### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE March 3, 1999 Session
ANNA LAMB v. STATE OF TENNESSEE Appeal from the Tennessee Claims Comm ission No. 301696 W.R. Baker, Commissioner

No. M1998-00910-COA-R12-CV - Filed October 16, 2002

This appeal stems from a mother’s allegations that her m entally

impaired daught er was se xually abusedwhile in the custody of the Alvin C. York Ag ricultural Institute. The mother filed a c laim
on her daug

hter’s b ehalf wi

th the Division of Claims seeking $300,000 in damages. The claim was transferred

to the Tennessee C laims Commission where, following a hearing, a Commissioner dismissed the claim because the mother had failed to establish that her daught er had be en sexuall

y abusedwhile she was in the State’s custody . The mother as serts on th is appeal that the evidence preponderates against the Commissioner’s findings. We affirm the Commissioner’s dismissal of the claim.
Tenn . R. Ap p. P. 1 2(II) Direct Appe llate Revie w; Ju dgment of th e Tenn essee C laims Commission Affirmed
W IL LI AM C. K OCH , J R ., J., deliver ed the opinion of the

court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined.
John H. Little and

Ly nda Simmons, Livingston, Tennessee, and Onnie L . Winebarger, By rdstown, Tennessee, for the appellant, Anna L amb.
Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore, Solicitor General; and Martha A. Tarleton, Senior Counsel, for the appellee, State of Tennessee.
OPINION
I.
Michelle Lamb is a 25-y ear-ol d, mentally

impaired woman who lives in Jamestown with her mother, Anna Lamb, and her two young er brothers. She is moderately mentally retar

ded, and she functions at the level of a

five-ye ar-old. Ms. Lamb also has a seve re refractory

seizure disorder

that has been treated with surgery and requ ire s medication to control. Ms. Lamb’s conditions have signific antly

impaired her cognitive functions. Beca use she is impaired in the receptive and-2-

expressive language, she has limited communication skills. She has a po or me mo ry a nd finds it difficul tto concentrat e or pay

attention either b ecause

of brief seizure a ctivity or beca use she is sedated by the me dication she is required to take.
Ms

. L amb beg an having

seizures w

hen she w as eigh

t months old. Her othe

r impairm

ents beca me evident after she enrolled for kinderg arten at Pinehaven Elementary School, and she was placed in a special education class. At the beginning of second grad

e, Ms. Lamb

was tran sferre d to
a special education program at York Ele mentary School. Her mother objected to the transfer and requested that Ms. Lamb remain in the special educ ation room at Pinehaven El em en ta ry. Contrary to Anna Lamb’s wishes, her daug hter remained at York Elementary . Her teachers reported that she
was moody , that her progress was slow and difficult, and that he r socialization with others was problematic.
The first re

port of se xual abuse

involving Ms. La mb occurr ed in mid-Jul

y 19 90 when sh

e told her mother du

ring a b ath that her 16-y

ear-ol d cousin ha

d enga ged in oral sex with her while he was babysitt ing. Over one w eek la ter, Ann a La

mb repor ted her d aughte

r’s state ments to the

ir family physician, the Department of Human Services, and the District Attorney General. The physician found what he believed to be phy sical corroboration of probable sexual abuse, bu t Ms. L amb ’s cousin den ied eng aging

in any sort of se

xual conduct with her . Even though the Departm e n t suspectedthat Ms. L

amb had be

en sexuall y a bused, Ms. Lamb ’s cousin was never prosecuted after he agreed to counseling a nd pretrial diversion.
Ms. Lamb

transfe rred to the Alvin C. York Agricultural I

nstitute (“York Institute”) in 1991 and was enr olled in th e Tenne ssee LRE for Life p rogr am which w as designed to teach “survival skills” to student s like Ms. Lamb to enable them to live in the least restrictive environment possible. The progra

m include d job train

ing and freque nt off-c ampus t

r ips. Ms. Lamb apparently did not enjoy being at York I

nstitute. In December 1991, she complainedto her mother than she had been paddled at school. After taking her daughte r to the emergency

