                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     July 10, 2007 Session

       CHRISTINA R. BRITT, ET AL. v. MAURY COUNTY BOARD OF
                        EDUCATION, ET AL.

                       Appeal from the Circuit Court for Maury County
                           No. 10992    Stella L. Hargrove, Judge



                  No. M2006-01921-COA-R3-CV - Filed September 29, 2008


The trial court granted the Board of Education’s Motion for Summary Judgment dismissing a
cheerleader’s two claims for personal injury under the Tennessee Governmental Tort Liability Act,
Tenn. Code Ann. § 29-20-101 et seq. We affirm the judgment as to the claim that the Board
negligently hired the sponsor of the cheerleading squad. Finding, however, that a genuine dispute
of material fact exists as to the cheerleading squad sponsor’s negligence, we reverse that portion of
the judgment.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR., J.
and ROBERT S. BRANDT , SP . J., joined.

Rocky McElhaney; Aubrey Givens, Nashville, Tennessee, for the appellants, Christina Britt, by next
friend and mother, Caroline J. Dale, and Caroline J. Dale, individually.

James P. Catalano, Catherine E. Cunningham, Nashville, Tennessee, for the appellees, Maury
County Board of Education and Maury County, Tennessee.

                                            OPINION

                                              I. Facts

       Christina Britt and her mother brought suit against the Maury County Board of Education
(“Board”) and Maury County, Tennessee under the Tennessee Governmental Tort Liability Act,
Tenn. Code Ann. § 29-20-101 et al. (“TGTLA”), seeking to recover for personal injuries she
sustained while participating on her high school cheerleading squad. According to her complaint,
the Board was liable because the cheerleading squad sponsor hired by the board, Sherry Boshers,
negligently supervised the squad. In addition, Ms. Britt alleged that the Board was negligent in
hiring Ms. Boshers as the squad sponsor since she lacked “adequate qualifications and/or training”
necessary to perform her duties as squad sponsor.

       The Board filed a Motion for Summary Judgment1 claiming first that the Board is immune
under the TGTLA. According to the Board, since hiring Ms. Boshers was a discretionary act then
the Board is immune under Tenn. Code Ann. §29-20-205(1). The trial court disagreed finding that
the Board was not immune under the TGTLA and could be sued for negligent hiring of Ms. Boshers.
This ruling was not appealed and is not the subject of review on appeal. Alternatively, the Board
argued that there were no disputed issues of material fact regarding Ms. Britt’s two negligence
claims and the Board was entitled to summary judgment.

       The following facts were not in dispute for the purposes of summary judgment. In September
of 2003, while a freshman at Mount Pleasant High School (“High School”), Ms. Britt was on the
cheerleading squad. Ms. Boshers, an employee in the cafeteria, was the sponsor of the cheerleading
squad. The principal of the High School, Mr. Weaver, had selected Ms. Boshers to be the
cheerleading squad sponsor. The Board ratified Ms. Boshers’ appointment. It is not disputed that
while acting as the squad sponsor, Ms. Boshers was acting within the scope of her employment with
the Board.

        On September 26, 2003, the High School was holding a pep rally before a home football
game. Ms. Boshers left to attend to other duties while the cheerleading squad was involved in warm
up exercises before the pep rally. While the squad was performing a maneuver called a “basket
toss,” Ms. Britt was tossed over the spotter’s head and broke her right arm as she landed.

         The trial court granted the Board’s request for summary judgment on the following grounds:

         The Court finds however, that from the record before her that there are no genuine
         issues of material fact for trial and that Defendant is entitled to judgment as a matter
         of law. Specifically the Court finds as follows:

         There are no genuine issues of material fact that Ms. Boshers was negligent, and that
         any negligence was thus imputed to Defendant under respondeat superior. There are
         no genuine issues of material fact to show that Defendant was negligent in the hiring
         and retention of Ms. Boshers.

         From the undisputed facts and inferences drawn from those facts, there are no
         genuine issues of material fact to show an act or omission that is a legal cause of
         Plaintiff’s injury. There are no genuine issues of material fact to show that Plaintiff’s
         unfortunate injury, which resulted from an unauthorized activity on her part, was


         1
          Although Maury County was named as a defendant, the record does not indicate that it filed for dismissal or
was granted summary judgment. The order granting summary judgment gave judgment only for the Board and did not
include the county. It does not appear that the county has answered or otherwise appeared.

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       foreseeable. The Court finds that reasonable minds cannot differ in finding that the
       acts or omissions of Defendant were neither the cause in fact, the proximate cause,
       nor the legal cause of Plaintiff’s injury.

