IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 3, 1999 Session

ANNA LAMB v. STATE OF TENNESSEE

 Appeal from the Tennessee Claims Commission

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 mentally impaired daughter was sexually

abused while in the custody of the Alvin C. York Agricultural Institute. The mother filed a claim

on her daughter’s behalf with the Division of Claims seeking $300,000 in damages. The claim was

transferred to the Tennessee Claims Commission where, following a hearing, a Commissioner

dismissed the claim because the mother had failed to establish that her daughter had been sexually

abused while she was in the State’s custody. The mother asserts on this appeal that the evidence

preponderates against the Commissioner’s findings. We affirm the Commissioner’s dismissal of the

claim. 

Tenn. R. App. P. 12(II) Direct Appellate Review; Judgment of the Tennessee Claims

Commission Affirmed

WILLIAM C.KOCH,JR., J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM B. CAIN, J., joined.

John H. Little and Lynda Simmons, Livingston, Tennessee, and Onnie L. Winebarger, Byrdstown,

Tennessee, for the appellant, Anna Lamb.

Paul G. Summers, Attorney General 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-year-old, mentally impaired woman who lives in Jamestown with her

mother, Anna Lamb, and her two younger brothers. She is moderately mentally retarded, and she

functions at the level of a five-year-old. Ms. Lamb also has a severe refractory seizure disorder that

has been treated with surgery and requires medication to control. Ms. Lamb’s conditions have

significantly impaired her cognitive functions. Because she is impaired in the receptive and
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expressive language, she has limited communication skills. She has a poor memory and finds it

difficult to concentrate or pay attention either because of brief seizure activity or because she is

sedated by the medication she is required to take.

Ms. Lamb began having seizures when she was eight months old. Her other impairments

became evident after she enrolled for kindergarten at Pinehaven Elementary School, and she was

placed in a special education class. At the beginning of second grade, Ms. Lamb was transferred to

a special education program at York Elementary School. Her mother objected to the transfer and

requested that Ms. Lamb remain in the special education room at Pinehaven Elementary. Contrary

to Anna Lamb’s wishes, her daughter remained at York Elementary. Her teachers reported that she

was moody, that her progress was slow and difficult, and that her socialization with others was

problematic. 

The first report of sexual abuse involving Ms. Lamb occurred in mid-July 1990 when she told

her mother during a bath that her 16-year-old cousin had engaged in oral sex with her while he was

babysitting. Over one week later, Anna Lamb reported her daughter’s statements to their family

physician, the Department of Human Services, and the District Attorney General. The physician

found what he believed to be physical corroboration of probable sexual abuse, but Ms. Lamb’s

cousin denied engaging in any sort of sexual conduct with her. Even though the Department

suspected that Ms. Lamb had been sexually abused, Ms. Lamb’s cousin was never prosecuted after

he agreed to counseling and pretrial diversion.

Ms. Lamb transferred to the Alvin C. York Agricultural Institute (“York Institute”) in 1991

and was enrolled in the Tennessee LRE for Life program which was designed to teach “survival

skills” to students like Ms. Lamb to enable them to live in the least restrictive environment possible.

The program included job training and frequent off-campus trips. Ms. Lamb apparently did not

enjoy being at York Institute. In December 1991, she complained to her mother than she had been

paddled at school. After taking her daughter to the emergency room, Ms. Lamb’s mother

complained to the school officials about the paddling. Thereafter, the school officials agreed that

they would not spank Ms. Lamb and that they would try other methods of discipline.

The second report of sexual abuse involving Ms. Lamb occurred in June 1992 during the last

week of school. Ms. Lamb told her mother that “somebody came into the room and jerked my pants

down and stuck their finger in my butt.” Her mother would not permit Ms. Lamb to return to school

and requested the school’s special education coordinator to come to her house to discuss the matter.

