The opinion
10/01/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 9, 2024 Session
KERRY CLAY v. CITY OF MEMPHIS SANITATION DIVISION
Appeal from the Circuit Court for Shelby County
No. CT-001488-18 Felicia Corbin Johnson, Judge
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No. W2023-00519-COA-R3-CV
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This suit was filed pursuant to the Tennessee Governmental Tort Liability Act. The
plaintiff was a home improvement contractor replacing a door at a client’s home. He
discarded the old door, which was placed in a garbage truck allegedly owned and operated
by the defendant. The truck’s compacting mechanism was engaged, causing the door to
rise and strike the plaintiff in the head. The plaintiff filed suit and was awarded damages
based on injuries he suffered. The defendant filed this appeal raising several issues.
Because we have determined that the evidence in the record does not preponderate against
the findings of the trial court, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which ANDY D. BENNETT,
J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Joseph M. Fletcher, Memphis, Tennessee, for the appellant, City of Memphis.
John P. Wade, Memphis, Tennessee, for the appellee, Kerry Clay.
MEMORANDUM OPINION1
I. FACTS & PROCEDURAL HISTORY
1
Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
This Court with the concurrence of all judges participating in the case, may affirm, reverse or
modify the actions of the trial court by memorandum opinion when a formal opinion would have
no precedential value. When a case is decided by memorandum opinion it shall be designated
“MEMORANDUM OPINION”, shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.
Mr. Kerry Clay is a home improvement contractor who performs various jobs at
residential properties. On Friday, June 3, 2016, Mr. Clay was hired to replace a door for
Ms. Sandra Bobo at her home located at 4344 Hawkeye Street, Memphis, Tennessee. Mr.
Clay removed the original door from the home and placed it on the street next to Ms.
Bobo’s garbage bin so it would be collected by the City of Memphis Sanitation Division.
Mr. Clay then returned to the home to install a replacement door. He realized that he had
left an alarm sensor that he needed attached to the discarded door and went outside to
retrieve it. As Mr. Clay was removing the sensor from the discarded door, a large truck
arrived to collect the garbage from the property. One of the employees operating the
garbage truck engaged Mr. Clay in conversation about some work he needed performed at
his home. While this was happening, the discarded door was loaded into the compactor of
the garbage truck. The compactor was activated, at which point, the door quickly rose and
struck Mr. Clay in the head.
The individuals operating the truck asked Mr. Clay if he was okay, and Mr. Clay
indicated that he was. He told them they could “[g]o ahead” at which point, the employees
drove away. Mr. Clay returned to the home to finish hanging the door. Ms. Bobo saw a
knot starting to form on Mr. Clay’s head and encouraged him to report the incident to the
City. Mr. Clay and another contractor present at the site drove around the area to try and
find the garbage truck to discuss the knot on Mr. Clay’s head. When they did not locate
the truck, Mr. Clay called the City to report the incident and was told he would need to file
a claim with their claims department. Later that day, Mr. Clay sought medical care at
Regional One Medical Center. Although it is unclear from the record, some medical testing
was completed, and the doctors told Mr. Clay that they did not detect any internal issues at
that time. Mr. Clay initially sought to contact the City to seek compensation for the costs
of that initial visit, but later, he began suffering from intense headaches. One week after
the incident, Mr. Clay filed a complaint form with the City reporting that the incident had
occurred. City representatives told him that someone would contact him regarding the
incident. The City took the report, and while some investigative efforts appear to have
been made, no crew was identified, and the incident was not investigated further. On the
same day, Mr. Clay sought further medical treatment. He was ultimately referred to a
neurologist at the Southern College of Optometry. He began attending doctor’s
appointments regularly to treat issues stemming from the injury.
Mr. Clay later sued the City pursuant to the Tennessee Governmental Tort Liability
Act (“GTLA”). Mr. Clay initially filed the claim in the general sessions court of Shelby
County, Tennessee, on May 25, 2017, for an amount less than $25,000. Later, Mr. Clay
appealed to the trial court, on March 22, 2018. He moved for the amount in controversy
to be increased to $250,000 and the motion was granted. Mr. Clay again moved for the
amount in controversy to be increased to $300,000 in accordance with the limits on
recovery set by the GTLA. This motion was also granted.
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On January 25, 2023, six and one-half years after the incident, Mr. Clay’s case went
to trial. The trial court heard testimony from Mr. Phillip Davis of the City of Memphis
Sanitation Division, Ms. Bobo, and Mr. Clay. It also considered two doctors’ depositions
and several exhibits, including those containing Mr. Clay’s medical records. The two
doctors were deposed regarding Mr. Clay’s treatment and symptoms. Mr. Clay’s medical
records were attached as exhibits to those depositions. Mr. Clay testified as to the
circumstances of the incident and the issues he has suffered since then. Mr. Clay stated
that he was standing on the street speaking with one sanitation worker and had his back to
the truck. He stated that another worker then took the door and that, while he did not see
the man place it into the truck as he was turned around, the other worker must have placed
it in the truck.2 He testified that the compactor was then engaged, forcing the door to
quickly rise up and strike him in the head. He stated that he has trouble remembering
things such as calculations for carpentry projects and even the names of his grandchildren.
