Janet Harper v. Keith Churn

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 5, 2001 Session

JANET HARPER, ET AL. v. KEITH D. CHURN, ET AL.

Direct Appeal from the Circuit Court for Davidson County

No. 98C-3354 Hamilton V. Gayden, Jr., Judge

No. M2000-02353-COA-R3-CV - Filed December 10, 2001

This is a personal injury case arising from a vehicular collision. The plaintiffs, the Harpers, and the

defendants, Mr. Churn and Mr. Beard, along with several others, were traveling together in a rented

vehicle at the time of the collision. Mr. Churn was the driver of the vehicle; Mr. Beard was the

pastor of the parties’ church. At trial, the Harpers asserted that Mr. Churn was negligent in his

operation of the vehicle. Additionally, the Harpers claimed that Mr. Beard was vicariously liable

for their injuries, or in the alternative, that Mr. Beard was liable under the theory of negligent

entrustment. The trial court granted Mr. Beard’s motion for a directed verdict, and the jury found

in favor of Mr. Churn. The Harpers appeal both decisions. We affirm the judgment of the trial

court.

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

Remanded

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,

and HOLLY K. LILLARD, J., joined.

Terry R. Clayton, Nashville, Tennessee, for the appellants, Janet Harper and James Harper.

Alan M. Sowell, Nashville, Tennessee, for the appellee, Keith Churn.

Nancy W. Phillips, Nashville, Tennessee, for the appellee, Rodney Beard.

OPINION

In the summer of 1998, a group primarily composed of church leaders from the Living Word

Community Church in Davidson County, Tennessee traveled to Houston, Texas.1 The group went

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The eight people who made the trip to Texas were James Harper, Janet Harp er, Damon H arvey, Keith Churn,

Rodney Beard, Charlene Beard, Allison W alker, and Tolena Starks. Mr. Beard was the pastor of the church. T he others,

except for M r. Harvey, were leaders in the church. Mr. Harvey, Janet Harper’s son, traveled to Houston for personal

matters.

to Houston to meet with leaders of successful churches located in the area. The party hoped to

collect ideas from the Houston churches that they could employ in the Davidson County church.

When the group arrived in Houston, they rented a Chevrolet Suburban to use as

transportation. As the group searched for their hotel, the Suburban entered an intersection and

collided with a tractor trailer. Keith Churn was driving the Suburban at the time of the accident. The

collision caused the Suburban to turn over several times, and Janet Harper suffered several injuries.

Ms. Harper and her husband, James Harper, sued Mr. Churn and Rodney Beard to recover

for her injuries. The Harpers asserted that Mr. Churn was negligent in his operation of the Suburban.

The Harpers sued Mr. Beard under the theories of negligent entrustment and vicarious liability. Mr.

Harper sought compensation for his loss of consortium.

The parties tried the case before a jury on June 26, 27, and 28, 2000. The Harpers asserted

that Mr. Churn was negligent in his operation of the Suburban. Additionally, the Harpers contended

that Mr. Beard was vicariously liable for Mr. Churn’s acts, or in the alternative, was liable under the

theory of negligent entrustment. At the close of the Harpers’ case in chief, the trial court granted Mr.

Beard’s motion for a directed verdict. After the presentation of all the evidence, the jury found in

favor of Mr. Churn. The trial court entered the corresponding judgment, and the Harpers filed a

motion seeking a new trial. The trial court denied the Harpers’ motion and this appeal followed.

The Harpers raise three issues for our review. These issues, as stated by the Harpers, are as

follows:

I. [Whether] the trial court erred by granting a directed verdict to Appellee,

Rodney Beard.

II. [Whether] the jury’s verdict was contrary to the weight of the evidence.

III. [Whether] the trial court erred by allowing counsel for Appellee, Keith

Churn, to cross examine Damon Harvey regarding an incident that

happen[ed] at the parties[’] church two (2) months before the collision, as the

testimony was irrelevant pursuant to Tennessee Rules of Evidence, Rule 401.

