359 F.3d 399 | 6th Cir. | 2004
Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,
J AMES K ELLNER and L AURI (cid:88) Circuit Judges. (cid:45) K ELLNER , individually and as (cid:45) _________________ next kin of Michael W. (cid:45) No. 02-5314 Kellner, deceased; L AURI COUNSEL (cid:45) > K ELLNER , individually and as (cid:44) ARGUED: Paul T. Gillenwater, GILLENWATER, NICHOL natural parent and next of kin (cid:45) & AMES, Knoxville, Tennessee, H. Forrest Horne, Jr., of Shawn June, a minor, (cid:45) JONES, MARTIN, PARRIS & TESSENER, PLLC, Raleigh, Plaintiffs-Appellants, (cid:45) North Carolina, for Plaintiffs. Michael J. King, WOOLF, (cid:45) McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville, (cid:45) v. Tennessee, for Defendants. ON BRIEF: Paul T. (cid:45) Gillenwater, GILLENWATER, NICHOL & AMES, (cid:45) Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony B UDGET C AR AND T RUCK (cid:45) R. Dalton, WOOLF, McCLANE, BRIGHT, ALLEN & R ENTAL , I NC ., et al.; C OMCAR (cid:45) CARPENTER, Knoxville, Tennessee, for Defendants. (cid:45) I NDUSTRIES , I NC ., a/k/a M.D. (cid:45) Transport Systems, Inc., _________________ (cid:45) Defendants, (cid:45) OPINION (cid:45) _________________ C LAY H YDER T RUCKING (cid:45) L INES , I NC .; M.D. T RANSPORT (cid:45) KRUPANSKY, Circuit Judge. James and Lauri Kellner, (cid:45) S YSTEMS , I NC .; J OHN Z AFFER , appearing individually and as next of kin, have appealed the (cid:45) district court’s summary dismissal of their negligence suit Administrator of the Estate of (cid:45) against three party-defendants – John Zaffer, administrator of Christopher N. Zaffer, (cid:45) the estate of Christopher Zaffer (“Zaffer”), M.D. Transport Defendants-Appellees. (cid:78) Systems, Inc. (“MDTS”) and Clay Hyder Trucking Lines, Inc. (“CHTL”) – arising from a motor vehicle accident on the Tennessee interstate. The Kellners have contended that
Appeal from the United States District Court defendants negligently and proximately caused the accident for the Eastern District of Tennessee at Knoxville. 1 No. 02-5314 Kellner, et al. v. Budget Car 3 4 Kellner, et al. v. Budget Car No. 02-5314 and Truck Rental, et al. and Truck Rental, et al. by leaving a tractor-trailer parked in the emergency Zaffer was under or near the tractor-trailer, shortly before “breakdown” lane along the shoulder of the interstate. For the 3:30 p.m., when Diane Rupe was driving westbound on I-40 reasons discussed below, this Court affirms the order of in a Ford truck with a 24-foot cargo box, rented from Budget summary judgment. Car & Truck Rental, Inc. (“Budget”). Behind the Ford truck,
Rupe towed a minivan. In the passenger cab, along with On the morning of October 23, 1999, Christopher Zaffer Rupe, were her grandsons Michael Kellner and Shawn June, was driving his tractor-trailer westbound on Interstate 40 in ages 1 and 10 respectively. Jefferson County, Tennessee, when his rig began experiencing mechanical problems and became disabled. [1]
Tragically, the Budget truck driven by Rupe left the far Zaffer drove the vehicle into the emergency lane of the right travel lane of traffic, moved into the emergency lane, interstate and there is no dispute between the parties that both and collided with Zaffer’s parked tractor-trailer. As a result Zaffer’s tractor and trailer were completely within the of the collision, Michael Kellner, Rupe and Zaffer were “breakdown” lane with no portion of the rig protruding into killed, while Shawn June sustained injuries requiring or overlapping onto the travel lanes of the interstate. [2]
hospitalization. Zaffer placed the orange-triangle warning devices required On June 6, 2000, plaintiffs-appellants James and Lauri by Tennessee statute and federal regulation behind the tractor- Kellner, the parents of Michael Kellner and Shawn June, filed trailer to signal to approaching traffic that his rig was a negligence complaint in the district court against MDTS and disabled. The weather conditions were clear and the roadway Comcar Industries (“Comcar”). Appellants later amended was dry. The section of I-40 on which Zaffer’s rig became their complaint to add as defendants: Zaffer’s estate, CHTL, disabled provided three lanes for motorists traveling either Jeannie Denniston – the administrator of the estate of Diane east or west. According to record testimony the tractor- Rupe – and State Farm Insurance Company (“State Farm”), trailer could be seen by approaching westbound motorists Rupe’s uninsured/underinsured motorist insurance carrier. from a distance of at least 1,000 feet. On September 20, 2000, the parties agreed by stipulation to
