DONALD CROCKETT, ET AL.
SUMNER COUNTY BOARD OF EDUCATION, ET AL.
Session October 10, 2016
from the Circuit Court for Sumner County No. 83CC12013CV325
Joe Thompson, Judge
thirteen year-old child slipped off bleacher seats at a
middle school and injured his leg when he was using the seats
as steps in July 2012. The child and his parents sued the
school for negligence, and the school asserted the defense of
comparative negligence. The trial court applied the Rule of
Sevens, concluded the school rebutted the presumption of no
capacity for negligence, and determined that the child was
solely responsible for his injury. The trial court also
determined that the school was not liable for negligent
supervision of the child. The parents and child appeal, and
we affirm the trial court's judgment.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Capparella and Sean Martin, Nashville, Tennessee, for the
appellants, Donald and Melissa Crockett.
May Dennen, Gallatin, Tennessee, and A. Scott Derrick, Thomas
B. Russell, and Sarah L. Blood, Nashville, Tennessee, for the
appellee, Sumner County Board of Education.
D. Bennett, J., delivered the opinion of the court, in which
Frank G. Clement, Jr., P.J., M.S., and Richard H. Dinkins,
D. BENNETT, JUDGE
Factual and Procedural Background
Crockett was thirteen years old in July 2012 when he was
attending summer school at T.W. Hunter Middle School. On the
final day of summer school, Andrew slipped off of a bleacher
seat on which he was walking and fractured his lower leg
above the ankle. Andrew was transported by ambulance to a
hospital where he underwent surgery. His parents, Melissa and
Donald Crockett, filed a complaint on behalf of themselves
and Andrew against the Sumner County Board of Education d/b/a
T.W. Hunter Middle School ("T.W. Hunter" or
"the School") and William Lowe, who was one of
Andrew's summer school teachers. The Crocketts asserted
claims for negligence, negligent infliction of emotional
distress, negligence per se, premises liability, and
vicarious liability. They subsequently dismissed Mr. Lowe as
a named defendant, and the case continued against T.W.
Hunter. In its answer, the School asserted that Andrew's
injuries were a result of his own negligence. In the
alternative, the School contended that Andrew was more than
fifty percent at fault for his accident, and that under the
doctrine of comparative fault, the Crocketts were barred from
recovering any damages from T.W. Hunter.
parties engaged in discovery, and when discovery was
completed, both the Crocketts and T.W. Hunter filed motions
for summary judgment. The trial court granted the
School's motion on the issue of premises liability and
dismissed that claim, but it denied both motions with respect
to negligence. The parties tried the remaining claims before
the court, without a jury, on September 28, 2015.
trial, Andrew testified that he had to attend summer school
in the summer of 2012 because he had failed the eighth grade.
He did not testify that he was unable to do the work assigned
to him; rather, he explained that he chose to spend time with
his friends instead:
It was my last year of middle school. I had - - I was excited
about going to high school, so I kind of was - - just fell
off on my grades and kind of traded off hanging out with
friends and stuff like that.
then testified about the events leading up to his accident.
He explained that on the second to last day of summer school,
someone stuck a roll of toilet paper down a toilet in the
boys' bathroom located in the gymnasium, causing the
toilet to overflow and creating a mess in the bathroom. Coach
William Lowe and Coach Clinton Niehaus were two of
Andrew's summer school teachers, and they asked the boys
to tell them who was responsible for the vandalism. When no
one was willing to confess or identify the perpetrator(s),
Coaches Lowe and Niehaus decided on a collective punishment
and told the boys they would all be required to clean up the
mess the following day, June 28, 2012, before they would be
excused for the remainder of the summer.
testified that after he and his classmates finished their
final exams on the last day of summer school, the boys
reported to the gym, where Coach Niehaus was waiting for
them. According to Andrew, Coach Niehaus told the boys that
everyone was required both to mop the bathroom and pick up
trash in the bleachers. Andrew offered to mop first, and
after he finished mopping, Andrew joined the boys in the
bleachers to help pick up trash.
testified that he was wearing sneakers that day and that they
were wet when he finished mopping. Andrew did not know
whether Coach Niehaus realized Andrew's shoes were wet
when he directed Andrew to start cleaning up the trash in the
bleachers. Andrew testified that the other boys were using
the blue bleacher seats as steps while they collected the
trash, and Andrew did the same:
Q: [H]ow were you going about picking up - - traveling to
pick up that trash?
A: I was just standing on the blue part, and I would step
down to get the trash, and so on and so forth.
Q: Okay. Is that what the kids were doing before you came - -
or when you had first arrived at the gym?
A: Yes, sir.
Q: They were walking on the blue part?
A: Yes, sir.
Q: Okay. And Coach Niehaus was there?
A: Yes, sir.
Q: Did you hear Coach Niehaus tell any of those kids not to
walk on the blue part?
A: No, sir.
Q: At what point - - Well, did Coach Niehaus supervise you as
you were cleaning the bleachers?
A: Yes, sir. . . . He was standing in the same location as
before, with his arms crossed, facing the bleachers, watching
us pick up trash.
Q: He saw you step on the blue part of the ...