               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                              February 18, 2016 Session


  LINDSAY MEGHAN CRUTCHFIELD v. STATE OF TENNESSEE

                Appeal from the Tennessee Claims Commission
              No. T201208501 Commissioner, Robert N. Hibbett

                        ________________________________

        No. M2015-01199-COA-R3-CV – Filed April 18, 2016
                     _________________________________


A hearing-impaired student attending a state university was required to live in a
dormitory on campus. The university installed a bed shaker and strobe light in the
student‟s room that would be triggered by the presence of smoke or by a doorbell
installed outside the room. The student‟s room also had a speaker above the door that
was wired into the building‟s fire alarm system that sounded an alarm if the dormitory‟s
fire alarm was activated. On a morning in September 2011, the speaker in the student‟s
room that was located above the door was activated in response to a false alarm in the
dormitory. Believing the sound caused her to suffer further hearing loss, the student sued
the State, arguing the State was negligent by subjecting her to the loud alarm. The case
was tried by the Tennessee Claims Commission, which found the State liable for the
student‟s further hearing impairment. The State appealed, and we reverse, holding the
student failed to prove proximate cause.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Claims
                        Commission Reversed and Vacated

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and RICHARD H. DINKINS, J., joined.

Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Joseph Ahillen, Assistant Attorney General; for the appellant, State of
Tennessee.

Malcolm L. McCune and Mathew Zenner, Brentwood, Tennessee, and William A.
Cameron, Cookeville, Tennessee, for the appellee, Lindsay Megan Crutchfield.
                                             OPINION

                                    I. FACTUAL BACKGROUND

        Lindsay Megan Crutchfield was a first-year student at Tennessee Technological
University (“TTU”) in the fall of 2011. Ms. Crutchfield was hearing impaired, and she
sought permission to live off campus during her freshman year. TTU denied this request.
Ms. Crutchfield went to the offices of the university‟s disability services and housing
services to alert them of her disability, and TTU informed Ms. Crutchfield that it would
make special arrangements to accommodate her impairment. Before moving onto
campus, Ms. Crutchfield had a hearing loss of approximately 50% in her right ear and a
loss of approximately 75% in her left ear.

       In an effort to accommodate Ms. Crutchfield‟s hearing impairment, TTU provided
her with a single room in Jobe Hall, near the elevator, and it installed a supplemental
alarm system in her dormitory room. The supplemental system was made by SilentCall
Communications and consisted of a strobe light and bed shaker that were triggered when
a doorbell located outside of Ms. Crutchfield‟s room was pushed or when smoke was
detected by a smoke detector. If smoke were detected, a high pitch alarm would sound in
addition to the strobe light and bed shaker. The auxiliary smoke detector and alarm that
were part of the SilentCall system were mounted on the wall above Ms. Crutchfield‟s
bed. The strobe light and bed shaker could be inactivated by unplugging the electrical
cord from the socket in the wall in Ms. Crutchfield‟s dormitory room.1 In addition to the
SilentCall system, Ms. Crutchfield‟s room was outfitted with a speaker above her door
that was part of the dormitory-wide fire alarm system. The evidence showed that each
dormitory room has the same type of speaker situated above the door that sounds an
alarm in the event of a triggering event such as a fire or fire drill. The dormitory-wide
alarm system was not tied in with the SilentCall system, so the bed shaker and strobe
light would not be activated by the dormitory-wide fire alarm system.

        On the morning of September 30, 2011, Ms. Crutchfield was sleeping in the bed of
her dormitory room when she woke up at about 6:15 to what she described as “a high-
decibel pitch going off.” Ms. Crutchfield did not know what was going on or why an
alarm was sounding. When she looked into the hallway and did not see anyone, she
noticed a light above the hall leading to more dormitory rooms and hurried to get outside
to find out what was happening. Ms. Crutchfield testified that she managed to get outside

        1
         Ms. Crutchfield testified that other students walking by her door often pushed the doorbell that
activated the strobe light and bed shaker, which was annoying to her. Ms. Crutchfield testified that she
unplugged the SilentCall system at night because she knew “it would be a continuous issue throughout
the night” if she left it plugged in.