Ms. Lamb never identified the perpetrator, and the special education coordinator assured her mother

that Ms. Lamb was never left unsupervised. Ms. Lamb’s mother later went to York Institute to tell

Patty Dunn, her daughter’s teacher, and Patsy Peavyhouse, a teacher’s aid, that she wanted one of

them to be with Ms. Lamb during the entire time she was at school. Mses. Dunn and Peavyhouse

assured her that they would not leave Ms. Lamb unsupervised while she was at York Institute.

Ms. Lamb returned to York Institute in the fall of 1992 but missed a great deal of school

because of her seizures. One of the outings she missed was a trip to Ms. Dunn’s barn to see a new
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colt. When Ms. Lamb returned to school on Monday, September 14, 1992, Ms. Dunn, with her

superior’s permission, decided to take her to the barn to see the colt. During the trip which lasted

approximately ninety minutes, Ms. Dunn stopped by her house to change clothes because she

planned to take another horse to a veterinarian in Cookeville later that day, and then drove Ms. Lamb

to her barn. After Ms. Dunn returned Ms. Lamb to York Institute, she was with Ms. Peavyhouse at

all times until she was placed on the bus to go home. Ms. Peavyhouse reported that Ms. Lamb

seemed happy and was still talking about the horses when she got on the bus.

When Ms. Lamb arrived home, both her mother and her brother thought that she was walking

in an unusual manner and that she was having difficulty sitting squarely on her seat. While helping

Ms. Lamb shower that evening, her mother noticed a stain on her underwear that appeared to be

dried blood. She also noticed that her daughter’s rectum appeared to be swollen and torn and that

she had a large bruise on her chest. When Ms. Lamb provided no explanation for these conditions,

her mother decided that her daughter was again the victim of sexual abuse and that Ms. Dunn was

somehow involved because her daughter had told her earlier about going to Ms. Dunn’s barn. Even

though Anna Lamb became distraught, she did not seek medical assistance or report her daughter’s

condition to the authorities that evening.

Anna Lamb did not permit her daughter to return to York Institute the following day. She

telephoned her sister, Mary Sue Brannon, to tell her that she suspected that Ms. Lamb had again 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 York Institute. When Ms. Brannon related her sister’s

concerns to her husband, Mr. Brannon reported that he had seen Ms. Lamb leaving the school with

Ms. Dunn the previous day. At this point, Anna Lamb and the Brannons became convinced that Ms.

Dunn and her husband, who was also a teacher at York Institute, had molested Ms. Lamb at their

barn. Mr. Brannon arranged for Ms. Lamb to be examined by a physician the following day.

Ms. Lamb’s physician examined her on Wednesday. While Ms. Lamb did not explain what

had happened to her, her physician concluded that her injuries were probably the result of sexual

abuse and that they were between one day and five days old. To help his sister-in-law, Mr. Brannon

tried without success to contact the Tennessee Bureau of Investigation’s (“TBI”) office in

Cookeville.

Anna Lamb permitted her daughter to return to York Institute on Thursday. Mr. Brannon

tried unsuccessfully to contact the TBI’s office in Nashville and 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, an assistant district attorney general, who

arranged to meet with Ms. Lamb and her mother at Mr. Brannon’s house on Saturday.

After dropping off her daughter at school on Thursday, Anna Lamb and her two sisters,

dressed in fatigues and armed with a loaded pistol, secreted themselves near the Dunns’ horse barn

in case the Dunns brought Ms. Lamb back to the barn. Their purpose was to shoot Patty Dunn and
1We have determined that recounting the specifics of Ms. Lamb’s statements to Dr. Brandon-Campbell serves

no useful purpose.

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her husband if they returned to the barn with Ms. Lamb. They waited for three to four hours and

finally left when no one arrived at the barn.

