Doe v. Coffee County Bd. of Educ.

• Decision Date: 04 December 1992
• Citation: 83 Ed.LawRep. 504,852 S.W.2d 899
• Parties: 83 Ed. Law Rep. 504 Jane DOE A, Mother A, Jane Doe B, Jane Doe C, Jane Doe D, and Father B C D, Plaintiffs/Appellants, v. COFFEE COUNTY BOARD OF EDUCATION, Joe Brandon, Bobby Cummins, Nelson Johnson, Marianne Brandon, and Ted Peercy, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 899

852 S.W.2d 899

83 Ed. Law Rep. 504

Jane DOE A, Mother A, Jane Doe B, Jane Doe C, Jane Doe D and Father B C D, Plaintiffs/Appellants, v. COFFEE COUNTY BOARD OF EDUCATION, Joe Brandon, Bobby Cummins, Nelson Johnson, Marianne Brandon, and Ted Peercy, Defendants/Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

Dec. 4, 1992.

Permission to Appeal Denied by

Supreme Court May 3, 1993.

Michelle M. Benjamin, Winchester, for plaintiffs/appellants.

L. Hale Hamilton, Spears, Moore, Rebman & Williams, Hugh P. Garner, Garner, Lewis & Prickett, Chattanooga, for defendants/appellees Coffee County Bd. of Educ.

Clinton H. Swafford, Swafford, Peters & Priest, Winchester, for defendant/appellee Ted Peercy.

OPINION

KOCH, Judge.

This appeal concerns a basketball coach who engaged in improper sexual activities with students at the high school where he worked. Four students and their parents filed suit in the Circuit Court for Coffee County against the coach, the school board, and four school employees. The trial court granted a summary judgment dismissing the claims against the school board and its employees based on the discretionary function exception to the Tennessee Governmental Tort Liability Act. It also dismissed two of the students' claims based on the statute of limitations. The students and their parents take issue on this appeal with the trial court's interpretation of the discretionary function exception and the statute of limitations. While we affirm the dismissal of the claims based on the statute of limitations, we find that the trial court erred by dismissing three of the remaining claims based on the discretionary function exception.

I.

Manchester's Central High School found itself without a boys' basketball coach in early 1985. It eventually received six to twelve applications, including one from Ted Peercy who was then the head basketball coach and assistant principal at Smith County High School. Mr. Peercy came highly recommended, and an extensive inquiry into Mr. Peercy's background uncovered no derogatory information about him. In May 1985 the county school superintendent and Central High School's principal recommended Mr. Peercy for the job, and the Coffee County Board of Education hired him for the next school year.

In November 1985 Mr. Peercy had his first sexual contact with Jane Doe B, a sixteen-year-old junior in his homeroom class who was also the manager of the girls' basketball team. Two months later Mr. Peercy had sexual intercourse with Jane Doe B on the floor of his office. She asserted later that she succumbed to him after he won her trust; while Mr. Peercy claimed that he was responding to her overtures. Mr. Peercy and Jane Doe B continued to have various sorts of sexual encounters at the school throughout the 1985-1986 school year. Their last encounter was at Mr. Peercy's home during the 1986 Thanksgiving recess.

Jane Doe B's younger sister ("Jane Doe D") claimed that Mr. Peercy made suggestive remarks and ran his hand along her leg in late 1987 when she was a seventeen-year-old high school senior. Another younger sister ("Jane Doe C") also claimed that Mr. Peercy grabbed her while she was in his office in November or December 1987 when she was a fifteen-year-old sophomore and allowed her to leave only when she began to scream.

Jane Doe A, who was not related to the other three Jane Does, also claimed that Mr. Peercy made sexually explicit remarks to her and later ran his hands down the front of her blouse in January or February 1988 while she was in his office making posters for a basketball tournament. Jane Doe A was a sixteen-year-old sophomore at the time. Jane Doe A asserted that Mr. Peercy permitted her to leave his office only after she threatened to scream.

Jane Doe A, Jane Doe B, and Jane Doe C told no one, not even their parents or the school authorities, about Mr. Peercy's conduct. Jane Doe D told only her boyfriend. Neither their parents nor the personnel at Central High School had any indication that Mr. Peercy was having improper sexual contact with students while the conduct was taking place.