                                                  -2-
within a minute or so of waking up to the high-pitched sound. Evidence was introduced
that the building-wide fire alarm began sounding at 6:00, fifteen minutes before Ms.
Crutchfield woke up. She was asked why she did not hear the alarm before 6:15, and Ms.
Crutchfield answered:

       I think, when I was asleep, I was laying on my right side and I was laying
       on my good ear, what I considered it, because I just - - I remember waking
       up on my left side and I think that I might have rolled over, and that‟s when
       it woke me, when I rolled over and heard it out of my right ear.

       Ms. Crutchfield testified that the sound from the alarm was painful and caused her
ears to feel “piercing pain.” She believed the alarm was emanating from the smoke
detector that was located near her bed rather than the speaker over her door. However,
Ms. Crutchfield testified that there was no smoke in her room, and the evidence was
undisputed that smoke is the only trigger for the alarm near her bed that is part of the
SilentCall system. Upon exiting Jobe Hall, Ms. Crutchfield found Erica Hunt, who was
in charge of the dormitory‟s resident assistants, to find out why the alarm was ringing.
Ms. Crutchfield testified that she was unable to hear anything Ms. Hunt was saying to her
because her ears “were constantly ringing.”

       The evidence showed that the fire alarm went off in Jobe Hall spontaneously, for
no apparent reason, because it had not been reset properly following a fire drill earlier in
the semester. Ms. Hunt testified that the fire alarm “was not a response to a threat of
fire.”

       Ms. Crutchfield has had increased difficulty hearing ever since the sounding of the
alarm in her room on September 30, 2011. Ms. Crutchfield went to see her
otolaryngologist, Dr. William H. Merwin, five days later, and Dr. Merwin determined
that her eardrums were intact but that she was having problems communicating. Dr.
Merwin testified,

       I was having to frequently repeat and she was basically having to read my
       lips. But we were having a great deal of difficulty communicating with her.
       When I would speak to her, she would give me a blank stare: “I don‟t
       know what you‟re saying.”

Dr. Merwin explained that Ms. Crutchfield did not normally interact with him like that.
On October 5, Dr. Merwin determined that Ms. Crutchfield‟s hearing “had gotten much
worse and that it was a noise-induced type of injury.” Dr. Merwin testified that Ms.
Crutchfield‟s hearing loss was worsened by the fire alarm on September 30. When asked
how the injury occurred, Dr. Merwin responded:

                                           -3-
      Basically the hair cells, which are the inner ear hearing nerves, can only
      tolerate so much sound, and after that, they start to break down and lose . . .
      function. Typically you get some temporary worsening of hearing after a
      loud noise exposure, and then it improves, what we call a temporary
      threshold shift, but that should resolve within a few days. And then after
      that you‟re left with the permanent portion of the hearing impairment.

       When she went to see Dr. Merwin, Ms. Crutchfield was under the impression that
the alarm that she found so painful on September 30 was emanating from the alarm
connected to the smoke detector in her room, which was near her head above her bed,
rather than from the alarm positioned over her door. Dr. Merwin confirmed that this is
what Ms. Crutchfield told him when she went to see him on October 5:

      Q:     In your history did Lindsay tell you that the alarm was right above
      her head on the bed?

      A:     Yes.

      Q:    And had that been on the adjoining wall or somewhere away from
      where her head was where she was, you know, sleeping, would that have
      helped protect her from this damage?

      A:     Some, yes.

      Q:     And could that have prevented her from having additional hearing
      loss had it been installed - -

      A:     Yes.

      Q:     - - at a place other than right next to her ears?

      A:     Yes.

       Dr. Merwin was asked whether Ms. Crutchfield was more susceptible to harm
from loud noises than someone who was not hearing impaired:

      Q:     Is there any relatedness, you think, between her prior hearing
      impairments and the damage that was shown after the incident with the fire
      alarm?