room, Ms. Lamb’s mother complainedto the sch ool offic ials abou t the padd ling. Thereaf

ter, the school of ficials a greed th a t they would not spank Ms. L amb and that they would try other methods of discipline.
The second report

of sexual abuse involving Ms. La mb occur red in June

1992 during the la st week of school . Ms. L amb told he r mother t hat “some body came into

the room and j erked my

pants down and stuck the

ir fing er in my

butt.” He r mother w ould not pe

rmit Ms. L

amb to return to school and requested the school’s special educati on coord

inator to c ome to her

house to discuss the matter. Ms. Lamb never identified the perpetrator, and the special educa tion coordinator assured her mother that Ms. Lamb was never lef

t unsupervised. Ms. Lamb’s mother later went to Yo

rk In stitute to te

ll Patty Dunn, her daughter’s teache r, andPatsy Peavy

house, a teacher’s aid, that she wanted one of themto be with Ms. Lamb during the entire time she wa s at schoo l. Mses. Du nn and Pea

vyhouse assured her that they

would not leave Ms. Lamb unsupervised while she w as at York Institute.
Ms. Lamb

returne d to York I

nstitute in

the fall o f 1992 but m

issed a g reat de al of schoo l because of her se izures. One of the outings sh e missed w as a trip

to Ms. Dunn’s barn to see a new-3-

colt. When Ms. Lamb returned to school on Monda y, September 1 4, 1992, Ms. Dunn, with her superior’s permission, decided to take her to the barn to see the colt. During the trip which lasted approxima

tely nin ety minut es, Ms. Dunn stopped by her house to change clothes because she plannedto take another horse to a veterinarian in Cookeville later tha t day, and then drove

Ms. Lamb to her barn. After Ms

. Dunn returned Ms. Lamb to York I nstitute, she was with Ms. Peavyhouse at all times until s he was pl aced on the bus to

go home. Ms. Peavy

house re ported th at Ms. L amb seemed h appy

and was s till talking

about the horses when she g ot on the bu s.
When Ms. Lamb arrived

home, both her

mother and her brother thought that she was wa lking in an unusual manner and that she was having difficulty sitting squarely on he

r seat. While helping Ms. Lamb

shower th at evening, her mother no ticed a s tainon her u nderwear that appeared to be dried blood. She also noticed that her daughter’s rectum a ppeare d to be swollen and torn and that she had a lar

ge bruise on her

chest. When Ms. La

mb provide

d no explana

tion for th ese cond itions, her mother decided that her daughte r was again the victim of sexual abuse and that Ms. Dunn was somehow involved b ecause her daug hter had told her earlier about going to Ms. Dunn’ s barn. Even thou gh Anna Lamb became distraught, she did not

seek medical assistance or report her daughter’s condi tion to th e auth oriti es tha t even ing.
Anna Lamb did not per

mit her daughter to return to York Institute the following day . She telephonedher siste

r, Mary Sue Bra nnon, totell her that she suspected that Ms. Lamb had a gain been molested at

school. Ms. Brannon was married to a retired Command Sergeant Major in the United States Army who was the

JROTC instructor at Yor

k Ins titute. Whe

n Ms. Brannon related her sister’s
concerns to her

husband, Mr. Bra

nnon rep orted tha

t he had seen Ms. Lamb leaving the schoo l with Ms. Dunn the previous day . At this point, Anna Lamb and the Brannonsbecame convinced that Ms. Dunn an d her husband, who was also a teacher a t York Institute, had molested Ms. Lam b at thei r ba rn . M r. Br an no n a rr an ge d f or Ms . La mb to be ex am in ed by a ph ysi ci an th e fol lo wi ng da y.
Ms. Lamb’s phy sician examined her on Wednesday . While Ms. Lamb did not explain what had happened to her, her phy sician conc lu ded that her injuries were probably the result of sexual abuse and that they we