dismiss Comcar from the action. On November 29, 2001, Zaffer, MDTS and CHTL filed a motion for summary judgment; State Farm filed a motion for [1] summary judgment on December 14, 2001. On February 11, Zaffer owned the parked and disabled 1991 Freightliner commercial
truck-tractor struck by Rup e. In 19 99 Z affer had leased his tractor to 2002 in a memorandum and order, the district court granted appellee M.D. Transport Systems and had begun hauling freight for
defendants’ motions, concluding that, as a matter of law, the MD TS; however, at the time of the accident Zaffer was hauling a load for defendants’ actions were not the proximate cause of the defendant-appellee Clay Hyder Trucking Lines, Inc. [2] Appellants contend that Zaffer’s tractor-trailer was stopped one foot
from the fog line which separates the travel lanes of the interstate from the emergency breakdown lane. The evidence indicates that the rig was at least one foot from the line and may, perhaps, have been further, but the impact of the accident moved the truck several feet making estimations difficult. No. 02-5314 Kellner, et al. v. Budget Car 5 6 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al. appellants injuries and damages. [3] On February 25, 2002, appellants filed a timely notice of appeal to this Court. [4] McClenhan v. Cooley , 806 S.W.2d 767, 774 (Tenn. 1991)). See also McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn.
This Court reviews de novo the order granting summary 1993). Recovery in a negligence action may occur only if the judgment to appellees Zaffer, MDTS and CHTL. See Virts v. plaintiff can prove that the defendants’ conduct was negligent Consolidated Freightways Corp. of Delaware , 285 F.3d 508, and was the proximate cause of plaintiffs’ injury. Tennessee 516 (6th Cir. 2002). Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 1969);
Lancaster v. Montesi , 390 S.W.2d 217, 220 (Tenn. 1965). As the forum state, Tennessee precedent provides that a Tennessee courts have repeatedly stated that negligence is not plaintiff bringing a negligence action must prove: “(1) a duty presumed from the mere fact of an accident or injury. of care owed by the defendant to the plaintiff; (2) conduct Williams v. Jordan , 346 S.W.2d 583, 586 (Tenn. 1961); De falling below the applicable standard of care amounting to a Glopper v. Nashville Ry. & Light Co. , 134 S.W. 609, 611 breach of that duty; (3) an injury or loss; (4) causation in fact; (Tenn. 1911); Armes v. Hulett , 843 S.W.2d 427, 432 and (5) proximate, or legal cause.” Bennett v. Putnam (Tenn.Ct.App.1992). County , 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000) ( quoting In the instant case, the district court determined that as a matter of Tennessee law a reasonable jury could conclude that Zaffer had breached his duty by not moving the rig to a safer [3] The plaintiffs did not respo nd to State Farm’s motion for summary
location in the five hours prior to the accident. However, in judgment. State Farm’s p otential for liability rested solely on the granting the motion for summary judgment the court testimony of a witness who speculated that Rupe had to take eva sive concluded that, as a matter of law, none of the movants – action to avo id a vehicle swe rving toward Rup e on her left and causing Zaffer, MDTS, or CHTL – provided the proximate cause of her to strike the tractor-trailer. This testimony was later recanted by the witness as pure speculation and no corro borating testimony em erged to the accident. support the witness’s earlier statement. Because the plaintiffs did not contest State Farm’s position the court granted the State Farm motion and