We will discuss the issues in reverse order. The Harpers argue that the trial court erred by

permitting Mr. Churn to question Damon Harvey about an incident at the Living Word Community

Church. Over the Harpers’ objection, Mr. Harvey admitted that he “create[d] an incident in church

one day, kick[ed] a lady in the mouth, [and] had to be tackled” by the elders of the church. Further,

Mr. Harvey admitted that Mr. Churn, an elder of the church, was one of the people who took Mr.

Harvey to the hospital after this incident. Following this exchange, Mr. Harvey stated that he

regarded Mr. Churn as an untruthful person.

On direct examination, Mr. Harvey testified that Mr. Churn was not paying attention to his

surroundings at the time of the collision. Additionally, Mr. Harvey testified that the traffic light

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changed from yellow to red immediately prior to the collision. Thus, Mr. Harvey provided testimony

that Mr. Churn ran through a red light when Mr. Churn collided with the tractor trailer.

The Harpers assert that questions regarding the incident at church involving Mr. Harvey were

not relevant under Rule 401 of the Tennessee Rules of Evidence.2 Additionally, the Harpers argue

that the probative value of the evidence is “substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury. . . .” Tenn. R. Evid. 403. Finally, the

Harpers assert that the testimony was not admissible because it was a collateral issue that was used

solely to contradict the witness.

We disagree with the Harpers’ argument. The trial court properly allowed Mr. Churn to

question Mr. Harvey about the incident that took place two months prior to the accident in Houston.

Rule 616 of the Tennessee Rules of Evidence states that “[a] party may offer evidence by cross-

examination, extrinsic evidence, or both, that a witness is biased in favor of or prejudiced against

a party or another witness.” Thus, this rule establishes that evidence of a witness’s possible bias

against a party is relevant for impeachment purposes. Further, this form of impeachment is not

considered a collateral matter, as the rule specifically permits the introduction of extrinsic evidence.

Tenn. R. Evid. 401; State v. Williams, 827 S.W.2d 804, 809 (Tenn. Crim. App. 1991); Neil P.

Cohen et al., Tennessee Law of Evidence § 6.16[3][c] (4th ed. 2000).

In this case, the evidence establishes that Mr. Harvey could have maintained a biased opinion

of Mr. Churn. The evidence illustrates that Mr. Harvey and Mr. Churn have had a previous

encounter that might influence the course of Mr. Harvey’s testimony. As the encounter might have

led Mr. Harvey to be prejudiced against Mr. Churn, it was proper for the jury to hear this testimony.

Therefore, we conclude that the trial court did not err in permitting Mr. Churn’s cross-examination

of Mr. Harvey regarding the incident at the Living Word Community Church.

In the Harpers’ second issue, they assert that the jury verdict was contrary to the weight of

the evidence. Because this appeal results from a jury trial, our review is limited to a determination

of whether there is material evidence to support the jury’s verdict. Tenn. R. App. P. 13 (d);

Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Tenn. 1994). If material evidence

exists to support the jury’s verdict, the corresponding judgment will not be disturbed on appeal.

Reynolds, 887 S.W.2d at 823. Further, on an appeal from a jury verdict, we do not determine the

credibility of witnesses or weigh the evidence. Id.

At trial, the parties offered conflicting testimony regarding the color of the traffic light as Mr.

Churn approached the intersection. Witnesses for Mr. Churn stated that the light was green, while

the Harpers introduced evidence that the traffic light was red. Additionally, witnesses for both

parties offered varying accounts of whether Mr. Churn was driving in a safe manner just prior to the

accident. Finally, by eliciting damaging testimony and utilizing prior inconsistent statements, Mr.

2

Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that

is of consequence to the determinatio n of the action m ore p robable o r less pro bab le than it wo uld be without the

evide nce. T enn. R . Evid. 401 .

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Churn effectively attacked the credibility of several of the Harpers’ witnesses on cross-examination.