Mr. Clay also testified as to the severity of his headaches. He stated that he wakes up with
a headache every day and that the severity differs but if he does not take certain precautions,
such as sleeping upright or wrapping his head at night, that the headache will be more
severe. He also stated that he suffers headaches throughout the day, and that they can be
triggered by light, loud sounds, and smells. He also testified that it has taken an emotional
toll, making him want to “give up” and has also affected his relationship with his longtime
girlfriend. When asked how often he deals with a headache Mr. Clay stated “Every day,
all through the day. I mean, it’s rarely [sic] that I don’t have a headache. Headaches are
always there, they’re just real mild.” His doctors were able to provide some measures to
help control the symptoms, such as visual therapy and various pairs of sunglasses which
filter out light.
Mr. Phillip Davis, whose title is Solid Waste Director, testified regarding efforts to
identify the crew which would have been working with the truck in question on the date of
the injury. He stated that the crew could not be located due to a lack of “timeliness” in
reporting the incident one week after its occurrence. He stated that the City’s route
assignment system at the time consisted of one “scrap of paper” that listed crew members
assigned to a particular truck and route on a given day. These assignments were not
retained for record keeping purposes at the end of a day.
The trial court determined that the City’s general tort immunity pursuant to the
GTLA was removed based on the application of Tennessee Code Annotated section 29-20-
205. This section abrogates a government entity’s immunity where a negligent act or
omission by one of its employees, within the scope of employment, caused injury to a
2
The parties dispute whether Mr. Clay or one of the City employees loaded the door. There was
contradicting testimony provided by Ms. Bobo and Mr. Clay regarding the issue. The trial court deemed
Mr. Clay’s testimony indicating that the City employee loaded the door to be more credible than Ms. Bobo’s
statement that Mr. Clay loaded the door.
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plaintiff. Tenn. Code Ann. § 29-20-205. The City did not argue that any of the exceptional
circumstances listed further in the statute applied so as to block the application of this
statute.
The trial court determined that Mr. Clay was at no fault in the incident, that the
garbage truck was owned and operated by the City, and that both the City and its employees
were negligent so as to justify an award of damages. The trial court calculated $1,690,500
in total damages, comprising awards for past lost earnings, lost earning capacity, future
and past pain and suffering, and past and future loss of enjoyment of life. The trial court
applied the statutory cap applicable to cases brought pursuant to the GTLA and reduced
the award to $300,000. The City filed this appeal April 10, 2023.
II. ISSUES PRESENTED
The City presents a litany of issues for review. The issues presented in this case,
which we have slightly restated, include:
1. Whether the trial court erred in determining Mr. Clay was less than 50 percent at
fault.
2. Whether the trial court erred in ruling that Mr. Clay proved his case by a
preponderance of the evidence.
3. Whether the trial court erred in determining Mr. Clay carried his burden of proof by
a preponderance of the evidence and was entitled to a judgment for the City
employee’s negligent act in engaging a garbage compactor when Mr. Clay was
standing near the back of the truck.
4. Whether the trial court erred in determining Mr. Clay established damages for pain
and suffering, future pain and suffering, loss of earnings, and future loss of earning
capacity.
5. Whether the trial court erred in determining that the unidentified individuals at the
scene of the incident were employees of the City.
6. Whether the court erred in calculating the monetary awards made to Mr. Clay.
7. Whether the trial court erred in denying the City’s motion for involuntary dismissal
pursuant to Tennessee Rule of Civil Procedure 41.02.
8. Whether the trial court erred in admitting the deposition testimony and documentary
evidence of Dr. Pritchard and Dr. Paul Harris, O.D. and whether the medical records
contained in the testimony of Dr. Pritchard were properly authenticated and
admissible as evidence.
9. Whether the trial court erred when it ruled that unidentified employees were acting
in the course and scope of their duties when they loaded oversized construction
material in violation of City of Memphis policy and City of Memphis Code of
Ordinances.
10. If the trial court erred as stated in issue 9, was Mr. Clay guilty of negligence per se
in failing to properly dispose of construction debris as required by the ordinance.
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III. DISCUSSION
The City raises several arguments regarding the factual findings made by the trial
court. This appeal arises from a bench trial of a civil tort action. Thus, the standard of
review in this case is de novo with a presumption of correctness as to the trial court’s factual
findings and those findings will be upheld “unless the preponderance of the evidence is
otherwise.” Tenn. R. App. P. 13(d). We consider those issues properly presented in turn.
(1) Whether the trial court erred in determining Mr. Clay was less than 50 percent at
fault.
The City argues that the trial court erred in assigning 0% of fault to Mr. Clay in its
application of the doctrine of comparative fault. Comparative fault is a theory in tort in
which the fault of a tortfeasor is compared to any fault attributable to the plaintiff. Lewis
v. State, 73 S.W.3d 88, 94 (Tenn. Ct. App. 2001). “[I]n Tennessee, a plaintiff may ‘recover
so long as plaintiff’s fault is less than the combined fault of all tortfeasors.’” Binns v.