Based upon the undisputed facts that Zaffer’s rig rested dismissed State Farm from the lawsuit. See E.D. TN. LR 7.2 (“Failure to completely off the active traffic lanes of the interstate and was respond to a motion may be dee med a waive r of any opposition to the plainly visible for a distance of over 1,000 feet, the district relief sought.”). court reasoned that “a reasonable jury would have to conclude [4] Rupe could see the rig prior to the accident.” Consequently, On March 22, 2002, because there were other claims and cross- the court concluded that Rupe’s actions in leaving the travel claims remaining for a djud ication in the instant case, the Clerk of the Sixth Circuit entered an O rder for the plaintiffs to show cause why the ir lanes and crashing into Zaffer’s rig were the proximate cause appeal should not be dismissed for lack of a final appealable order. The
of plaintiffs’ losses. In so deciding, the court relied upon show cause order was withdrawn on May 6, 2002 after the district court Carney v. Goodman , 270 S.W.2d 572, 576 (Tenn. Ct. App. approved a settlement of all remaining claims in the action, leaving the 1954), which concluded that “the negligence of one in only remaining issues in the case as those between appellees and obstructing the highway by a standing vehicle was superseded appellants. Gillis v. United S tates Dep ’t of Health and H uman Serv ., 759 F.2d 565 , 568 -69 (6 th Cir. 1985 ) (an ap peal from an ord er disp osing of by another's negligence in running into such vehicle, and that fewer than all claims in a civil action invo kes ap pellate jurisdiction if final
the latter's negligence was the proximate cause of the judgment is entered in the underlying action during the pendency of the accident.” See also Dunnivant v. Nafe , 334 S.W.2d 717, 719 appeal). No. 02-5314 Kellner, et al. v. Budget Car 7 8 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al. (Tenn. 1960). Thus, in the instant case, while the district Tennessee negligence law and, consequently, fails to prove court concluded that a reasonable jury could find Zaffer that the district court erred in granting summary judgment to negligent in not removing his rig from the shoulder of the appellees. interstate before the accident occurred, the court nevertheless Pursuant to Tennessee negligence law, once it is held that plaintiff Rupe had provided the proximate cause determined that the defendant owed the plaintiff a legal pursuant to the standard determined in Carney : “Did the obligation to conform to a reasonable person standard of driver running into the standing vehicle see it in time to conduct, i.e., a duty--the question becomes whether defendant enable him, by use of due care, to avoid the collision? If he failed to exercise reasonable care under the circumstances, did not, his negligence is merely a contributory cause; if he i.e., whether defendant breached the duty. In a negligence did, his negligence is the proximate cause.” Carney v.
action, the standard of conduct is always the same. It is a Goodman , 270 S.W.2d at 576. standard of reasonable care in light of the apparent risk. See Further, the district court stated that through Carney Pittman v. Upjohn Co. , 890 S.W.2d 425, 428 (Tenn. 1994) “Tennessee [has] adopted a special rule about proximate (“As in all cases, there is a duty to exercise reasonable care causation in standing vehicle cases such as the present one.” under the circumstances.”); Bradshaw v. Daniel , 854 S.W.2d While the general rule in Tennessee, that the foreseeability of at 870 (“All persons have a duty to use reasonable care to an intervening, superseding act presents a jury question, the refrain from conduct that will foreseeably cause injury to Carney court adopted a special rule in standing vehicle cases, others.”). If defendant does not exercise reasonable care, which the district court applied in the present case, noting that defendant has breached the duty. Doe v. Linder Const. Co., “[u]nder this rule it is unforeseeable as a matter of law Inc ., 845 S.W.2d 173, 178 (Tenn. 1992). someone would drive into a plainly visible standing vehicle.”
