Marla H. v. Knox Cnty.

361 S.W.3d 518

MARLA H., individually and as next best friend to her daughter Moriah F.H.

v.

KNOX COUNTY, et al.

No. E2010–01705–COA–R3–CV.

Court of Appeals of Tennessee.

March 15, 2011 Session.

June 29, 2011.

Oct. 18, 2011.

Lisa Belle Hatfield, Knoxville, Tennessee, for the appellant, City of Knoxville.

M. Christopher Coffey, Knoxville, Tennessee, for the appellees.

OPINION

This is an action for negligent infliction of emotional distress. The mother of a middle school student filed suit against Knox County, the Knox County Board of Education, and the City of Knoxville after her daughter viewed graphic photographs of her dead father during a presentation on the dangers of drunk driving. The trial court found the City of Knoxville liable for the student's emotional injuries because the school resource officer who distributed the photographs intended to evoke an emotional response. We conclude it was generally foreseeable that providing graphic accident scene photographs to seventh grade students could cause serious or severe emotional harm in a student related to a victim depicted therein. Thus, the school resource officer owed a duty to exercise reasonable care when displaying the photographs to a class that potentially included students related to the victims. The evidence, however, preponderates against the trial court's finding that the school resource officer failed to exercise reasonable care. We reverse the decision of the trial court.

I. Background and Procedural History

Marla H. ("Mother"), instituted this action individually and as next friend of her daughter, Moriah H. ("Moriah"), who at all times relevant to this appeal was a seventh grade student at Holston Middle School ("HMS") in Knoxville, Tennessee.¹ Moriah is the biological daughter of William Cabbage, a man whom she knew only as "Lynn" or "Daddy Lynn" Cabbage. According to the trial testimony, William Cabbage sexually molested Moriah when she was only four years old. As a result of the molestation, the Department of Children Services ("DCS") terminated William Cabbage's parental rights and placed Moriah in foster care. Moriah spent the next twenty-two months of her early childhood in various foster homes while Mother struggled to regain custody. Moriah had no face-to-face contact with her biological father subsequent to her removal.² The family, including Moriah, learned some years later that William Cabbage died in a car accident.

Mother immediately filed for divorce from Mr. Cabbage upon learning of his offense, but this did not prevent DCS from taking action against her. Mother explained DCS initially believed she either knew or should have known about the sexual abuse. Mother hired an attorney and successfully fought to regain custody of Moriah over an approximately two-year period. The young girl returned to the care of Mother at the age of six and resumed what Moriah described as a "pretty normal" life. Moriah appeared to suffer from no emotional problems, to have no trouble sleeping at night, and to exhibit no outward manifestations of post traumatic stress disorder following her return to Mother. Mother's current husband, Donnie H., later adopted Moriah and the State of Tennessee issued her a new birth certificate legally changing her last name. The record suggests Moriah's life stabilized after her return to Mother and she fared well without the aid of counseling or therapy. Mother went so far as to describe their life following her marriage to Donnie H. as a "fairytale ending."

Moriah's emotional well-being unfortunately suffered a setback on August 28, 2005, when Officer Roger White of the Knoxville Police Department gave a presentation on the dangers of alcohol use and abuse to a seventh grade health class. The presentation, which Officer White had given several times since 2002 without incident, included a lecture on the legal consequences of underage drinking and drunk driving, discussion of the physical risks of drinking alcohol, demonstration of how police administer a Breathalyzer test, and use of "fatal vision" or "beer" goggles to show the difficulty of completing even simple tasks when intoxicated. Officer White also circulated two envelopes containing accident scene photographs at the end of the presentation to show the real-life consequences of drunk driving. He arranged the photographs from least to most graphic, beginning with photographs displaying the wreckage and concluding with several gory, close-up photographs of corpses taken at the accident scenes of two alcohol-related fatalities and the morgue. Officer White hoped the presentation would strongly impact the class, explaining he only had "one shot" to reach the students. Unbeknownst to Officer White, one of the envelopes contained photographs of Moriah H.'s biological father.