When considering the above evidence in addition to the entire record in this cause, we conclude that

material evidence exists to support the jury’s verdict. Therefore, pursuant to our standard of review,

we hold that the trial court did not err in entering the jury verdict in favor of Mr. Churn.

In their remaining issue, the Harpers assert that the trial court erred by directing a verdict in

favor of Mr. Beard. Our review of a trial court’s decision to grant a directed verdict is well-settled.

It is appropriate for a trial court to grant a directed verdict when the evidence is susceptible to only

one conclusion. Alexander v. Armentrout, 24 S.W.3d 267, 271 (Tenn. 2000) (citing Eaton v.

Mclain, 891 S.W.2d 587, 590 (Tenn. 1994); Long v. Mattingly, 797 S.W.2d 889, 892 (Tenn. Ct.

App. 1990)). If reasonable persons could draw conflicting conclusions, the case should go to the

jury. Spann v. Abraham, 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999) (citing Gulf, M. & O.R.R. v.

Underwood, 187 S.W.2d 777, 779 (Tenn. 1945); Pettus v. Hurst, 882 S.W.2d 783, 788 (Tenn. Ct.

App. 1993)). These conclusions, however, cannot be based on speculation, conjecture, or

guesswork. Id. (citing Daniels v. White Consol. Indus. Inc., 692 S.W.2d 422, 425 (Tenn. Ct. App.

1985). When deciding whether a trial court should have granted a directed verdict, we must take

the strongest legitimate view of the evidence in favor of the opponent of the motion. Alexander, 24

S.W.3d at 271. Further, we must allow all reasonable inferences in favor of the opponent of the

motion and disregard all evidence contrary to the opponent’s position. Id.

The Harpers offered two theories as to Mr. Beard’s liability: negligent entrustment and

vicarious liability. We will first address the negligent entrustment claim. Tennessee courts

recognize a cause of action for the negligent entrustment of an automobile to one who is incompetent

to use it. Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 907 (Tenn. 1996); Nichols

v. Atnip, 844 S.W.2d 655, 661 (Tenn. Ct. App. 1992); Rimer v. City of Collegedale, Tenn., 835

S.W.2d 23, 24 (Tenn. Ct. App. 24). In Nichols, this Court listed the four elements of a negligent

entrustment claim. The elements are “(1) an entrustment of a chattel, (2) to a person incompetent

to use it, (3) with knowledge that the person is incompetent, and (4) that is the proximate cause of

injury or damage to another.” Nichols, 844 S.W.2d at 659 (quoting Chiniche v. Smith, 374 So.2d

872, 876 (Ala. 1979)). It is important to note that the person entrusting the vehicle must have the

right to control the vehicle at the time the vehicle is entrusted. Rimer, 835 S.W.2d at 24. Further,

we stated in Rimer that

the liability of an owner . . . is generally imposed only where the owner entrusts the

vehicle to one whose appearance or conduct is such as to indicate his incompetency

or inability to operate the vehicle with care, and that to impose liability in other cases,

where the incompetency of the entrustee is not apparent to the entruster of the vehicle

at the time of the entrustment, it must be affirmatively shown that the entruster had

at that time knowledge of such facts and circumstances relating to the incompetency

of the entrustee to operate the motor vehicle as would charge the entruster with

knowledge of such incompetency.

Id. (quoting 60A C.J.S. Motor Vehicles § 431(1) (1969)).

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In the present case, the Harpers did not establish the first element necessary to maintain a

cause of action under the theory of negligent entrustment. The Harpers failed to offer evidence that

would permit a reasonable inference that Mr. Beard had the right to control the vehicle or that Mr.

Beard entrusted the vehicle to Mr. Churn. The Harpers argue that Mr. Beard’s position as pastor of

the church, coupled with the Harpers’ testimony at trial, establish the first element in a claim for

negligent entrustment. The testimony by Ms. Harper was as follows:

Q: Who made the decision to rent the vehicle you all were riding in, the

Suburban?