Upon this court’s review, the record evidence indicates that, The Carney opinion noted that “[t]he operator of a vehicle contrary to the district court’s determination, Zaffer did not that crashes into a vehicle negligently left standing in an breach any duty of care. Tennessee has codified the standard unsuitable stopping place provides the proximate cause of any of care for parking a disabled vehicle by making certain resulting injuries if she could see the standing vehicle in time conduct illegal and by requiring drivers of commercial to avoid a collision.” Id.
vehicles to take certain safety precautions when their vehicles On appeal, the plaintiffs aver that summary judgment is break down. Vehicles left standing on “any highway outside inappropriate in the instant case where facts regarding the of a business or residential district” must be parked off of the foreseeability requirement of proximate causation are in “paved or main-traveled part of the highway” and must be dispute. Specifically, the appellants maintain that Zaffer’s positioned to allow “a clear view of [the vehicle] from a
distance of 200 feet. Tenn. Code Ann. § 55-8-158 (1998) [5] ; negligence was the proximate cause of the tragic accident because, by parking his disabled vehicle on the shoulder of the interstate and not moving it during the five hours preceding the accident, Zaffer could foresee through the [5] exercise of reasonable diligence that injury or loss could or § 55 -8-15 8. Stopping or p arking on ro adways would occur. However, appellants’ reliance upon such a
(a) Upon any highway outside of a business or residential broad definition of foreseeability fails to comport with district, no person shall stop, park, or leave standing any vehicle, No. 02-5314 Kellner, et al. v. Budget Car 9 10 Kellner, et al. v. Budget Car No. 02-5314 and Truck Rental, et al. and Truck Rental, et al. see also Fergus v. Action Cartage & Distrib ., 1990 WL forty-eight hours after the vehicles were first observed. Zaffer 43463, *6 (Tenn. Ct. App. April 17, 1990) (unpublished) had been on the shoulder of the interstate no longer than five (explaining the “main-traveled part of the highway” does not and a half hours according to the appellants’ own expert and include the shoulder). Drivers of disabled commercial he had not abandoned the tractor-trailer. vehicles must place warning devices specified distances However, the district court concluded that Zaffer had behind their vehicles. See Tenn. Code § 55-9-103. While breached his common-law duty of care, predicated on its neither Tennessee law nor federal regulations limit the reading of Maddux v. Bush , No. 86-183-II, 1987 WL 4845 amount of time a disabled commercial vehicle may remain on (Tenn. Ct. App. May 27, 1987) (unpublished). In Maddux , the side of a roadway, Tennessee statute permits vehicles to the court discussed the common law standard of care for a be towed only after they have been immobile or unattended
motorist who stops a vehicle in the road . Maddux opined for at least twelve hours. See Tenn. Code § 55-16-111 (“[A] that it was not necessarily negligent to temporarily stop a vehicle may not be towed without authorization by the owner vehicle on a road for a legitimate purpose, but the driver had of the vehicle until twelve (12) hours have passed since it was the duty to select a suitable stopping place and to give first observed to be immobile or unattended unless such adequate warning to other motorists when necessary. vehicle is creating a hazard.”).
According to Maddux , the suitability of a stopping place The district court found that none of the defendants depended on a number of factors, including whether the breached a statutory or regulatory duty of care owed to the vehicle was reasonably capable of being moved to a safer plaintiffs. The evidence disclosed that Zaffer did not violate location. any of Tennessee’s traffic provisions relating to disabled In the instant case, the district court found a genuine issue vehicles. Additional testimony by the Tennessee Highway
existed with regard to whether Zaffer could have moved his Patrol also indicated that, as a practice, they do not remove rig to a safer location. However, this Court is persuaded abandoned vehicles from the shoulder of the interstate until
otherwise and concludes that defendants’ actions did not result in the breach of a duty of care. The question of whether a vehicle can reasonably be moved to a safer location should
whether attended or unattended, upon the paved or main-traveled be asked when, as was the case in Maddux , the vehicle has part of the highway when it is practicable to stop, park or so been parked in a dangerous location such as in the roadway. leave such vehicle off such part of the highway, but in every The rule that gives rise to this question states that “a driver event an unobstructed width o f the highway opposite a standing should not stop his vehicle in a dangerous place when it can vehicle of not less than eighteen feet (18') shall be left for the free passage of other vehicles, and a clear view of such stopped be moved to safer one.” Id. at *3 ( citing Barr v. Charley , 387 vehicles shall be available from a distance of two hundred feet
