# FILED December 14, 2001 Cecil Crowson, Jr . Appellate Court Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
FRA NK B. CH AD WICK, JR., ) ) Plaintiff/Appellant, ) Mont gomery Circuit N o. C8-608 ) VS. ) A ppeal No. 01A 01-9504-CV-001 66 ) CLARKSVILLE-MONTGOMERY ) COUNTY UNIFIED SCHOOL SYSTEM, ) and CLARKSVILLE-MONTGOMERY ) COUNTY UNIFIED SCHOOL BOA RD ) ) Defendants/Ap pellees. )
APPEAL FROM THE CI RCUI T COUR T OF MO NTGOM ERY C OUNTY

AT CLARKSVILLE, TEN NESSEE THE HONORABLE JAMES E. WALTON, JUDGE

Thomas N. B ateman Robert T. Bateman Bateman & Bateman, P.C. Clarksv ille, Tennessee Attorneys for Appellant Lela M. Hollabaugh Manier, Herod, Hollabaugh & Smith Nashvil le, Tennessee Attorney for Appellees

AF FIRMED

AL AN E. HIGHERS , JUDGE
CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, JUD GE

This is a negligence case in which thePlaintiff appeals fro m the trial c ourt's finding2

that Defendants did no t breach their duty of care.

Plai ntiff, Frank B. Chadwick , Jr., was in s ixth gr ade at Montgomer

y Central Ele mentary Scho ol at the time of hi s injury on March 6, 1 985. Plaintiff w as particip ating in a basketball game with other childr en from his class when another stude nt struck him in the eye while Plaintif f was t rying to throw the basketball inbound. As a result of this blow, Pla intiff now suffers from d ouble visi on.

Ms. Quarles w as the tea cher in charge of recess i n the gym w here Plainti ff was injured. Plaintiff alle ged that Ms. Quarles was not present in the g ym at the time he was injured, w hile Ms. Qu arles testi fied that she w as present.

Plai ntiff brought

this action within oneyear of his reaching majority. He alleged in his complaint that t he Defendants wer e neglig ent in failing to sup ervise an d control the basketba ll game for two reasons . First, he argues that the Defendants w ere neglig ent be cause Ms. Quarl es left the gy m during re cess. Alter natively , he contends tha t even i f Ms. Quarles w as in the gy m at the time of the acc ident, she w as neglig ent in failing to supervis e and control t he game.

The tria l cour

t, sit ting wit hout a j ury, ruled in a me morandu m o pinion that the Defendants did not breach any duty owed to Plaintiff. Spec ifically , the court found that the Defendants did n ot pr ove by a preponderance of the evidence that the teacher was absent from the gym and therefore she di d not breach her duty to supervise the children. (T.R. 93) Furthermore , the court hel d that even if Ms. Quarl es had been present , she could not have prevente d the acciden t. The court not ed that this was an unfortunate, but unforeseeable acci dental blow

.

Pursuantto T.R.A.P. 13( d), we review the trial c ourt's finding s of fact de novo with
a presumption of

correctness, unless the e viden ce pr epo nde rate s oth erwise . Add itio nall y, we note that the tr ial court' s findings that ar e based upon its e valuation of thedisputed3

evidence and the credibi lity of the witnesses are given great weight by this Court and wi ll not be overtur ned unless there is clear, concrete, and c onvincing evide nce t o the cont rary. Weaver v. N elms , 750 S.W.2d 158 (Tenn. App. 1987); W.F. Holt Co. v. A & E Electric Co. , 665 S.W .2d 722, 733 (Tenn . App. 1983).
Appellanthas ra ised only o ne is sue o n app eal: W heth er th e evi de nce preponderates against the trial court's findi ng that the De fendants did not breach their duty to supervi se the students?

In the absence of speci al circumst ances, the duty of care i mposed upon school teachers is that of reaso nable and ordinar y care. Roberts v. Rober tson County Board of Education , 692 S.W.2d 863, 870 (Tenn. App. 1985); Hawkins County v. Davis , 216 Tenn. 262, 267, 391 S.W.2d 658, 661 (1965). Teachers are not , however , insurers of the safety of their students , nor are they expected to s upervise all activ ities of the students al l of the time. Roberts , 692 S.W.2d at 870. Con seq uent ly , to hold for P lai ntiff, we must find t hat Defendants breached their duty of reasona ble and ordinary care. This , howe ver, we cannot do.

Ms. Quarles test ified that she was present in the gym and s upervised recess at the time of the accident, w hile Plainti ff testified that she was not in the g ym. Factua l determinationsthat hinge upon the credibil ity of w itnesses w ill not be di sturbed absent clear and convinc ing evi dence. A irline Construction, Inc. v. Barr , 807 S.W.2d 247, 264 (Tenn. App. 1990). In the case at bar, the evidenc e does not preponder ate against t he trial cour t's determinati on that Ms. Quar les was, in fact, in the g ym.

Furtherm ore, the re is insuf ficien t evidenc e in the re cord ind icating t hat the ga me was excessi vely r

ough or row

dy. Plai ntiff's expert, Dr. Wayne G ul ch, is an ins tructor of Health and Physic al Edu catio n at University of Memphis. He testified that there are certain precautionary

measures that c an be taken to ensur e the safety of

children during recess; however , he said, accidents and injuries will often happen despite these4

precautions. In this cas e, Dr. Gulc h admitted, it i s possible t hat the accident would have occurred even if his sugg ested precautio nary measures had been implemented.

Based upon these facts, w e do not find that the evidence preponde rates against the trial court's conclusion that Defen dants did not breach a duty to Plaintiff. The facts of this
case si mply

fa il to reveal any actionable negligence on the part of the sch ool. It is apparent that Defendant s took all precautions that an ordina ril y reasonable and pr udent person would have taken and Ms. Quarl es' superv ision of the chi ldren was adequate under the circumstan ces.

For the reasons st ated herein, the judgement of the trial court is affirmed. Costs are assessed to the Plaintiff.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.