Opinion

Larry Niedergeses v. Giles County, Tennessee

Court
Court of Appeals of Tennessee
Filed
Jul 5, 2001
Status
Published
On the bench
Judge William B. Cain
Cited by
0 cases
Authority
More cited than 30.0%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 7, 2000 Session

LARRY NIEDERGESES, ET AL. v. GILES COUNTY, TENNESSEE

Appeal from the Circuit Court for Giles County

No. 9862 Robert L. Holloway, Jr., Judge

No. M2000-00428-COA-R3-CV - Filed July 5, 2001

This case presents a tragic set of facts involving an automobile accident which occurred in Giles

County on May 8 or 9, 1997, sometime between 11:15 p.m. and 12:15 a.m. Michael Niedergeses

died as a result of this accident. His parents, Larry Niedergeses and Roberta Niedergeses, instigated

this suit against Giles County alleging that the county’s negligence in failing to maintain the bridge

signage caused their son’s accident and resulting death. The case was tried non-jury in the Circuit

Court of Giles County. That court found Mr. Niedergeses fifty percent at fault and Giles County fifty

percent at fault. Plaintiffs appeal this ruling asserting that the trial judge was in error and should

have found Giles County more than fifty percent at fault. The appeal presents for review the

question of “whether the evidence preponderated against the trial court’s finding that John Michael

Niedergeses was fifty percent at fault in the May 9, 1997 accident.” We find that the evidence does

not preponderate against the judge’s findings and affirm the trial court’s ruling.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and

WILLIAM C. KOCH , JR., J., joined.

David L. Allen, Lawrenceburg, Tennessee, for the appellants, Larry Niedergeses and Roberta

Niedergeses, next of kin and parents of John Michael Niedergeses.

David J. Sneed, Brentwood, Tennessee, for the appellee, Giles County, Tennessee.

OPINION

As this case was tried non-jury, the appropriate standard of review was enunciated in the case

of Cross v. City of Memphis, 20 S.W.3d 642 (Tenn. 2000). The supreme court in Cross held that

“when reviewing a trial court’s findings of fact, an appellate court must apply the de novo standard

of review contained in Tennessee Rule of Appellate Procedure 13(d).” Id. at 643. In making this

ruling, the supreme court limited the clearly erroneous standard of review enunciated in Wright v.

City of Knoxville, 898 S.W.2d 177 (Tenn. 1995), to jury cases.

At the time of the accident, Mr. Niedergeses was returning home from a date with a young

lady he had been seeing for approximately one month. The testimony was that this was their seventh

date and that for each of the previous six dates Mr. Niedergeses most likely took the same route he

took on the night of his accident. This route was over an extremely narrow country road. The

accident occurred when Mr. Niedergeses collided with the left bridge rail of the Hams Creek Bridge.

The evidence is undisputed that the night of the accident was extremely foggy. There was

testimony that visibility was as little as one car length but no more than forty feet.

The evidence is further undisputed that the bridge which Mr. Niedergeses struck had not been

properly maintained. The left paddle board, used to warn vehicles of the edge of the bridge, was

missing, as was the narrow bridge sign which warned drivers in advance of this bridge. The edge

of the bridge railing had also once been painted yellow, but only slight traces of this paint was left

leaving the visible edge of the bridge rail a grayish brown color. Mr. Niedergeses impacted the left

bridge railing, which contained no paddle board object marker. The evidence further showed that

Mr. Niedergeses was traveling somewhere between 35 and 45 m.p.h. at the time of impact.

As there was no dispute that the bridge sign age was deficient and had been so for many

years, the negligence of Giles County is undisputable. However, the principal question is whether

this negligence was the cause of Mr. Niedergeses’s accident and whether the evidence bears out

Plaintiffs’ assertions that Defendant was more than fifty percent at fault.

As Mr. Niedergeses was traveling alone and there were no witnesses to the accident, any

determination of cause must be extrapolated from testimony of experts analyzing in retrospect the

accident and of lay witnesses as to fog and visibility.

Plaintiffs’ expert in mechanical engineering and accident reconstruction testified in great

detail regarding the amount of damage to the vehicle in order to determine speed at impact. Based

on amount of vehicle damage, he determined the speed at impact to be 35 m.p.h. or less. He,

however, gave little testimony with regard to the actual cause of the accident.

On cross examination, Plaintiffs’ expert admitted that there was no evidence that Mr.

Niedergeses saw, or could see, the right paddle board, which was properly positioned over the right

hand bridge railing. There was no evidence of any braking or hard steering which would indicate

evasive actions to avoid the bridge or steer towards the right paddle board sign. Further, the road

on which Mr. Niedergeses was driving and the bridge were both sixteen feet wide, and Mr.

