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

Charles D. Susano, Jr., J., concurring.

I agree completely with Judge Lee’s well-thought-out opinion. I write separately to

emphasize what I believe is the linchpin of the reasoning in this case.

When Ms. Rathnow left the classroom unattended, she did not verbalize that she felt sick or

queasy and she did not exhibit any signs of instability. In my judgment, a reasonable person in

Coach Allen’s position would have had no reason to foresee that Ms. Rathnow would have an

emotional reaction to the video and fall. While it can be argued that a fall was possible, a possible

occurrence, without more, is not enough to warrant a finding of foreseeability. If the test of liability

was whether something untoward might happen – a possibility – then, under such a test, Coach

Allen, and thus Knox County, would be responsible and liable for Ms. Rathnow’s injuries. But the

very broad concept of “what might possiblyhappen” and the concomitant “insurer” role placed upon

the teacher and the school system by such a rule are not the law in Tennessee. The test of

foreseeability is based upon probability, not possibility. This concept has been stated by the

Supreme Court on a number of occasions. In Doe v. Linder Const. Co., Inc., 845 S.W.2d 173

(Tenn. 1992), the High Court said the following:

If the defendants failed to exercise reasonable care under the

circumstances then they breached their duty to the plaintiffs. The

term reasonable care must be given meaning in relation to the

circumstances. Ordinary, or reasonable, care is to be estimated by the

risk entailed through probable dangers attending the particular

situation and is to be commensurate with the risk of injury. The risk

involved is that which is foreseeable; a risk is foreseeable if a

reasonable person could foresee the probability of its occurrence or
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if the person was on notice that the likelihood of danger to the party

to whom is owed a duty is probable. Foreseeability is the test of

negligence. If the injury which occurred could not have been

reasonably foreseen, the duty of care does not arise, and even though

the act of the defendant in fact caused the injury, there is no

negligence and no liability. 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. Foreseeability must be

determined as of the time of the acts or omissions claimed to be

negligent.

Id. at 178 (citations and internal quotation marks omitted).

The instant case would be different if Ms. Rathnow had indicated, in response to Coach

Allen’s question, that she was not all right or indicated that she was not feeling okay or was feeling

dizzy or light-headed or if she appeared shaky on her feet, or the facts presented some combination

of these things and/or other signs of instability. If these were the facts, then one would have to

conclude that letting Ms. Rathnow leave the classroom without help would be doing so in the face

of the probability that she would fall and suffer an injury of some kind. However, these are not the

facts before us.

The question before us is simply this: Should a reasonable person in Coach Allen’s situation

have foreseen, given the facts before her, that it was more likely than not – in other words, probable

– that Ms. Rathnow, without an escort, was going to fall and injure herself? In terms of probabilities,

I do not believe that the occurrence of a fall and subsequent injury was any more probable than that

nothing of an unfortunate nature would occur as a result of Ms. Rathnow’s leaving the classroom by

herself. In other words, in my judgment, the occurrence of a fall and injury was not more likely than

that there would be no fall. Possible? Maybe so. Probable? Absolutely not. Foreseeability – an

essential element of an action based upon a theory of negligence – is grounded upon a finding that

an injury is probable. I agree with Judge Lee that Ms. Rathnow’s fall and injury, collectively, was

not a probable consequence of her leaving the classroom without the aid of someone else.

Accordingly, I concur.

_______________________________

CHARLES D. SUSANO, JR., JUDGE