### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Su bmitt ed on B ri ef

s, Ja nuary 9, 200 7 GARNETT LYNN GOFORTH , R. LYNN GOFORTH a nd w ife , SUSAN D.

GOF ORT H v. S TAT E OF TEN NES SEE
Direc t Appeal from the Tennessee Claim s Com m ission , Eastern G rand Divisi on

No. 20101497 Hon. Vance W. Cheek, Jr., Judge

No. E2006-00926-COA- R3-CV - F ILED FEBRUARY 22, 2007

Pla int if fs , p are nts a nd so n bro ug ht sui t ag a ins t the Un ive rs ity fo r inj urie s to th e so n s us ta ine d w hil e prac ticing f

ootball, char g ing the coac hes we re ne g lige nt in allow i n g p ra ctice to c ontinue under da ng e ro us c on dit ion s. Th e Com mis sio ne r ru le d in fa vo r o f the Un ive rs ity , e xce pt a s to the dis pu te o v e r i n s u r a n c e , a n d a w ar d e d p l a i n t i f f s $ 3 , 6 0 0

. 0 0 u n d e r

t h e c o n tr a c to f

i n s u r a n c e w i t h t h e U n i v e r s i t y.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e nt of t he Cl aim s C om m iss ion Affir m e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the court, in which C H A RLES D. S US ANO , J R ., J ., and D. M I CH A EL S WI NEY , J ., joined.
Th oma s C. Jess e e , Joh ns on City , T e nn e sse e , f or app e lla nts

. Robert E. Cooper, Jr., Attorney Gene ra l and Reporte r, Michae l E. Moore, Solicitor Gene ral, a nd Heather C. Ross, Nashville, Tenne ssee, f or appe llee.

OP IN ION

Plaint i ffs, Garre tt L y nn Goforth, a nd his parents, R. Ly nn Goforth a nd Susan D. Goforth, sue d East Tenne ssee State Unive rsity in the Claims C ommissi on and alleg ed that the son wa s a sc ho lars hip a thl e te pa

rt ic ipatin g in the sc ho ol f oo tball p ro g ram in 20 00 , a ndthat wh ile pr a c tic ing fo otb a ll o n A pril 8 , 2 00 0, he wa s se ve re ly inj ur e d , su staini ng pe rm a ne nt i nju ri e s to his neck and back.

T h e C o m p l aint alleg es that the son’s c oache s were neg lige nt in their training and-2-

direc tion of t he team, and we re ne g lige nt in allowing pr actice to continue in sever e we ather , which c on tr ibu te d to the so n’ s in jury . A lso that th e de fe nd a nt h a d f a ile d to c omp ly

wi th the re qu ir e me nts of the insura nce w hich it ag ree d to provide to the son as a member of the football prog ram, in that defe ndant had f

ailed to proc ess claims, and ha d fail ed t o m ai ntain sufficie nt cover ag e to kee p plaintiffs’ insuranc e rates from incr easing in the event of an injury

. Def endant Answ ere d, denyin g an y n egli g ence , and asse rted that the son a ssumed the ri sk of play ing fo otb a ll, a nd that all me dic a l pay me nts ha d b e e n ma de fo r w hic h th e Un ive rs ity w a s p r o p e r l y r e s p o n s i b l e , a n d t h a tc o m p ar a t i v e f a u l tw o u l d ap p l y. At the hea

ring befor e the Commissioner, num er o u s wi tnesses testified for the plaintiffs and de fenda nt.

F oll ow ing Tria l, the Com mis sio ne r f ou ndin f a vo r o f the de fe nd a nt on a ll c la ims except the claim that defe ndant was ne g lige nt in failing to promptly pay the medica l bills , and ca

used plaint if fs ’ i ns ur a nc e pr e miu ms t o in c re a se , a nd thu s a wa rd e d $3 ,6 00 .0 0 fo r the inc re a se d p re miu ms to the plaintiffs, and dismissed the re maining c laims.

Th e Com mis sio ne r f

ou ndthat th e so n w a s r e c ru ite d to play fo otb a ll at the Un ive rs ity a nd re c e ive d a pa

rt ia l sc ho lars hip

. He sa id the so n re c e ive d a pa c ke t of ma te ri a ls f

ro m th e Un ive rs ity which included the Possibi lityof Serious I njury Notice, a nd a letter to the pare nts of student-athletes re g ard ing a thl e tic s, a c c ide nts , a ndme dic a l in su ranc e . H e fo un d th a t th e so n w a s r e d- shirte d h is fre shman y ear , which lef

t him fo u r y ea rs of eligibility . Under the terms of the I njury

Notice, the famil y ’s ins ur a nc e wa s to be prima ry , a nd the Un ive rs ity ’s ins ur a nc e wa s se c on da ry
. He a lso sa id that th e so n me t w ith c oa c h H a mil ton , a ndHamil tontol d h im that a ny po te nti a l in c re ase in his scholarship would de pend on his play in spring prac tice. Further, that the s on, althoug h undersized, decide d to play defe nse and use his r ed-shirt y ear to g et more time in the weig ht r oom and more training , and that he play ed linebac ker a s one of his positions during spring prac tice.