                                    II. STANDARD OF REVIEW

        In order to meet the requirements for summary judgment, a defendant moving for summary
judgment in its filings supporting the motion must either affirmatively negate an essential element
of the non-moving party’s claim or conclusively establish an affirmative defense. Cumulus
Broadcasting, Inc. v. Shim, 226 S.W.3d 366, 373 (Tenn. 2007); Blair v. West Town Mall, 130
S.W.3d 761, 763 (Tenn. 2004); Staples v. CBL & Assoc. Inc., 15 S.W.3d 83, 88 (Tenn. 2000). If the
moving party fails to meet this burden, then the burden to come forward with probative evidence
establishing the existence of a genuine issue for trial does not shift to the non-moving party, and the
motion must be denied. Cumulus Broadcasting, 226 S.W.3d at 374; Staples, 15 S.W.3d at 88-89.

        If, however, the moving party successfully negates a claimed basis for the action or
establishes an affirmative defense, the non-moving party may not simply rest upon the pleadings.
Staples, 15 S.W.3d at 89. In that situation, the non-moving party has the burden of pointing out,
rehabilitating, or providing new evidence to create a factual dispute as to the material element in
dispute. Staples, 15 S.W.3d at 89; Rains v. Bend of the River, 124 S.W.3d 580, 587-88 (Tenn. Ct.
App. 2003).

        A trial court’s decision on a motion for summary judgment enjoys no presumption of
correctness on appeal. Cumulus Broadcasting, 226 S.W.3d at 373; BellSouth Advertising &
Publishing Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003); Scott v. Ashland Healthcare Ctr.,
Inc., 49 S.W.3d 281, 285 (Tenn. 2001). We review the summary judgment decision as a question
of law. Finister v. Humboldt Gen. Hosp., Inc., 970 S.W.2d 435, 437 (Tenn.1998); Robinson v. Omer,
952 S.W.2d 423, 426 (Tenn.1997). Accordingly, this court must review the record de novo and
make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been met. Eadie
v. Complete Co., Inc., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763; Staples, 15
S.W.3d at 88.

       The requirements for the grant of summary judgment are that the filings supporting the
motion show that there is no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Tenn. R. Civ. P. 56.04; Blair, 130 S.W.3d at 764; Pero's Steak &
Spaghetti House v. Lee, 90 S.W.3d 614, 620 (Tenn. 2002); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.
1993). Consequently, summary judgment should be granted only when the undisputed facts, and the
inferences reasonably drawn from the undisputed facts, support one conclusion - that the party
seeking the summary judgment is entitled to a judgment as a matter of law. Webber v. State Farm
Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001); Brown v. Birman Managed Care, Inc., 42
S.W.3d 62, 66 (Tenn. 2001); Staples, 15 S.W.3d at 88.




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        In our review, we must consider the evidence presented at the summary judgment stage in
the light most favorable to the non-moving party, and we must afford that party all reasonable
inferences. Doe v. HCA Health Servs., Inc., 46 S.W.3d 191, 196 (Tenn. 2001); Memphis Hous. Auth.
v. Thompson, 38 S.W.3d 504, 507 (Tenn. 2001), cert. den., 534 U.S. 823 (2001). We must
determine first whether factual disputes exist and, if so, whether the disputed fact is material to the
claim or defense upon which the summary judgment is predicated and whether the disputed fact
creates a genuine issue for trial. Byrd, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc.,
978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). “[I]f there is a dispute as to any material fact or any
doubt as to the conclusions to be drawn from that fact, the motion must be denied.” Byrd, 847
S.W.2d at 211.

                                           III. ANALYSIS

        Ms. Britt is attempting to recover from the Board for injuries she sustained arising from the
Board’s negligent hiring of Ms. Boshers and Ms. Boshers’ negligent performance of her duties as
the cheerleading squad sponsor. The elements of a negligence cause of action are well known. A
negligence cause of action has been distilled down to five necessary ingredients: (1) a legally
recognized duty owed by the defendant to the plaintiff, (2) the defendant’s breach of that duty, (3)
an injury or loss, (4) causation in fact, and (5) legal cause. Draper v. Westerfield, 181 S.W.3d 283,
290 (Tenn. 2005); Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2005); Foster v. Bue, 749 S.W.2d
736, 741 (Tenn. 1988). We will examine Ms. Britt’s two claims separately to determine whether the
trial court erred in granting the Board’s request for summary judgment.

                                   A. Board’s Negligent Hiring

        The Board moved for summary judgment arguing that under the undisputed facts, the Board’s
hiring and retention of Ms. Boshers was not negligent. Ms. Boshers testified in her deposition that
she has been the cheerleading sponsor since May of 2001. Since that time, Ms. Boshers has attended
cheerleading camps with the squad each summer, received assistance from the former cheerleader
sponsor, and kept an updated manual on cheerleading rules and regulations. These cheerleading
camps were held by a recognized cheerleading association hired by the Board. The cheerleading
association also published the manual on cheerleading rules and regulations. Ms. Boshers’ daughters
were involved in cheerleading, and she had also been involved in other cheerleading activities in the
years before becoming the cheerleading sponsor.