Mr. Peercy turned his attentions to another student some time during the 1988-1989 school year. This student apparently kept a diary of their activities which she shared with several of her girl friends causing rumors about the relationship to spread throughout the school. While discussing the rumors with other classmates in January 1989, Jane Doe A and Jane Doe C publicly asserted for the first time that they too had been subjected to Mr. Peercy's unwanted advances. ¹

In May 1989, Jane Doe C's father, a Department of Human Services investigator, overheard Jane Doe C talking with a classmate about Mr. Peercy. After her father pressed for more detailed information, Jane Doe C told him about her encounter with Mr. Peercy and also gave him the names of Jane Doe A and others who claimed to have had similar experiences with Mr. Peercy. After learning that their father had turned the matter over to the Department of Human Services, Jane Doe B and Jane Doe D came forward to accuse Mr. Peercy of similar conduct.

The Department of Human Services and the local law enforcement officials launched an investigation into the students' allegations. Jane Doe A's mother found out about her daughter's claimed contact during the summer of 1989 when she was contacted by the Department of Human Services. Mr. Peercy resigned from Central High School in July 1989.

In November 1989, Jane Does A, B, C, and D, Jane Doe A's mother, and Jane Doe B, C, and D's father filed suit against Mr. Peercy, the Coffee County School Board, the principal of Central High School, the two persons who had been superintendent of schools while Mr. Peercy had been working at Central High School, as well as the wife of one of the superintendents. They claimed that the school board and its employees were vicariously liable for Mr. Peercy's conduct, that they had hired Mr. Peercy when they "knew or should have known of ... Ted Peercy's dangerous and exploitive propensities as a child sexual abuser and his history of child sexual abuse and exploitation," and that they had negligently "created an atmosphere of neglect and indifference" with respect to their welfare.

The school board and the school employees filed a motion for summary judgment requesting dismissal of the claims against them based on the discretionary function exception found in Tenn.Code Ann. § 29-20-205(1) (1980). Later both Mr. Peercy and the school board and school employees moved to dismiss the complaint based on the one-year statute of limitations in Tenn.Code Ann. § 28-3-104(a)(1) (Supp.1992).

The trial court denied the motions to dismiss in April 1990. In April 1991, after permitting the plaintiffs to engage in wide- ranging discovery, the trial court granted the school board and school employees' motion for summary judgment based on Tenn.Code Ann. § 29-20-205(1). On its own motion, the trial court also reconsidered its denial of the motions to dismiss based on the statute of limitations and determined that the claims of Jane Doe B, Jane Doe D, and their father should be dismissed because they were not timely filed. The trial court later certified that its order was final and appealable under Tenn.R.Civ.P. 54.02, and the students and their parents perfected this appeal.

II.

Since this is an appeal from a summary judgment, we must first determine whether there exist any genuine issues with regard to facts essential to the legal issues raised by the summary judgment motion. Tenn.R.Civ.P. 56.03; Rollins v. Winn Dixie, 780 S.W.2d 765, 767-68 (Tenn.Ct.App.1989). Then, if no material factual issues exist, we must determine whether the parties seeking the summary judgment are entitled to a judgment as a matter of law. Bellamy v. Federal Express Corp., 749 S.W.2d 31, 33 (Tenn.1988); Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981).

The summary judgment motions contain two distinct grounds. First, all the defendants asserted that Jane Doe B's and Jane Doe D's claims and their father's derivative claim were barred by the one-year statute of limitations in Tenn.Code Ann. § 28-3-104(a)(1) and Tenn.Code Ann. § 29-20-305(b) (Supp.1992). Second, all the defendants except Mr. Peercy asserted that they were immune from suit because their challenged conduct fits within the discretionary function exception in Tenn.Code Ann. § 29-20-205(1).

For our present purposes, the only facts that are material are those relating directly to the running of the statute of limitations and to the application of the discretionary function exception. We have reviewed the evidence in the voluminous record in a light most favorable to the plaintiffs, Fly v. Cannon, 813 S.W.2d 458, 460 (Tenn.Ct.App.1991); Dooley v. Everett, 805 S.W.2d 380, 383 (Tenn.Ct.App.1990), and find no genuine factual disputes with regard to the determinative issues in the case. Thus, all that remains to be decided is whether the defendants are entitled to a judgment as a matter of law on either or both of the grounds asserted in the summary judgment motions.

III.

We turn first to the statute of limitations defense. All the defendants assert that Jane Doe B's and Jane Doe D's claims and their father's derivative claim were not timely filed. The affected plaintiffs respond that the "discovery rule" tolled the running of the statute of limitations until Jane Doe B and Jane Doe D discovered that they had been "emotionally harmed."

Mr. Peercy's conduct is an invidious breach of the teacher-student relationship, and it warrants the severest possible condemnation by all right thinking persons of compassion. However, our decision with regard to the timeliness of these claims must be based on the statutes and precedents. Notwithstanding our revulsion for Mr. Peercy's conduct, we find no legal or equitable basis for preserving Jane Doe B's, Jane Doe D's, or their father...