Danny J. Phillips v. William T. Mullins

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 11, 2010 Session

DANNY J. PHILLIPS v. WILLIAM T. MULLINS

Appeal from the Circuit Court for Anderson County

No. A8LA0323 Donald R. Elledge, Judge

No. E2009-01930-COA-R3-CV - FILED APRIL 26, 2010

Danny J. Phillips (“Plaintiff”) sued William T. Mullins (“Defendant”) after a truck driven

by Defendant struck and injured Plaintiff who was riding a bicycle. Defendant moved for

summary judgment. After a hearing, the Trial Court entered an order granting Defendant

summary judgment. Plaintiff appeals to this Court. We reverse the grant of summary

judgment finding that there are disputed issues of material fact which preclude summary

judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,

J R., and J OHN W. M CC LARTY, J.J., joined.

Dail R. Cantrell, Clinton, Tennessee, and Harry L. Lillard, Oak Ridge, Tennessee, for the

appellant, Danny J. Phillips.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, William T. Mullins.

OPINION

Background

On February 4, 2008 at approximately 7:01 p.m., Plaintiff was riding a bicycle

traveling west on E. Spring Street in Oliver Springs, Tennessee. Defendant was driving a

Chevrolet S-10 pickup truck also traveling west on E. Spring Street. It was twilight and

weather conditions were wet due to recent rain. Defendant’s truck hit Plaintiff’s bicycle and

Plaintiff suffered injuries, including alleged brain damage, as a result of the accident.

Plaintiff has no recollection of the accident. Plaintiff sued Defendant alleging, among other

things, that Defendant was 100% at fault for the accident. Defendant filed a motion for

summary judgment.

Defendant testified during his deposition that he was traveling 25 miles per

hour as he approached what became the accident scene and that his speed was constant and

steady. He stated that Plaintiff swerved toward Defendant’s truck and was “over towards the

center of the road” and only approximately half a car length away from the truck when

Defendant first saw him. When asked how far half a car length would be in feet, Defendant

stated: “Ten foot.” Defendant testified that when he saw Plaintiff, Defendant swerved his

truck “[t]owards the left” on to the other side of the road. When asked when the truck and

the bicycle came into contact, Defendant replied: “After I served [sic].” Defendant testified

that at the time of contact, Plaintiff’s bicycle was “[o]n the double line.”

John Anthony Sullivan also testified by deposition. Mr. Sullivan testified that

he witnessed the accident. Mr. Sullivan testified that in the past he has been arrested for

“DUI, reckless driving, a couple of assaults.” He further admitted that he also had been

arrested for public intoxication and that he had been convicted of a felony as a habitual motor

offender. Mr. Sullivan admitted that he has served time in jails or prisons in Cookeville,

Roane County, Morgan County, Anderson County, Davidson County, Putnam County, and

Williamson County ….”

Mr. Sullivan described the accident stating:

Well, when I was coming down east on Spring Street there, I saw [Plaintiff]

on the left, I mean, I passed him. And as I went down, probably twenty or

thirty foot, twenty foot behind him, there was a truck coming and it was

driving fairly fast. And I guesstimated - - I don’t know. He was going a lot

faster than I was. I was doing about thirty, thirty-five. And as he passed me,

I thought to myself, this guy’s out of control. He’s, you know - - if he ain’t

careful, he could run over a guy on a bicycle, you know. So I looked in the

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rear view mirror, and he hit him.

When asked about Defendant’s speed, Mr. Sullivan testified: “He was going faster than I

was, is all I know. And he - - I’m going to guesstimate, say, forty, forty-five. I don’t know

if he was going that fast, but he was doing - - you know, I was doing about thirty, thirty-

five.” Mr. Sullivan testified: “Well, the truck came up. [Plaintiff] was riding near the white

line there. He was on his side of the road, and the truck hit him in the back, in the back

wheel.” Mr. Sullivan witnessed the accident through his rear view mirror. When asked, Mr.

Sullivan admitted that the truck blocked his view of Plaintiff’s bicycle briefly.

When asked if he had a Tennessee driver’s license at the time he witnessed the

accident, Mr. Sullivan testified: “No, sir, I did not. That’s the reason I did not go back to the

wreck immediately because I - - you can tell by my record, I’ve been in enough trouble and

I’ve done enough jail time and I’m not interested in doing anymore.” When asked if he

stopped after seeing the accident, Mr. Sullivan stated: “Right then, I didn’t come to a

complete stop. But I stopped, I would say, within thirty foot of that and I said, am I going

back or not. And with my situation, I said, no, I’m not. I continued on.” Mr. Sullivan never

contacted the police to inform them that he witnessed the accident.

