Day on Torts
Where a minor student was accidentally hit in the head by a shot put thrown by his track and field coach, immunity for the school was removed under the GTLA and a judgment for plaintiff was affirmed. In Spearman v. Shelby County Board of Education, No. W2019-02050-COA-R3-CV (Tenn. Ct. App. Jan. 15, 2021), plaintiff filed suit on behalf of herself and her minor son after her son was injured at middle school track and field tryouts. The testimony showed that the student was a 12-year-old sixth-grader at the time of the incident. He had played several sports before but had never “participated in shot put and was not familiar with the event.” Marcus Mosby was the track and field coach at the school, and he was in charge of the tryout. Mr. Mosby had never competed in shot put and had not received “proper training on the safety protocols for the shot put event prior to the incident.”
During tryouts, students were taking turns throwing the shot put, which was a metal ball that weighed 8-10 pounds. At some point, Mr. Mosby decided to demonstrate the proper way to throw the shot put. He stood across from a group of students and “verbally instructed and motioned with his hands for the students to move back,” and he took a few steps away from the group. With his back turned toward the students, Mr. Mosby turned and threw the shot put towards the group. Plaintiff’s son, however, had not heard the directions to move back and was five feet closer to Mr. Mosby than the other students. According to testimony, the student was turned sideways and did not see Mr. Mosby throw the shot put. Mr. Mosby realized the student was going to be hit and yelled for him to move, but the student was struck in the side of the head with the shot put.
Mr. Mosby immediately tended to the student, and the student was taken by ambulance to a local children’s hospital. He spent three days in the hospital, experiencing significant pain and undergoing surgery. He stayed home for 2-3 weeks before being released to return to school, and he was eventually released to return to sports. The student, however, still experienced headaches at the time of trial, had a permanent brain injury and a scar.
After a bench trial, the trial court awarded plaintiff $200,000 in damages, which included approximately $64,000 in medical expenses. This verdict was affirmed on appeal.
Several issues were raised on appeal, the first being that defendants asserted they were immune from suit under the GTLA because “Mr. Mosby’s actions were intentional, reckless, or grossly negligent.” The Governmental Tort Liability Act (GTLA) governs suits against governmental entities in Tennessee, removing immunity for governmental entities only in certain situations. The portion of the Act in question here, Tenn. Code Ann. § 29-20-205, provides that governmental immunity “is removed for injuries proximately caused by a negligent act or omission of any employee acting within the scope of his employment.” (internal citation omitted). When an employee’s actions constitute an intentional tort, or when “an employee’s actions constitute more than ordinary negligence, such as recklessness or gross negligence, immunity from suit is not removed under section 29-20-205.” (internal citation omitted).
Defendants first argued that Mr. Mosby’s actions in this case qualified as an assault or battery, an intentional tort for which immunity would not be removed. The Court pointed out, though, that “an assault does not take place unless the person intends to cause harmful or offensive contact with another or intends to create an apprehension of harm.” (internal citation omitted). The testimony in this case made it clear that this incident was an accident. Mr. Mosby did not intend to hit the student or put the student in fear that he would be hit. His only intention was to demonstrate the shot put, not to injure or frighten anyone. The Court even pointed out that defendants’ own internal investigation concluded that “Mr. Mosby did not commit an intentional tort” but instead “neglected his duty as the track and field coach.” Based on this evidence, the Court agreed with the trial court that there was no intentional tort here.
Defendants next argued that Mr. Mosby’s conduct constituted recklessness. “A person acts with reckless intent when the person is aware of but consciously disregards a substantial and unjustifiable risk,” and the risk disregarded “must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person’s standpoint.” (internal citations omitted). Based on Mr. Mosby’s actions on the day of the incident as well as his perspective, the Court explained that he did not act recklessly:
[W]e find that he did not consciously disregard a substantial risk when throwing the shot put towards the group of students. While his efforts were obviously futile, Mr. Mosby did make efforts to safely throw the shot put towards the students. He testified that he moved farther away from the students before throwing. Additionally, he stated that he verbally instructed and motioned for the students to also move farther away. …Understanding that he could throw the shot put farther than the students, Mr. Mosby testified that he did not throw it as hard as he could. Taken together, the evidence shows that Mr. Mosby did not ‘consciously disregard’ the risk of throwing the shot put. …In determining whether Mr. Mosby was reckless, his actions must also be viewed from his untrained perspective. …[H]e was only vaguely familiar with shot put. Further, Mr. Mosby testified that he was not trained in shot put prior to [the student] being injured. …After considering Mr. Mosby’s lack of experience and training, we find that his actions were not a gross deviation from the standard of care that a person in his circumstances would exercise.
The Court made similar findings regarding defendants’ argument that Mr. Mosby’s actions constituted gross negligence. A finding of gross negligence must consist of “more than acting inadvertently,” and instead requires a showing that “the act was done with utter unconcern for the safety of others, or one done with such a reckless disregard for the rights of others that a conscious indifference to consequences is implied in law.” (internal citation omitted). Based on the same evidence cited above, the Court found that Mr. Mosby did not “act with a callous indifference to potentially harming a student.” (internal citation omitted). The Court noted that “Mr. Mosby’s precautions, although minor, showed a concern for the safety of the students,” and thus rejected the argument that Mr. Mosby was grossly negligent.