Th e Com mis sio ne r fo un d that on Ap ri l 8, 20 00 , the Un ive rs ity fo otb a ll p ro g ram he ld a scrimmage prac tice g ame, a nd called Southern Conf er en ce o fficials to refe ree the g ame. The Com mis sio ne r s a id that th e of fi c ia ls c a me fr om the Sou the a st, a nd that th e re wa s a ste a dy , c old , e arl y spring rain that da y , wh i ch cause d the field to be in ba d condition, espec ially as it relate d to mud. The Commissioner found that Hamilton testified it was as mud d ya fie ld as he ha d ever seen. H e sa id the c oa c he s a ndplay e rs te sti fi e d th a t it wa s n orma l to pla

y in w e t, mud dy

c on dit ion s, a s w e ll as extreme cold, wind, fog , heat a nd snow. The Commissioner stated he w atche d the videotape of t h e s c r i m m a g e , a n d c o u l d s e e t h e c o n d i t i o n o f t h e f i e l d , c o u l d s e e th e m u d o n t h e p l a ye r s ’ j e r s e ys and helmets, a nd further

observe d that it was “just one big messy day ” and that the injury

occur red when the son w as i n an “off tackle full back veer ” and that the s on did what he was supposed to do, which wa s fill the hole in the offe nsive line, and a s he m ad e t h e t ackle, his feet slipped out fr om un der him a ndhis he lme t c on ta c te d th e fu llb a c k inthe thi g h. As a re su lt, the so n w a s se ri ou sly injured.-3- Th e Com mis sio ne r f

ou ndthat th e Un ive rs ity wa s sl ow in p a y ing its sh are of the bil ls, wh ic h c a us e d p ro ble ms fo r the plaint if fs , bu t th e Un ive rs ity

c on tin ue d to pay

his sc ho lars hip , a s it was oblig ated to do.

The Commissione r n o t ed that plainti ffs re lied on Tenn. Code Ann. §9- 8-307 (a) (1)( C), which refer s to dang erous conditions on state controlled rea l property

. The Commissioner ru le d th a t in vie wi ng the tape , h e c ou ld n ot c on c lud e that th e c on dit ion of the fi e ld w a s u nr e a so na

bly dang erous, be cause “footba ll fields ge t muddy ”. As to the c harg e that the coaching staff w as neg lige nt in allowing the pr actice to go o n , he held that the U niversity had a duty

to exercise ca

re of the ir stu de nt- a thl e te s a ndke e p the m fr e e fr om h arm , b ut the Un ive rs ity didno t br e a c h th a t du ty in this case, and that the coac hes had taug ht proper tackling techniques. F inally , he found the parties h ad a written ag ree ment that the plaintiffs’ insura nce pr emiums would not increase , but they had incre ased by

$150.00 per month, and a s a re sult, the Commissioner awa rded $3,600.00 in da mag es for the br eac h of that ag ree ment by the Univer sity

. Th e se iss ue s a

re raise d o n a

pp e a l:
1. Whether the Commiss ioner err ed in f ailing to f ind that a preponde ranc e of the evidenc e esta

blished that the coa ching staff w as neglig ent in allowing prac tice to continue in the c onditions which ex isted on the date in question?
2. Whether the Commissioner err ed in failing to find that a pre ponderance of the evidenc e esta

blished that the coa ching staff was ne g lige nt in its teac hing of ta c kli ng te c hn iqu e s, wh ic h le d to Go fo rth’ s in jurie s?
3. Whether the Commissioner err ed in fa iling to awa rd Go fo rth damag es for brea ch of his athletic scholarship because the pre ponderance of the evidenc e is in favor of f

inding a brea ch? On appe al, we r eview the Commi ssioner’s fa ct finding with a presumption of corr ectne ss, unle ss the evidenc e preponde rate s ag ainst those finding s. Tenn. R. A pp. P. 13(d). Howeve r, questions of law a re r eviewe d de novo wi th n o p re su mpt ionof c or re c tne ss.
Te nn
. Cod e An n. §9 -8 -3 07 (a )( 1) (C ) p e rm its a c la im a g a ins t th e Sta te fo r n e g lig e ntl y c r e a ti n g o r main tain in g a d a n g e r o u s c o n d it io n o n St a te p r o perty

