Brooke Rathnow b/n/f Rich and Diane Rathnow v. Knox County

                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs April 25, 2006

    BROOKE RATHNOW b/n/f/ RICH and DIANE RATHNOW v. KNOX
                      COUNTY, ET AL.

                         Appeal from the Circuit Court for Knox County
                           No. 1-730-04    Dale C. Workman, Judge



                     No. E2005-02515-COA-R3-CV - FILED MAY 30, 2006


A high school student was injured when she fainted after viewing a first aid instructional video
depicting simulated wounds that was being shown in one of her classes. The student, through her
parents, sued Knox County and the Knox County Board of Education under the Tennessee
Governmental Tort Liability Act, alleging that the teacher supervising the class was negligent in
allowing her to leave the classroom unattended because it was foreseeable that she might be suffering
a physical reaction to the video and that she might faint. The trial court entered judgment in favor
of the plaintiff and awarded her damages in the amount of $30,000. The defendants appeal, arguing
that plaintiff's fainting was not foreseeable and that, even if the trial court was correct in its finding
of negligence, the trial court awarded excessive damages. Upon our determination that the harm
suffered by the student was not reasonably foreseeable, we reverse the judgment of the trial court and
dismiss this case.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Cause
                                        Dismissed

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., joined.
CHARLES D. SUSANO , JR., J., concurred in a separate opinion.

Martha Haren McCampbell, Knoxville, Tennessee, for the appellants Knox County and the Knox
County Board of Education.

William S. Lockett, Knoxville, Tennessee, for the appellee Brooke Rathnow b/n/f Rich and Diane
Rathnow.
                                             OPINION

                                           I. Background

        In December of 2003, the appellee, Brooke Rathnow, a 16-year-old sophomore at Bearden
High School in Knoxville, was attending a required class entitled “Life Time Wellness” taught by
Jennifer Allen (“Coach Allen”). One of the suggested resources for the Wellness class was a first
aid instructional video produced by the American Red Cross that depicts simulated accidents and
injuries.

         On December 8, 2003, Coach Allen was showing this first aid video to Ms. Rathnow and the
other students attending her Wellness class. Artificial blood is used in some scenes in the video, and
Coach Allen testified that before showing the video to students, she always advises them of this and
tells them that they can put their heads down on their desks and close their eyes if they feel like it.
At one point in the video, an actor appears to cut his arm with an electrical circular saw. This scene
is approximately one minute in duration and includes sporadic, and sometimes blurred, images of
what appears to be blood on the actor’s forearm interspersed with images of other actors portraying
the victim’s co-workers rendering aid. Ms. Rathnow states that when she viewed this scene, she “felt
faint and lightheaded and dizzy and nauseous.” She testified that she told two girls sitting next to
her that she felt “nauseous” and then she stood up and asked Coach Allen for permission to “go
outside and get some cold air.” In response, Coach Allen asked Ms. Rathnow if she was okay, and
Ms. Rathnow replied “yes” (Ms. Rathnow asserts that she does not recall if Coach Allen asked her
if she was okay, but does not believe that she did; however, the trial court appears to have found that
Coach Allen did ask Ms. Rathnow if she was okay and that Ms. Rathnow responded “yes”).

        The school’s policy allowed a teacher the discretion to permit a student to leave the
classroom, and Coach Allen granted Ms. Rathnow’s request. Ms. Rathnow went outside and, after
an undisclosed period of time, she fainted and fell to the ground. When she fell, a piece of her left
front tooth broke off and became embedded in her lower lip. After the fall and on that same date,
Coach Allen filled out an accident report which states in part as follows:

               Brooke asked to step outside. I said, yes. I was watching her thru the
               window. I was just going out to see how she felt when I heard her fall,
               (I thought). I went to check, sent for help, got her comfortable, called
               for admi. and parents - sent to office in wheelchair w/ officers.
               parents picked up.

       As a result of the injury she received, Ms. Rathnow subsequently incurred medical expenses
and was left with a facial scar.




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        On December 7, 2004, Ms. Rathnow, by her parents, Rich and Diane Rathnow, filed a
complaint in the Circuit Court for Knox County against Knox County and the Knox County Board
of Education. The complaint sought $80,000 in damages for injuries allegedly arising out of the
above described incident and charged that it was negligent to allow Ms. Rathnow to leave the
classroom by herself, “especially after she had already indicated that the graphic nature of the first
aide [sic] movie had caused her to feel faint and nauseous.” The case was tried without a jury, after
which the trial court entered judgment in favor of the plaintiff and awarded her damages in the
amount of $30,000. The defendants appeal.