Mr. Sullivan testified further in his deposition that he saw Plaintiff at the drug

store approximately four or five weeks after the accident. He stated:

I ran into [Plaintiff] at the Rite Aid, which is a drug store in Oliver Springs

beside Food City, and asked him how he was. You could see he was on a

walker. And I said, well - - and told him that I had witnessed the wreck but I

didn’t come back, and I told him why. And that’s about that, you know.

Mr. Sullivan was asked to view the police report and he testified:

I don’t recall him swerving, sir. I mean - - I mean, into the path of the truck.

I don’t believe he did that. I mean, you know - - …. It was not raining

outside. Well, it had been raining. It was not dark, but it was close. The

lights, I don’t know about - - a fairly well lit road. He had on dark clothes.

And he was transported to the hospital.

Mr. Sullivan also signed an affidavit that stated, in part, that Plaintiff was

riding a blue bicycle at the time of the accident and that a photograph attached to the affidavit

depicted the bicycle that Plaintiff was riding. This photograph depicts a blue bicycle with

damage to the rear wheel.

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Officer Paul Douglas Brown, Jr. was dispatched to the accident scene. He

testified in his deposition that he arrived on the scene “maybe forty-five seconds to a minute”

after the accident and found Plaintiff “laying in the road, halfway off the road, halfway in the

road…” to the left when one is facing west. Officer Brown described the conditions at the

time of the accident stating:

It was dark. It wasn’t real, real dark. It had just turned dark. It happened at

seven o’clock, but it was dark. The street lights were on. It was foggy, but not

real foggy. It was like the fog had just started. The roads were still slick, but

it wasn’t raining at the time.

When asked about the lighting, Officer Brown stated: “The street lights, they were lit. The

road was lit pretty good, but, you know.” Officer Brown further testified that where the

accident occurred there was no street light. When asked specifically about the spot where

the accident occurred, Officer Brown stated: “It was dark.” Officer Brown testified that

Plaintiff was wearing dark colored clothing.

Officer Brown was asked about the bicycle and he testified that as best as he

could remember the bicycle was red and silver, had no reflectors and “had damage on the

front end, like the front wheel and the handle bars ….”

Officer Brown testified that he smelled alcohol on Plaintiff’s breath when he

was speaking to Plaintiff while awaiting the ambulance. When asked how he could tell the

difference between an odor of alcohol on a person’s clothing and an odor of alcohol on a

person’s breath, Officer Brown stated: “When somebody’s speaking to you, you can smell

it. You know, when they’re talking, you can smell it coming out. Yeah, there’s a

difference.”

After a hearing on the motion for summary judgment, the Trial Court entered

its order on August 26, 2009 finding and holding, inter alia:

It appearing to this Court that the plaintiff has no memory of the

accident.

It further appearing to the Court that according to the plaintiff’s counsel

there is a discrepancy between purported witness, John Sullivan and the

defendant in regard to the speed of the defendant’s vehicle being either twenty-

five miles per hour or up to forty miles per hour. It further appearing to the

Court that according to the plaintiff the defendant had consumed prescribed

Oxycontin during the morning of the day of the accident.

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It further appearing to this Court that the purported witness, John

Sullivan passed the plaintiff and then passed the defendant[’]s pickup truck to

the point where the defendant’s pickup truck was between John Sullivan’s

vehicle and the plaintiff’s bicycle. It further appearing to this Court that when

the defendant’s pickup truck got between John Sullivan’s pickup truck and the

plaintiff’s bicycle, John Sullivan lost sight of the plaintiff. It further appearing

to this Court that when the defendant was half a car length away from the

plaintiff which he equated to a distance of ten feet, the plaintiff suddenly

swerved to the left in front of him resulting in a collision. It further appearing

to this Court that after losing sight of the plaintiff John Sullivan next saw the

plaintiff appear out from under the rear of the defendant’s pickup truck

following the collision, the court viewed these facts in a light most favorable

to the non-moving party.