On Saturday, September 19, 1992, Charles Scott, a TBI agent proficient at sexual abuse

investigations, interviewed Ms. Lamb at the Brannon residence. He was unable to obtain any useful

information from her. Mr. Brannon disapproved of Mr. Scott’s investigative techniques, and after

Mr. Scott 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 husband, and perhaps others, at the Dunns’ home and horse barn. Mr. Brannon then

telephoned Mr. Galloway and offered to bring Ms. Lamb to the sheriff’s office to tell her “secret.”

Once at the sheriff’s office, Mr. Brannon led Ms. Lamb through an account of the events of the

preceding Monday. Both Messrs. Galloway and Scott believed that Ms. Lamb was a compromised

witness because Mr. Brannon repeatedly asked her leading, suggestive, and professionally

inappropriate questions. Neither Mr. Galloway nor Mr. Scott believed that there was any reasonable

basis to suspect that the Dunns had molested Ms. Lamb.

The Department of Human Services commenced its investigation on September 24, 1992.

During interviews by different caseworkers on September 24 and 28, 1992, Ms. Lamb repeated some

of the information Mr. Brannon had earlier provided to the Department. After interviewing Ms.

Lamb on October 8 and 9, 1992, Gary L. Aebischer, a licensed psychological examiner and certified

school psychologist, 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 youngster is attempting to cope with serious victimization” and that “mentally retarded

youngsters can easily be influenced into providing answers which are in effect prompted by the

questions posed by the inquirer.” 

Ms. Lamb was subjected to additional interviews and examinations for several more weeks,

including a family nurse practitioner employed by Vanderbilt University School of Medicine. She

remained generally uncommunicative about her injuries. Several examiners concluded that her

physical condition was consistent with sexual penetration but declined to rule out other causes or to

pinpoint when the penetration could have taken place. The Department referred Ms. Lamb to Dr.

Sharon Brandon-Campbell, a psychologist in private practice, for counseling and safety training.

During her ten sessions with Dr. Brandon-Campbell which ended on February 23, 1993, Ms. Lamb

stated that Mr. and Ms. Dunn had touched her in inappropriate ways.1

The authorities eventually determined that the evidence did not warrant criminally

prosecuting the Dunns for sexual abuse. The Dunns eventually moved to North Dakota. On

September 3, 1993, Anna Lamb filed a claim with the Division of Claims Administration seeking

$300,000 in damages for the negligent care, custody, and control of Ms. Lamb. She alleged that her

daughter had been “raped, sodomized, sexually abused, and assaulted by person or persons unknown
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who were at the premises of CRAIG and PATTY DUNN and in the presence of PATTY DUNN.”

The State responded by denying the material allegations of the claim. 

The claim was transferred to the Tennessee Claims Commission for trial. In preparation for

the trial, the State retained Dr. William Bernet, a child and forensic psychiatrist serving as the

medical director of The Psychiatric Hospital at Vanderbilt. Dr. Bernet reviewed Ms. Lamb’s records

and interviewed Ms. Lamb and her mother. He concluded that the physical evidence was consistent

not only with sexual molestation but also with other explanations. He also determined that Ms.

Lamb’s statements regarding sexual abuse were not the products of her independent memory but

rather were “verbal routines” that were “derived from conversations that she had with her mother,

her uncle, and perhaps other relatives.” Accordingly, he concluded that “[i]t is impossible 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 custody when she dropped her off at York Institute on the

morning of September 14, 1992, and that her daughter had somehow been sexually abused by

someone that day while she was in the State’s custody. She reasoned 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 judgment on March 3, 1998.

