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,

Plaintiffs-Appellants,

Coffee Circuit No. 24,057

Vs. C.A. No. 01A01-9506-CV-00252

COFFEE COUNTY BOARD 

OF EDUCATION, JOE BRANDON, 

BOBBY CUMMINGS, NELSON

JOHNSON, MARIANNE BRANDON,

Defendants-Appellees.

_________________________________________________________________________

FROM THE CIRCUIT COURT FOR COFFEE COUNTY

GERALD L. EWELL, SR., JUDGE

Michelle M. Benjamin of Winchester

For Plaintiffs-Appellants

L. Hale Hamilton, Spears, Moore, Rebman,

& Williams of Chattanooga

Hugh P. Garner, Garner, Lewis & Prickett

of Chattanooga

For Appellees

AFFIRMED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

ALAN E. HIGHERS, JUDGE

HEWITT P. TOMLIN, JR., SENIOR JUDGE
1Originally there were three other plaintiffs to this suit, Jane Doe B, Jane

Doe D, and their father, but those plaintiffs' claims were dismissed as untimely

by this Court.

2

The plaintiffs' claims against Peercy were settled prior to trial of this action.

3

The 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 two high school students and their parents seeking

damages resulting from alleged assaults by a high school coach. 

In November of 1989, plaintiffs Jane Doe A, Jane Doe C, Mother A, and

Father C,1 brought suit against Ted Peercy,2 a coach and teacher at

Manchester Central High School (Central), the Coffee County Board of

Education (Board), Joe Brandon and Bobby Cummings, Superintendents of

Coffee County Schools during Peercy's employment, Nelson Johnson, the

principal of Central High School, and Marianne Brandon, a school counselor at

Central High School. The amended complaint alleges that defendants Joe

Brandon, Cummings, Johnson, and the Board

3

 are liable for negligently

supervising Peercy; that defendants Joe Brandon, Johnson and Board are liable

for negligently hiring Peercy; that defendant Marianne Brandon is liable for

negligently failing to report assaults upon the plaintiffs; and that defendants Joe

Brandon, Cummings, Johnson, and Board are liable for the false imprisonment

of the plaintiffs due to these defendants' "apparent approval and ratification of

the use of additional locks" in Peercy's office. The facts are as follows.

In May of 1985, Joe Brandon, then Superintendent of Coffee County

Schools, and Nelson Johnson, Central principal, recommended Ted Peercy to

the Board to fill a vacant position on Central's faculty. The Board hired Peercy

to begin in the Fall of 1985 as a teacher and head basketball coach at Central

High School.

Plaintiffs' claims against defendants are primarily premised on the
4

In August of 1990 when the plaintiffs' attorney went to Central for the

purpose of inspecting and photographing Peercy's office and the adjoining

rooms, the door leading into Peercy's office from the hallway had no sliding-bolt

lock affixed to it (on the interior or otherwise). Plaintiffs maintain that the

entrance door to Peercy's office was replaced in an effort to cover up the

negligence of the defendants, although defendants' introduced proof that no

such lock was ever present on this door.

5

 The plaintiffs acknowledge that the maintenance of duplicate keys for

the interior lock on the exit door and the alleged interior lock on the entrance

door would not provide access to the office if the bolts to these locks were in

place. 

3

installation and maintenance of door locks in Coach Peercy's office. In the

1985-86 school year, pursuant to Peercy's request, the lock to the entrance door

of Peercy's office was changed. Sometime thereafter Peercy also requested

and received a keyed slide-bolt lock which was placed on the interior side of

Peercy's exit door leading to the boys basketball locker room. A keyed slide bolt

lock was also placed on the interior side of a storage room which was adjacent

to the boys basketball locker room. There was disputed testimony regarding

whether a keyed slide-bolt lock was also placed on the interior of the entrance

door to Peercy's office.4

 The entrance door led to a hallway connected to the

school gym. The keyed slide-bolt locks worked such that if the bolt was in place,

no one could enter or exit the office without a key. 

The school's procedure for changing a lock required that a request be

made to the athletic director who would then forward the request to the

assistant principal. This policy was followed when Peercy requested the lock

changing which was ultimately approved by principal Johnson. School policy

also required that a duplicate of all keys to all doors in the school be kept in the

school vault in the school's main office. The parties dispute whether this policy

was followed with respect to Peercy's front door lock. In addition, the plaintiffs

allege that no duplicate keys were maintained in the school office vault for the

slide-bolt lock on the interior of Peercy's office exit door or the alleged keyed

slide-bolt lock on the interior of Peercy's office entrance door.5
4

Plaintiff Jane Doe A attended Central High School from 1987 to 1989

during her sophomore and junior years. Jane Doe A testified that early in the

1988 school year, Peercy came to her driver's education class and requested

that she come to his office to make posters for a basketball tournament. The

plaintiff stated that while she was in Peercy's office making posters, he locked

the door and began to massage her shoulders. Plaintiff further testified that

Peercy ran his hands down her blouse and touched her breasts and that she

then pushed his hands away. Peercy then allegedly "put his hands down . . .