re between one

day and five

days old. To help his sister-in-law, Mr . Brannon tried without suc cess to c ontact the Tenne ssee Bu reau of Inve sti ga tion’s (“ TBI ”) offic e in Cookeville.
Anna Lamb permitted her daug hte r to return to York Institute on Thursday . Mr. Brannon tried unsuccessful ly to contact the TB I’s office in Nashville a nd then passed on the family’ s suspicions about Ms. Lamb’s sexual abuse to Douglas Young, the superintendent of York Institute. Mr. Young immediately

contacted John Galloway, a n as sistan t district attorney g eneral, who
ar ra ng ed to me et wi th Ms . La mb an d h er mo th er at Mr . B ra nn on ’s ho us e o n S at ur da y.
After dropping off her daughter a t school on

Thursda y, A nna L amb and he

r two siste

rs, dressedin fatig

ues and a rmed with

a loaded pistol, sec

reted themselve s near th

e Dunns’ horse

barn in case the Dunns brought Ms. L amb back to the barn. Their purpose was to shoot Patty Dunn and1 We have determined that recounti ng the specif ics of Ms. Lamb’s stat ements t o Dr. Brandon-Campbell s erves no usef ul purpose.
-4- her husband if they re

turned to the barn with Ms. La mb . They waited f

or three to four hours and finally left when no one

arrived at the barn.
On Saturday, S eptember 19, 1992, Char les Scott, a TBI

agent p roficie nt at sexua

l abuse investig ations, interviewed Ms. Lamb at the Bra nnon resi dence. He was un able to obtain any useful information from her. Mr. Brannon disapproved of Mr. Scott’s investigative tec hniques, and after Mr. Sco tt left, he decided to question Ms. Lamb himself. During this conversation, Mr. Brannon professes that Ms. Lamb, for the first time, stated that she had been sexually molested by Ms. Dunn and her husba nd, an d perhaps others, at the Dunns’ home and horse barn. Mr . Brannon then telephonedMr. Galloway a nd offered

to bring Ms. Lamb to the sheriff’ s office to tell her “secret.” Once at the sheriff’s office, Mr. B rannon led Ms. Lamb through a n account of the events of the preceding Monday. Both Messrs. Galloway and Scott believed that

Ms. Lamb was a compromised witness because Mr. Brannon repe atedly asked he r leading, suggestive, and profe ssionally inapprop riate questions. Neither Mr. Galloway nor Mr. Scott believed that there was any reasona ble basis to suspect that the Dunns had molested Ms. Lamb.
The Department of Human Serv ice s commenced its investigation on September 24, 1992. During interviews by diffe rent caseworkers on September 24 and 28, 1992, Ms. La mb repea ted some of the information Mr. Brannon had earlier pr ovided to t

he Depa rtment. A

fter inte rviewing Ms. Lamb on October 8 and 9, 1992, Gary L . Aebischer, a licensed psychologic al examiner and certified school psy cholog ist, concluded that “[t]he current findings are inconclusive and do not point toward a consistent scenario of sexual abuse . . ..” He noted that “there are

no conclusive indications that this you ngster is attempt

i ng to co pe with serious victimization” and that “mentally re tarded youngster s can eas ily b e influe nced into providing

answer s w hich are in effect prompted by the questions posed by the inquirer.”
Ms. Lamb was subjected to additional interviewsand examinations for several moreweeks, including a family

nurse pr actitione r employ ed by Vander bilt Unive

rsity School of Medicine. She remained gener ally uncommuni cative a

bout her injuries. Several examinersconcluded that h e r physical condition was consistent with sexual penetration but decli ned to rul e out othe r cause s or to pinpoint wh

en the pe netratio n could

have taken place. The Depar tment referred Ms. La

mb to Dr. Sharon Brandon-Campbell, a psychologist in private pract ice, for cou nseli ng and s afety trai ning. During her ten sessions w ith Dr. B randon- Campbell w hich ended on Febr