      A:     She may have been slightly more susceptible to noise as a result of
      her existing hearing loss. That‟s offset by the fact that the hearing loss has
                                          -4-
       a somewhat protective effect against noise damage. Because the noise has
       to be louder to actually affect the nerves. It has to overcome the hearing
       loss before it can cause damage.

       Q:    Okay. So it would actually have to be louder than for a normal
       person to sustain hearing damage?

       A:    Yes. I‟m saying that‟s offsetting the fact that she may have been
       more susceptible.

       Q:     And why would she be more susceptible?

       A:     Because she already had some nerve damage.

Dr. Merwin was then asked whether it was possible for someone to sleep through a sound
that is loud enough to cause damage to their ears, and he responded, “It‟s not likely. It‟s
not likely.”

        Dr. Merwin stated that by August 10, 2012, Ms. Crutchfield‟s hearing had
stabilized and that he conducted a hearing test on her that day. The results showed that
Ms. Crutchfield had a 90 decibel loss in her right ear and an 85 decibel loss in her left
ear. Dr. Merwin explained that a 90 decibel loss was “severe to what we could call
profound loss.” He continued that an 85 decibel loss was also considered severe.
According to Dr. Merwin, Ms. Crutchfield has permanent sensorinueral hearing loss in
both ears and is essentially deaf without hearing aids. With the help of hearing aids, Dr.
Merwin testified that Ms. Crutchfield should be able to get within 10 to 20 decibels of
normal, and possibly into the normal range of hearing.

                             II. PROCEDURAL BACKGROUND

       Ms. Crutchfield filed a claim for negligence against TTU and the State of
Tennessee with the State of Tennessee Division of Claims Administration on January 23,
2012. She alleged that the special fire alarm system that was installed in her room was
not installed or maintained properly, and that as a result, “extremely high decibel values
were emitted and caused permanent and disabling damage” to her hearing. Ms.
Crutchfield asserted that she suffers from permanent and total hearing loss as a result of
TTU‟s negligence. Ms. Crutchfield further alleged that TTU “fail[ed] to follow protocol
of assisting disabled residents during an emergency actual or perceived,” which resulted
in her exposure to the excessively loud noise for more than fifteen minutes before she
removed herself from the building. Ms. Crutchfield sought damages of $1,000,000 for
her injuries, medical expenses, and other related expenses. The Division of Claims
Administration transferred the case to the Claims Commission in April 2012 pursuant to
                                           -5-
Tenn. Code Ann. § 9-8-402(c), and a one-day trial was held before a claims
commissioner on December 11, 2014.

       In addition to the evidence described above, Jim Cobb, who was the Director of
Capital Projects and Environmental Health and Safety, testified about the alarm system in
Jobe Hall. He explained that all dormitory rooms have detectors with sounder bases in
them that are located above the doors. When a building fire alarm is activated, speakers
in the hallways provide a pre-recorded message to evacuate the building, and the sounder
bases in the individual dormitory rooms are activated and sound “a horn or a buzzer type
of alarm.” Mr. Cobb was asked about the decibel level of the alarms in the dormitory
rooms:

      Q:     What controls the volume of the alarm?

      A:     . . . The sounds on the sounder bases that is with the detectors in the
      sleeping rooms is fixed. It‟s pre-set. There is no adjustment.

      Q:     So the sound - -

      A:     They are what they are when they come to us.

      Q:     So the sound in each room from the sounder base is fixed.

      A:     That‟s correct.

      Q:    And when you use the word “fixed,” I assume somewhere the
      volume can be changed. Am I wrong in that or . . .

      A:    Well, to my knowledge, they can‟t be changed by us in the field.
      I‟m assuming that, you know, that‟s got something to do with the
      manufacturer of the device. To my knowledge, there is no variation.

      Q:     Is the volume that goes into the dormitory rooms, is that set by any
      type of regulation?

      A:     There is the code, which is the NFPA Code 72, which is the fire
      alarm code, and NFPA is the National Fire Protection Association. That‟s
      the code we‟re under, being a state facility. It sets the decibel level at the
      pillow at 75 decibels, at the pillow for sleeping rooms.