Because Mr. Mosby’s actions were not intentional, reckless, or grossly negligent, the Court of Appeals affirmed the ruling that immunity was removed under the GTLA and defendants’ motion for involuntary dismissal was rightfully denied.
Defendants’ next argument on appeal was that the trial court should not have allowed plaintiff to read a portion of the treating physician, Dr. Klimo’s, deposition into evidence. The Court of Appeals affirmed the decision to allow use of the deposition, explaining that pursuant to Tenn. Code Ann. § 24-9-101(a)(6), a practicing physician is exempt from subpoena to trial. This exemption is a ground for unavailability under Tennessee Rule of Evidence 804(a), which meant the trial court was correct in allowing the deposition to be read into evidence. The Court noted that “time and again, this Court has held that the term ‘unavailable’ under Rule of Evidence 804(a)(5) includes a deponent subject to the subpoena exemption under section 24-9-101.” Further, the Court rejected defendants’ argument that plaintiff needed to attempt to serve Dr. Klimo with a subpoena before having his deposition admitted at trial, as the Court stated that “[t]here is no such requirement in Tennessee.”
Defendants next asserted that Dr. Wise, plaintiff’s expert, was “not an expert in pediatric neurology and that his testimony should not have been admitted.” The Court began its analysis on this issue by listing the factors to consider when admitting expert testimony, noting that “the two most important considerations are whether the testimony is reliable and whether it will substantially assist the trier of fact.” (internal citation omitted). The evidence showed that Dr. Wise was licensed in three states, including Tennessee, and that he specialized in pediatrics. He had previously worked as a child neurologist, including working with patients with head trauma, and he had held faculty positions at medical schools focused on neurology. His current practice in Memphis was in sleep medicine, and though he was not a certified neurosurgeon, he was still board certified in child neurology. “Based on Dr. Wise’s background, knowledge, and experience, the trial court found that the underlying facts and data relied upon by Dr. Wise were reliable and that his testimony would assist the court in determining the factual issues of this case,” and the Court of Appeals agreed. The Court also agreed that Dr. Wise was qualified to testify as to the medical bills in this case, as he was “familiar with the surgery and subsequent treatment rendered to [the student] as a result of the incident.”
The next issue raised by defendants was whether plaintiffs’ medical bills were improperly admitted, as defendants argued that the bills “were not properly authenticated by Dr. Wise and [that] Plaintiff did not show that the bills were necessary.” Defendants seemingly argued that Dr. Wise could not authenticate the bills because he was neither the plaintiff nor a treating physician and thus had no firsthand knowledge, but the Court stated that “this assertion [was] a clear misstatement of settled law.” The Court pointed out that the Tennessee Supreme Court has held that “a physician must be familiar with the medical treatment provided by another physician in order to testify on the resulting bills,” and that provided those qualifications are met, a doctor “may testify on the reasonableness and necessity of medical charges, regardless of whether he or she rendered the services.” (internal citation omitted).
Finally, defendants argued that comparative fault should have been applied against the student in this case. Because the student was a minor, the “Rule of Sevens” applied here: “(1) if the child is under seven, the child has no capacity for negligence; (2) if the child is between ages seven and fourteen, there is a rebuttable presumption that the child does not have the capacity for negligence; and (3) if the child is ages fourteen to majority, there is a rebuttable presumption that the child does have the capacity for negligence.” (internal citation omitted). The student was twelve at the time of the incident, so in order for comparative fault to come into play, defendants would have needed to rebut the presumption that he had no capacity for negligence in this situation, which the Court ruled they failed to do. The Court specifically pointed out that the day of the incident was the first time the student had ever been exposed to shot put, and that Mr. Mosby did not explain any safety rules or risks of shot put. There was no proof that the student ignored any instructions, simply that he did not hear the directive to move back. Based on his lack of familiarity with the situation, the Court of Appeals agreed that the student did not have the capacity for negligence here.
Despite the judgment in her favor, plaintiff also raised one issue on appeal, arguing that she should have been awarded $300,000 in damages (the maximum allowed under the GTLA) rather than $200,000. The Court noted that of the $200,000 award, approximately $136,000 was for non-economic damages, which it found proper based on “the relevant evidence related to [the student’s] pain and suffering, any permanent impairment or disfigurement, and any loss of enjoyment of life.” The Court of Appeals specifically pointed out that the student had been able to “continue[] to receive good grades after the incident and has returned to an otherwise normal routine,” even resuming activities such as football. Further, while there was some evidence of continuing headaches and a permanent scar, the Court ruled that the trial court “did not disregard this testimony” and that it “applied the proper measure of damages to the facts of this case.”
Having analyzed all the issues raised by both parties, the trial court’s verdict was affirmed.
This is a lengthy opinion addressing several issues, but of particular note is the discussion surrounding whether GTLA immunity was removed here based on this action being classified as negligent rather than intentional, reckless, or grossly negligent. If you are litigating a case with a similar issue and a fact pattern that could potentially fall into a category beyond mere negligence, this opinion is an important read.
NOTE: This opinion was released four months after oral arguments in this case.