Trader Joe’s E., Inc., 690 S.W.3d 241, 249 (Tenn. 2024) (quoting McIntyre v. Balentine,
833 S.W.2d 52, 58 (Tenn. 1992)). In the present case, the trial court determined that Mr.
Clay was 0% at fault for the incident.
Allocation of fault in bench trials is reviewed de novo with a presumption of
correctness unless the evidence preponderates otherwise pursuant to Tennessee Rule of
Appellate Procedure 13(d). See Lindgren v. City of Johnson City, 88 S.W.3d 581, 584
(Tenn. Ct. App. 2002). The City argues that the evidence presented shows that Mr. Clay
was partially at fault for the harm he suffered based on a theory of negligence per se
because he placed the door on the street for collection as normal solid waste. City of
Memphis Code of Ordinances section 9-56-19 requires construction debris to be disposed
of by means other than City garbage collection. The City argues that violation of the
ordinance constituted a negligent act and contributed to any harm suffered by Mr. Clay.3
Negligence per se is a theory commonly used to establish that a party held a duty
and breached that duty. Our Supreme Court has previously explained the doctrine of
negligence per se as follows:
The standard of conduct expected of a reasonable person may be prescribed
in a statute and, consequently, a violation of the statute may be deemed to be
negligence per se. “When a statute provides that under certain circumstances
particular acts shall or shall not be done, it may be interpreted as fixing a
standard of care ... from which it is negligence to deviate.” Prosser and
3
The trial court stated that it did not find Ms. Bobo at fault in this case as the owner of the site and
the debris being disposed of. The City does not address that ruling in its brief.
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Keeton on Torts § 36, p. 220 (5th ed.1984). In order to establish negligence
per se, it must be shown that the statute violated was designed to impose a
duty or prohibit an act for the benefit of a person or the public. It must also
be established that the injured party was within the class of persons that the
statute was meant to protect.
Whaley v. Perkins, 197 S.W.3d 665, 672 (Tenn. 2006) (quoting Cook By and Through
Uithoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 937 (Tenn. 1994) (citations
omitted)). A party asserting negligence per se “must still establish causation in fact, legal
cause, and damages.” Rains v. Bend of the River, 124 S.W.3d 580, 590 (Tenn. Ct. App.
2003) (citations omitted).
The trial court made two findings when determining whether Mr. Clay was partially
at fault. First, the trial court held that the ordinance did not apply to the debris Mr. Clay
disposed of since it did not originate from a commercial site and thus, Mr. Clay was not
guilty of negligence per se. Second, the trial court held that Mr. Clay could not be held at
fault for placing the door at the road regardless of the interpretation of the ordinance. The
trial court determined that the negligent acts of the City and its employees superseded any
negligent act of Mr. Clay. The trial court held that the City employees “negligently failed
to warn [Mr. Clay]” that he was standing in a dangerous area behind the truck when the
compactor was engaged. It also held that the City “was negligent in failing to train or
adequately supervise its employees” to prevent similar incidents. The trial court
determined that the City worker loading the door was the proximate cause of the injury and
superseded any negligent act of Mr. Clay.
The City’s lone argument regarding the assignment of fault pertains to the trial
court’s interpretation of the ordinance. The City does not challenge the trial court’s
alternative finding that any negligent act of Mr. Clay was superseded by the negligent acts
of the City and its employees. Previously, where a trial court has provided alternative bases
for a decision and an appellant has only challenged one of those bases, this court has
affirmed the ruling of the trial court without considering the single issue raised on appeal.
Smith v. Oakwood Subdivision Homeowners Ass’n, Inc., No. W2022-00845-COA-R3-CV,
2023 WL 8599720, at *13 (Tenn. Ct. App. Dec. 12, 2023); Ramos v. Caldwell, No. M2022-
00222-COA-R3-CV, 2023 WL 1776243, at *3 (Tenn. Ct. App. Feb. 6, 2023). Because the
trial court provided two independent bases for its ruling and the City challenged only one
of those on appeal, we affirm the trial court’s decision and do so without consideration of
the issue.
(2) Whether the trial court erred in ruling that Mr. Clay proved his case by a
preponderance of the evidence.
For this issue, the City appears to make a general challenge of the trial court’s ruling
that Mr. Clay had proven his claim by a preponderance of the evidence. The corresponding
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section of the City’s brief contains no arguments as to what evidence weighs against the
trial court’s findings and refers only to those “reasons set forth below.” Tennessee Rule of
Appellant Procedure 27(a)(7)(A) requires that an appellant’s brief contain “contentions of
the appellant with respect to the issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record.” Tenn. R. App. P. 27(a)(7)(A). An issue may be
deemed waived, despite having been specifically raised in a party’s brief, where the brief
does not include an argument satisfying Rule 27(a)(7)(A). See Sneed v. Board of Prof’l
Responsibility, 301 S.W.3d 603, 615 (Tenn. 2010). This Court is not tasked with
researching or constructing a party’s case or arguments. Where a party fails to develop an
argument in support of his or her argument, or merely makes a skeletal argument, the issue
is waived. Sneed, 301 S.W.3d at 615.
