Dr. Robin Ammon, Chair of Division of Kinesiology and Sport Management, University of South Dakota
Kenji Spearman was a 12-year-old 6th grader attending Geeter Middle School in Memphis Tennessee. On January 12, 2016 tryouts for the middle school track and field team were conducted on a field behind the middle school. A teaching assistant, Marcus Mosby, conducted the tryouts and he was also the track and field coach. Approximately 30-40 students showed up and one of the events held as part of the tryout was the shot put. Mosby participated on his high school track and field team but didn’t throw the shot as one of his events. Mosby lined the students up and had them take turns throwing the shot while he stood 25-30 feet away retrieving the implements after they were thrown. After a while Mosby decided to demonstrate the correct mechanics of throwing the shot. He verbally instructed the students to back up and motioned them back with his hands. He turned his back to the group of students and took several additional steps in the opposite direction. The students ended up approximately 30-40 feet away from Mosby and his back was to the students. Kenji had participated in sports since he was five or six years old but was not familiar with a shot put. Kenji was standing sideways to Mosby and testified he did not hear Mosby tell the students to back up nor did he see Mosby motioning the students back. As a result, Kenji hadn’t backed up as far as the other students and ended up five feet closer to Mosby. As Mosby spun around to throw the shot, he saw Kenji standing in close proximity and after releasing the metal ball shouted at Kenji to get out of the way. It was too late, and the implement struck Kenji in the side of the head. Mosby rushed to Kenji’s side and noticed blood coming out of the youngsters mouth as well as an indentation in the side of his head.
Kenji was rushed to LeBonheur Children’s Hospital in Memphis where he stayed for three days. Dr. Paul Klimo, a pediatric neurosurgeon, was the treating physician and on the second day of Kenji’s hospitalization he surgically repaired Kenji’s depressed skull. During his stay Kenji was in a lot of pain and he was prescribed a number of pain meds to alleviate the pain. During the three days he was worried about not playing sports again. Once Kenji was released, he spent two-to-three weeks at home but didn’t attend school, play with any friends, or participate in sports. During this time, he complained of headaches, dizziness and experienced a number of nightmares. One month after the incident Dr Klimo released Kenji for track and field but Kenji didn’t participate due to being afraid of a similar experience. Three months after the injury Kenji was still complaining about headaches and dizziness.
The plaintiff, Kenji’s mother, filed suit on August 3, 2016 using the Tennessee Government Tort Liability Act (GTLA). She maintained that the defendant (Shelby County Board of Education) was vicariously liable for Mosby’s negligence. The plaintiff sought damages for injuries and medical expenses sustained by her and Kenji. The defense filed their answer on September 12, 2016. After several years of continuances and discovery the case went to trial on January 22 – 23 and February 28, 2019. An interesting twist occurred when Mosby (the coach) was never named as a defendant nor was represented by the counsel for defense.
Outcomes of Trial Court
During the initial trial the plaintiff’s expert witness, Dr. Wise, ascertained that Kenji suffered blunt force trauma from being hit by the shot causing a skull fracture that resulted in permanent brain damage. However, while Kenji continued to have pain on the left side of his head and experienced bouts of dizziness, he maintained high grades and played football and basketball. He reported having no problems with his vision, balance, eating, sleeping, hearing, or focusing. Dr. Wise did not believe Kenji’s headaches hindered normal functions including participating in sports.
Shortly after the incident an investigation was conducted by the Shelby County Board of Education. The findings indicated that Mosby failed to use the proper procedures when demonstrating how to throw the shot put. As a result, the Superintendent concluded that Mosby neglected his duty as a school employee and as a result Mosby resigned from his position at Geeter Middle School at the end of the 2015-2016 school year. Mosby testified that that he was completely at fault for the events that took place and Kenji shared no responsibility. Mosby admitted that the safest way to throw a shot was to throw away from anyone. He should have placed the students behind him. He stressed that the incident was an accident, and he had no intention of hitting Kenji.