                                              II. Issue

        The sole issue we address in this appeal is whether Ms. Rathnow’s fainting and subsequent
fall were reasonably foreseeable under the circumstances of this case.

                                      III. Standard of Review

        In a non-jury case such as this one, we review the record de novo with a presumption of
correctness as to the trial court’s determination of facts, and we must honor those findings unless the
evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses, especially where
issues of credibility and weight of oral testimony are involved, considerable deference must be
accorded to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc.,
984 S.W.2d 912, 915 (Tenn. 1999). The trial court’s conclusions of law are accorded no
presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

                                            IV. Analysis

        In order to sustain a cause of action for negligence, a plaintiff must prove the following: (1)
a duty of care owed by the defendant to the plaintiff; (2) conduct below the applicable standard of
care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate
or legal cause. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). The element of foreseeability
derives from the test for “proximate or legal cause,” as articulated by the Tennessee Supreme Court
in McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991):

               Taken as whole, our cases suggest a three-pronged test for proximate
               causation: (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.


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(Emphasis added).

       Accordingly, proof of foreseeability is of critical importance in a negligence case such as the
one now before us. If an injury giving rise to a cause of action for negligence could not have been
reasonably foreseen or anticipated, then there is no proximate cause and, thus, no liability for
negligence. Ray Carter, Inc. v. Edwards, 436 S.W.2d 864, 867 (Tenn. 1969).

        Foreseeability is ordinarily a question of fact. McClung v. Delta Square Limited Partnership,
937 S.W.2d 891, 900 (Tenn. 1996). As noted by the Court in McClenahan, even though the exact
manner in which the injury took place was not foreseen, if the general manner in which the injury
occurred could have been foreseen, or “through the exercise of reasonable diligence should have
[been foreseen]” the foreseeability requirement will have been met. “It is sufficient that harm in the
abstract could reasonably be foreseen.” Id. However, “the harm must be foreseeable from the
vantage point available to the defendant at the time that the allegedly negligent conduct occurred.”
Wingo v. Sumner County Board of Education, No. 01A01-9411-CV-0051, 1995 WL 241327(Tenn.
Ct. App. M.S. April 26, 1995), at *3. And “the plaintiff must show that the injury 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.” Eaton v. McClain, 891 S.W.2d 587,
594 (Tenn. 1994).

       With specific regard to the standard of care demanded of a school teacher, we noted as
follows in King by King v. Kartanson, 720 S.W.2d 65, 68 (Tenn. Ct. App. 1986):

               Teachers in local school districts are not expected to be insurors of
               the safety of students while they are at school. The standard of care
               is that of reasonable and ordinary care under the circumstances. This
               standard of care varies according to the nature of the persons to whom
               the duty is owed and the circumstances under which the parties find
               themselves. The extent to which a teacher must supervise the
               activities of his or her students must be determined with reference to
               the age and inexperience of the students, their maturity, and the
               dangers to which they may be exposed.

       (Citations omitted).

      After presentation of proof and argument of counsel, the trial court in the case before us
announced its findings and conclusions, which included the following:

               The teacher does indicate that prior to even showing this, just her
               personal experience, she was aware, ... from her own personal
               perspective, what she has heard reported by others, that the content of
               this particular video may be upsetting to certain of her students.



                                                 -4-
At least, and as she says, she tells them that they can put their heads
down or close their eyes if they don’t want to see this depiction.

She is on notice there can be some reaction by her students prior to
even showing the video. Then she starts showing the video. A
student, who she says is an excellent student, had never been a bit of
problem, and there is no reason for this student to be doing anything
other than absolutely dealing with her honestly, says, I need to leave
the room.

She asks, Are you all right?, indicating some concern about her
physical well-being, although, not knowing specifically what. The
student says, Yes, I just need some fresh air.

With that, I find this teacher is put on notice that this student may be
suffering from some physical malady.

The reference to the fresh air is, I think a reasonable person, would
conclude the student is being affected by the content that[‘s] on the
video. You might think other things.

With the video being shown at the same time and with the reaction
during the video, I think at that point the teacher is on notice that this
student, although this student didn’t say absolutely, the teacher is on
notice of maybe having suffered some reaction, possibly.

