# FILED
May 9, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
JOYCE A NN NEA L, Indiv idually ) and as parent and next of kin of ) the minor child, BRA NDON ) DEVORIS NEAL, ) ) Plaintiff/Appellant, ) Fay ette Circu it No. 3189 ) VS. ) A ppeal No. 02A 01-9412-CV-002 71 ) FA YETTE COU NTY BOA RD OF ) EDUCATION, DA LE SUMMITT, ) Superinten dent of S chools, ) WILLIA M A . WEDDLE, Pri ncipal ) of Nort hwest Elementary School, ) JEAN BELLE, Teach er, ) ) Defendants/Ap pellees. )
APPEAL FROM THE CI RCUI T COUR T OF FA YETTE C OUNTY AT SOMERVILLE, TEN NESSEE THE HONORABLE JON KERRY BLACKWOOD, JUDGE

DOROTHY W. MCA RTHUR KIM, WILLCOX & MCAR THUR Memphis, Tennessee Attorney for Plaintiff/Appellant
JAM ES I. PENTEC OST WAL DR OP AND HAL L, P. A. Jackson, Tennessee Attorney for Defendants/Appellees

AF FIRMED
ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. This matter arose out

of a pe rson al injury

action broug ht against F ayette County2

Board of Ed ucat ion by p lai ntiff, Joyce Ann Neal, as parent and next of kin of Brandon Neal,
a minor. Brandon , age eleven , wa s injured w hile play ing basketbal l when his finger became caught in t he goal. R easoning that the goal was neither dang erous nor d efe ctive and that Brandon caused his own injuries through his misu se of the goal, the trial court held in favor of the s chool board. On appeal, plainti ff contends that the ev idenc e preponderatesagainst the trial cour t's determinati on that the goal w as not dangerou s or defective. Plaintiff further al leges that t he trial cour t erred in fail ing to find that the school b oard was neg ligent. F or the reasons stated below , we find thes e contentions to b e without mer it; therefore, we affirm the trial court's judg ment.

On May 11, 1992 , Brandon Neal, a fifth-grade s tudent, was injured duri ng physi cal education period at school w hen, after making several attempts to dunk the basketball i nto the goal , his"pink

y" fin ger b ecame lodged in a crevice in the goal . As a resul t, his finger was parti ally amputate d above the fir st joint.

At the time of t he in jury, P .E. c lass was sup ervise d by two fifth-grade teachers, Ms. Belle and Ms. Rhe a. Ms. Rhea supervised the boys on the playground, while Ms. Belle supervis ed the girl s insi de the classr oom and on the adjacent porch. Ms. Rhea was standing about twelve feet from the goal at the time of Brandon's

injury

.

In support of her co ntentions, plai ntiff relies heav ily on thefact thattwo student s had pre v iouslysuffered similar injuries on the basketball goal. Appr oximately

one year after the goal wa s inst alle d in 1 981 , Daryl Campbell, an ei ghth-gr ade student, severed his pinky finger when it became lodged in the s ame "V"- shap ed cr evice that caus ed Br and on's injur y. Like Bran don , Daryl Campbel l was att empting to dunk the ball w hen his injur y occurr ed. Ten years l ate r, in 1991, Antwone Taylor, a fift h-grade student at the school, bro ke his finger in the crevice of the goal while he was trying to dunk the ball.

At trial, defendant relie d on the doctrine of sovereig n immunity to shield it from liab ility. Plaintiff arg ues that defendantwas not entitled to immunity because im munity is3

removed for dangerous o r defective structures and for some neglig ent acts and omissions of employees. The a pplicable provisions are as follows:

Removal of immunity fo r injury f rom dangerous structure s

-- Exception -- Notice

required. -- (a) Immunity from suit ofa governmental entity i s removed for a ny injur y caused by

the dangerousor def ecti ve condit ion of any public buildin g, structure, dam, reservoir or other public impr

oveme nt owned and cont rolle d by su ch gove rnme ntal enti ty. (b) Immunity is not removed for latent d efective conditions, nor shall this section apply unless constructive and/or actual no tice to the governmental entity of such con dition be all eged and proved in addition t o the procedural notice req uired by S ec. 29- 20-302. T.C.A. § 29-20-204 (198 0).

Removal of immunity caused by negligent

act or omission ofemp loyee s -- Except ions. -- Immunity from suit of all governmental entities is removed for injury proximatel y caused bya negl igent act o r omi ssio n of any em ploye e within the scop e of his em ploym ent e xcept if th e inju ry: (1) Arises out of the exerci se or performanc e o r the failure t o exercise or perform a discretion ary function, whether or not the discretion is abused.... T.C.A. § 29-20-205 (198 0).

We wi ll fi rst

address plai ntiff' s conten tion that gov ernmental immunity

is remove d in the present case because the g oal was dang erous and/or defecti ve.

Because this case was tri ed by the cour t sitting without a

jury, we review

the case de novo upon the record with a pr esumption of correc

tness of the tria l court's findings of fact. T.R.A.P. 13( d).