The defendants moved for involuntary dismissal under Tennessee Rule of Civil Procedure 41.02(2). They claimed that Mosby’s actions were intentional, reckless, or grossly negligent. As a result, they were immune from liability under the GTLA. The trial court disagreed with the defendants and denied the motion. Surprisingly enough once the trial court denied the motion the defense rested. In October 2019, the trial court rendered a verdict in favor of the plaintiffs. The court found that 1) Mosby acted in the scope of his employment at the time of incident; 2) Mosby acted negligently in injuring Kenji; 3) Mosby’s actions were the proximate cause of Kenji’s injuries and medical damages; 4) the defendants were vicariously liable for Mosby’s negligence and were not immune under GTLA. The court also found that Kenji bore no responsibility for his injuries and that Mosby and the defendants were solely liable. Finally, the court awarded the plaintiff $200,000 in compensatory damages. The defendants appealed.
Appellate Court Decision
Six issues were raised on appeal.
Whether the trial court erred in denying the defendant’s motion for involuntary dismissal.
The defendants claimed that Mosby’s actions were intentional, reckless, or grossly negligent. The appellate court cited Tennessee Code Annotated §39-11-302(c) that says a person acts with reckless intent “when the person is aware of but consciously disregards a substantial and unjustifiable risk”. However, the appellate court mentioned the evidence indicated that Mosby did not consciously disregard the risk. He instructed and motioned for the students to move back. The appellate court also stated that while Mosby made some poor decisions and displayed questionable judgement his actions did not amount to gross negligence.
The appellate court affirmed the trial court’s decision to deny the defendant’s motion of involuntary dismissal.
Whether the trial court erred in in admitting the deposition testimony of Dr. Paul Klimo.
The defendants argued that portions of the transcript from Dr. Klimo’s deposition should not have been admitted. The appellate court stated that Klimo was a licensed neurosurgeon in seven states including Tennessee. The doctor had been deposed but was never subpoenaed to testify at trial. However, under Tennessee Code Annotated §24-9-101(a)(6) he was exempt from a trial subpoena, due to being a practicing physician. Since Klimo was unable to testify at trial the plaintiff was able to use his deposition transcript under Tennessee Rule of Civil Procedure 32.01(3).
Whether the trial court erred in denying the defendant’s motion to exclude Dr. Wise’s expert testimony.
Before the initial trial, the defendant’s filed a motion to have Dr. Wise’s expert testimony excluded. The trial court believed that his education, expertise, and training would assist the court, so they denied the motion. The trial court also believed that any data or facts provided by Dr. Wise would be trustworthy. On appeal the defense stated that since Dr. Wise was not an expert in pediatric neurology his testimony should have been excluded. The appellate court established that Dr. Wise was qualified to testify about Kenji’s medical bills. While he had never performed the surgery, he was familiar with the procedure as well as the subsequent treatment. Wise testified that he did not know of any alternatives to the surgery and that the surgery performed by Klimo was the accepted practice. Due to Dr. Wise working and consulting with the neurosurgeons in Memphis he was familiar with customary charges for various medical services.
The appellate court observed that by acting as the “gatekeeper” of evidence the trial court did not abuse its discretion in allowing Dr. Wise to testify with no limitations.
Whether the trial court erred in admitting Kenji’s medical bills
At the trial court level, the defendants contended that Kenji’s medical bills submitted by the plaintiff were improperly admitted. The defendants maintained that the plaintiff had not proven that the services represented by the medical bills were necessary and in addition Dre. Wise did not properly authenticate said bills. As previously mentioned, the appellate court found that Dr. Wise was qualified to testify about the medical bills. On appeal the defendants stated that only the treating physician could authenticate the medical bills. Since Dr. Wise did not perform the surgery, he did not have firsthand knowledge. The appellate court said this was a misstatement of settled law. Citing Long v Mattingly, 797 S.W.2d 889, 893 (Tennessee Court of Appeals, 1990), “a physician may testify as to the reasonableness and necessity of medical charges regardless of if he or she rendered the services.”
