637 S.W.3d 719
Tenn. Ct. App.2021Background
- During January 2016 track-and-field tryouts at Geeter Middle School, assistant coach Marcus Mosby demonstrated a shot-put throw; he instructed students to move back, turned away, and tossed the metal shot put; twelve-year-old Kenji Lewis stood closer and was struck in the head.
- Kenji suffered a depressed skull fracture and hematoma, underwent craniotomy with titanium plating, was hospitalized three days, and incurred $63,858.69 in medical bills; follow-up CT scans showed brain hypodensity/encephalomalacia consistent with permanent scarring.
- Kenji experienced severe acute pain, nightmares, recurring headaches, and cosmetic concern about a scar; he later returned to sports but avoided shot put.
- Plaintiff (Spearman, Kenji’s mother) sued Shelby County Board of Education and Shelby County Schools under the Tennessee Governmental Tort Liability Act (GTLA), alleging vicarious liability for Mosby’s negligence.
- The trial court (bench trial) found Mosby acted negligently (not intentional/reckless/gross), stripped governmental immunity under Tenn. Code Ann. § 29-20-205, admitted treating‑physician deposition and plaintiff’s expert testimony, and awarded $200,000 (including full medical bills).
- Defendants appealed, challenging denial of involuntary dismissal (GTLA immunity), admissibility of Dr. Klimo’s deposition, admissibility/qualification of plaintiff’s expert (Dr. Wise), medical-bill evidence, and rebuttal of the Rule of Sevens presumption; the Court of Appeals affirmed and remanded.
Issues
| Issue | Plaintiff's Argument (Spearman) | Defendant's Argument (Shelby County) | Held |
|---|---|---|---|
| Whether GTLA immunity bars the claim (motion for involuntary dismissal) | Mosby was acting within scope; his conduct was ordinary negligence so GTLA waiver applies | Mosby’s conduct was intentional, reckless, or grossly negligent (assault/battery or recklessness), preserving immunity | Affirmed trial court: Mosby acted with ordinary negligence (not intentional/reckless/gross), immunity waived under §29-20-205; denial of involuntary dismissal affirmed |
| Admissibility of Dr. Paul Klimo’s deposition at trial | Deposition admissible because Dr. Klimo was statutorily exempt from trial subpoena as a practicing physician (unavailable) | Plaintiff failed to show “unavailability” under Tenn. R. Evid. 804(a) and thus could not use Rule 32 deposition at trial | Affirmed: physician subpoena-exemption under Tenn. Code Ann. §24-9-101(a)(6) satisfies Rule 804(a)(5) unavailability; deposition admissible under Tenn. R. Civ. P. 32.01(3) |
| Admissibility/qualification of plaintiff’s medical expert (Dr. Merrill Wise) | Dr. Wise, a pediatric neurologist/sleep specialist, reviewed records and examined Kenji; his training and review render his opinions and medical-bill testimony reliable and helpful | Dr. Wise is not a pediatric neurosurgeon and thus unqualified to opine on neurosurgical necessity or to authenticate bills | Affirmed: trial court did not abuse discretion—Dr. Wise met Rules 702/703 reliability and Long/Dedmon factors to opine on injury, prognosis, and necessity/reasonableness of bills |
| Whether defendants rebutted Rule of Sevens presumption of no capacity for negligence (comparative fault) | Defendants contended Kenji was partly at fault for failing to move/heed instructions | Kenji (12) was unfamiliar with shot put, did not hear instructions, and had no capacity to be negligent; presumption not rebutted | Affirmed: trial court’s factual finding that defendants failed to rebut the rebuttable presumption that a 12‑year‑old lacked capacity for negligence was not preponderantly wrong; no comparative fault assigned to Kenji |
Key Cases Cited
- Hughes v. Metro. Gov't of Nashville & Davidson Cty., 340 S.W.3d 352 (Tenn. 2011) (intentional torts/assault do not constitute the negligent-act exception to waive GTLA immunity)
- Giggers v. Memphis Hous. Auth., 277 S.W.3d 359 (Tenn. 2009) (elements of negligence)
- Dedmon v. Steelman, 535 S.W.3d 431 (Tenn. 2017) (standards for proving necessity/reasonableness of medical expenses and expert testimony on bills)
- McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn. 1997) (trial court gatekeeping on expert admissibility; reliability and helpfulness standards)
- Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987) (Rule of Sevens—capacity for negligence of minor plaintiffs)
- Poole v. Union Planters Bank, N.A., 337 S.W.3d 771 (Tenn. Ct. App. 2010) (bench-trial damages review standard)
- Long v. Mattingly, 797 S.W.2d 889 (Tenn. Ct. App. 1990) (physician familiar with treatment may testify on necessity and reasonableness of another physician’s bills)