S.W.2d 614, 616 (Tenn. 1954) (car with flat tire was left (200') in each direc tion up on suc h highway. parked partially in roadway at night)). [6] Consequently, Zaffer (b)(1) This section shall not apply to the driver of any vehicle which is disabled while on the paved or main-traveled portion of a highway in such manner and to such extent that it is impo ssible [6] to avoid stopping and temporarily leaving such d isabled vehicle See also Carr v . Ozburn-Hessey Storage Co. , 1996 WL 383295 in such position. (Tenn. Ct. Ap p. July 1 0, 19 96) (unpublished), in which the State appellate
Tenn. Code § 55-8-158. court dismissed a c ase similar to the o ne at bar, noting: No. 02-5314 Kellner, et al. v. Budget Car 11 12 Kellner, et al. v. Budget Car No. 02-5314
and Truck Rental, et al. and Truck Rental, et al. did not breach his common-law duty of care pursuant to which the negligence had resulted in harm; and (3) the harm Maddux when he parked his rig completely off the travel giving rise to the action could have reasonably been foreseen lanes, in a highly visible position, and placed warning devices or anticipated by a person of ordinary intelligence and behind his tractor-trailer in compliance with state regulations. prudence.” McClenhan v. Cooley , 806 S.W.2d at 775. See
also Lowery v. Franks , 1997 WL 566114 (Tenn. Ct. App. A breach of defendants’ duty of care is an essential element Sept. 10, 1997) (unpublished) at *5. “[P]roximate causation of the Kellners’ claim in this negligence action. Summary is a jury question unless the uncontroverted facts and judgment is appropriate when an essential element of inferences to be drawn from them make it so clear that all negligence is missing. Doe, 845 S.W.2d at 183. In this case, reasonable persons must agree on the proper outcome.” Id. the Kellners presented no proof as to how the defendants See also Waste Mgmt. Inc. of Tennessee v. South Cent. Bell breached their duty to maintain proper clearance on the travel
Tel. Co. , 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997) lanes of the interstate when parking their disabled vehicle. In (discussing proximate cause as a policy decision by the failing to do so, the Kellners have failed to prove an essential judiciary to deny liability for otherwise actionable conduct by element of their negligence claim and cannot demonstrate a requiring courts to define the boundary of legal liability using prima facie case of negligence. Consequently, this court mixed considerations of logic, common sense, justice, policy, concludes that, as a matter of law, defendants did not breach and precedent). any statutory or common-law duty.
The appellants rely upon the discussion of proximate cause Moreover, consonant with the district court’s and foreseeability in Goodermote v. State of Tennessee , 856 determination, defendants’ actions were not the proximate S.W.2d 715 (Tenn. Ct. App. 1993) for support of the cause of the plaintiffs’ injuries. To sustain proximate cause, proposition that the district court erred in applying the Carney a plaintiff must prove “(1) the tortfeasor’s conduct must have
test to the present case. Such reliance is, however, misplaced. been a ‘substantial factor’ in bringing about the harm being Goodermote involved a single-car accident in which the complained of; and (2) there is no rule or policy that should vehicle veered off the highway and rolled down an relieve the wrongdoer from liability because of the manner in embankment, injuring the plaintiff. In that case, the court
concluded that the State’s failure to install safety features along the highway was the proximate cause of plaintiff’s injury because the State should have reasonably foreseen that
It is the op inion o f this court that the undisputed facts establish a driver could leave the roadway and sustain injuries as a that Ms. Carr's negligence was gre ater than that of M r. Guffy. result of an omitted safety feature. [7] The court concluded that: No reasonable jury could find that Mr. Guffy, who drove a heavily loade d truck approxim ately twenty to twenty-five miles per hour on an uphill slope from an almost com plete stop, was more negligent than Ms. Carr, who failed to notice a fully lit tractor-trailer on a familiar, unobstructed stretch of highway in [7] clear weather until it was too late to avoid crashing into it. The The facts pro ving foreseeability included proof that industry evidence that Ms. Carr's negligence was equal to or greater than standards had called for installation of the safety bars omitted by the State, that of Mr. Guffy is overwhelming. Reasonable minds could not proof that the State’s own plans fo r construction of the highway in differ as to the legal conclusions that must be drawn. Therefore, question called for the safety barriers, and proof that the State had notice the issue of apportionment of fault was properly withdrawn from of six accidents at the same location during the three years preceding the the jury and determined by the court as a matter of law. specific incident in Go ode rmo te .
