Tennessee’s “Rule of Sevens” Applied to Dismiss Case

Citing the Rule of Sevens, the Court of Appeals recently affirmed a finding that a 13-year-old was solely responsible for his injury when he fell on the bleachers at his school.

In Crockett v. Sumner County Board of Educ., No. M2015-02227-COA-R3-CV (Tenn. Ct. App. Nov. 30, 2016), injured plaintiff and his parents sued his school after he fell on bleachers in the gym. Plaintiff was attending summer school, and the day before his injury someone had intentionally caused flooding in a boys’ bathroom. Because no one would confess, two coaches had all of the eighth grade boys help clean the bathroom and pick up trash from the bleachers. According to plaintiff, he mopped the bathroom and then was told to begin helping in the bleachers, though the coach supervising the work testified that plaintiff was not told to work in the bleachers after mopping.

At the time of his injury, plaintiff was using the bleacher seats as stairs, rather than using the designated stairway on the bleachers. Plaintiff stated that the coach had left the gym when he fell, but the coach testified that he had left for a couple of minutes to retrieve a dry mop and had returned to the gym by the time of plaintiff’s accident.

During a bench trial, plaintiff testified that “he knew from the time he was a little kid that he was not supposed to use the bleacher seats as steps,” and that such usage could cause injury. He further testified that he “just wasn’t thinking about it” at the time of the accident. Two coaches from his school testified that they had told the students on many occasions not to use the seats as steps but to instead use the designated steps, which had non-slip material on them.

At trial, the two coaches described plaintiff as an “average,” “good kid.” Plaintiff testified that he had to attend summer school because during his 8th grade year, he spent too much time with his friends, but not because he was not capable of understanding the relevant school material.

At the conclusion of the trial, the judge ruled that plaintiff’s own negligence “was the sole cause of his fall.” Plaintiffs appealed this ruling, which the Court of Appeals affirmed.

The Court of Appeals explained that, when considering the potential negligence of a child, Tennessee courts use the Rule of Sevens. “[A] child under the age of seven has no capacity for negligence; …there is a rebuttable presumption of no capacity for a child between the ages of seven and fourteen; …there is a rebuttable presumption in favor of capacity for a child between the ages of fourteen and the age of majority.” (internal citations omitted). The Court noted that when determining whether a child has been negligent, a court should consider “the age, ability, experience, education, training, and degree of maturity” of the child, as well as “the totality of the circumstances…and the minor’s ability to appreciate the risks and consequences[.]” (internal citation omitted).

Looking specifically at this case, the Court pointed out that plaintiff was less than one year away from when the presumption would have been in favor of capacity under the Rule of Sevens. Further, there was evidence that plaintiff had been told by his mother at some point and by two coaches not to use the bleacher seats as steps. There was no evidence that plaintiff was unable to understand the risks of such an action—in fact, plaintiff’s “parents permitted him to use a BB gun by the time he was thirteen years old.” Plaintiff testified that he knew that he was not supposed to use the bleachers as steps and knew it could cause injury. Based on these facts, the Court held that “[plaintiff] understood the risks and probable consequences of using the seats as steps and that he had the capacity to be negligent when he fell while using the seats as steps.” Noting that defendant school only needed to prove that plaintiff was more than 50% at fault to succeed on their comparative fault defense, the Court affirmed the trial court’s ruling.

Plaintiffs also appealed the trial court’s ruling that the school was not liable for negligent supervision, but the Court of Appeals affirmed the ruling for defendant on this claim as well. The Court noted that “[t]eachers have a duty to supervise their students to protect them from harm, but this does not mean that a teacher has breached this duty whenever a student gets injured while at school.” (internal citation omitted). “The amount of supervision a teacher is required to exercise is based on the age and experience of the students, their maturity level, and the dangers of a particular situation.” (internal citation omitted). In support of the negligent supervision claim, plaintiffs asserted that the fall would not have occurred if the student had not been required to pick up trash after mopping the bathroom floor. The Court noted that there was inconsistent testimony regarding whether plaintiff’s shoes were wet and whether he was told to pick up trash in the bleachers. Because the “trial court judge is in a better position…to determine witness credibility” and there was no clear and convincing evidence to contradict the trial court’s ruling, the Court affirmed the ruling that plaintiffs could not establish causation here and that the school was not liable for negligent supervision.

This case is a good reminder to plaintiff’s attorneys to be diligent in case selection. From the evidence presented on appeal, it looks like the facts were far from being on plaintiffs’ side. An almost-14-year-old kid was using bleachers in a way he knew could cause injury. By his own testimony, he had been told since he was a little kid not to do what he was doing. This case was a long shot from the beginning, and the plaintiffs’ attorney here likely walked away with nothing at all for the time they invested in this trial and appeal.