uary 23, 1993, M s. La

mb stated tha t Mr. and M s. Dunn ha

d touched her in ina

ppropria te way s. 1

The authorit

ies eve ntually

determin

ed that the evidence did not warran t crimina lly prosecu tin g the Dunns for sexual abuse. The Dunns eventually moved to North Dakota. O n Septembe r 3, 1993, Anna Lamb filed a claim with the Division of Claims Administration seeking $300,000 in damages for

the negligent care, c

ustody, and control of Ms. L amb. She alleged

that her daughter had been “raped, sodomized, sexually abused, and

assaulted by per son or persons unknown-5-

who were at the premises of CRAI G and PATTY DUNN and in thepresence of PATTY DUNN.” The State responded by

denying the material allegations of the claim.
The claim wa s transfe

rred to th e Tenne ssee Claims Commission for tria l. In preparation for th e trial, t he State retained Dr. William Bernet, a child and fore nsic psychiatrist serving

as the medical director of The Psy chiatric Hospital at Vanderbilt. Dr. Bernet reviewed Ms. Lamb’s records and interviewed Ms. Lamb and her mother. He concluded that the phy sical evidence was consistent notonly with sexual

molestati on but also wi th other e xplanation s. He also

determined that Ms

. Lamb’s statemen

ts rega rding se xual abuse were not the products of her independe nt memory but rather were “verbal routines” that were “derived from

conversations that she had with her mother, her uncle, and perhaps other relatives.” Accord ingly , he conc luded tha

t “[i]t is imposs ible to know from . . . [Ms. Lamb’s] statements what actually happened to her or who did it.”
The focus of Anna

Lamb’s proof at

trial shifted away

from the Dunns. She asserted that she had placed her daughter in the State’s c ustody when she droppe d he r of f at York Institute on the morning of Septem

ber 14, 1 992, and t

hat her d aughte

r had some

how been se xually ab used by
someone that day while she wa s in the State’s custody. She rea soned that the State must have been acting negligently

because the sexual abuse could not have occurred otherwise.
The Commissioner who presided over the hearing filed a judgmen t on March 3, 1998. Following a detailed review of the ev idence, the Commi ss ioner concluded that Anna L amb had failedto prove by a pr

eponderance of the evidence that her daughter had been sexually abusedas a result of York Institute’s neg ligence. Specifically , the Commissioner determined: (1) that

it is “not clear” that the scarring in Ms. L amb’s vagina

and anus werecaused by sexual abuse because the medical professionals who ha d e xamined Ms. Lamb had decline d to rule out the poss ibility of other causes; (2) that Ms. Lamb’s fragm ented de scription s of the events of Se ptember 14, 1992, d

id notsuppo rt con cludi ng tha t she had been sexually abuse d because they were “the product of inexpert questioning by her family which pr oduced s ugge sted res ponses;” (3) that

even if M s. Lamb had bee n sexually

abused, her mothe

r’s evid ence fa iled to establish that this abuse occurred on September 14, 1992, or that i t occurr ed while Ms. La mb was in th

e State’ s custody ; and fina lly (4) that

even if M s. La

mb had bee

n sexually abused o n Septembe

r 14, 1992 , while in

the State’s custody , Ms. Lamb fail ed to demonstrate how the State had been neglig ent by failing to pr

otect her from sexual abuse.
Anna Lamb has perfected this appeal. Rather than rai sing issu es of law , her ar gumentsfocus
on the evidentiary f

oundation of the Commissioner’s judgment. She asserts that the evidence preponderates against the Commissioner’s conclusionthat she failed to prove that her daughter was-6-

sexually abused on September 14, 1992. Invoking the doctrine of res ipsa loquitur, she also asse rts that the State did not ade

quately rebut the presumpt

io n of negligen ce arising from her daug hter’s injuries because the evidence reg arding her daughter’ s supervision at school on September 14, 1992 was “sorely

lacking with regard to the Third Period be tween 10:00 am and 11:00 am.”
II. T HE E VIDENT IARY F OUNDATION FOR THE C OMM ISSIONER ’ S C ONCLUSI ONS
We turn first to Anna Lamb’s arg um e nt that the evidence does not support the Commissioner’s conclusi on that she failed to prove tha