      Q:     To your knowledge, is Tennessee Tech in compliance with those
      codes?
                                      -6-
      A:     To my knowledge, we are, yes.

Mr. Cobb then explained that TTU has a contract with a third party company to test and
inspect the alarm systems in the university‟s dormitories on an annual basis, as the
applicable code requires. No evidence was introduced to suggest the alarm in Ms.
Crutchfield‟s room was not functioning properly.

                          Claims Commissioner‟s Decision

       The claims commissioner issued a judgment for Ms. Crutchfield on February 10,
2015. In addition to the undisputed facts set forth above, the commissioner made
findings of fact, which we summarize below:

    No evidence was introduced that any student other than Ms. Crutchfield has ever
     complained that the dormitory‟s fire alarms are too loud.

    TTU does not have a policy of checking on each student when a fire alarm sounds
     to make sure each student leaves the building.

    The smoke detector that was part of the SilentCall system in Ms. Crutchfield‟s
     dormitory room did not communicate with the building‟s fire alarm system. The
     smoke detector in Ms. Crutchfield‟s room was connected only to the SilentCall
     receiver, which activated the strobe light and the bed shaker.

    Ms. Crutchfield had unplugged the SilentCall system at the time of the incident.
     The smoke alarm attached to the system was not activated and made no sound
     during the event.

    The school fire alarm on the wall above the door in Ms. Crutchfield‟s room was
     the sole factual cause of Ms. Crutchfield‟s hearing loss on the morning of
     September 30, 2011.

    All dormitory rooms at TTU have detectors with sounder bases and all buildings
     are equipped with whatever is required by code. The volume of the alarms
     emanating from the sounder bases in the dormitory rooms is pre-set at 75 decibels
     pursuant to National Fire Protection Association Code 72 and cannot be adjusted.

    The most recent audiogram Ms. Crutchfield had was on June 24, 2011,
     approximately three months prior to the incident on September 30, 2011, and the
     audiogram showed an approximate 50% hearing loss in her right ear and a 75%

                                         -7-
      hearing loss in her left ear.

    Before the injury on September 30, 2011, Ms. Crutchfield‟s hearing was fairly
     stable and she had not shown any significant deterioration of her hearing. She had
     some difficulty with communication, but she was able to function without hearing
     aids.

    Since the injury on September 30, Ms. Crutchfield has been unable to hear at all in
     either ear. She has permanent sensorineural hearing loss in both ears as a result of
     the injury at TTU. She needs hearing aids. Without hearing aids, Ms. Crutchfield
     is essentially deaf.

    Dr. Merwin testified that there is a 10% chance Ms. Crutchfield‟s hearing would
     have worsened if the injury had not occurred.

    According to a forensic economist expert, the estimated present value of Ms.
     Crutchfield‟s future earnings capacity loss is $1,504,189.

       The claims commissioner then made conclusions of law. He explained that based
on Tenn. Code Ann. § 9-8-307(c), a plaintiff in a negligence case against the State must
prove (1) a duty owed to the plaintiff; (2) conduct below the applicable standard of care
that amounts to a breach of that duty; (3) injury or loss; (4) cause in fact; and (5)
proximate cause. Addressing first TTU‟s duty to Ms. Crutchfield, the claims
commissioner concluded that TTU had a duty to accommodate Ms. Crutchfield‟s
disability to protect her safety, health, and hearing once it was notified that Ms.
Crutchfield was hearing impaired. The commissioner wrote that TTU was not required to
foresee every possible scenario that would affect Ms. Crutchfield‟s health, safety, and
hearing, but “it had the duty to make reasonable efforts to provide for her safety and
health in light of her disability.”