[her] shirt again." The plaintiff testified:

At that time I was really scared. I didn't know what to

do, so I jumped up and pushed his hands off of me. I

told him that - - I went trying to go towards the door,

and he jumped in front of me. And he told me that I

better not tell anybody.

* * *

I couldn't get out the door, and I just asked him to

please let me out or I was going to scream.

* * *

Q. What happened after you threatened to scream.

You said he had threatened--

A. I threatened to scream if he didn't let me out. And

at that time he took his keys and took the key above --

there was a lock above the knob. And he turned the

key and opened the door for me to go out. And at

that time I entered the hallway. . . . And I just took off.

Plaintiff Jane Doe C began her sophomore year at Central in August of

1987. She testified that she went to Peercy's office sometime in the first semester

of her sophomore year to take a makeup test. Jane Doe C stated that while she

was taking the test, Peercy began to make sexually explicit remarks to her. She

testified that after the remarks were made she attempted to leave the office,

but could not because the door was locked from the inside. When Jane Doe

C demanded that Peercy let her out of the room he allegedly grabbed her and
6

The plaintiffs make no argument concerning the court's dismissal of these

claims, thus these arguments are considered waived by this Court. Memphis

Housing Authority v. Ramsey, 484 S.W.2d 73 (Tenn. App. 1992). 

7

The trial court made no ruling on the issue of whether the interior slide-bolt

lock on the office entrance door existed, nor did the court separately discuss the

locks. The court simply stated that the "changing of locks" was consistent with

5

told her to "walk" for him. She stated:

And at that time I just turned around and pushed at

him and said, "Let me out of here." And I was

screaming, and then I remember he took the key and

he unlocked two locks. There was a lock above the

door handle and he unlocked it and then he stuck it

in the bottom lock and he unlocked it. . . . And then I

went out of there and I went straight to . . . the

cafeteria.

The plaintiffs testified that in January of 1989, after these alleged

incidences transpired, they were talking with other girls in a health class

regarding Peercy's misconduct. At this time, the plaintiffs allegedly discovered

that Peercy had been sexually harassing and assaulting other female students,

so they decided to approach the school counselor, Marianne Brandon,

regarding Peercy's conduct. The plaintiffs allege that they informed Mrs.

Brandon of Peercy's misconduct, but Mrs. Brandon did not report the incidences

and advised the girls not to tell anyone what had happened. At trial Mrs.

Brandon denied that any such conversation ever took place. In July of 1989,

Peercy resigned from Central High School. 

At the close of the plaintiffs' proof, the trial court dismissed the plaintiffs'

negligent hiring claim and the failure to report the assaults claim apparently

finding that the plaintiffs had failed to present sufficient evidence to support

these allegations.6 In its February 3, 1995 order the trial court also found that the

defendants were not negligent in allowing Peercy to change the lock to his

office entrance door and add the slide-bolt locks to the office exit door and

storage closet, because school policy allowed coaches' to change locks in

order to protect the athletic equipment which was assigned to them.7 The court
school policy.

8

T.C.A. § 49-6-4203 provides:

Legislative intent. - - (a) It is the intent of the general assembly in enacting this

part to secure a safe environment in which the education of the students of

Tennessee may occur.

(b) The general assembly recognizes the position of the schools in loco

parentis and the responsibility this places on principals and teachers within each

school to secure order and to protect students from harm while in their custody.

6

also found that the plaintiffs had failed to prove that there was not a duplicate

key to the entrance door of Peercy's office available in the school vault. The

court further found that the office was accessible from the boys basketball

locker room, and that this was proven by the fact that on one occasion

principal Johnson entered Peercy's office from the locker room in order to

inspect for water damage in Peercy's office. The court ruled that even if the

defendants failed to maintain a duplicate key to the front door, the plaintiffs' suit

would still fail, because Peercy's alleged misconduct was not a result of the

defendants' failure to maintain a duplicate key, and in any event, Peercy's

office was accessible from the boys basketball locker room. The court

concluded that "no conduct on the part of these defendants was a 'substantial

factor' in bringing about the harm being complained of."

The plaintiffs have appealed the ruling of the trial court and present one

issue for our review. As stated in their brief, that issue is:

Whether the court erred finding that the defendants'

conduct was not a proximate cause or a "substantial

factor" in causing harm to the plaintiffs?