t her dau ghter w as sexually abused on September

14, 1992. Sh

e asser ts in this re gard th at “rea sonable minds at all times would conclude that . . . [Ms.] La mb was indeed sexually abused on Septembe r 14, 1992 while under the care,
cu st od y, and contr

ol of York

Institute.” Whil e th e eviden ce mi ght per mit reaso nable pe

rsons to conclude that Ms. L

amb was se

xually abused o n Septembe

r 14, 1992 , it

al so permitsreasona

ble persons, including the Commissioner, to conclude that the sexual abuse, if it occurred, did not occur on September 14, 1992.
A.
The Tennessee Claims Commission’s factual findings, l ik e a ny o ther non- jury civil proceeding are reviewed on appeal using the standards contained in Tenn. R. App. P. 13(d). Beare Co. v. State , 814 S.W.2d 7 15, 717 (T enn. 1991 ); Poolv. State , 987 S.W.2d 566, 569 (Tenn. Ct. App. 1998). These standards are well-settled. With rega rd to findings of fact, we review the r ecord de
novo and presume that the findings of fact are correct “unless the preponderanc e of the evidenc e is otherwise. ” We will also give great weig ht to any factua

l findings that rest on determinations of
cr ed ib il it y. In re Esta te of Walton , 950 S.W.2d 956, 9 59 (Tenn . 1997); B & G Constr., I nc. v. Po lk , 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). However, in the absence of f indings of fac t on a particular matter, we will review the record to determine where the pre ponderance of the evidence lies without em

ploy ing a pr esumption

of corr ectness

. Ganzevo ort

v. Russe ll , 949 S.W.2d 293, 296 (Tenn. 1997). Reviewing findings of

fact under Tenn. R. App. P. 13 (d) req uires an app ellat e court to wei gh the evidence to determine in which party 's favor the weight of the ag greg ated evi dence f alls. There is a “ re as on ab le pr ob ab il it y” that a proposition is true when there is more evidence in its favor than there is against it. Thus , the prev ailing p arty is the one in whose f

avor the evidenti ary

scale tip s, no matter how slightly. Parks Props. v . Maury Co unty , 70 S.W.3d 735, 741 (Tenn. Ct. App. 2001); Realty Shop, Inc. v. RR Westminster Holding, Inc. , 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).
Tenn. R. A

pp. P. 13(d

)’s pre sumption of

correctness re quires a

ppellate courts to defer

to a trial court's findings of

fact. Fell v. Rambo , 36 S.W.3d 837, 846 ( Tenn. Ct. A pp. 2000) . Beca

use of the presumption, an appellate court is bound to leave a trial court' s finding of fact undisturbed unless it determines that the aggreg ate weight of the ev idence de monstrates that a finding of fact other than the o ne found

by t he trial c ourt is more probably true

. Parks Pro ps. v. Mau ry County , 702 Ms. Lamb has a hist ory of constipati on. -7-

S.W.3d at 742. Thus, for the e

vidence to preponderate

agains t a trial c ourt's f

inding of fact, it must support another finding of fact with gre ater convincing effect. Walk er v. Sidn ey Gilre ath & Assocs. , 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).
These standar ds for re viewing the weig ht of th e e vidence

in a non-j ury

procee ding must
necessa rily be objective. In case s like this one, they cannot be c olored by the vulner ability of the victim or the inherently heinous na ture of the alleged conduct. Persons see king monetary

damages from the state for

neglig ence mus tshoulder the same burden of proof as persons see king monetary damages agains t private

parties. They

must estab lisheach of

the nece ssary

elementsof their c laim by a preponderance

of the evidence. Branch v. McCroskey , No. 03A0 1-97 09-CV -003 85, 19 98 WL 47873, at *2 (Tenn. Ct. App. Feb. 5, 1998) (No Tenn . R. App. P. 11 application filed) (stating that “the plaintiff

is not entitle d to a judgment unle ss the plaintiff has carried his initial burden of proof, i.e., proof on all issues necessary to establish his claim”).