        Turning next to whether or not TTU breached its duty, the commissioner found
TTU should have connected the school‟s fire alarm system to the SilentCall system that
was installed in Ms. Crutchfield‟s room. In addition, TTU should have planned for
someone to physically notify Ms. Crutchfield and escort her out of the building once the
fire alarm was activated. The commissioner wrote:

      It is apparent Tech had no plan to ensure the Claimant‟s exit in an
      emergency. Just because it was not Tech‟s policy to ensure her exit out of
      the building in the event of an alarm does not abrogate its duty. The
      Claimant was also never briefed concerning the school‟s fire alarm or what
      her actions should be in case of an emergency. It should have been
      reasonably foreseen that extended exposure to 75 decibels could have
                                        -8-
      caused hearing damage, which it actually did. In addition, the fire alarm
      should not have been activated because there was no fire or drill. Ms. Hunt
      admitted that she had incorrectly reset the alarm. But for her action, this
      event would not have taken place. Because Tech did not allow the
      Claimant to live off campus, it did not have a plan to immediately extricate
      her from the dormitory in the event of an alarm, and it had incorrectly reset
      the alarm, Tech breached its duty to the Claimant to reasonably provide for
      her health and safety in light of her disability.

      The claims commissioner found that the fire alarm above Ms. Crutchfield‟s door
was the cause in fact and proximate cause of her additional hearing loss:

      The Tribunal has found that the sounding of the school fire alarm above
      Claimant‟s door was the cause of her further hearing loss. It is also the
      proximate cause of her further hearing loss. Dr. Merwin opined that there
      was only a ten percent chance that the Claimant‟s hearing would have
      worsened in [the] absence of the alarm on September 30, 2014. He opined,
      within a reasonable medical certainty, there were no other potential causes
      for her further hearing loss except for the alarm. The Tribunal also finds
      there are no other intervening causes, other than comparative fault, for her
      hearing loss. Therefore, the sounding of the fire alarm is found to be the
      proximate and legal cause of her further hearing loss.

      The commissioner then addressed Ms. Crutchfield‟s comparative fault:
      Just as Tech should have reasonably foreseen that extended exposure to the
      fire alarm could cause further hearing loss, the Claimant, having full
      knowledge of her own condition, should have foreseen this probability.
      She had the responsibility to take steps to protect her hearing. The first step
      she should have taken was to keep her Silent Alarm connected at all times.
      It is apparent that both the staff and students were aware of her doorbell
      that could have been activated during the alarm, and may have been.
      However, since the Claimant unplugged it, it was useless to the Claimant.
      She could have done more to put school officials on notice of her obviously
      fragile hearing that was super sensitive to prolonged loud noise.
      Furthermore, the Claimant could have worn ear protection. Because of her
      comparative negligence, the Claimant bears thirty percent fault for her
      hearing loss.

      The commissioner then addressed Ms. Crutchfield‟s economic and non-economic
damages and awarded Ms. Crutchfield $208,771.29 after taking into account Ms.
Crutchfield‟s comparative negligence and the ten percent chance that her hearing would
have deteriorated even in the absence of the injury on September 30, 2011.
                                           -9-
       The State filed a notice of appeal and argues that the claims commissioner erred in
finding Ms. Crutchfield proved both proximate causation and causation in fact. See
Tenn. Code Ann. § 9-8-403(a)(1) (decisions of individual commissioners may be
appealed to Tennessee Court of Appeals). According to the State, the evidence
preponderates against the commissioner‟s finding that it was reasonably foreseeable that
the dormitory alarm would cause Ms. Crutchfield‟s hearing loss (proximate cause); and
the evidence preponderates against the commissioner‟s finding of causation in fact
because there was no expert medical proof that any negligent conduct by TTU was the
cause of Ms. Crutchfield‟s injury. Ms. Crutchfield appeals the commissioner‟s
conclusion that she was negligent in disconnecting the SilentCall system and that her
award of damages should be reduced by ten percent based on the possibility that she
would suffer additional hearing loss independent of the incident on September 30, 2011.