Following a detailed review of the evidence, the Commissioner concluded that Anna Lamb had

failed to prove by a preponderance of the evidence that her daughter had been sexually abused as a

result of York Institute’s negligence. Specifically, the Commissioner determined:

(1) that it is “not clear” that the scarring in Ms. Lamb’s vagina and anus were caused by

sexual abuse because the medical professionals who had examined Ms. Lamb had

declined to rule out the possibility of other causes;

(2) that Ms. Lamb’s fragmented descriptions of the events of September 14, 1992, did

not support concluding that she had been sexually abused because they were “the

product of inexpert questioning by her family which produced suggested responses;”

(3) that even if Ms. Lamb had been sexually abused, her mother’s evidence failed to

establish that this abuse occurred on September 14, 1992, or that it occurred while

Ms. Lamb was in the State’s custody; and finally

(4) that even if Ms. Lamb had been sexually abused on September 14, 1992, while in the

State’s custody, Ms. Lamb failed to demonstrate how the State had been negligent

by failing to protect her from sexual abuse.

Anna Lamb has perfected this appeal. Rather than raising issues of law, her arguments focus

on the evidentiary foundation of the Commissioner’s judgment. She asserts that the evidence

preponderates against the Commissioner’s conclusion that she failed to prove that her daughter was
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sexually abused on September 14, 1992. Invoking the doctrine of res ipsa loquitur, she also asserts

that the State did not adequately rebut the presumption of negligence arising from her daughter’s

injuries because the evidence regarding her daughter’s supervision at school on September 14, 1992

was “sorely lacking with regard to the Third Period between 10:00 am and 11:00 am.” 

II.

THE EVIDENTIARY FOUNDATION FOR THE COMMISSIONER’S CONCLUSIONS

We turn first to Anna Lamb’s argument that the evidence does not support the

Commissioner’s conclusion that she failed to prove that her daughter was sexually abused on

September 14, 1992. She asserts in this regard that “reasonable minds at all times would conclude

that . . . [Ms.] Lamb was indeed sexually abused on September 14, 1992 while under the care,

custody, and control of York Institute.” While the evidence might permit reasonable persons to

conclude that Ms. Lamb was sexually abused on September 14, 1992, it also permits reasonable

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, like any other 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 715, 717 (Tenn. 1991); Pool v. State, 987 S.W.2d 566, 569 (Tenn. Ct. App.

1998). These standards are well-settled. With regard to findings of fact, we review the record de

novo and presume that the findings of fact are correct “unless the preponderance of the evidence is

otherwise.” We will also give great weight to any factual findings that rest on determinations of

credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997); B & G Constr., Inc. v. Polk,

37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). However, in the absence of findings of fact on a

particular matter, we will review the record to determine where the preponderance of the evidence

lies without employing a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296

(Tenn. 1997).

Reviewing findings of fact under Tenn. R. App. P. 13(d) requires an appellate court to weigh

the evidence to determine in which party's favor the weight of the aggregated evidence falls. There

is a “reasonable probability” that a proposition is true when there is more evidence in its favor than

there is against it. Thus, the prevailing party is the one in whose favor the evidentiary scale tips, no

matter how slightly. Parks Props. v. Maury County, 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. App. P. 13(d)’s presumption of correctness requires appellate courts to defer to a

trial court's findings of fact. Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000). 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. Parks Props. v. Maury County, 70
2Ms. Lamb has a history of constipation.

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S.W.3d at 742. Thus, for the evidence to preponderate against a trial court's finding of fact, it must

support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs.,

40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

These standards for reviewing the weight of the evidence in a non-jury proceeding must

necessarily be objective. In cases like this one, they cannot be colored by the vulnerability of the

victim or the inherently heinous nature of the alleged conduct. Persons seeking monetary damages

from the state for negligence must shoulder the same burden of proof as persons seeking monetary

damages against private parties. They must establish each of the necessary elements of their claim

by a preponderance of the evidence. Branch v. McCroskey, No. 03A01-9709-CV-00385, 1998 WL

47873, at *2 (Tenn. Ct. App. Feb. 5, 1998) (No Tenn. R. App. P. 11 application filed) (stating that

“the plaintiff is not entitled to a judgment unless 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

testimony of three witnesses – Dr. R. Leonard Carroll, Ms. Julie E. Rosof, and Dr. Sharon BrandonCampbell. Dr. Carroll physically examined Ms. Lamb on September 16, 1992, at the Fentress

County Hospital. Ms. Rosof, a family nurse practitioner, physically examined Ms. Lamb at

Vanderbilt University School of Medicine on October 15, 1992. Dr. Brandon-Campbell provided

psychological counseling to Ms. Lamb from November 18, 1992 through February 23, 1993. 

