# FILED Jan. 26, 1996 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

_______________________________________________ JANE DOE A AND MOTHER A, JANE DOE C AND FATHER C, Plaintif fs-Appe llants, Coffee Circuit No . 24,057 Vs. C.A. No. 01A0 1-9506-CV-0

0252 COFFEE COUNTY BOARD OF EDUCATION, JOE BRANDON, BOBBY CUMMINGS, NELSON JOHNSON, MARIANNE BRANDON, Defendan ts-Ap pellees.

_________________________________________________________________________

FROM THE CIRCUIT COURT FOR COFFEE COUNTY

GERALD L. EWELL, SR., JUDGE

Michell e M. Benjamin of Winchest er For P la intif

fs-A ppel la nts L. Hale Hamilton, Spears, Moore, Rebman, & Williams of Chattanooga Hugh P. Ga rne r, Ga rne r, Le wis & Pri cke tt of Chatt anooga For Appellees

AFFIRMED Opinion filed:
W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S. CONCUR: ALAN E. HIGHERS, JUDGE HEWITT P. TOMLIN, JR., SENIOR JUDGE1 Origi na llythere were three o ther plaintiffs t o this suit, Jane Doe B, Jane Doe D, and their

fa th er, bu t t

ho se p lai nt

if fs ' cla ims wer e dismisse d as

unt ime ly by thi s Cou rt.

2The plai nt

iff s' cla ims against Peercy we re settled prior to trial of

this actio n.
3The amended complaint alleges that the Board is liable for the actions of Joe Brandon, Nelson Johnson, Bobby Cummings, and Marianne Brandon, under the doctrine of respondeat superior.

2 This is a suit

by t wo high sch ool stud ents and th eir parents seeking damages

resul ting from al leged assaul ts by a high school coach. In Nove mber of 1989, pl aintiffs Jane Doe A, Jane Doe C, Mother A, and Father C, 1 brought suit against Ted Peer cy, 2 a coach and tea cher a t Manchester

Central High School (Cent ral), the Coffee C ounty Bo a rd of Education (Board), Joe Brandon and Bobby Cummings, Superin tende nts of Coffee County Schools duri ng Pe ercy's employment, Nelson Johnson, the principalof Central High School, and Marianne Brandon, a school counselor at CentralHigh School . The amende d compl aint all eges that defendants Joe Bran don, Cummings, Johnson, and the Boar d 3 are l iabl e for

negl ige ntl y supervising Peercy; that defendants Joe Brandon, Johnson and Bo ar d ar e liab le for negligently hiring Peercy; that defendant Marianne Brandon is liable f o r neg lig ent

lyfailing to report assaults upon the plaintiffs; and that defendants Joe Brandon, Cummings, Johnson, an d Bo ar d ar e liab le for the fa lse imprisonment of the plaintiffs d ue to these defendan ts' "apparent approval and ratification of the us e of addit

ional locks" in Peercy's o ffice. The fa cts ar e as follows. In May of 1985, Jo e Brandon, then Superint endent of Coff

ee Coun ty Schools, and Nel son John son , Cen tral prin cip al , rec omm end ed T ed P eer cy to the Bo ar

d t o f ill a vacant

posit ion on C entra l's

faculty . The B

oard hir ed Peercy to begin in the Fall of 1985 as a t eacher and head basketball coach at Cent ral High Sch oo l. Plaintif fs'claims against def end ants are primarily premised on the4 In August of 1990 when the pl aintiffs' attorney went to Ce nt ra l f or the purpose of inspecting and phot ogr aphing Peercy's office and the adjo ining rooms, the door leading into Peercy's office from the ha llway ha d no slid ing -b olt lock affi xed to it (on the interior o r othe rwi se). Pl ain tiffs mai ntain that th e entra nce door to Peercy's office was replaced in an effort t o cover up the negligence of t

he defenda nts, although defendants' int roduced proof tha t no such lock was ever present on this door.