                                        III. ANALYSIS

        The issues the State raises on appeal, whether the evidence preponderates against
the claims commissioner‟s findings of proximate cause and causation in fact, are both
questions of fact. See King v. Anderson Cnty., 419 S.W.3d 232, 245 (Tenn. 2013)
(“[p]roximate causation is a question of fact”); Hale v. Ostrow, 166 S.W.3d 713, 718
(Tenn. 2005) (stating causation in fact is question for fact finder). In cases where there is
no jury, an appellate court presumes the trial court‟s findings of fact are correct unless the
preponderance of the evidence is otherwise. TENN. R. APP. P. 13(d); King, 419 S.W.3d at
245. “Because of the presumption, an appellate court is bound to leave a trial court‟s
finding of fact undisturbed unless it determines that the aggregate weight of the evidence
demonstrates that a finding of fact other than the one found by the trial court is more
probably true.” C-Wood Lumber Co., Inc. v. Wayne Cnty. Bank, 233 S.W.3d 263, 271
(Tenn. Ct. App. 2007) (citing Parks Props. v. Maury Cnty., 70 S.W.3d 735, 742 (Tenn.
Ct. App. 2001)). For a court to find that evidence preponderates against a trial court‟s
finding of fact, the evidence must support another finding “with greater convincing
effect.” Id. (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct.
App. 2000)).

       Tennessee Code Annotated section 9-8-307(c) provides that: “The determination
of the state‟s liability in tort shall be based on the traditional tort concepts of duty and the
reasonably prudent person‟s standard of care.” As the claims commissioner found, Ms.
Crutchfield must prove the following elements to prevail on her negligence claim against
the State:

       1) a duty of care owed by the defendant to the plaintiff; 2) conduct falling
       below the applicable standard of care amounting to a breach of that duty; 3)
       an injury or loss; 4) causation in fact; and 5) proximate, or legal, cause.
                                             - 10 -
King, 419 S.W.3d at 246 (citing Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364
(Tenn. 2009)). A plaintiff asserting negligence is required to prove both causation in fact
and proximate cause by a preponderance of the evidence. Id.; Hale, 166 S.W.3d at 718;
Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn. 1993).

       The State does not dispute that it owed a duty of care to Ms. Crutchfield as a TTU
student who was required to live on campus or that Ms. Crutchfield suffered an injury or
loss. The State disputes that Ms. Crutchfield established causation in fact and/or
proximate cause.

        Causation in fact refers to the relationship between the defendant‟s conduct and
the injury suffered. “The defendant‟s conduct is the cause in fact of the plaintiff‟s injury
if, as a factual matter, it directly contributed to the plaintiff‟s injury.” Hale, 166 S.W.3d
at 718. Causation in fact has also been defined to mean „“that the injury or harm would
not have occurred „but-for‟ the defendant‟s negligent conduct.‟” King, 419 S.W.3d at
246 (quoting Kilpatrick, 868 S.W.2d at 598).

       Proximate cause, in contrast, is based on foreseeability, and it „“puts a limit on the
causal chain, such that, even though the plaintiff‟s injury would not have happened but
for the defendants‟ breach, defendants will not be held liable for injuries that were not
substantially caused by their conduct or were not reasonably foreseeable results of their
conduct.”‟ Id. at 246-47 (quoting Hale, 166 S.W.3d at 719). Courts in Tennessee use a
three-part test to determine whether proximate cause exists in a particular case:

       1) the tortfeasor‟s conduct must have been a „substantial factor‟ in bringing
       about the harm being complained of; and 2) there is no rule or policy that
       should relieve the wrongdoer from liability because of the manner in which
       the negligence has resulted in the harm; and 3) the harm giving rise to the
       action could have reasonably been foreseen or anticipated by a person of
       ordinary intelligence and prudence.

Id. at 247 (quoting Hale, 166 S.W.3d at 719).