She does inquire and says; “Are you all right?” The student says,
“Yes,” but then she follows up, “I need the fresh air.”

At that point I don’t think the teacher specifically could foresee that
this young lady is going to go out and faint with a serious injury.

The teacher is on notice that the student may be faint, she may be sick
at her stomach. There is something going on, and that the teacher
take some action as a reasonably prudent teacher to deal with the
situation.

She could have said, Mary, Sue, or another student who were sitting
with her, “Go with Brooke outside.” She could have said, “The rest
of you all watch the video,” and walked out with her.




                                   -5-
She did not do that, but she is not insensitive and not ignoring this
young lady. She said as best she could, she tried to watch her out a
window where she could see her outside.

Something that creates a great deal of difficulty for the Court is that
there is some passage of time, and no one tried to quantify that, how
long a period of time there was between when she goes outside and
the fall.

The longer that period would be, the less anxious the teacher
reasonably could be of something is about to happen. Because as
pointed out, this student after saying, I need to go out, negotiates a
dimly, not black, but a dimly lit classroom. The student opens the
door and gets outside by herself. The student evidently stands for
some period of time, which is not delineated, outside.

As I said, the longer that period goes, then the Court would find the
less the teacher reasonably could be concerned about something is
going to happen to harm this student.

The teacher says she is getting ready to go outside and check on her.
So evidently, there has not been enough time to satisfied [sic] the
teacher that everything is okay. Then the teacher hears the fall.

With those facts, the Court finds the teacher should have reasonably
anticipated this could have happened. Not that it was going to happen
or would happen, but that this could have happened, that she could
faint, which is a reaction to the graphic video.

Another example of a thing she might have done, is she could have
asked specifically, do you feel faint; instead of standing up and
walking around, which makes the blood go from the head, it makes
you more likely to faint.

She could have said, Well, you need to sit down over this, instead of
trying to go outside, you need to sit.

So I find that the teacher was negligent in how she handled this
situation. That does not mean she is a bad teacher. The Court is not
unmindful this is the first time this has ever happened to her.




                                 -6-
               With 8,000 high school students, maybe this is the first time ever, at
               least to the knowledge of anybody in Knox County, this has ever
               happened.

               Students are all different. Some are more sensitive than others. So
               I think that, the conversation and knowing the kind of student she is
               dealing with, put the teacher on notice that something was up that she
               needed to deal with this student. The teacher needed to take some
               action rather than letting the student go out by herself with no other
               instructions or assistance.

        In summary, the trial court found that even before Ms. Rathnow asked to go outside, Coach
Allen was on notice that there “can be some reaction” by a student as a result of viewing the video.
The trial court next found that after Ms. Rathnow asked to be excused, Coach Allen was on notice
that Ms. Rathnow “may be suffering from some physical malady” - “maybe having suffered some
reaction, possibly.” The trial court then determined that, after Ms Rathnow assured Coach Allen that
she was okay, Coach Allen could not “specifically ... foresee that [Ms Rathnow] was going to go out
and faint,” but that Coach Allen was on notice that Ms. Rathnow “may be faint” or “sick at her
stomach,” that “[t]here is something going on.”

        We respectfully disagree that the trial court’s findings support its ruling that Coach Allen was
negligent under the circumstances. We have reviewed the subject video, and we do not believe the
scene that allegedly caused Ms. Rathnow to faint was sufficiently graphic or disturbing to place a
reasonable person on notice that an individual viewing it would react as Ms. Rathnow did. Even if
it should have been apparent to Coach Allen that Ms. Rathnow was suffering from some unspecified
discomfort when she asked to go outside, we do not agree that it follows that it also should have been
apparent to Coach Allen that Ms. Rathnow was at risk of fainting and injury if allowed to leave the
class room unassisted. While the findings of the trial court may support the conclusion that Ms.
Rathnow’s fainting and fall were a possibility at the time Coach Allen allowed her to go outside,
these findings do not support the conclusion that those reactions, even if attributable to viewing the
video, were a reasonably foreseeable probability. Our determination in this regard is supported by
our decision in Cadorette v. Sumner County Board of Education, et al., No. 01A01-9510-CV-00441,
1996 WL 187586, (Tenn. Ct. App. M.S. Apr. 19, 1996). Under the facts in Cadorette, a student
volunteered to stand on a table and model for a high school class. After a few minutes, the student
fainted, fell from the table, and suffered a head injury. Although in that case we noted that the mere
fact that modeling on tables was a widespread practice would not prevent a finding of negligence,
we also determined that the teacher had used the same modeling technique throughout her teaching
career of 25 years, and no similar accident had ever occurred. Although the teacher testified that “a
child could get up there [on the table] and feel faint or something” we declined to find her negligent,
stating that “her testimony contemplates the physical possibility of a fall, but not the reasonable
foreseeability or probability required for liability to result.” Id., at *4.