5 The plaintif

fs ackno wledge that

the mai ntena nce of dupl icate keys for the interior lockon the exit door and the all eged interior l ock on the e ntra nce door would not provide access to t he office if the b o lts to these locks were in place
. 3 inst al la ti on and maintenance of door locks in Coach Peercy's of fice. In the 1985-86 sch ool year, pur

sua nt to Peercy's

request , th e lock

to the entrance door of Peercy's office was

cha nge d. S

omet ime thereaft

er Peercy also requested and received a keyed sl ide-bol t lock whi ch was pl aced on the interior si de of Peercy's exit door leading to the b oys basketball locker room. A keyed slid e b olt lock was al so plac ed on the i nterior side of a stora ge room which was adjacent to the boys basketball locker room. There was disputed testim ony regardin g whether a keyed slide-bolt lock wa s also placed on t he int erior o f the entr

ance door to Peercy's off

ice. 4 The entrance door led to a hal lway co nne cted to the school gym. The keyed slide-b olt locks wor ked such that

if the bolt was in place, no one coul d enter or exit the office wi thout a key. The school's pro cedu re for c hanging a lock required that a request be made to the ath le tic d ire ctor w ho woul d the n for war d the requ est t

o the assistant principa l. This po licy was followed when Pe ercy req uested the lock changing which was ultim ately approved by principal Johnson. School policy also re qui red th at

a d uplicat

e o f a llkeys to all doors in the school be kept in the school va ult

in the school 's main offi ce. The par ties dispute whethe r this policy
was followed w ith respect t o Peercy's front door lock. In addition, the plaintiffs allege that

no duplicate keys were maintained in the school office vault for the slid e-bo lt

lock on the interior

of Peercy's office exit door or the a l leged keyed slide-bolt lock on the interior of Peercy's office entrance door. 54 Plaintiff Ja ne Doe A att ended Central High School from 1987 to 1 989 during her sophomore and junior years. Ja ne D oe A test ifie d that ea rly in the 1988 school year, Peercy came to her driver's educat ion class and requ este d that she come to his office t o make posters for a basketball tournament. T he plaintif f stated t

hat while she was in Peercy's office making posters, he locked the door and began to massage her shoulders. Plaintiff further t estified that Peer cyran hi s hands down her blouse and touched her breasts and tha t she then pushed his hands away. Peercy thenalleg edly " put his hands d own . . . [her] shirt

again. " The plaint

iff t estif ied: At that time I was re all y scared. I didn't knowwha t to do, so I jumped up and push ed his hand s off of me. I told him that - -

I went trying to g o to wards the door, and he jumped in front of me. And he tol d m e that I better not tell anybody.

* * * I co uld n' t

ge t ou t the do or

, a nd I j ust asked h im to plea se let

me o ut or I wa s go ing to scr

eam.

* * * Q. What happened after you threat ened to scr

eam. You said he had threat ened-- A. I threatened t

o scream if he didn' t let me out. And at that time he too k his

keys and took the key above -- there was

a lock above the knob. And he turned the keyan d op ened the door for me t o go out. And at that time I entered the hall way. . . . And I just took o ff. Plaintif f Jane Doe C began her soph omore year at Central in August of 1987. She test

ified t hat s he went to Peercy's o ffice sometime in the first semester of he r so ph omo re ye ar

tota ke a ma ke up te st . J an e D oe C s

ta te d t ha t while she
was takin g the te st, Pe erc y beg an to make sexuall y explicit remarks to her. She testified th at

af te r t he rem ar

ks wer e ma de s

he at te mpt ed t o le ave the o ffice, but could not

because the door was locked from the inside. When Jane Doe C demanded that

Peercy let

her out of t

he room he allegedl y grabbed her and6 The plaintiffs make no argument concerning the court's dismissal of t hese claims, thus t

hese arg um ents a re consid ered wai ved by this Court. Memphis Housing Authority v. Ramsey , 484 S.W.2d 73 (Tenn. App. 1992).

7The trial court made no ruling on the issue of whe th er th e i nt

erior slid e-bo lt lock on the off

ice entrance door exist ed, nor did the court

separately discuss the locks. The court simply stated that the " cha ngi ng of lo cks" wa s co nsi sten t with 5 told her t

o "walk" for

him. She st

ated: And at that t

ime I just turned around and pushed at him and sa id, "Let me out o f here." And I was screaming, and then I remember he took t he key and he unlocked two locks. There was a lock above the door handl e and he unl oc ked it an d then he stuck it in the bottom lock and he unl ocked it. .
. . And then I went out of t

h ere and I went straight t o . . . t

he cafeteria. The pl ain tiffs

testif ied that in Janu ary o f 1989, afte r th ese a lleged incidences

transpired, t

hey were talki n g with othe r girls in a h ealth class regarding Peer

cy' s m isc ond uct. At t his time, the plaintiffs allegedly discovered that Peercy had been sexually harassing and assaulting other female stude nts,
so they decided to approach the school counsel or, Mari anne Brandon, regarding Peercy's c on duct. The p laintiff s allege that