Since this case was tried by the court sitting without a jury, we review the

case de novo upon the record with a presumption of correctness of the findings

of fact by the trial court. Unless the evidence preponderates against the

findings, we must affirm, absent error of law. T.R.A.P. 13(d).

The plaintiffs/appellants assert that under T.C.A. § 49-6-4203(a) (b)(1990)8
7

the defendants had a duty to provide a safe school environment and protect

the plaintiffs from harm while under their care and custody. The appellants first

argue that the defendants breached this duty by allowing Peercy to change

the lock to his office door without ensuring that a duplicate key to the lock was

maintained in the school vault. The appellants also argue that the defendants

breached their duty to provide a safe school environment by allowing Peercy

to install locks which locked the office doors from the interior thereby preventing

anyone from entering the office or exiting the office without a key when the

deadbolts were in place. They contend that these actions and inactions of the

defendants violated Central's policies of maintaining a duplicate key to all

doors and ensuring free egress from all rooms in the school which were

frequently used by students. The plaintiffs contend that the failure of the

defendants to follow these school safety policies caused the plaintiffs harm, and

that the harm which was produced as a result of these actions and inactions

was foreseeable by a reasonable person; therefore, the defendants

actions/inactions were the proximate cause of the plaintiffs' injuries. 

In McClenahan v. Cooley, 806 S.W.2d 767, (Tenn. 1991), Our Supreme

Court established a three-pronged test for determining the existence of

proximate causation: (1) the tortfeasor's conduct must have been a "substantial

factor" in bringing about the harm complained of; (2) there is no rule or policy

that should relieve the wrongdoer from liability because of the manner in which

the negligence has resulted in the harm; and (3) the harm giving rise to the

action could have been reasonably foreseen or anticipated by a person of

ordinary intelligence and prudence. Id. at 775. 

As noted above, the trial court found that the plaintiffs' failed in their

burden of proving that the defendants did not maintain a duplicate key to the

entrance door to Peercy's office. At trial, the plaintiffs put on proof to the
8

contrary, but we cannot say that the evidence preponderates against the trial

court's finding on this factual issue, especially in view of the fact that the trial

court had an opportunity to observe the manner and demeanor of the

witnesses who testified at trial. The trial court apparently found the testimony of

the defendants' witnesses to be more persuasive on the issue of whether a

duplicate key was maintained in the school vault. It is well settled that "[t]he

weight, faith, and credit to be given any witness's testimony lies in the first

instance with the trier of fact who has the opportunity to observe the manner

and demeanor of the witnesses as they testify." 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 credibility accorded will be given great weight by the appellate

court." Id.

Moreover, even if the defendants did in fact fail to maintain a duplicate

key to the entrance door lock of Peercy's office, such a finding would avail the

plaintiffs nothing, because the failure to maintain the key was not a "substantial

factor" and therefore not a proximate cause of the plaintiffs' injuries. 

As stated above, the plaintiffs assert that by allowing Peercy to place the

keyed locks on the inside of his office doors, the defendants violated school

policy which required that free egress from any room frequently used by

students, not be impeded. From our reading of the transcript we fail to discern

a school policy which prevented coaches' offices from being locked from the

inside, whether with a key or otherwise. Mr. Brandon stated in his deposition that

there were no general restrictions on the type of locks which could be used

within a school, but state fire regulations required that "area[s] where children

are" could not be locked from the inside. Ordinarily, we would not consider

"areas where children are" to include coaches' offices. The testimony in the

record only indicates that classrooms and other common areas cannot be
9

locked from the inside; the testimony fails to establish the existence of a school

policy requiring that coaches' offices not be locked from the inside, whether

with a key or otherwise.

Even if we assume arguendo that the plaintiffs sufficiently proved the

existence of a school policy which prohibits the placement of interior locking

locks in coaches/teachers' offices, the plaintiffs suit still fails, because the

placement of the locks was not a substantial factor in producing the plaintiffs'

injuries. The plaintiffs testified that they tried to get out and Peercy refused to

allow them to leave until they screamed or threatened to scream, but we do

not think the locks played such a significant part in the plaintiffs' injuries as to rise

to the level of a "substantial factor." No one was prevented by the door locks

from coming to plaintiffs' aid. 

In summary, the evidence does not preponderate against the trial court's

finding that "no conduct on the part of defendants was a 'substantial factor' in

bringing about the harm complained of." Accordingly, the judgment of the trial

court is affirmed, and the costs of this appeal are assessed against the plaintiffs.

____________________________________

W. FRANK CRAWFORD, 

PRESIDING JUDGE, W.S.

CONCUR:

_________________________________

ALAN E. HIGHERS, JUDGE

_________________________________

HEWITT P. TOMLIN, JR., 

SENIOR JUDGE