This section of the City’s brief makes no argument regarding the issue presented
other than to cite those “reasons set forth below.” Because no proper argument is made,
this issue is merely an assertion and therefore the issue is waived pursuant to Rule
27(a)(7)(A).
(3) Whether the trial court erred in determining Mr. Clay carried his burden of proof
by a preponderance of the evidence and was entitled to a judgment for the City
employee’s negligent act in engaging a garbage compactor when Mr. Clay was
standing near the back of the truck.
The City next argues that the trial court erred in determining that Mr. Clay met his
burden of proof in showing that City employees were negligent in activating the compactor
when Mr. Clay was in the area behind the compactor. This could be interpreted as a
challenge of both the findings that the act of engaging the trash compactor while Mr. Clay
stood behind it was negligence and the failure to warn Mr. Clay was negligence.
As stated above, Tennessee Rule of Appellant Procedure 27(a)(7)(A) requires that
an appellant’s brief contain “contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record.”
Id. An issue may be deemed waived, despite having been specifically raised in a party’s
brief, where the brief does not include an argument satisfying Rule 27(a)(7)(A). Sneed,
301 S.W.3d at 615.
Here, the City has made no argument as to why either of these findings of the trial
court were incorrect. The issues are not expounded on in a designated section in the brief
and are only referenced in the issue statement. There are no citations or facts referenced
asserting how the evidence preponderates against the findings of the trial court. As such,
the appellant has failed to argue this issue in a way that moves it outside of the realm of a
mere assertion. Therefore, the issue is waived.
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(4) Whether the trial court erred in determining Mr. Clay established damages for
pain and suffering, future pain and suffering, loss of earnings, and future loss of
earning capacity.
The City argues that there is a lack of proof regarding the damages awarded by the
trial court to Mr. Clay. The City argues that both the economic and non-economic damages
awarded by the trial court were excessive and unfounded. Because this case was brought
pursuant to the GTLA, a statutory cap on damages applies to cases in which a person suffers
bodily injury or death. Tenn. Code Ann. § 29-20-403(b)(1)(A). That cap, as recognized by
the trial court, is set at $300,000 and the City will be immune from any damages awarded
in excess of the cap. Id.
Pain and suffering damages are a form of non-economic damages which encompass
“the physical and mental discomfort caused by an injury.” Overstreet v. Shoney’s Inc., 4
S.W.3d 694, 715 (Tenn. Ct. App. 1999). These damages include many of the mental and
emotional responses which traditionally accompany pain, including things, “such as,
anguish, distress, fear, humiliation, grief, shame, or worry.” Id. (internal citations
omitted). “The amount of damages is a question of fact.” Lexon Ins. Co. v. Windhaven
Shores, Inc., 601 S.W.3d 332, 341 (Tenn. Ct. App. 2019). Pain and suffering damages “are
not easily quantified and do not lend themselves to easy valuation” and accordingly, these
calculations are “left to the sound discretion of the jury or the judicial finder-of-fact.”
Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 210-11 (Tenn. Ct. App. 2008).
Here, the trial court made its past pain and suffering calculation based on the amount
of time Mr. Clay suffered a headache, on average, per day, for the 6.5-year period between
the injury and the trial. The court set the rate at $100 per hour suffered, and set the time
suffered at 3 hours per day at 365 days per year for the 6.5-year period. This totaled an
amount of $711,750. This total exceeds the GTLA cap on damages of $300,000. Tenn.
Code Ann. § 29-20-403(b)(1)(A). The City claims that the award was arbitrary and an
abuse of discretion as it was, “baseless and clearly excessive” and made “without any
supporting medical proof of the injuries.”
There is evidence contained in the record to support the claim that Mr. Clay has
endured intense pain and suffering after being hit with the door. Mr. Clay testified that he
wakes up with a headache every day. He testified as to a sleeping arrangement intended to
mitigate the pain. He stated that he sleeps sitting up, with a scarf tied around his head and
pain medication by his bed to help mitigate the pain. He also has a great sensitivity to light,
sound, and smells which trigger additional headaches. Further, the depositions of Mr.
Clay’s doctors and the attached exhibits concern the daily pain suffered by Mr. Clay, the
effects the pain has had on his life, and some of the steps taken to mitigate the pain. Mr.
Clay and his longtime girlfriend, Ms. Faust, both testified to the change in Mr. Clay’s
emotional state and the personal issues with which he has had to deal with due to the
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headaches and constant pain. The trial court stated in its final order that it found all of this
proof to be credible and convincing in making its calculation.