Anna Lamb introduced the results of Dr. Carroll’s and Ms. Rosof’s physical examinations

of her daughter to substantiate her claim that her daughter had been sexually abused on September

14, 1992. Both Dr. Carroll and Ms. Rosof testified that the condition of Ms. Lamb’s vagina and

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 prior to September 14, 1992.

Ms. Rosof’s examination revealed rectal tears in different locations than the tear observed

by Dr. Carroll, thereby raising the possibility that the tears she observed occurred after Anna Lamb

withdrew her daughter from school. She also concluded that the conditions she observed could have

been as little as one week or as long as one year old. Most significantly, Ms. Rosof conceded that

her opinion regarding the results of physical examinations in sexual 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 no longer comfortable with her original conclusion that the conditions she observed were

consistent with sexual penetration and that they were consistent with severe constipation.2
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Anna Lamb introduced Dr. Brandon-Campbell’s testimony to prove that her daughter had

identified the Dodds as persons who had abused her sexually. Ms. Lamb made these statements

more than two months after the alleged abuse occurred after she had been exposed to repeated

suggestive questioning by the members of her family. This repeated questioning undermined the

probative value of Ms. Lamb’s statements. Both Mr. Galloway and Mr. Scott found these statements

unreliable as early as September 19, 1992. Mr. Aebischer likewise discounted them in October

1992. Dr. Bernet concluded that they were “verbal routines,” not derived from Ms. Lamb’s

independent memory, but rather from her conversations with her mother, uncle, and other family

members.

After reviewing this record de novo, we have determined that the State presented strong,

probative evidence that undermined the testimony of Dr. Carroll, Ms. Rosof, and Dr. BrandonCampbell. Reasonable persons considering this evidence could easily conclude that it does not

establish by a preponderance of the evidence that 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.

ANNA LAMB’S INVOCATION OF THE RES IPSA LOQUITUR DOCTRINE

Anna Lamb’s claim was originally premised on the assertion that the Dunns had sexually

abused her daughter on September 14, 1992. As this theory began to unravel, she broadened her

claim to a more general one based on the doctrine of res ipsa loquitur. Instead of identifying the

Dunns as the wrongdoers, she asserted that her daughter had been sexually molested on September

14, 1992 while in the custody of the staff of York Institute and that sexual molestation can occur at

York Institute only when the staff negligently fails to supervise the students. On this appeal, she

insists that the Commissioner’s decision should be vacated because the State failed to demonstrate

that the staff of York Institute took adequate precautions to safeguard her daughter on September 14,

1992, specifically between 10:00 a.m. and 11:00 a.m. This argument fails for two reasons. First,

Anna Lamb’s case was not strong enough to require the State to explain how it was acting with due

care to protect her daughter on September 14, 1992. Second, the State presented evidence from

which a reasonable person could easily conclude that the staff of York Institute was not negligent

with regard to its supervision of Ms. Lamb 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 negligence, Provident Life & Accident Ins. Co. v. Professional

Cleaning Serv., Inc., 217 Tenn. 199, 208, 396 S.W.2d 351, 356 (1965), by providing a specialized

vehicle for considering circumstantial evidence in negligence cases. Poor Sisters of St. Francis v.

Long, 190 Tenn. 434, 442-43, 230 S.W.2d 659, 663 (1950). It permits, but does not require, a fact
3

A person seeking damages for negligence must prove: (1) that the defendant owed him or her a duty of care,

(2) that the defendant’s conduct breached this duty, (3) that the person seeking damages suffered an injury or loss, (4)

that the defendant’s conduct was the cause-in-fact of his or her injury or loss, and (5) that no existing rule of law relieves

the defendant from liability for its negligence. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). 