. Id. at (E). Plaintiffs re ly on the fore g oing stat u t o ry

provisions and assert the evidenc e pre ponderates ag ainst the Commis sioner’s finding s. As the Commi ssioner noted, the plaintiffs wer e require d to show that the field wa s in an unre asonably

dang erous c ondition, or th at t h e play ers we re “ neg lige ntly controlled” by

the coac hes in being made to pra ctice in suc h co n d itions. P laintiffs arg ued the pr oof showed that the conditions on the field were unreasona bly dang erous. The proof wa s that the field wa s wet and muddy , but all witnesses except the plaintiff testified that games had be en play ed and pr actice had-4-

been he ld under wor se conditions, and the video demonstrated that the field wa s wet, and a ppear ed muddy in spots, but i t could not rea sonably be conc luded from the vide o t h at t he fie ld was in an unrea sonably

dang erous c ondition. As the Supreme Court state d in Ha me s v . S tat e , 808 S.W .2d 41, 44 (Tenn. 1991) : The Plaintiff has the bur den of e st ab l i s hing that the State neg lige ntly cre ated or maintained a dang erous condition on the [ property ] and further that forese eability of the ri sk s a ndno tic e ha d b e e n g ive n to pr op e r S ta te of fi c ia ls at a ti me su ff

ic ie ntl y prior to the inju ry t o enable appropriate re medial measur es. T.C.A. § 9-8-3 0 7 (a)(1)( C). The statute itself pr ovides that the State' s liabilit y is to be p re d i ca t ed u p o n "t ra d i t i o n al t o rt co n ce p t s o f d u t y an d t h e r ea s o n ab l y

p ru d en tp er s o n 's standard of

car e." T.C.A. § 9-8-307( c).
I n this case, the pr oof does not preponde rate ag ainst the Commi ssioner’s finding that the coa ching staff w as not neg lige nt in allowing prac tice to be held on the day in question, and that the condition of the football field was not unr easona bly dang erous. Plaintiff a dmitted that it wa s not un us ua l to play

in mudor

rain, a nd that he e xpe c te d to do so , a ndthe so n’ s f a the r r e c og nize d th is as we ll, a lthough stating he thought the conditions on that date wer e extraordinary

. All of the other witnesses who we re the re on that day , howeve r, testified that there was nothing unusual about the we a the r o r f

ie ld c on dit ion s, a ndthe vid e o p ortra y e d th e c on dit ion s th a t e xiste d. Th e so n a lso ad m i t t ed t h at he did not complain of the alleg edly “dang erous” conditions to any one, and the e vid e nc e do e s n ot p re po nd e rate a g a ins t th e Com mis sio ne r’ s f ind ing s. Next, plainti ffs a

rg ue that the coaching staff w as neg lige nt in its teac hing of proper tackling techniques, a nd base the ir arg ument solely on the s o n ’s t es t imony

that Coach Collins admitted to him at the hospital that he had the l inebac kers hitting “ too low”. Further the pla intiffs pointed out, the State did not call C oach Coll ins to testify , but neither did plaintiffs, and a rg ue that no wi tne ss d isp ute d th is t e sti mon y , b ut C oach Ham il ton , Co a c h T a y lor , a nd“ Do c ” Rob e rt so n a ll testified that prope r tac kling tec hnique re quired the pla y er to k ee p h i s head and ey es up. The son admitted that he wa s taug ht this, as it was in his pl ay book, and that no one on the c oaching staff e ver told him ot herw ise. When questioned about Coac h Colli ns’ allege d statement, C oach Tay lor replied that there was no such thing as being too low on the football field, but that they alway s taug ht the play ers to kee p their hea ds up and ey es open. H is testimon y wa s corr oborate d by Hamilton, Rob e rt so n, a ndthe so n, a s w e ll a s th e e xhibi ts. Ac c or din g ly , th e e vi den ce do es not pr e po nd e rate ag ainst the Trial Court’s finding that proper tackling techniques ha d been taug ht to the son. Finally , plaintiffs arg ue the State should be held liable for brea ch of t h e s o n’s scholarship c ontrac t, asserting that Coach Mynatt had advise d Mr. Goforth that hi s s o nw o u ld rec eive more money

on his scholarship af

ter his injury

. Contrary to the assertion in plaintiffs’ brief, Coac h My natt was not ca lled to testify . Coache s Hamilton and Tay lor testified, howe ver, that only the hea d c oa c h (H a mil ton ) c ou ld de te rm ine wh e the r an athl e te wo uldre c e ive a sc ho lars hip or

a n in c re a se in the same. H amilton denied that any such i ncre ase was given, and the written ag ree ment shows that-5-

the son’s scholar ship w as for the fall only , for the 2000-2001 aca demic y ear (as it wa s the previous y ear ). Ther e is no dispute that that amount was paid, a nd the Commiss ioner found, pla intiffs failed to s ho w that a

writt e n c on tr a c t w a s b re a c he d b y the State , a ndthi s is su e is a lso wi tho ut m e ri t.
We a ff ir m th e Judg me nt a s ent e re d by the Com mis sio ne r an d re ma nd , withthe c os t of the app e a l a sse sse d to the plaint if fs

.

______________________________

H ER SCH EL P I CKE N S F RAN KS , P

. J.