The City does not point to any evidence in the record preponderating against the
trial court’s finding. The trial court made findings regarding calculations of Mr. Clay’s
claim for pain and suffering. The trial court also highlighted the testimony, depositions,
and exhibits upon which it made its decision. The City does not raise an alternative
measure of damages or any other authority which would suggest the trial court’s award
was excessive. The City does not argue that the pain and suffering did not occur. The City
does not cite any pain and suffering awards in other cases for comparable injuries that were
lower than the award made by the trial court in this case. The trial court properly applied
the GTLA cap to damages in this case and no one has disputed the applicability of the
GTLA in this matter. The GTLA caps the amount of damages to be recovered against
government entities in tort actions at $300,000. Tenn. Code Ann. § 29-20-403(b)(1)(A).
Here, the evidence does not preponderate against the findings of the trial court
regarding the past pain and suffering of Mr. Clay so as to justify an award of $300,000.
Any damages in excess of $300,000 are pretermitted as they are irrelevant after the
application of the GTLA cap.
(5) Whether the trial court erred in determining that the unidentified individuals at
the scene of the incident were employees of the City.
The City claims that the trial court erred in finding that the individuals present at the
scene of the incident were employees of the City. “To find that evidence preponderates
against a trial court’s finding of fact, we must determine that the evidence supports another
finding ‘with greater convincing effect.’” DeLany v. Kriger, 671 S.W. 3d 548, 553 (Tenn.
Ct. App. 2019) (quoting C-Wood Lumber Co., Inc. v. Wayne Cnty. Bank, 233 S.W.3d 263,
272 (Tenn. Ct. App. 2007)).
The City presents two arguments as to why the evidence preponderates against the
finding that the individuals present at the incident were employees of the City. First, the
City argues that no person testified directly that the truck present at the incident held the
City of Memphis insignia and identification number present on all City trucks so as to
prove that the truck was owned and operated by the City. Second, the City argues that the
individuals were not identified as City sanitation employees as there was no testimony that
they were dressed in the proper uniforms. City sanitation workers are required to wear
specific uniforms when on the job and can be disciplined for not doing so.
A vast amount of circumstantial evidence was provided indicating that the truck
present at the time of the incident was a truck owned and operated by the City. Evidence
was entered showing that the house in question was on a garbage collection route serviced
by the City and that the date of the incident, June 3, 2016, was a collection day for this
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route. Mr. Davis also testified that 4344 Hawkeye was not on a route serviced by a third-
party collector contracting with the City and that it was only serviced by City-owned and
operated trucks. Mr. Davis further stated that any trucks working for a contractor would
be red, blue, or green in color, differing from the City trucks. Mr. Davis also testified that,
to his knowledge, crews contracted with the City will not stop to collect garbage at sites
that are not on their assigned route since they do not get paid to do so. When asked whether
it was more likely than not that the truck present at the incident was one owned and
operated by the City, Mr. Davis stated, “[m]ore likely than not, it was.” Mr. Clay stated
that the truck present at the incident was a tan colored truck with an open rear end and front
attachment for shoveling debris. Mr. Clay said he did not notice any City’s insignias or
markings on the truck, but that he was not looking specifically for those marks as he was
focused on getting the sensor out of the door. Finally, Mr. Clay testified that his home had
been serviced by Memphis City trucks since 1976 and that the truck he saw that day was
the “[s]ame old tan truck” that ran every week. In its ruling, the trial court considered all
the facts and circumstances and determined that the truck was a City of Memphis truck.
We do not find any evidence presented that would establish with greater convincing effect
that the truck at the scene of the incident was not owned and operated by the City. As such,
we will not disturb this finding of the trial court.
As for those individuals present at the incident, the City relies on this Court’s
opinion in Wimmer v. Chattanooga-Hamilton County Hospital Authority d/b/a Erlanger
Health System, 559 S.W.3d 448 (Tenn. Ct. App. 2018). There, this Court determined that
the evidence was too speculative to support a finding that a person was employed by the
defendant hospital. In that case, the only proof of employment was testimony from the
plaintiff that she believed the person was an employee because he was wearing scrubs. Id.
at 458. This Court stated that the record in Wimmer was “devoid of evidence supporting a
finding of removal of immunity pursuant to Tenn. Code Ann. § 29-20-202 or Tenn. Code
Ann. § 29-20-205.” Id. The City claims that the only evidence offered to prove that the
individuals present at the incident were employees of the City was that they were operating
a garbage truck. The City argues this evidence is too speculative to support a finding that
the individuals were employees of the City, and thus that GTLA immunity is not waived.
Here, the trial court determined that there was enough evidence provided by Mr.
Clay to establish that the individuals present at the incident were, more likely than not,
employees of the City. Mr. Clay indicated in his deposition that the individuals were not
wearing uniforms. When Mr. Clay was asked about this testimony in court and whether
individuals on the truck were wearing the pants and shirts described as the uniform of City
sanitation workers he said, “I doubt it . . . I couldn’t tell you yes or no.” However, he also
stated that he did believe the individuals were employees of the City because they were the
ones operating the City’s garbage truck. As stated above, the trial court first determined
that it was more likely than not a City of Memphis truck on the route. The trial court then
determined that because it was a City truck, this imparted credibility to a finding that the
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persons operating the truck were City employees. The circumstances here differ from those
in Wimmer.