Niedergeses was twelve feet to the left of the paddle board on the right side of the bridge at the time

of impact, well out of his lane of travel.

Plaintiffs’ second expert, a civil engineer, testified regarding signs and markers on bridges.

However, he admitted that he could not say whether or not the missing paddle board would have

prevented the accident.

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Defendant’s expert, a civil engineer and accident reconstruction expert, testified to a probable

speed of 40 to 45 m.p.h. based on the structural damage to the vehicle. Defendant’s expert further

testified that Mr. Niedergeses had failed to negotiate the curve prior to hitting the bridge and had

been driving off the road on the wrong side of the road for some time. He felt that, even at 30 or 35

m.p.h., Mr. Niedergeses was traveling too fast for visibility, since at 30 m.p.h. perception reaction

time would have been approximately 66 feet. With visibility at a maximum of 40 feet, any signage

would have been irrelevant in preventing the accident, as Mr. Niedergeses would not have had time

to react. He felt that the cause of the accident was Mr. Niedergeses’ failure to see the curve soon

enough to maintain the car in the road, causing him to run off the road just prior to striking the

bridge.

After having the opportunity to listen to all the expert witnesses and their testimony in

person, the trial judge found:

There was very heavy fog. Mr. Niedergeses had driven about six (6) miles over

curvy country road prior to the accident. He approached Hams Creek Bridge from

the north. Hams Creek Road curves to the right approximately two (200) hundred

feet from the bridge, then straightened for approximately forty (40) feet before

entering the bridge. For some reason, almost certainly the heavy fog, Mr.

Niedergeses failed to make the right hand turn in his lane and crossed the unmarked

roadway to the left lane before negotiating the curve. The front left 12 to 14 inches

of his vehicle struck the left concrete bridge abutment. The speed of the vehicle at

the impact was estimated by the Plaintiffs’ expert to be a maximum of 35 mph and

by Defendant’s expert to be in the range of from 35 - 45 mph.

The Plaintiffs allege the accident to have been caused by the signage, or lack

thereof, or lack of maintenance thereof, on and near the bridge. The bridge had three

(3) reflective object markers located near the bridge abutments, two (2) on the

opposite end of the bridge from which Mr. Niedergeses approached, and one (1) near

the right hand bridge abutment from the direction of his approach. The left hand

abutment was not marked with an object marker. There were traces of yellow paint

on the left abutment, but the paint was barely visible and for all practical purposes

the left hand bridge abutment was gray or grayish brown and unmarked. The south

approach to the bridge was marked by a yellow “narrow bridge” warning sign located

approximately two hundred (200) feet from the bridge. This sign, as shown by

Exhibit 41, was in disrepair. The top screw was missing and the sign hung upside

down and black paint or tar covered much of the sign’s surface. There was no

“narrow bridge” sign on the north approach.

...

As Mr. Niedergeses approached the bridge, the first thing he would have seen, if he

could have seen anything at all due to the fog, would have been the narrow bridge

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sign. Again, there was no narrow bridge sign for him to see. Because the road turns

to the right as you approach the bridge, it is logical that the object marker on the left

bridge abutment would have been the object marker in the most direct line of his

lights. This was the object marker that was missing from the bridge.

The fact remains, however, that Mr. Niedergeses failed to negotiate the right

hand turn in his lane. In fact, based on Exhibits 15, 16 and 65, Mr. Niedergeses’ car

must have run off the roadway into the grass prior to striking the bridge. Mr.

Niedergeses was also somewhat familiar with the roadway and had crossed Hams

Creek Bridge several times recently.

The Court finds both the county and Mr. Niedergeses to be at fault. Giles

County was at fault in failing to properly maintain the warning signs and object

markers which at some point in the past the county decided were needed. Mr.

Niedergeses was at fault in failing to maintain his vehicle under control in very foggy

conditions. The Court assigns fifty percent (50%) of the fault to Giles County and

fifty percent (50%) of the fault to John Michael Niedergeses.

The trial judge heard and saw the witnesses for both parties and made a credibility judgment

which is his duty and his prerogative subject only to our review under a standard giving great weight

to the trier of fact who had the opportunity to observe the manner and demeanor of witnesses while

they testified. Doe A. v. Coffee County Board of Education, 925 S.W.2d 534 (Tenn. Ct. App. 1996).

We cannot find that the evidence preponderates against the findings of fact of the trial judge

in this matter. Thus, we affirm the trial court, holding Mr. Niedergeses fifty percent at fault and

Giles County fifty percent at fault.

Costs of appeal are assessed against appellants.

___________________________________

WILLIAM B. CAIN, JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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