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Posted by: Barry Kolar on Apr 29, 2013

Court: TN Court of Appeals

Attorneys 1:

Andrew C. Clarke, Memphis, Tennessee, for the appellant, Jane Doe.

Attorneys 2:

Susan E. Crabtree and Amy S. Hickerson, Knox County Law Director’s Office, Knoxville, Tennessee, for the appellee, Knox County Board of Education.

This action against David Higgins (“the Instructor”) and his employer, the Knox County Board of Education (“KCBE”), is based upon events that occurred while the plaintiff Jane Doe1 (“the Student”) was a freshman ROTC2 student at West High School in Knoxville. In simple terms, the Instructor allowed the Student and other female ROTC students to drink alcohol to the point of intoxication and, while they were intoxicated, he persuaded them to expose their breasts. The Student reported the episodes to the school and her parents when the Instructor’s demands escalated to the point that he repeatedly encouraged the Student to allow him to film her and others in a sexual “threesome.” The case went to trial. The claims against the Instructor were tried to a jury. The claims against KCBE pursuant to the Governmental Tort Liability Act (“the GTLA”) were heard simultaneously by the trial court. The jury awarded the Student damages against the Instructor in the amount of $65,000 for negligent infliction of emotional distress. It rejected the claim of intentional infliction of emotional distress. The portion of the court’s judgment pertaining to the claims against the Instructor is not at issue in this appeal. The trial court determined that KCBE was not liable for the Instructor’s actions because the court concluded he was acting outside the scope of his employment. The court further determined that there was no negligence upon which liability as to KCBE could be imposed. After the judgment was entered, the Student learned that the trial judge’s wife was a retired employee of KCBE. On that basis, the Student moved the court to recuse itself and award her a new trial. The court denied the Student’s post-trial motion. The Student appeals only as to the claims against KCBE. We affirm.