In Wimmer, this Court determined the only fact to support a finding that the
individual was an employee of the government entity was that the plaintiff believed the
individual was an employee of the hospital because the individual was wearing scrubs.
Wimmer, 559 S.W.3d at 458. Here, there are additional facts and circumstances which
support the finding that the individuals present were employees of the City. First, the
individuals were operating what was determined to be a City-owned and operated truck.
That indicates that a person riding on the truck would likely be an employee of the City
because they employ crews to operate the trucks. Further, the fact that the City was
scheduled to collect garbage from this specific property on this specific date lends
credibility to the finding that persons at the property for the purpose of collecting garbage
would be employees of the City. Mr. Davis also testified that, to his knowledge, individuals
do not drive around gratuitously collecting garbage, indicating that an individual present
at the incident collecting garbage would only be there on behalf of someone paying them
to do so. The City does not present an alternative theory of who would have been operating
the truck instead of its employees.
Having reviewed the record, we find that there was no evidence contained within
the record supporting alternative findings with greater convincing effect. Therefore, the
evidence presented in the case does not preponderate against the findings that the
individuals were City of Memphis employees and that the truck was owned by the City of
Memphis. Accordingly, we affirm the trial court’s findings that the truck in question was
owned by the City and operated by its employees.
(6) Whether the court erred in calculating the monetary awards made to Mr. Clay.
We have already determined above that the trial court acted properly in awarding
damages to Mr. Clay in excess of the statutory cap to which the government may be held
liable in actions brought pursuant to the GTLA. Tenn. Code Ann. § 29-20-403(b)(A)(1).
Therefore, this issue concerning the damages awarded to the appellee is pretermitted.
(7) Whether the trial court erred in denying the City’s motion for involuntary
dismissal pursuant to Tennessee Rule of Civil Procedure 41.02.
The City next argues that the trial court erred in denying its motion for involuntary
dismissal made pursuant to Tennessee Rule of Civil Procedure 41.02. A motion for
involuntary dismissal is a prejudgment motion made for dismissal of a claim.4 Tenn. R.
4
Rule 41.02(2) motions are typically made at the conclusion of the plaintiff’s proof. Here, the
sole witness for the City testified out of order, prior to any presentation of proof by the plaintiff. Thus,
the motion was not made until after the conclusion of all proof.
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Civ. P. 41.02. A Rule 41.02 motion should be granted where the plaintiff has failed to
present the necessary evidence to prove each element of a claim by the preponderance of
the evidence so as to show a right to relief. Bldg. Materials Corp. v. Britt, 211 S.W.3d
706, 711 (Tenn. 2007). “The standard of review of a trial court’s decision to grant a Rule
41.02 involuntary dismissal is governed by Rule 13(d) of the Tennessee Rules of Appellate
Procedure.” Id. (citing Atkins v. Kirkpatrick, 823 S.W.2d 547, 552 (Tenn. Ct. App. 1991)).
Thus, the standard of review is de novo with a presumption of correctness as to the trial
court’s factual findings “unless the preponderance of the evidence is otherwise.” Tenn. R.
App. P. 13(d).
Here, the City claims that Mr. Clay failed to establish the elements of his GTLA
claim for three reasons. The City argues that (1) Mr. Clay failed to prove that the truck
present on the day of the incident was a garbage truck owned and operated by the City of
Memphis Sanitation Division, (2) that Mr. Clay failed to prove that the individuals present
at the incident were City employees, and (3) that Mr. Clay failed to prove that these
individuals were the persons who loaded the door into the trash compactor and then
engaged the compacting mechanism.
Above, we determined that the evidence did not preponderate against the trial
court’s factual findings that the vehicle present at the incident was a City of Memphis
garbage truck and that the individuals present were employees of the City. Having already
addressed those arguments, we now consider only whether the trial court erred in not
granting the City’s motion for involuntary dismissal solely based on whether there was a
showing that the City employees placed the door into the compactor and subsequently
engaged the mechanism.
The City argues that Mr. Clay has failed to prove by a preponderance of the evidence
that the employees of the City loaded the door into the compactor on the back of the truck
and engaged the compacting mechanism so as to cause the door to eject from the truck and
strike Mr. Clay. Although not discussed in great detail within the brief, it appears that the
City is arguing that Mr. Clay has failed to establish that any City employee committed a
negligent act so as to remove governmental immunity pursuant to Tennessee Code
Annotated § 29-20-205.
The City relies on the testimony of Ms. Bobo to support its argument that the
employees did not load the door into the compactor. Ms. Bobo testified that she did not
witness the incident, but that Mr. Clay told her and her husband what happened when he
returned to the home. When asked if something had happened to Mr. Clay that day Ms.