B.
The claim that Ms. Lamb was sexually abused on September 14, 1992, stands or falls on the testimonyof

three wi tnesses – Dr. R. Leonard Carroll, Ms. Julie E. Rosof, and Dr. Sharon B randonC ampbell. Dr. Carroll physica lly examined Ms. L amb on September 16, 1992, at the Fentre s s County Hospital. Ms. Rosof, a family nurse pra ctitioner, physica

ll y examined Ms. Lamb at Vanderbilt University School of Me dicine on October 15, 1992. Dr. Bra

ndon-Cam

pbellprovided psychologic al counseling to Ms. Lamb from Nove mber 18, 1992 through February 23, 1993.
Anna Lamb introduced the

results of Dr. Carroll’s and Ms. Rosof’s phy sical examinations of her daughter to substantiate her claim that her daug hter hadbeen sexually abused on Septembe r 14, 1992. Both Dr. Carroll and Ms. Rosof testified that the con dition of M s. Lamb’s vagina a nd rectum were consistent with sexual penetration, but they declined to state that

sexual abuse was the only cause of the conditions they observed. Dr. Carroll testified that he observed a fresh tear in Ms. Lamb’s rectum. However, by stating that the tear could have been four to five days old, he could not rule out the possibility that it had occurred pr ior to September 14, 1992.
Ms. Rosof’s e

xamination r

eveale d recta

l tears in different locations than the tear observed by Dr. Carroll, thereby

raising the possibility that the tear s she observed occurred after Anna Lamb withdrew her daughter from school. She also conclude d that the conditions she observed could have been as little as one week or as long as one yea

r old. Most significantly, Ms. Rosof conc eded that her opinion regarding the results of phy sical examinatio ns insexual abuse cases had changed since she examined Ms. Lamb in October 1992. Since a biopsy of the scar tissue had not

been performed, she was n o longe

r comfor table with her original conclusion that the conditions she observed were consistent with sexual penetration and that they we re consistent with severe constipation. 2-8-

Anna Lamb introduced Dr. B randon-C ampbell ’s testimony to prove that her da ughter had identified the Doddsas perso ns who had abused her sexually. Ms. La mb made these state

ments more than two mo nths afte r the alle ged abuse occu

rred af te r she had be en exposed to repeated suggestive

questioni ng by

the membe

rs of her famil y. T his repeated questioning undermined the probative value of Ms. Lamb’s statements. Both Mr. G alloway and Mr

. Scott found these sta tements unrelia ble as earl

y a s S eptember 19, 1992. Mr. Aebischer likewise discounted them in October 1992. Dr. Bernet concluded that they were “ verbal ro utines,” not derived from Ms. Lamb’s independent

memory, but rather

from her conversation s with her m other, un cle, and other fa mily members.
After revi ewi ng thi s recor d de no vo, we have d eterm ined t hat th e Stat e prese nted s trong, probative eviden ce that und ermined the testimony of Dr . Carroll, Ms. Rosof, and Dr. BrandonCampbell. Reasonable persons considering this evidence c ould easily conclude that it does not establish by a prepond erance of the evidence t

hat Ms. Lamb had been sexually abused on September 14, 1992. Accordingly , the evidence does not preponderate against the Commissioner’s conclusion that Anna Lamb had failed to prove that her daughter had been sexually abused on September 14, 1992.
III.

A NNA L AMB ’ S I NVOCATION OF THE R ES I PSA L OQUITU R D OCTRINE
Anna Lamb ’s claim w as orig inally premised on the ass ertion tha

t the Dunn s had sexually abusedher daughter on September 14, 1992. As this theory beg an to unravel, she broadened her claim to a more

gener al one ba sed on the

doctrin e of re s ipsa loquitur. Instead of identify ing the Dunns as the wrongdoers, she asserted tha t her daughter had

been sexually molested on September 14, 1992 while in the custody of the staf f of York Institute and that sexual molestation can occur at York Institute only