        As the State points out, „“the harm must be foreseeable from the vantage point
available to the defendant at the time that the allegedly negligent conduct occurred.‟”
Rathnow v. Knox Cnty., 209 S.W.3d 629, 633 (Tenn. Ct. App. 2006) (quoting Wingo v.
Sumner Cnty. Bd. of Educ., No. 01A01-9411-CV-0051, 1995 WL 241327, at *3 (Tenn.
Ct. App. Apr. 26, 1995)). A plaintiff is required to show that the injury suffered was „“a
reasonably foreseeable probability, not just a remote possibility, and that some action
within the defendant‟s power more probably than not would have prevented the injury.”‟
Id. at 633-34 (quoting Eaton v. McLain, 891 S.W.2d 587, 594 (Tenn. 1994)). The exact
                                           - 11 -
manner in which the injury occurred need not be foreseen so long as the general manner
in which the injury occurred was foreseeable, or should have been foreseen through the
exercise of reasonable diligence. Id. at 633 (quoting McClenahan v. Cooley, 806 S.W.2d
767, 775 (Tenn. 1991)).

       The claims commissioner found that the sounding of the school fire alarm above
Ms. Crutchfield‟s door was both the cause in fact and the proximate cause of her further
hearing loss. The commissioner‟s conclusion that the alarm was the cause in fact of her
injury is supported by Dr. Merwin‟s testimony that Ms. Crutchfield suffered a noise-
induced type of injury. However, we find the evidence preponderates against the
commissioner‟s finding that TTU should have known that subjecting Ms. Crutchfield to
an alarm at 75 decibels would cause her to suffer additional hearing loss or any other type
of injury. The evidence was undisputed that TTU was in compliance with the National
Fire Protection Association‟s codes regarding fire alarms and that the decibel level of the
alarm in Ms. Crutchfield‟s dormitory room was pre-set and could not be altered by TTU.
Ms. Crutchfield did not introduce any evidence that she informed TTU that she was
particularly susceptible to loud noises or that TTU knew, or reasonably should have
known, that a hearing-impaired individual was more susceptible than a non-hearing-
impaired individual to an alarm sounding at 75 decibels.2

        As the State argues, TTU installed the SilentCall system to protect Ms. Crutchfield
in the event of a fire, because her hearing impairment would prevent her from hearing the
alarm sounding. It does not logically follow that she would be injured by hearing the
dormitory alarm. Moreover, Dr. Merwin testified that although Ms. Crutchfield may
have had a greater susceptibility to loud noises, this susceptibility was offset by her
hearing impairment:

        She may have been slightly more susceptible to noise as a result of her
        existing hearing loss. That‟s offset by the fact that the hearing loss has a
        somewhat protective effect against noise damage. Because the noise has to
        be louder to actually affect the nerves. It has to overcome the hearing loss
        before it can cause damage.

      We are very sympathetic to Ms. Crutchfield‟s further hearing loss, and we find the
evidence does not preponderate against the commissioner‟s finding that her hearing was
worsened as a result of the fire alarm in her room. However, the evidence preponderates
        2
          Although it could be argued that wiring the SilentCall system TTU installed in Ms. Crutchfield‟s
room directly to the dormitory alarm system would be a better way of notifying Ms. Crutchfield that the
fire alarm had been triggered, she would not have been notified in this instance because Ms. Crutchfield
testified that she unplugged the SilentCall system the prior evening. Thus, the only way Ms. Crutchfield
could have known the fire alarm had been triggered was by hearing the alarm sound, as she did in this
case.
                                                 - 12 -
against the commissioner‟s finding that TTU knew, or reasonably should have known,
that Ms. Crutchfield was more susceptible to loud noises than non-hearing-impaired
students or that it was negligent in maintaining the fire alarm above the door in her
dormitory room. Ms. Crutchfield‟s arguments on appeal are pretermitted in light of our
conclusion that her injury was not reasonably foreseeable and that the State is, therefore,
not liable for her further hearing loss.

                                    IV. CONCLUSION

      The claims commissioner‟s judgment is reversed and its damage award is vacated.
The costs of this appeal shall be taxed against the appellee, Lindsay Megan Crutchfield,
for which execution shall issue if necessary.


                                                          _________________________
                                                           ANDY D. BENNETT, JUDGE




                                          - 13 -