they informed Mrs. Brandon of Peer

cy's miscondu ct, b ut

Mrs. Brandon did not report the incidences and a dvi sed the gi rl s not to te ll anyo ne w hat ha d ha ppen ed. At tr ial Mrs
. Brandon denied that any such c onver

sation ever t

ook place. In July of 1989, Peercy resi gned from Central High School. At the close o f the plai ntif fs' proo f, t

he tr ial court dismissed t

he plaint

iffs' neglig ent

h iri ng cla im a nd t

he fa ilur e t o r ep or t t he ass ault s cla im a pp ar

ent ly finding that

the plain ti ffs had failed to present suff icient evidence to support these allegation s. 6

In its February 3

, 1995 order t

he trial court

also found that t

he defenda nts

were not negl igent in all owing Peerc y to change the lock to h i s office entra nce door and add the sl ide -bol t loc ks to th e offi ce exit door and storage closet, because school policy all owed coaches' to chang e locks i n order to pro te ct

th e at hlet ic e qui pmen t whic h was ass ign ed t o t hem. 7The courtschool policy.
8T.C. A. § 4

9-6-42 03 pro vides: Legislative intent. - - (a)It is th e i nt

ent of th e g ene ra l as

sem bly in enacting t

his part to se cure a saf

e enviro nment inwhich th e educa tion o f th e students of Tennessee may occur. (b) The gene ral assembly recog nizes t he posit ion of the sch ools i n loc o parentis and the responsibility t his places

on principals and teachers withineach school to secure order and t o protect

students from harm while in their custody.
6 also found that

the plaintiffs had failed to prove that t here was n ot

a du pl ica te keyto t he entrance d oor

of Peercy's office available in the school vault. The court furt her foun d that

the o ffice was a ccessible fro m the bo ys basketba ll locker room, and that

this was pro ven by the fact that on one occasion principalJoh nso n en te red Pee rcy's o ffice f rom t he lo cke r ro om i n ord er to inspect for water damage in Peercy's office. T he court ruled that even if the def end ants failed to maintain a dup li cate key to t he front door, the plaintiffs' suit
wou ld stil l f

ail , bec aus

e Pee rcy' s al le ged mis con duc t was

not a re sul t o f th e defendant

s'fail ure to mai nta in a duplicate k ey, an d in any e vent , Peercy's office was accessible from the boys basketball locker room. The court concluded that "no conduct on the part of t hese defendants was a 'substant ial factor' in bringin g about the harm being c ompl ained of." The plaintiffs have appealed the ruling of t he trial court and present one issue for our rev iew. As st

ated i n thei r brief, that issue is: Whether

the court

er re d finding t

hat t he defenda nts' conduct was

not a pro xim ate cause or a "substant ial fact or" in ca using har

m to t he plaint

iffs? Since this case was tried by the court sitting wit hout a jury, we review the
case de novo upon the record w ith a presumption of correctness of the findings of fac t by the trial court. Unless the evidence preponderat es against t

he findings, we must affirm , absent error of la w. T.R.A.P. 13(d). The plaintiffs/appellants assert that under T.C.A. § 4

9-6-4203(

a) (b)(1990) 87

the defendants had a duty to provide a safe scho ol environ ment an d prot ect the plaintiffs from harm while under their care and custody. The app ellants first argue that

the defendants br

eached this duty by

al lowing Pe ercy to change the lock to his office door wit hout ensuring t

hat a duplicate key to t

he lock was maintained in the sch ool vaul t. The appellants also argue that t he def end ants bre ach ed th eir

dutyto provide a safe school environment by allowing Pee rcy to install locks whic h locked the office doors from the int

erior thereby pr

eventing anyone from entering the of fic e or e xiti ng the office wit hout a key when t

he dea dbo lts

were in place. They contend t hat t hese actions and inact ions of the defen dan ts

viol ated Centr

al 's p ol ici es of

mai ntain ing a du pl ica te keyto al l doors and e nsuri ng fr

ee eg ress f

rom all ro oms inthe scho ol wh ich we re fr eq uen tly

used by st

udents. The plaintiffs contend t hat t he failure of the def end ants to followthese school safe typolicies caused the plaintiffs harm, and that the harm which was produced as a result of t hese ac tions and inact ions
was foreseeable by a reasonable p erso n; the refo re, th e de fend ants actions/inactions