No. 02-5314 Kellner, et al. v. Budget Car 13 14 Kellner, et al. v. Budget Car No. 02-5314 and Truck Rental, et al. and Truck Rental, et al. [T]he plaintiff is not required to show that the State could The essence of the rule as to independent intervening foresee the specific facts of the accident before plaintiff cause is whether the subsequent successive acts and can recover . . . . It was necessary only that the plaintiff injuries were probable and therefore to be anticipated. . . . establish that the State could have foreseen the general Our Supreme Court has explained that the test of liability manner in which the injury or loss occurred . . . There is under the law of intervening cause requires a person to no requirement that a cause, to be regarded as the anticipate or foresee what would normally happen; one proximate cause of an injury, be the sole cause, the last is not required to anticipate and provide against what is act, or the nearest to the injury, provided it is a unusual or unlikely to happen, or that which is only substantial factor in producing the end result . . . . We remotely possible. think that the evidence clearly shows that the negligence
Id. at 180. Pursuant to this standard, the district court of the State in failing to follow its own plans regarding correctly determined it was not foreseeable, within the installing a safety barrier was a substantial factor in meaning of Tennessee law, that Rupe, with an extended producing the injuries which the plaintiff sustained.
unobstructed view of Zaffer’s tractor-trailer, would leave Goodermote , 865 S.W.2d at 72. While the Goodermote court three travel lanes of interstate and strike the rig that was correctly stated the general rule for determining proximate parked completely within the emergency breakdown lane. cause in Tennessee, pursuant to Carney, the State had adopted The appellants have additionally argued that the district a specific rule for determining proximate cause and court erred in applying the Carney test because the foreseeability in claims involving standing vehicles, such as subsequent decision in McIntyre v. Ballentine , 833 S.W.2d 52 the instant case. Carney , 270 S.W.2d at 63-64.
(Tenn. 1992), altered Tennessee negligence law by replacing Appellants have further contended that since Zaffer could contributory negligence with a system of comparative fault. foresee the possibility that a car would leave its lane and Yet, as the Tennessee Supreme Court has emphasized, “the strike his rig then his actions were the proximate cause of the question is: assuming that both plaintiff and defendant have accident. Appellants’ broadly construed notion of been found guilty of negligent conduct that proximately foreseeability leads, however, to logical absurdities and fails caused the injuries, was the fault attributable to plaintiff to comport with Tennessee judicial precedent. Thus, under equal to or greater than the fault attributable to the the appellants’ scheme a driver legally traveling in her own defendant .” Eaton v. McLain , 891 S.W.2d 587, 590 (Tenn. lane, who is hit by another vehicle that crossed into that 1994). Because this court has determined that the defendants’ driver’s lane, could be held liable for negligence because it actions were not negligent, the issue of comparative fault is was foreseeable that vehicles leave their lanes of traffic. inapplicable.
Tennessee precedent construes foreseeability more Moreover, in light of Eaton’s directive, it is important to narrowly than plaintiffs suggest. In Underwood v. note that while the district court failed to consider Waterslides of Mid-America , 823 S.W.2d 171, 180 (Tenn. Ct. comparative negligence in its determination, it did not need App. 1991), the court discussed foreseeability in the context to do so because the district court did not conclude that Zaffer of a superseding, intervening cause: was “guilty of negligent conduct that proximately caused the
injuries.” Id. Instead it only concluded that a fair-minded No. 02-5314 Kellner, et al. v. Budget Car 15 and Truck Rental, et al. jury could have found that Zaffer’s rig was reasonably capable of being moved to a safer location. This was a finding of a possible breach of duty and not a finding of proximate cause. Consequently, under Eaton , a comparative negligence analysis was not legally necessary to the district court’s grant of summary judgment.
In light of the aforementioned, this Court concludes that the defendants’ actions did not give rise to a breach of a duty of care and that as a matter of law Rupe’s actions provided the proximate cause of plaintiffs’ losses and, therefore, affirms the district court’s grant of summary judgment.