when the staff negligently fails to superv ise the student s. On this appeal, she insists that

the Commissi oner’s d

ecision s hould be v acated because the State failed to demonstr ate that the staff of York Institute took adequa te precautions to safeguard her daug hter on September 14, 1992, specif

ic ally betwee n 10:00 a. m. and 11:0 0 a.m. Thisargume nt fails f or two re asons. F

irst, Anna Lamb’s ca se was not s trong e nough to requir e the Stat e to explain how it was acting with due
care to protect her daughter on September 14, 1992. Sec ond, the State presented evidence from which a reasonable person could easily conclude that the staff of York I ns titute was not negligent with regard to its supervision of Ms. La mb on September 14, 1992.
A.
The res ipsa loquitur doctrine is a rule of evidence, not a rule of law. Quinley v. Cocke , 183 Tenn. 428, 438, 192 S.W.2d 992, 996 (1946). It is intended to come to the aid of plaintiffs who have
no direct evidence

of a defendant’s neglige

nce, Provident Life & Ac cident Ins. Co. v. Professional Cleaning Serv., Inc. , 217 T enn. 1 99, 20 8, 396 S.W. 2d 351 , 356 ( 1965) , by provi ding a specialized vehicle for considering circumstantial evidence in negligence cases. Poor Siste rs of St. Francis v. Long , 190 Tenn. 434, 442-43, 230 S.W.2d 659, 663 (1950). It permits, but does not require, a fact3 A person see king damages for neg lig ence must prove: (1) th at t he defendant owed him or her

a duty of care, (2) that t he defendant’s conduct breached this duty , (3) that the person see king dam ages suffered an injury o r loss, (4) that the defendant’s conduct was the cause-in- fact of hi s or her injury or loss, and (5) th at no exis tin g rule of law reli eves the de fenda nt from liability for its neg ligence

. McCall v. Wil der , 913 S.W .2d 1 50, 1 53 ( Te nn. 19 95)

. -9- finder “to infer neg lige nce from the circumstances of an injury .” Seavers v. Metho dist Med. Ctr. , 9 S.W.3d 86, 9 1 (Tenn. 1999); Shivers v. Ramsey , 937 S.W.2d 945, 949 (Tenn. Ct. App. 1996). Persons relying

on the res ipsa loquitur doctrine need not prove specific acts of neglige

nce by the defe ndant. Summit Hill Assocs. v. Knoxville Utils. Bd. , 667 S.W.2d 91, 96 (Tenn. Ct. App. 1983); Parker v. Warren , 503 S.W.2d 938, 942 (Tenn. Ct. App. 1973). They may instead b ase thei

r case on the circumstances surrounding the injury if common experience indicates “(1) that the injury was probably the

result of negligence, even though the exact nature of the negligence is unknown, and (2) that it was probably the defendant who was the neglig ent person.” Burton v. Warren Farmers Coop. , No. M1999-00486-COA-R3-CV, 2002 WL 31039345, at *6 (Tenn. Ct. App. Sept. 12, 2002).
The courts must take care to avoid apply ing the res ipsa loquitur doct rine in a way tha

t undermines our sy stem of tor t liability based on fault. Fowler V. Harper e t al., The Law of Torts § 19.5, at 27-30 (2d ed. 1986) (“Harper”). It is not enough for a pla intiff to prove that he or she was injured by s ome unide

ntified pe rson’s ne glige

nce. Eve n though there is bey ond all

reasonable doubt “negligence

in the air,” the plaintiff must still bring the negligence home to the defend ant. W . Page Keeton, Prosser an

d Keeton o n the Law of To rts § 39, at 24 8 (5th ed. 1984). Th e plaintif f must present evidence that

affords a rational basis for concluding tha t the negligent conduct that caused the injury is probably