***

Based upon a careful and thorough review of the pleadings, depositions,

[and] answers to interrogatories contained within the record of this Court and

considering that information in a light most favorable to the plaintiff, this

Court finds that although there is a disputed issue of fact concerning the speed

of the defendant’s vehicle and that the defendant had consumed prescription

medication, although no evidence regarding the effect of that medication upon

the defendant’s ability to operate the motor vehicle, and further considering the

weather conditions, the undisputed material facts established that the plaintiff

cannot prove the essential elements of his claim at trial concerning “causation

in fact” and “proximate or legal causation.” This Court finds that the

undisputed material facts reflect that the plaintiff has no memory of this

accident and this Court previously entered an Order prohibiting the plaintiff

from testifying concerning how the accident happened based upon his total

lack of memory of the same. The undisputed material facts further show that

when the defendant’s pickup truck got between John Sullivan’s pickup truck

and the plaintiff’s bicycle, John Sullivan lost sight of the plaintiff and did not

witness the collision. The further undisputed material facts reflect that as the

defendant was a half a car length away from the plaintiff which he equated to

ten feet, the plaintiff suddenly and unexpectedly swerved to the left in front of

him causing the collision. It is further an undisputed material fact that after

John Sullivan lost sight of the plaintiff he next saw the plaintiff come out from

under the rear of the defendant’s pickup truck. Therefore, it is the opinion of

this Court that the plaintiff cannot prove the essential elements of “causation

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in fact” and “proximate or legal cause” and that the trier of fact would be

presented with the only explanation of the collision being from the defendant

that the plaintiff suddenly and unexpectedly swerved to the left in front of him

resulting in the collision.

The Trial Court granted Defendant summary judgment. Plaintiff appeals to this Court.

Discussion

Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)

whether the Trial Court erred in granting Defendant summary judgment; and, 2) whether the

Trial Court erred in denying Plaintiff’s motion to continue the hearing on the motion for

summary judgment.

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

determine whether the requirements of Rule 56 of the Tennessee Rules of Civil

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

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sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

The Trial Court found that there was “no genuine issue of material fact to

support the essential elements of the plaintiff’s claim regarding causation in fact and

proximate or legal causation as a matter of law.” The record on appeal, however, reveals that

there are several disputed issues of material fact which could support the essential elements

of plaintiff’s claim.

For instance, there is a dispute regarding how fast Defendant was traveling.

Defendant testified that he was traveling at a steady and constant speed of 25 miles per hour.

Mr. Sullivan, however, estimated that Defendant was traveling at a speed of 40 or 45 miles

per hour and further stated “I thought to myself, this guy’s out of control.” The speed at

which Defendant was traveling would be material to the issues, among others, of whether

Defendant was reckless, or was negligent, or was obeying traffic laws, or was operating his

vehicle at a speed greater than posted, or was exercising due care.

The record also reveals a dispute regarding whether Defendant was keeping

a proper lookout. The record shows that Defendant testified he did not see Plaintiff until

Plaintiff was only approximately ten feet in front of Defendant’s truck despite the fact that

the road approaching the accident scene was straight for approximately three hundred yards,

Defendant had his truck headlights on, and there were street lights on the roadway. Further,

there is a dispute regarding whether Plaintiff’s bicycle had reflectors or not. Viewing the

evidence and all reasonable inferences from it in the light most favorable to the Plaintiff, as

we must, particularly the Defendant’s own testimony, there is a genuine issue as to why

Defendant did not see Plaintiff at all until Defendant’s truck was only approximately ten feet

away from Plaintiff. The record on appeal also reveals other disputes including where on the

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road Plaintiff’s bicycle was traveling immediately before the accident.

Our Supreme Court has clearly stated: “Although a trial court may conclude

that the plaintiffs’ case is not particularly strong, it is not the role of a trial or appellate court

to weigh the evidence or substitute its judgment for that of the trier of fact.” Martin v.

Norfolk S. Ry. Co., 271 S.W.3d 76, 87 (Tenn. 2008).

As there are genuine issues of material fact in dispute in this case, summary

judgment is not proper. We, therefore, reverse the Trial Court’s August 26, 2009 order

granting summary judgment to Defendant.

Plaintiff also raises an issue regarding whether the Trial Court erred in denying

Plaintiff’s motion to continue the hearing on the motion for summary judgment to allow

Plaintiff to take the statements of three additional fact witnesses. The Trial Court heard

argument on the motion for summary judgment and granted summary judgment and then, as

the Trial Court stated in its order denying the motion to continue, “plaintiff’s counsel orally

requested that the Court reserve ruling on the Motion for Summary Judgment based upon the

Motion for Continuance.” The Trial Court entered its order denying the motion for

continuance on August 26, 2009, the same day that it entered its order granting summary

judgment. As we have reversed the grant of summary judgment, Plaintiff’s motion to

continue is moot. We need discuss this issue no further.

Conclusion

The judgment of the Trial Court is reversed, and this cause is remanded to the

Trial Court for further proceedings. The costs on appeal are assessed against the Appellee,

William T. Mullins.

_________________________________

D. MICHAEL SWINEY, JUDGE

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