JEFF HURST v. CITY OF MORRISTOWN

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 15, 2025 Session

JEFF HURST v. CITY OF MORRISTOWN

Appeal from the Circuit Court for Hamblen County

No. 21CV047 William Erwin Phillips, II, Judge

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No. E2024-00779-COA-R3-CV

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This is a Governmental Tort Liability Act (“GTLA”) case, Tennessee Code Annotated

section 29-20-101, et seq., alleging negligent operation of a street sweeper by a city

employee. The trial court denied the city’s claims of immunity and entered judgment after

a nonjury trial, apportioning 51 percent fault to the city’s employee who was driving the

street sweeper and 49 percent fault to the driver of the pickup truck that was involved in a

collision with the sweeper. The city appealed. We affirm.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,

C.J., and KRISTI M. DAVIS, J., joined.

Benjamin K. Lauderback, Knoxville, Tennessee, for the appellant, City of Morristown.

W. Lewis Jenkins, Jr., Dyersburg, Tennessee, and F. Braxton Terry, T. Dillon Parker, and

Gabriel C. Stapleton, Morristown, Tennessee, for the appellee, Jeff Hurst.

OPINION

I. BACKGROUND

Around 10:00 a.m. on March 8, 2021, on four-lane East Morris Boulevard

(“Highway”) in Morristown, Tennessee (“City”), Jeff Kimbrough (“Employee”), was

operating a street sweeper (“Sweeper”) going about five to eight miles per hour (“mph”).

It was the first time the road in question had been swept in 2021. According to Employee,

before he began work that morning he reviewed, cleaned, and confirmed the Sweeper’s

light systems were working. Employee noted that no less than twelve of the lights on the

back of the Sweeper were turned on, including two flashing lights on each of the upper

corners, a strobe light, a LED light bar, two flashing lights on the lower rear bumper, and

two white lights mounted along the bumper. Employee, who had operated the Sweeper for

the City since 2001, had never before been involved in any accident.

As Employee was moving along the Highway during this same time period, Charles

Hurst (“Driver”), 87 years old, suddenly crashed his 2001 Chevrolet S-10 truck into the

rear of the Sweeper. Driver was traveling at approximately 40 mph, the posted speed limit.

No skid marks were left by the truck. Driver suffered a right open femur fracture, as well

as other injuries (broken in multiple segments and moved two or three widths from itself),

right L1 and bilateral L2 transverse process fractures, a broken rib, a separated rib, and

abdominal bleeding. Driver later passed away when he could not overcome the injuries he

sustained in the crash.

Upon Driver’s son arriving on the scene shortly after the accident, Driver declared:

“I don’t know what happened, I hit something, but I never saw a thing. I never saw one

thing.” Driver was transported by ambulance from the site of the accident to the Emergency

Department at Morristown Hamblen Hospital. There, Driver informed the investigating

officer:

I didn’t know I hit it ‘til I’d done hit it. I didn’t see it, I just didn’t see it. I

don’t know. I can’t figure out why I didn’t see him. I hit him and I saw the

windshield broke. I didn’t know what I hit to tell you the truth.

Driver was transferred to the University of Tennessee (“UT”) Medical Center in

Knoxville that same evening because he had “poly trauma” that required a higher level of

care. Dr. Kostas Triantafillou, an orthopedic surgeon noted:

[A]ny time bone comes out through the skin, skin is - or bone is a living

tissue. It’s like a tree, it needs roots to survive, so the more the bone comes

out through the skin, the more you’re pulling the tree out from its roots and

the higher the chance that tree will die.

****

In this case, he had a high grade injury because for the thigh bone to come

out through the, the skin, it has to travel a huge distance to get out through

that skin as opposed, to breaking your shin bone, which is right underneath

the skin and the thigh bone, . . . so even when we repair them, we know a

portion of bone can die and get infected . . . if it doesn’t have blood flow. . .

. So, this is a high grade injury because it’s a broken thigh bone coming out

through the skin and, that alerts us and in future treatment plans that if

something’s not quite going right to have a high suspicion that something

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could be complicated with an infection, for example.