        Ms. Britt offered the affidavit of Jerry Williams on the issue of negligent hiring. Mr.
Williams has a masters degree, is a licensed teacher, holds various education certifications, served
as teacher, assistant principal, and principal and served on the legislative counsel of the Tennessee
Secondary Schools’ Athletics Association (“TSSAA”). He states that he is familiar with the standard
of care in Tennessee in hiring high school cheerleading sponsors. According to the opinion of Mr.
Williams, hiring Ms. Boshers was a negligent act because she was not a certified teacher. Mr.
Williams testified that a certified teacher would not have left the squad right before a pep rally.
Also, Mr. Williams said a cheerleading sponsor should have experience either as a cheerleader or


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as a coach. According to Mr. Williams’ affidavit, he understands Ms. Boshers’ “only experience
with cheerleading at all” was through her daughters who were cheerleaders and she “basically had
no experience or qualifications whatsoever for the cheerleader sponsor position.”

        Mr. Williams’ affidavit, however, does not create issues of fact on whether the Board
negligently hired Ms. Boshers. He gives his opinion that a certified teacher would not have left the
squad unsupervised before the pep rally, but this opinion is speculative at best, since he provides no
explanation of any training for teachers, or any other fact, that would lead to this conclusion. He
does not say that allowing an uncertified teacher to act as cheerleading sponsor violates the standard
of care in Tennessee.

         His opinion on Ms. Boshers’ credentials as a cheerleading squad sponsor rests upon his
understanding of her experience, i.e., he bases his opinion on the fact that Ms. Boshers had no
“experience or qualifications whatsoever.” Accepting that factual premise as true, there has been
no evidence put forth that would establish a causal connection between Ms. Boshers’ experience,
or lack thereof, at the time of hiring, and the accident that is the basis for the this action. The
uncontradicted proof is that at the time of the accident at issue Ms. Boshers had been the
cheerleading sponsor for two and one-half years and had dutifully attended cheerleading camps for
this period and obtained training and assistance from those camps, manuals, and others. Thus, the
Board came forward with proof of Ms. Boshers’ experience at the time of the accident, and Ms. Britt
failed to provide proof that this experience was inadequate or fell below any established standard of
care.

        Mr. Williams’ affidavit does not establish widely recognized standards or qualifications for
cheerleading sponsors. It does not explain why certification as a teacher is a valid requisite for the
position. Many schools and school systems must rely on part-time “sponsors” in order to provide
extracurricular opportunities for their students. Ms. Britt has failed to show that the hiring of Ms.
Boshers fell below any recognized standard of care or that, even if it did, there was any causal
connection to the accident. Consequently, the trial court’s grant of summary judgment to the Board
dismissing the allegation of negligent hiring is affirmed.

                        B. Board’s Responsibility for Ms. Boshers’ Negligence

        The Board may be liable under the TGTLA for the negligent act of its employee. Tenn. Code
Ann. § 29-20-205. The trial court found that there were no disputed issues of material fact as to
whether Ms. Boshers acted negligently, and it granted the Board summary judgment on this issue
as well.

       All parties agree that Ms. Boshers had a “duty to use reasonable care to supervise the
cheerleaders . . . to prevent unreasonable risk of injury.”2 The question is whether there is a genuine
dispute of material fact whether Ms. Boshers used reasonable care in her supervision of the squad.


       2
           The duty is thus described by the Board in its brief on appeal.

                                                          -5-
         Upon review of the record we find that there are disputed issues of material fact regarding
whether Ms. Boshers negligently supervised the squad. First, the parties dispute whether the squad
was disobeying Ms. Boshers’ instructions when it performed the basket toss that injured Ms. Britt.
All parties agree, including Ms. Boshers, that the squad should not perform maneuvers like the
“basket toss” unless the sponsor is present. Ms. Boshers testified that she told the squad not to
perform stunts like the basket toss unless she was present to supervise. Ms. Britt, on the other hand,
testified in her deposition that Ms. Boshers did not give those instructions. In spite of Ms. Britt’s
testimony to the contrary, the trial court, however, expressly found that the basket toss stunt was
“unauthorized.” Given that the question of whether Ms. Boshers had prohibited these stunts is key
to the issue of adequate supervision and is disputed, summary judgment as to negligence by Ms.
Boshers was not warranted.

       Consequently, the trial court’s grant of summary judgment to the Board holding that the
Board is not liable under the TGTLA for Ms. Boshers’ negligence is reversed since there remain
disputed issues of material fact as to what happened and the degree of supervision exercised by Ms.
Boshers.

         The trial court judgment is affirmed in part and reversed in part. The matter is remanded to
the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed
equally between Christina Britt and the Maury County Board of Education for which execution may
issue if necessary.



                                                       ____________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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