Bobo testified that, “Yes, [Mr. Clay] put the door in the garbage truck and somehow he got
hit . . . by the door in the back of the truck.” The City argues that Ms. Bobo’s testimony
shows that Mr. Clay, rather than an employee of the City, placed the door into the
compactor. The City argues that failure to prove that a City employee placed the door in
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the compactor was tantamount to failure to prove all the necessary elements of the GTLA
claim.
Mr. Clay testified that he was not the one who loaded the door, but rather a person
who was part of the City garbage collection crew loaded the door and then activated the
compactor without any warning. In its findings, the trial court determined that Mr. Clay’s
testimony on this issue was more credible than Ms. Bobo’s and thus found that a City
employee placed the door into the truck. The trial court also determined that the evidence
favored a finding that the City of Memphis employee activated the compactor, causing the
door to eject and hit Mr. Clay in the head.
The City has failed to provide an alternative set of facts better supported by the
evidence. The only evidence supporting the contention that Mr. Clay placed the door in
the compactor was Ms. Bobo’s testimony. This evidence was contradicted by Mr. Clay’s
testimony that he neither placed the door in the compactor nor directed the City workers to
do so. When asked about Ms. Bobo’s testimony, Mr. Clay denied that he had told her he
placed the door in the compactor. There are several facts contained in the record to support
the trial court’s decision to deem Mr. Clay’s testimony on this issue more credible than
Ms. Bobo’s. First and foremost, Ms. Bobo did not actually witness the incident whereas
Mr. Clay personally experienced the incident. Ms. Bobo only testified as to what she
believed Mr. Clay said he experienced when returning to the house and that a knot was
present on his head after he had been struck by the door that was not present when he
arrived that morning. Further, the incident occurred six and one-half years prior to Ms.
Bobo giving her testimony and there is no indication she was ever asked to speak on the
issue before being asked to testify.
The only evidence regarding who activated the compactor comes from the testimony
of Mr. Clay. Mr. Clay stated that he was standing on the street speaking with one sanitation
worker and that at that time another worker came from the other side of the truck and placed
some bags of trash into the truck. He stated that the worker then took the door, which was
propped against his leg. Although he did not see the worker place the door into the truck
because his back was turned, he believed that was what had happened. It was logical of
Mr. Clay to presume that the person who engaged the compactor would have been one of
the City workers as they were responsible for operating it, and the City offered no
alternative. There is nothing in the record to suggest that an individual other than the City
employee engaged the compactor. Thus, the weight of the evidence does not suggest that
the trial court erred in making its factual findings.
Further, in its final judgment, the trial court stated that even if Mr. Clay had been
the one to place the door into the compactor, that the actions of the employees would have
been a superseding cause of any injury and thus Mr. Clay was not at fault. The trial court
held that the City employees were responsible for operating the truck safely regardless of
whether they loaded the door or allowed Mr. Clay to do so. The trial court also held that
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the City failed to properly train the employees on what type of debris was allowed to be
loaded into the compactor, how to properly load debris, and on the risk of improperly
loaded debris causing injury to bystanders. Even if we concluded that Mr. Clay loaded the
door into the compactor, the trial court’s findings would still be affirmed because the City
has failed to address this alternative basis of ruling provided by the trial court.
Because none of the findings upon which the trial court relied when denying the
motion for involuntary dismissal have been shown to be against the preponderance of the
evidence, we find no error and affirm the denial of the motion for involuntary dismissal.
(8) Whether the trial court erred in admitting the deposition testimony and
documentary evidence of Dr. Pritchard and Dr. Paul Harris, O.D. and whether the
medical records contained in the testimony of Dr. Pritchard were properly
authenticated and admissible as evidence.
The City next argues that the trial court erred in its decision to admit the depositions
of Dr. David Pritchard and Dr. Paul Harris. Because the depositions were purportedly
entered into evidence at the same time, we will take them up in concert. The City argues
that the depositions were not properly admitted into evidence and as such, both the
depositions and any exhibits attached to the depositions, including medical records of Mr.
Clay, were improperly considered by the trial court.
For a party to raise an issue on appeal pertaining to the admissibility of evidence,
the party must have objected to the admission of the evidence in a timely fashion and stated
a specific basis for the objection. Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App.
2007); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999). Tennessee
Rule of Appellate Procedure 36(a) prevents a party from obtaining relief on appeal where
the party “failed to take whatever action was reasonably available to prevent or nullify the
harmful effect of an error.” Tenn. R. App. P. 36(a); Levine, 266 S.W.3d at 440. Thus,
failure “to make an appropriate and timely objection to the admission of evidence in the
trial court prevents a litigant from challenging the admission of the evidence on appeal.”
Levine, 266 S.W.3d at 440 (additional citations omitted). The admissibility of evidence is
an issue within the discretion of the trial court, and those decisions are “overturned on
appeal only when there has been abuse of discretion.” Crotty v. Flora, 676 S.W.3d 589,
607 (Tenn. 2023) (citing Borne v. Celadon Trucking Servs. Inc., 532 S.W.3d 274, 294
(Tenn. 2017)).