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finder “to infer negligence from the circumstances of an injury.” Seavers v. Methodist Med. Ctr.,

9 S.W.3d 86, 91 (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 negligence

by the defendant. 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 base their

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 negligent 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 applying the res ipsa loquitur doctrine in a way that

undermines our system of tort liability based on fault. Fowler V. Harper et al., The Law of Torts §

19.5, at 27-30 (2d ed. 1986) (“Harper”). It is not enough for a plaintiff to prove that he or she was

injured by some unidentified person’s negligence. Even though there is beyond all reasonable doubt

“negligence in the air,” the plaintiff must still bring the negligence home to the defendant. W. Page

Keeton, Prosser and Keeton on the Law of Torts § 39, at 248 (5th ed. 1984). The plaintiff must

present evidence that affords a rational basis for concluding that the negligent conduct that caused

the injury is probably attributable to the defendant. 1 Dan B. Dobbs, The Law of Torts § 157, at 378

(2001); Harper § 19.7, at 45-46.

The presumption of negligence arising from the operation 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 burden of going forward shifts to the defendant to explain or demonstrate

that it acted with reasonable care under the circumstances. Summit Hill Assocs. v. Knoxville Utils.

Bd., 667 S.W.2d at 96; Parker v. Warren, 503 S.W.2d at 943. If the defendant offers no explanation

of its conduct, the fact finder may justifiably conclude that the defendant is liable for the plaintiff’s

injuries. Southeastern Aviation, 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 inference that the defendant’s conduct, whatever it was, caused the

plaintiff’s injury. Thus, to succeed with a negligence claim, a plaintiff relying on the doctrine must

still prove: (1) that the defendant 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’s
4

Even if we were to find that the evidence establishes that Ms. Lamb had been sexually molested at some time,

the evidence is not sufficient to pinpoint September 14, 1992 as the date on which the molestation occurred.

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conduct, whatever it may have been, was the legal cause of the plaintiff’s injury.” Burton v. Warren

Farmers Coop., 2002 WL 31039345, at *8.

B.

Anna Lamb’s evidence falls short of establishing a prima facie res ipsa loquitur claim. It is

missing several key ingredients. First, her evidence does not establish that her daughter was, in fact,

injured on September 14, 1992 while in the care of the staff of York Institute.4 Second, even if the

physical evidence is consistent with past sexual abuse, Anna Lamb has not established that Ms.

Lamb’s injuries were probably caused by negligence and that this negligence is attributable to the

staff of York Institute. Thus, because Anna Lamb failed to satisfy the requirements for a res ipsa

loquitur claim, the State never assumed the burden of demonstrating that the staff of York Institute

was using due care in its supervision of Ms. Lamb on September 14, 1992.

Anna Lamb’s claim fares no better even if we overlook the shortcomings of her res ipsa

loquitur evidence and examine the State’s proof regarding her daughter’s supervision on September

14, 1992. Anna Lamb challenges the adequacy of her daughter’s supervision between 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 concedes, as it must, that it owed a duty to Ms. Lamb while she was at York

Institute and offered detailed testimony regarding its supervision of Ms. Lamb from 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 testimony of Mses. Dunn and Peavyhouse, provides more than an ample

basis for a fact finder to determine that the staff at York Institute was not negligent in the manner

in which they were supervising Ms. Lamb on September 14, 1992.

 IV.

We affirm the Commissioner’s judgment dismissing Anna Lamb’s claim and remand the

claim to the Tennessee Claims Commission for whatever further proceedings may be required. We

tax the costs of this appeal to Anna Lamb and her surety for which execution, if necessary, may

issue.

_____________________________ 

WILLIAM C. KOCH, JR., JUDGE