In th e con text of the Governmental Tort Liability Act, Ten nessee courts have held that items such as an electrical line, McGaughy v. City of Memphis , 823 S.W. 2d 209 (Tenn. App. 1991), an imprope rly constructed and installed dra inage s ystem, Redi ker v. Gillespie , No. 86-367-II , 1987 WL 11763 (Tenn . App. June 5, 1987) , and a broken and cracked manhole cover , Bradford v. City of Clarksville , 885 S.W. 2d 78 (Tenn. App. 1994), were d efe ctive or da ngero us, t here by res ulti ng in re mova l of g overn men tal im mun ity.

In this case , however, th e structu re at issu e is neith er inhere ntly dange rou s nor4

broken. At the time of the ac cident, the basketball goal was in t he same condition as it w as when it was installed in 1981. There were no cracks, br eaks, or other

problems w ith the goal. In fact, the sole defect that Brandon was

able to identi fy was thefact that the goal
was rusty. Numerous school o fficials testified that they di d not feel that the g oal constituted any

danger or

threat to the students. No teac her had ever complained about the goal or requested itsremoval . Pl aint iffpresented no ev idence, exper t or otherw ise, that the goal was dangerous or defective. The fact

that two pr

evious inj uries occur red, standing alone, is insufficient

to establish a dangerousor defectivecondition, es pecially when the previous injuries occurred solely due to the students' misuse of the goal.

An intact basketball goal is completely dissimilar to structures such as power lines
or other structures that of the mselves create danger. W e hold that a basketball goal is not
a dang erou s or de fec tive structure w ithin the meaningof the Governmental Tort Liabili ty Act when it i s not i n a def ective condition and when it is used in its intended ma nner. Consequently, sovereign immunity may not be removed on this basis.

Plai ntiff next contends that the def endant was negligent in failing to adequately supervise the students, failing to warn Brandon ofthe goal's dangerous pr

opensities, fail ing to p roperly ins truct Brandon o n how to use the goal, and fail ing to remove the goal after two prev ious injuri es had occurred.

In order to sustain a c laim for negli gence, plain tiff must prove th at defendants had
a legally recogniz ed duty to hi m, that such duty was breac hed, and that the breach caused his injuries. Roberts v

. Roberts on County Boar d of Education , 692 S.W. 2d 863, 869 (Tenn. App. 1985 ).

Teachers and school offici als are not required to beinsurers of the safety of students. Id. at 870. T hey are, how ever, required to exercise such care as ordinarily reasonable and prudent pers ons would ex ercise under

the same or similar circumstances. Id.5

In the present cas e, two fifth-grade teachers were super vising the students dur ing physical education period. The re was testim ony to t he effect th at all of the students, including Brandon, had been inst ructed not to play ro ugh and not to dunk on the goal. Althou gh Brandon testified that he wasnever warned about dunkingor rough- housing, one of plaintiff's w itnesses, a classmate of Brandon's and a fellow fifth-grade stu dent, testified that their teacher had warned them abo ut playing rough on the goal and would chastise stu dents f or dunking the ball. In light of the fo regoing, we find no merit in plaintiff's contention that defendant was negligent in failing to supervise, warn, or instruct Brandon regarding the basketball goal.

School children invariably su ffer a myri ad of injuries on all typ es of playgr ound equipment. These injuri es can and do occu r without reg ard to the condi tion of the equipment. A school cann ot anticipate t he varied and unexpected acts that occur daily in and about school premis es and courts d o not impose upon teac hers a duty "to anticipate
or foresee the hundreds of unex pected stu dent acts that oc cur daily ." Roberts , 692 S.W.2d at 872. To hold the school board liable in t he present case would be tant amount to making the s chool board an i nsurer of the safety of children, w hich we dec line to do.

W e also agree w ith the trial court that plaintiff has failed to demonstrate any legal causal connection between the defen dant 's alleged actions or inactions and Brando n's inju ry. Where the time between astudent's act and the resulti ng injury is so bri ef that the teacher has no opportunity to pre vent su ch injury, it cannot be said that the teache r's negligence is the prox imate cause of the in jury. I t is apparen t from the record that Bran don 's mis use o f th e goa l in at tem ptin g to sl am-d unk t he ba ll cau sed h is inj ury.

Fina lly, any

alleged neg ligence on the part of the defendant i n failing to r emove the goal after the prev ious injuri es would not be actionable because the decisi on whether t o remo ve the goal would be a discretionaryfunction for whi ch gover nmental immunity is not removed. Bowers ex rel. Bowers v. City of Chat tanoo ga , 826 S.W .2d 427 (Tenn. 199 2). See also , O'Guin v. Corbin , 777 S.W.2d 697 (Tenn. App. 1989)(hol ding that deci sion as6

to whether to

place a traffic con trol d evice at an intersectio n was dis cretionary ); Doe v. Board of Education , 799 S.W .2d 2 46 (T enn . App . 199 0)(h oldi ng tha t dec ision to le ave school door unlocked was discretionary function ).

Based upon our rev iew of the re cord, w e conc lude that the ev idence does not preponderate against the determinati on o f the trial cour t that the goal was neith er dangerousnor defective, that the defendants di d not breach thei r duty to B randon, and that Brandon caused his own injur ies. According ly, the tr ial court' s judgment is affirmed. Costs
are adju dge d ag ainst pl aint iff.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.