The appellate court determined that the medical bills were proven to be reasonable, and the court affirmed the trial court’s decision to admit the bills.
Whether the trial court erred in finding that the defendants did not rebut the presumption that Kenji had no capacity for negligence.
On appeal the defendants claimed that they had refuted the presumption that Kenji had no capacity for negligence, therefore comparative negligence should have been applied. Under Tennessee law modified comparative negligence maintains “so long as a plaintiff’s negligence remains less than the defendant’s negligence the plaintiff may recover” (McIntyre v Balentine, 883 S.W.2d 52, 57 (Tennessee 1992)). However, if the plaintiff was also negligent, the “plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.” (McIntyre v Balentine, 883 S.W.2d at 57). However, these rules are amended when the plaintiff is a child in a negligence case. In Tennessee when a minor child is the plaintiff in a negligence case the “Rule of Sevens” is applied. The Rule of Sevens states 1) if the child is under the age of seven, the child has no capacity of negligence; 2) if the child is between the ages of seven and fourteen, there is a rebuttable presumption that the child does not have the capacity for negligence; and 3) if the child is ages fourteen to majority, there is a rebuttable presumption that the child does have the capacity for negligence (Cardwell v Bechtol, 724 S.W.2d 739, 749 (Tennessee 1987)). Whether a minor has a capacity for negligence is a question of fact.
The defendants argued that comparative negligence should be applied. Therefore, the Rule of Sevens applied with the rebuttable presumption that Kenji, being twelve years old, did not have the capacity for negligence. During the trial Mosby testified that Kenji was a “good kid”. Kenji’s grades throughout elementary school were As and Bs. Mosby testified that Kenji did not disregard any of his instructions. Kenji testified that he did not hear or see Mosby warning the students to back up. Finally, while Kenji had previously participated in football and basketball, he was not familiar with a shot put.
After considering the facts the appellate court agreed with the trial court that the defendants had not rebutted the presumption that Kenji did not have the capacity for negligence. The appellate court affirmed the trial court’s decision that the defendants were solely to blame for Kenji’s injuries.
Whether the trial court erred in only awarding the plaintiff $200,000 in compensatory damages.
Under the GTLA plaintiffs can be awarded a maximum of $300,000.00. The trial court in this case awarded the plaintiff $200,000.00. On appeal the plaintiff claimed the trial court should have awarded her the maximum amount allowed under the GTLA. In Tennessee, a plaintiff who sustains an injury as a result of negligence can be awarded two types of damages. The first type (economic or pecuniary) includes expenditures such as past or future medical expenses, lost wages, and lost earning power. The second type of damages (non-economic) include pain and suffering, permanent impairment/disfigurement ands loss of enjoyment of life (Meals ex rel. v Ford Motor Company, 417 S.W.3d 414, 491, 420 (Tennessee 2013)). In Tennessee non-economic damages are in most cases very subjective and the courts don’t usually require plaintiffs to provide proof of the monetary value of the non-economic damages.
The trial court awarded the plaintiff $63,859.69 in economic damages and $136,1451.31 in non-economic damages. The plaintiff asserted that Kenji continued to suffer from headaches, but the trial court stated the matter was questionable. The plaintiff also contended that while his nightmares continue to occur, they aren’t as frequent. While both Drs. Klimo and Wise testified that Kenji sustained permanent brain damage the damage did not seem to be significant, which is why he was released to participate in sports and other activities. The appellate court concluded that while the plaintiff believed Kenji’s injuries to be more severe the assessment of non-economic damages is not an exact science. The court determined that the trial court was accurate in their awarding of the non-economic damages.
The appellate court affirmed the trial court’s decision and split the costs of the appeal between the plaintiff and defendant.
Spearman v Shelby County Board of Education. No. W2019-02050-COA-R3-CV Court of Appeals of Tennessee, at Jackson