### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE A ssi gne d on Br ie fs A pr il 25, 200 6
BRO OKE R ATH NOW b/n/f/ R ICH and DIA NE RA THN OW v. K NOX COUNTY, ET AL 

### . Appeal f romthe Circ uit Court for Knox County No. 1-730-04 D ale C. Workm an, Jud ge

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

C h ar l es D. S u s an o , J r. , J

. , co n cu rr i n g.

I a g re e comp le te ly

wi th Jud g e L e e ’s we ll- tho ug ht- ou t op ini on . I write se pa

rate ly to emphasize what I

believe is the linchpin of the rea soning in this case

. When Ms. Rathnow left the classroom unattended, she did not verbalize that she fe lt sick or qu e a sy a ndsh e didno t e xhibi t a ny si gns of in stab ili ty . I n my jud g me nt, a

re a so na ble pe rs on in Coach Allen’ s position would have had no re ason to fore see tha t Ms. Rathnow would have a n e mot ion a l r e a c tio n to the vid e o an d fa ll. Whil e it can b e arg ue d th a t a fa ll w a s po ssi ble , a po ssi ble
oc c ur re nc e , w ith ou t mo re , is no t e no ug h to wa rr a nt a fi nd ing of

fo re se e abil ity . I f the te st o f l ia bil ity was whe ther something untoward might h appen – a po ssi bil ity – then, under such a te st, Coach Allen, and thus K nox County , would be responsible and liable f or Ms. Rathnow’s injuries. B ut the very broad conce pt of “what mig ht possibly happen” and the c oncomitant “insurer ” role place d upon the teac her a nd the school sy stem by such a r ule ar e not the law in Te nnessee
. T he test of fore seea bilityis based upon prob ab ili ty , not possibil ity . This conce pt h as b een stated by the Supreme Cour t o n a n u m ber of occa sions. I n Doe v . Linder Con st. Co., In c. , 845 S.W .2d 173 (T en n
. 1 9 9 2 ), t h e H i gh C o u rt s ai d t h e f o l l o wi n g:
I f the de fenda nts failed to exerci s e reasonable c are under the circ umstances then the y

breach ed their duty

to the plaintiffs. The term re asonable car e must be g iven meaning in relation to the circ umstances. Or dinary , or re asonable , car e is to be estimated by the risk en t ai l ed throug h probable dang ers attending the particula r situa tio n a nd is to be c omm e ns ur a te wi th the ri sk of inj ury . T he ri sk involved is that which is fo re s eeable; a risk is foresee able if a
rea sonable pe rson could for esee the proba bilityof its occur

renc e or-2- if the pe rs on wa s on noti c e that the lik e lih oo d of d a ng e r t o th e pa rt y to whom is owed a duty is probable. Fore seea

bilityis the test of
ne g li g e n c e
. I f th e in

ju r y w h ic h o c c u rr e d c o u ld n o t h a v e been
re as o n ab l y

fo re s ee n , t h e d u t y

o f c ar e d o es n o tar i s e, an d ev en t h o u gh the ac t of the def

endant in fa ct cau s ed the injury , there is no
n egl ige nce a nd no liability . The plaintiff must show that the injury
w a s a r e a s o n a b l y f o r e s e e ab l e p r o b ab i l i t y, n o tj u s ta r e m o t e p o s s i b i l i t y, a ndthat so me a c tio n w ith in the [de fe nd a nt’ s] po we r m or e pr ob ably than not would have pr evente d the injury . Fo re s eea bilitymust be deter mined as o f t h e time of the ac ts or omissions claimed to be
ne g lig e nt.
Id . at 178 (c itations and internal quotation marks omitted).

The instant ca se would b e diffe rent if Ms. Rathnow ha d indicated, in re sponse to Coach Allen’s question, that she wa s not a ll right or indicate d that she wa s not feeling okay or wa s fee ling dizz y or lig ht-hea ded or if she appea red sha ky on her f eet, or the fa cts prese nted some combination of the se thi ng s a nd

/or oth e r s ig ns of in st abil ity . I f the se we re the fa c ts, the n o ne wo uldha ve to conclude that letting Ms. Rathnow lea ve the c lassroom without help would be doing so in the fac e of the probabilit

y that she would fall and suf fer an injury of some kind. Howe ver, the se ar e not the fa c ts b e fo re us
. The que stion before us is sim ply this: Should a rea sonable person in Coa ch Allen’s situation have f orese en, g iven the fa cts befor e her , that it was more likely than not – in other words, prob ab le – th a t Ms . Rathn ow , w ith ou t a n e sc ort, wa s g oin g to f a ll a ndinj ur e he rs e lf ? I n te rm s o f p ro ba bil iti e s, I do not believe that the occurre nce of a fall and subsequent injury was any more proba

ble than that nothing of

an unfortunate natur e would occ ur as a result of Ms. Rathnow’s leaving the classr oom by herse lf. I n other wor ds, in myjudgme nt, the occur renc e of a fall and injury

was not more likely

than that there would be no fall. Possibl e? May be so. P robable ? Absolutely not. Fore seea

bility– an essential ele ment of an a ction based upon a theory of neg lige nce – is g rounded upon a finding that an injury is probable. I ag ree with J udg e L ee that Ms. Rathnow’s fall and injury , collectively , was not a prob ab le conseque nce of her le aving the classr oom without the aid of someone e lse.

Acc ording ly , I

concur
.

_______________________________ CHARL ES D. SUSANO, J R., J UDGE