Depositions may be entered into evidence in several ways. One method is that a
deposition “may simply be handed to the Judge for his reading if the Judge happens to be
the trier of facts.” Campbell Cnty. Bd. of Educ. v. Brownlee-Kesterson, Inc., 677 S.W.2d
457, 463-64 (Tenn. Ct. App. 1984). In the present case, Mr. Clay’s counsel provided the
depositions to the court clerk prior to the trial. During the trial, Mr. Clay’s counsel asked
in open court for the trial court to state in the record that it had read the depositions.
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Counsel had already provided the depositions and then handed the attached exhibits to the
judge. The trial judge then called for a recess specifically to go into chambers to read the
depositions and exhibits into evidence. All of this occurred in the presence of the City’s
counsel and no objection was raised. The trial court then relied on the depositions when
ruling on the issues. The City indicates that the depositions themselves reserved all
objections to be raised in court but that since they were never presented as evidence the
City was never afforded the opportunity to object. We find this unconvincing. The City
could have raised any issues with the depositions and the attached exhibits when they were
being handed to the trial court or when the trial court judge called a recess to go read the
depositions in chambers. At that point, the trial court could have assessed any issues and
determined whether the depositions and exhibits were admissible.
Further, during its closing statement, counsel for Mr. Clay referenced the
depositions of both Dr. Harris and Dr. Pritchard and discussed some of the injuries,
treatments, and observations made by the doctors. At one point, counsel for Mr. Clay even
stated that there had been no objections made to any of the deposition testimony or any of
the attached exhibits and that all should be considered part of the evidence. At no point
did the City’s counsel object. In the City’s closing statement, counsel stated, “We’re not
really contesting the medical proof[.]” All the medical proof derived from this case would
originate from the depositions and attached exhibits.
There does appear to have been some confusion as these items were not contained
in the original record for this appeal and the record had to be supplemented. The City’s
counsel seems to have believed that only a small summary of the evidence was being
offered for review rather than the entirety of the depositions and their records. Even if that
had been the case, an objection should have been raised. At trial, Mr. Clay’s counsel made
it clear that they were offering a small index to aid in review of the records, not in lieu of
the records. Counsel also made it clear that it intended to move all the depositions and the
attached exhibits into evidence at trial. The trial court was also clear that it intended to rely
on the evidence and intended the evidence be admitted as part of the record.
Even if there had been a misunderstanding about what was being offered as evidence
when the depositions and exhibits were handed to the judge, the City’s counsel should have
still realized what had happened after the reading occurred. When the recess ended, the
trial court judge returned to court and stated that she had reviewed the depositions. This
should have made it obvious that the depositions were being considered as evidence by the
factfinder and that any objection to their admissibility should have been raised. The City’s
counsel failed to do so.
During its ruling, the court again referenced testimony that had been taken by
deposition and indicated that it was going to be considered just as if the testimony came
from a witness in open court. She even mentioned the doctors specifically. There was
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never any objection or any other statement from the City’s counsel pertaining to any issues
existing with the depositions or the exhibits.
Because the City failed to raise any objections as to the admissibility or use of the
depositions and other evidence at issue and was presented with several opportunities to do
so, those objections were waived pursuant to Tenn. R. App. P. 36(a).
(9) Whether the trial court erred when it ruled that unidentified employees were
acting in the course and scope of their duties when they loaded oversized construction
material in violation of City of Memphis policy and City of Memphis Code of
Ordinances.
The City argues that the trial court erred when it ruled that the City’s employees
were acting within the scope of their duties so as to waive immunity under the GTLA.
Tenn. Code. Ann. § 29-20-205. As stated above, an issue may be deemed waived, despite
having been specifically raised in a party’s brief, where the brief does not include an
argument satisfying Tenn. R. App. P. 27(a)(7)(A). Sneed, 301 S.W.3d at 615. The City’s
brief only states this issue in its statement of the issues. There is no corresponding
argument section later in the brief. There is also no reference to this argument made in a
separate section of the brief. Thus, the City has not properly supported this claim with the
necessary arguments and citations needed to make this argument anything more than an
assertion. Therefore, the issue is hereby waived.
(10) If the trial court erred as stated in issue 9, was Mr. Clay guilty of negligence per
se in failing to properly dispose of construction debris as required by the ordinance.
The City finally argues that the employees of the City of Memphis Sanitation
Division were acting outside the scope of their duties since they did not have discretion to
pick up construction debris and that Mr. Clay is guilty of negligence per se. This issue was
expressly conditioned on a finding of error on the issue of whether the employees were
acting within the scope of their duties. We have determined that a full argument was not
made on that issue and thus deemed the argument to be waived. Since we have deemed
that argument to be waived, this issue is pretermitted.
IV. CONCLUSION
Having carefully reviewed the record and the issues raised by the appellant, we find
no error. Therefore, we affirm the ruling of the trial court in its entirety. Costs of this
appeal are taxed to the appellant, City of Memphis Sanitation Division, for which execution
may issue if necessary.
________________________________
CARMA DENNIS MCGEE, JUDGE
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