Kay Green, the health teacher who requested that Officer White give the presentation, testified he was "extremely careful in asking [her] opinion ... about the class." She and Officer White had previously screened other students from the presentation when they anticipated a possible concern. In one instance, a student received alternative instruction in the library while the rest of the class viewed the presentation. In another instance, Ms. Green and Officer White questioned a student with the last name Cabbage to determine whether the student was related to William Cabbage. Officer Green took additional precautionary measures to avoid sharing the photographs with a student related to a victim which included placing the photographs in two envelopes bearing the names of the deceased, stating the names of the accident victims and describing the accidents in which they were involved, specifically identifying William Cabbage as one of the individuals depicted in the photographs, and asking whether any student in the class was related to Mr. Cabbage. Receiving no response, he circulated the photographs for viewing by those who chose to do so. Neither Officer White nor Ms. Green knew at that time Moriah H. was formerly known as Moriah Cabbage.

Moriah thought she might be related to William Cabbage when Officer White announced the photographs depicted an accident in which Mr. Cabbage was involved. According to the trial testimony, Moriah understood that "Cabbage" was once her last name, but she did not realize William Cabbage was her father because she knew him only as "Daddy Lynn" or "Lynn." She did not notify Officer White or Ms. Green that her biological father, a man with the last name "Cabbage," had died in an automobile accident and she did not excuse herself from the classroom. She instead remained in class and viewed the pictures despite understanding she had no obligation to do so. Moriah viewed the entire set of photographs depicting William Cabbage, later explaining she did not recognize the man in the photographs as her father because he was "unrecognizable."

Moriah initially found the photographs "disturbing," "nasty," and "gross" but did not show any outward signs of trauma or emotional distress. She instead continued about her day seemingly unaffected.³ She only became shocked and upset when she learned William Cabbage was her biological father later that afternoon. During the car ride home from school, Moriah asked Mother about the identity of William Cabbage. Mother responded that William Cabbage was Moriah's biological father and asked why she was inquiring. Moriah replied, "Momma, because they showed some ugly pictures today.... They showed pictures today of William Cabbage in my class, and it was awful. He was in a pool of blood." At that point, Mother returned to school and demanded to see the pictures. Mother became very upset and later testified she would never have allowed Moriah to view such pictures—whether of William Cabbage or any other person—if given the opportunity to screen them. When they returned to their car after meeting with school officials, Moriah also became very upset and began to cry. Later that evening, she began experiencing hallucinations.

On August 30, 2005, Moriah attended her first appointment with Patricia Lees, PhD, a licensed psychologist with a doctorate in counseling psychology from the University of Tennessee.⁴ Dr. Lees described Moriah as "in shock, confused, [and] disoriented" during her initial assessment. Dr. Lees soon thereafter diagnosed Moriah as suffering from posttraumatic stress disorder ("PTSD"), and a lengthy course of treatment ensued. Dr. Lees also referred Moriah to Dr. Dovile Paulauskas, a Board certified child and adolescent psychiatrist at the Helen Ross McNabb Center in Knoxville who specializes in medication management. At her initial visit with Dr. Paulauskas, Moriah reported being traumatized after viewing very graphic pictures of a car accident involving her father. Moriah explained that following the incident she suffered from an inability to sleep, frequent nightmares, flashbacks, a fear of darkness, and on at least one occasion hallucinations. Upon further evaluation of the patient, Dr. Paulauskas diagnosed Moriah with PTSD and provided her with Lexapro and Trazodone to help alleviate some of the reported symptoms. Dr. Paulauskas determined after a period that continued medication management was unnecessary but recommended Moriah continue therapy. There is some suggestion Dr. Paulauskas believed Moriah's PTSD symptoms resolved near the end of their relationship, but the record is not entirely clear on this point.

Mother filed this action on behalf of herself and Moriah against Knox County, the Knox County Board of Education, and the City of Knoxville in December 2005. Mother asserted the defendants were liable under the Tennessee Governmental Tort Liability Act ("TGTLA"), Tennessee Code Annotated section 29–20–101 et seq. , for the injuries Moriah suffered as the result of the negligent acts or omissions of Knox County, the Knoxville Police Department, and Officer Roger White. The amended complaint alleged, inter alia, (1) it...