A: As far as I know it was the pastor’s decision.

Q: How did Mr. Churn become the driver of the vehicle?

A: When we arrived at the airport in Houston I can recall my husband and I and

a couple of the other people were like away just waiting because the pastor

and Keith Churn went up to make arrangements for the vehicle.

Additionally, Mr. Harper stated the following:

Q: Who made the decision for Mr. Churn to drive on the date of the accident?

A: I suppose I couldn’t definitely say, but he and Pastor Beard was at the counter

where the vehicle was being required so I assume that Pastor Beard made the

suggestion that he be the driver.

Despite taking the strongest legitimate view of the above testimony, we cannot agree that this

evidence establishes that Mr. Beard had the right to control the vehicle or that Mr. Beard entrusted

the vehicle to Mr. Churn.3 Ms. Harper’s testimony regarding the decision to rent the Suburban does

not permit a reasonable inference that Mr. Beard rented the vehicle or that Mr. Beard was in control

of the vehicle. Further, testimony that Mr. Beard and Mr. Churn were at the counter together when

the vehicle was rented fails to provide a reasonable inference that Mr. Beard entrusted Mr. Churn

with the vehicle. The Harpers’ testimony merely provides a route for jury speculation and

guesswork. Accordingly, the Harpers failed to satisfy the first element of negligent entrustment.

Moreover, we note that the Harpers failed to provide sufficient evidence to establish the second and

third elements of negligent entrustment. There is no evidence in the record to establish that Mr.

Churn was incompetent to drive the Suburban. Further, the record fails to indicate that Mr. Beard

had knowledge of any incompetency at the time of the purported entrustment of the vehicle.

Therefore, we conclude that the trial court properly granted Mr. Beard’s motion for a directed verdict

on the negligent entrustment issue.

3

W e note that the Harpers failed to introduce any additional evidence, such as the rental agreement, testimony

by M r. Beard, o r testimony by M r. Churn that wo uld provid e pro of of who rented or controlled the Sub urban.

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The Harpers also argue that Mr. Beard is subject to vicarious liability because of the acts of

Mr. Churn. Vicarious liability is the

imposition of liability on one person for the actionable conduct of another, based

solely on a relationship between the two persons. Indirect or imputed legal

responsibility for acts of another; for example, the liability of an employer for the acts

of an employee, or a principal for torts and contracts of an agent.

Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998) (quoting Black’s Law Dictionary 1566 (6th

ed. 1990)).

In order to establish Mr. Beard’s liability, the Harpers again rely on Mr. Beard’s status as the

church pastor and the above testimony by the Harpers. This evidence fails to permit a reasonable

inference that would establish the vicarious liability of Mr. Beard. The evidence does not indicate

that Mr. Beard and Mr. Churn had an agency or employment relationship that would impose liability

on Mr. Beard for Mr. Churn’s acts. As we stated in our discussion of the negligent entrustment

claim, the Harpers cannot rely on speculation and guesswork to make their case. We find this issue

without merit; therefore, the trial court properly granted Mr. Beard’s motion for a directed verdict.

In addition, the jury found that Mr. Churn was not at fault in the collision. Mr. Beard could

only be liable, under either of the Harpers’ theories, if Mr. Churn were found to be negligent in his

operation of the Suburban. Therefore, assuming arguendo that the trial court erred by granting Mr.

Beard’s motion for a directed verdict, such error would be harmless pursuant to Rule 36(b) of the

Tennessee Rules of Appellate Procedure.4

Accordingly, we affirm the judgment of the trial court. The costs of this appeal are taxed to

the appellants, Ms. Janet Harper and Mr. James Harper, and their surety, for which execution may

issue if necessary.

___________________________________

DAVID R. FARMER, JUDGE

4

“A final judgment from which relief is available and otherwise appropriate shall not be set aside unless,

considering the whole record, error involving a substantial right more probab ly than not affected the judgment or wo uld

result in prejudice to the judicial process.” Tenn. R. App. P. 36 (b).

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