were the proxim ate cause of the plai ntiffs' injurie s. In McClenahan v. Cooley , 806 S.W.2d 767, ( Tenn . 1991) , Ou r Su pre me Court estab lished a three-pronge d test for determining the existence of prox im ate causation: (1) the t ortfeasor's conduct

must have been a "substant ial factor" in bringing about t he harm complained of; (2) th ere is no rule or policy that should relieve the wrongdoer from liabil ity because of t he manner in which the neg lige nce has

res ult ed i n t he h arm; and (3) the harm giving rise to t he action could have be en reaso nably for eseen or anticipat

ed by a p erso n o f ordinary intel ligen ce and prud ence. Id . at 775. As noted above, the t rial court found that

the plaintiffs' failed in thei r burden of proving t

hat t he defendants did not maint ain a du pl ica te keyto the entra nce door to Peercy's offic e. At trial, the pl aintiffs put on proof t

o the8

contrary, but we cannot say t hat t he evidenc e preponderates against the t rial court 's finding on this fact

ual issue, especiall y in view of the fact that the tria l
cour t had an opportunity to observe the mann er and dem eanor of th e witnesses

who testif

ied at tria l. The trialcourt apparently foun d the testimony of the defendant

s' witne sses t

o be more p ersuasive on the issue of whet her a dup li cate key was maintained in the schoo l vault. It is well s ettled that

"[t]he wei ght, fait

h, and cr

edit t o be given any wit

ness's t estimon y lies in t

he first insta nce with the t

rier of fact who has t

he opportunit

y to observe the m anne r and demeanor

of t he witn esses as t

hey t estif y." Koch v. Koch , 874 S.W.2d 571, 574 (Tenn. App. 1993)(

quoting Weaver v. Nelms, 750 S.W.2d 158, 160 ( Tenn.App. 1987)). "The credib ility accord ed wil l be give n great weight by the appe ll ate court ." Id. Moreover, even if the defendant s did in fact failto mai ntain a du pl ica te keyto the entrance door lockof Peercy's office, such a finding would avail the plaintiffs nothing, because t

he failure to maintain t he keywas not a "substa ntial factor" and therefore not a proxim ate cause of the plai ntiffs' injurie s. As stated ab ove, the plaint iffs ass ert tha t by al lo win g Pee rcy to place the keyed locks on the inside of his office doors, the defendant s violated school policywhich required that free eg ress from any ro om freq uently used by student s, not be impede d. From our reading of t he transcript

we fail to discern
a school policy w hich preven ted coaches' offi ces from being locked from the inside, whether with a key or otherw ise. Mr. Brand on stated in his depo sition t hat there were no general restrictions on the type of locks which could be used within a schoo l, but

state fire regulations

required that

"area[s] where children are"co uld n ot

be lo cke d from the inside. Ordinarily, we would not consider "areas whe re c hil dre n are " to in cl ude coac hes ' off ice s. Th e te stimony in the record only indicates that classrooms and other common are as c annot be9

locked from t

he inside; the t

estimon y fails t

o est ablish th e exist

ence of a school policyrequiring that

coaches' offices not b e locked from the inside, whether with a key or ot

herwise. Even if we as

sum e arg uen do tha t th e pl ain ti ffs sufficiently proved t he
e xiste nce of a school policy which prohibits the placement of int erior locki n g locks in coa ches/teachers' offices, t he plaintiffs suit st

ill fail s, because the placement

of the locks

was not

a subst antial facto r in pro ducing t he plaint

iffs' injuries. The p laintiffs

testif ied that they tried to get ou t and P eer cy re fus ed to all ow them to leave u nti l they screa med or thr

eat ened t o scr eam, b ut we do not think t he locks played such a significant part in the plaintif fs' injur ies as t o rise to the level of a "subst antial facto r." No one was prevented by the door locks from com ing to plaintiffs' ai d. In sum mar

y, the e vid enc e do es n ot pre pond erate against the t rial court

's finding that

"no condu ct onthe p art o f defenda nts was a 'substantial fact or' in bringing about t

he harm complained of." Accordingly, the judgmen t of the t rial court is affirmed, and the costs of t his appeal are assessed a gainst the p laintiff

s.

____________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

_________________________________ ALAN E. HIGHERS, JUDGE

_________________________________ HEWITT P. TOMLIN, JR., SENIOR JUDGE