you could hear her say, “ooh, they’re going to go bust his head.”
Epley further testified that Maddox should have been able to hear her, and that if he heard her, this
should have alerted him to the fact that there was going to be a fight, and he should have taken
action. Epley testified that the tape showed that 40 seconds went by from the time Dunnigan got up
and started toward Wilson, until he hit him. Epley testified that it was possible that Maddox would
not have seen Dunnigan in that time frame, depending on the traffic and other factors. Epley
testified that based on his review of the video, he felt Maddox could have been more proactive, and
should have taken action to try and prevent what happened.

                  The driver Tom Maddox testified that he had been a bus driver since 1990. He
testified that it was not uncommon for the kids to get up and move around on the bus, to swap seats
to be with friends. He testified that he did not always tell the students to sit down, and if he did, they
didn’t always obey. He testified that violence on the bus was rare, that there was nothing to make
him think that Dunnigan would attack Wilson on the day in question, and that he had not had any
prior problems with McKnight. Maddox testified that he did not see Dunnigan as being involved
in the first altercation between McKnight and Wilson, and that he did see McKnight leave his seat,
but he could not constantly monitor him because he had to keep his eyes on the road. Maddox
testified he did not think there was a problem until he saw the finger-pointing, but he did not say
anything because he was concentrating on driving the bus, and did not “think it was that big of a


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problem”. He thought that when McKnight sat down, the problem was over.

                Maddox testified that he did not hear a female student addressing him, and could not
really hear what she was saying, and that he did not hear the student say anything about “they’re
going to bust his head”. Maddox testified that he did not see Dunnigan get up and move toward the
back of the bus right before his stop, and did not see him back there until right about the time he hit
Wilson, and that the attack came as a complete surprise to Maddox.

                Maddox admitted that he saw McKnight messing with Wilson on the day in question,
and that it went on for 2 or 3 minutes, and that he saw the finger-pointing, and that he heard a girl
sitting behind him saying something in a raised voice. Maddox admitted that he appreciated the fact
that Wilson might be in danger, but he did not say anything, and reiterated that he did not see
Dunnigan get up and move toward the back of the bus, but admitted that if it took forty seconds for
him to do so, he probably should have seen him in that time frame.

                 The Trial Court entered judgment and granted the motion for default against
McKnight and Dunnigan, since they had not answered or appeared, and the Court found that Metro
owed a duty of care to Wilson, and that the bus driver was supposed to enforce discipline on the bus.
The Court found that the attack was foreseeable, because when McKnight and Dunnigan approached
Wilson the first time, McKnight engaged in aggressive physical contact. The Court found that a
student sitting behind Maddox warned him, and that Maddox allowed kids to stand and walk around
the bus in violation of policy. The Court found the driver owed a duty to protect Wilson from
foreseeable harm, but failed to restrain McKnight or Dunnigan. The Court noted that the video
showed that Maddox did nothing to control the students, and thus Metro breached its duty. The
Court awarded compensatory damages of $8,309.00 for Wilson’s medical bills, and awarded
damages for the significant injuries in the amount of $35,000.00. Metro appealed.

               The issues presented on appeal are:

               1.      Whether the Trial Court failed to apply Tennessee’s conservative
                       foreseeability standard when it concluded that Dunnigan’s attack on Brandon
                       Wilson was foreseeable?

               2.      Whether the Trial Court erred by finding that Dunnigan’s attack on Brandon
                       Wilson was foreseeable, despite the fact that both Wilson and the bus driver,
                       Tom Maddox, testified that the attack was a complete surprise?

               3.      Is this appeal frivolous?

               Appellants argue that the attack on Wilson was not foreseeable and there was no
proximate cause. Appellants argue that Tennessee follows a conservative foreseeability approach,
whereby student misconduct is not to be anticipated absent proof of prior misconduct, citing Mason
v. Metropolitan Government, 189 S.W.3d 217 (Tenn. Ct. App. 2005).


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                 We do not dispute that Tennessee follows the conservative foreseeability approach
in cases of this nature, which simply means that rather than a showing that students this age have a
tendency to fight or toward “roughhousing”, there must be proof that the particular students involved
were guilty of some prior misconduct of this kind. Id. Thus, in Mason, where a student was attacked
with a razor from a cosmetology kit, and the claim was that the teacher/school negligently dispensed
such kit to the aggressor, but there was no proof that the aggressor had any history of violence, and
where she had received proper instruction as to the safe use and transportation of the cosmetology
kit, had been tested on those instructions, and had been warned that an improper use of the kit or its
contents could violate the zero tolerance policy, this Court held that there was no foreseeability and
thus no proximate cause. Id.

               Similarly, in the other cases relied upon by appellant, there was no showing of prior
behavior that would have put a reasonable person on notice that the aggressor was going to act
violently. See Chaudasma v. Metro Gov’t, 914 S.W.2d 922 (Tenn. Ct. App. 1995); Kindred v.
Board of Education, 946 S.W.2d 47 (Tenn. Ct. App. 1996).

                 In this case, however, the facts are distinguished from the above cases, because there
was an immediate threat, and an interval where preventative measures could have been taken before
the following act of aggression. In this case there was a larger student who was seen to be
threatening and assaulting a smaller, weaker student and the tape shows that this behavior went on
for at least three minutes without warning or other admonishment by the bus driver. The video also
shows that during the entire time of this altercation, Dunnigan, McKnight’s known friend, is standing
or sitting right behind him and “backing him up”. The boys return to their seats and then shortly
thereafter, both boys stand and walked again to Wilson, and spent almost a minute standing in the
aisle before Dunnigan suddenly attacked Wilson and then exited the bus. The evidence demonstrates
that a reasonable person would know or should have known that Wilson was in danger prior to the
attack.

               Appellants argue because there was no prior history of trouble between these students,
the attack was unforeseeable. In this case, however, the “prior” behavior which gave warning to
Maddox that action needed to be taken was the first altercation between McKnight, Dunnigan and
Wilson. The fact that the boys had no prior history of violent behavior does not excuse Maddox
from taking action to prevent further actions between them, when it was clear that something was
likely to happen. Here, a reasonably prudent person could have easily appreciated the danger of the
situation and taken action to prevent it. Here the aggressors were threatening the victim, acting
aggressively, and there was time and opportunity to act to prevent the attack on Wilson, but nothing
was done. This attack was foreseeable, and we affirm the Trial Court’s Judgment.

              Appellees argue that Metro’s appeal is frivolous, but this appeal was not so utterly
devoid of merit as to justify this penalty. See, Jackson v. Aldridge, 6 S.W.3d 501, 504 (Tenn. Ct.
App. 1999).



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              We affirm the Judgment of the Trial Court and assess the cost of the appeal to the
Appellants.



                                                    ______________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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