attributable to the defendant. 1 Dan B. Dobbs, The Law of Tort s § 157, at 378 (2001); Harper § 19.7, at 45-46.
The presumption of n egli gence arising from the ope ration of the res ipsa loquitur doctrine is rebuttable. Schindler v. Southern Coach Lines, Inc. , 188 Tenn. 169, 173, 217 S.W.2d 775, 777 (1949); Shivers v. Ramsey , 937 S.W.2d at 949. Thus, if a plaintiff satisfies all the elements of a res ipsa loquitur claim, the burde n of goi ng forw ard shif ts to the de

fendant to explain o

r demonst rate that it acted with reasonable care under the circumstances. Summit Hill Assocs. v. Knoxv ille Utils. Bd. , 667 S.W.2d at 96; Parker v. Warren , 503 S.W.2d at 943. If the defendant offe rs no explanation of its conduct, the fact

finder may

justifiably conclude that the de fendant is liable for the plaintiff’s injuries. Southeast

ern Aviat ion, Inc. v. Hurd

, 209 Tenn. 639 , 662, 355 S .W.2d 436, 446 (1962); Armes v. Hulett , 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992).
The res ipsa loquitur doctrine addresses only two of the five elements of a common-law negligence

claim. 3 “ It permits an inference that the defendant breached a duty it owed to the plaintiff. It also permits an inferenc e that the defendant’s conduct , whate ver it was, caused the plaintiff’s injury. Thus, to succee d with a negligence claim, a plaintiff rely ing on the doctrine must still prove: (1) that the d

efenda nt owed a duty to him or her and that the apparent cause of the injury lies within the scope of this duty; (2) that the plaintiff suffered an injury ; and (3) that the defendant’s4 Even if we were t o find t hat t he evidenc e establis hes th at Ms. Lamb had been sexual ly mol ested at some ti me, the evide nce i s not

suf fi cien t t o pinpoi nt Se ptember 14, 1992 as the date on whi ch t he mol est ati on occur red. -10- conduct, whatever it may

have been, was the legal ca use of the plaintiff’s injury.” Burton v. Warren Farmers Coop. , 2002 WL 31039345, at *8.
B.
Anna Lamb’s evidence f

alls short of establishing a prima facie res ipsa loquitur claim. I t is missing several key

ingred ients. Fi rst, her evidenc e does no t establis h that her daught er was, in fact, injured on September 14, 1992 while in the care of the staff of Yor k Institute. 4 Second, even if the physical evidence is consistent with past sexual abuse, Anna La mb has not es tablished tha t Ms. Lamb’s injuries w ere pro bably caused by neg ligence and that this negligenc e is attributable to the staff of Yo rk Institute. Thus, because Anna Lamb failed to satisfy

the requirements for a res ips a loquiturclaim, the State never assumed the burden of demonstrating that the staff

of York I nstitute was using due care in its supervision of Ms. Lamb on September 14, 1992.
Anna Lamb’s claim fare s no be tter eve n if we ov erlook the shortc omings of her resipsa loquiturevidence and examine theState’s proof regarding he r daughter’s supervision on September 14, 1992. Ann a La

mb challen ges the

adequa cy of her da ughter ’s super

vision bet ween 10: 00 a.m. and 11:00 a.m. and for the three to five minutes sometime after noon when Ms. Dunn left her unattended. The State

conced es, as it mu st, that it o wed a dut y to Ms. La mb while she was at York Institute and offered detailed testimony regarding its supervision of Ms. Lamb f rom the time she arrived at school on September 14, 1992, until the time she was placed on the bus to go home. This evidence, consisting

of the te stimony

of Mses. Dunn and Peavyhouse , provides more tha n an ample basis for a fact finder to determine that the staff at Y ork Institute was not neglig ent in the manner in which they wer

e supervising Ms. Lamb on September 14, 1992.
IV.
We affirm the Commissioner’ s ju dgment dismissing Anna Lamb’s c laim and remand the claim to the Tenn esse e Cla

ims Co mmiss ion fo

r wha teve r fur ther proc eedi ngs may

be required. We tax the costs of this appeal to Anna Lamb and he r surety for

wh ich e xe cution, if necessary , may issue.

_____________________________ WILL IAM C. KOCH, JR., JUDGE