                                                  -7-
        Ms. Rathnow argues that there is a factual distinction between Cadorette and the present case
in that in Cadorette, as the opinion notes, there was no evidence that the injured student had
indicated to his teacher that he was in any way ill, whereas in this case, Ms. Rathnow requested to
leave the classroom in the context of being shown the video. Ms. Rathnow indicates that given this
distinction, the harm suffered by Ms. Rathnow, unlike the harm suffered by the student in Cadorette,
was foreseeable. However, as we noted in Cadorette at *3, the degree of foreseeability required to
establish a duty of care in a negligence case “decreases in proportion to the magnitude of the
foreseeable harm” and “[a]s the gravity of the possible harm increases, the apparent likelihood of its
occurrence need be correspondingly less to generate a duty of precaution” (citing Pittman v. Upjohn
Co., 890 S.W.2d 425, 433 (Tenn. 1994)). We believe the gravity of possible harm is significantly
higher and, therefore, the degree of required foreseeability is less when someone becomes ill while
standing on a table. Evidence indicating that the student in Cadorette may not have been feeling
well would have imposed a duty of care on the teacher in that case much sooner than the same
information would have imposed such a duty upon Coach Allen under the circumstances in this case.

         As the trial court acknowledges, Coach Allen asked Ms. Rathnow if she was all right and Ms.
Rathnow responded that she was. Ms. Rathnow did not testify that she believed that she was feeling
faint before she left the room, and no witnesses were presented to testify that Ms. Rathnow was
exhibiting symptoms that indicated she was about to faint. The record indicates that Coach Allen
has been a teacher for 20 years and has shown the subject video often. She testified without dispute
that she has never had any student become ill watching the video and has never had students tell her
that the video made them feel faint or nauseated. In fact, as the trial court also notes, “with 8,000
high school students, maybe this is the first time ever, at least to the knowledge of anybody in Knox
County, this has ever happened.” Further, there is no evidence presented that Ms. Rathnow has a
propensity for fainting or that Coach Allen had any reason to be aware of such. To the contrary, Ms.
Rathnow testified that she has never fainted at school before. Finally, Ms. Rathnow’s own testimony
shows that her demeanor in the class room did not indicate that she was at risk of fainting when she
left to go outside:

               Q. The classroom that you were in is an outside portable classroom?

               A. Yes.

               Q. Are the desks in there the kind where the desk is attached to the
               chair?

               A. Yes.

               Q. Were you at the front of the classroom, or the back of the
               classroom where you were sitting?

               A. At the front, away from the door.



                                                 -8-
               Q. Were you able to negotiate through the darkened classroom to the
               door?

               A. It was darkened, but there was sun shining through, but yes.

               Q. Did you have any problems operating the door?

               A. No.

       We further note the following undisputed testimony of Coach Allen regarding her
observations of Ms. Rathnow at that time:

               Q. Did you observe Ms. Rathnow when she left the room?

               A. Yes.

               Q. Did she appear to be walking steadily?

               A. Yes.

               Q. Did you observe anything that led you to have any belief that Ms.
               Rathnow was not well?

               A. No.


        As we have stated, teachers are not expected to insure the safety of students. The evidence
in this case shows that the actions taken by Coach Allen were sufficient and proper under the
circumstances as they appeared. The evidence does not support the conclusion that Ms. Rathnow’s
fainting and fall were reasonably foreseeable and that Coach Allen should have acted in conformity
with that conclusion. Ms. Rathnow’s fall was unfortunate; however, we do not deem it appropriate
to impose liability on the defendants for negligence under the circumstances.

                                          V. Conclusion

        For the reasons stated, we reverse the judgment of the trial court and dismiss this case, as
consistent with our opinion herein. Costs of appeal are adjudged against the appellee, Brooke
Rathnow b/n/f Rich and Diane Rathnow.

                                              _________________________________________
                                              SHARON G. LEE, JUDGE




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