This lawsuit was initially filed by Driver on May 14, 2021. Driver’s son, Jeff Hurst

(“Son”), became the party plaintiff upon Driver’s death.1 Son asserts in this action that the

City was negligent for the following reasons: (1) Employee failed to activate the water jets

or spray bars on the Sweeper, which would have prevented the Sweeper from becoming

obscured to approaching motorists; (2) the Sweeper was not equipped with appropriate

lighting to warn approaching motorists of the Sweeper’s presence and slow speed, as

required by the Manual on Uniform Traffic Control Devices (“MUTCD”) and Tennessee

Code Annotated section 55-8-190;2 and (3) the Sweeper was operating at a slow speed that

violated Tennessee Code Annotated section 55-8-1543 and created a hazardous condition.

At trial, Son’s expert testified that a sweeper creates dust because it pushes air onto

the road surface at “about 250 miles an hour,” which agitates the dirt and grime on the

road. The expert related that it is well known in the street sweeping industry that dust “can

obscure the sweeper.” Employee himself stated immediately after the crash to an

investigating officer and a supervisor that Driver possibly had difficulty in seeing the

Sweeper because it had been “kicking up” a lot of dust. 4 The Sweeper in this case had

seven spray bars mounted under the front bumper with jet nozzles to spray water on the

surface of the street to help prevent dust from “getting airborne” and to reduce the amount

of dust created by the operation of the Sweeper. In this case, however, Employee had not

engaged the spray bars.

A focus at trial was the MUTCD, which provides, in pertinent part, as follows:

Mobile operations shall have appropriate devices on the equipment (that is,

1

On September 28, 2021, a “Suggestion of Death” was filed for Driver that indicated he passed

away on September 22, 2021. A subsequent agreed order was entered on October 12, 2021 that allowed for

the substitution of Son as the plaintiff.

2

Section 55-8-190(c) provides as follows:

(c) Absent noncompliance with this section, operator negligence or an intentional tort by

an operator, operations of a street sweeper in compliance with this section shall not be a

violation of law, and shall not subject the street sweeper to liability for claims for personal

injury, property damage or death.

3

Section 55-8-154. Minimum speed limits.

(a) No person shall drive a motor vehicle at such a slow speed as to impede the normal and

reasonable movement of traffic, except when reduced speed is necessary for safe operation

or in compliance with law.

4

A video excerpt of body camera footage from the scene of the crash captured Employee talking

about the dust created by the Sweeper on the day of the incident and was key evidence underlying the trial

court’s finding that Employee lacked credibility on this point.

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high-intensity rotating, flashing, oscillating, or strobe lights, signs, or special

lighting), or shall use a separate vehicle with appropriate warning devices.

Based upon their arguments at trial, all parties accepted that street sweeping is a “mobile”

operation for the purpose of the MUTCD. The evidence revealed that the Sweeper was not

equipped with “high intensity” lighting. None of the lights on the vehicle constituted

“special lighting” under the MUTCD. It is undisputed that there was no “separate vehicle”

following behind the Sweeper.

On May 3, 2024, the trial court issued a memorandum opinion finding the City liable

because the Sweeper was operated negligently by the Employee and, thus, created a

dangerous condition that contributed to the accident. It found that the City was 51 percent

at fault and the Driver was 49 percent at fault. The court held the negligent acts committed

by the City included: traveling below the minimum speed limit without an exemption

allowing it to lawfully do so pursuant to Tennessee Code Annotated section 55-8-190;

water spray jets not in use that resulted in the Sweeper “kicking up a lot of dust,” which

“likely” obscured the visibility of the Sweeper to approaching motorists; and that the plan

for operation of the Sweeper was flawed because it did not implement the safety

precautions in the MUTCD, i.e., the use of a shadow vehicle equipped with an arrow board

or warning sign and the placement of warning signs along the roadway which MUTCD

states “should” have been used in “typical” situations.

II. ISSUES

The issues presented by the City on appeal are restated as follows:

1. Whether the trial court erred by finding the City breached a duty of care

owed, established by, and pursuant to the MUTCD, and, if so, whether the

breach of that duty was a cause in fact of the accident at issue, and, even if

so, whether the court correctly assigned less than 50 percent of the fault to

the Son pursuant to the doctrine of modified comparative fault?

2. Whether the trial court erred by holding that the decision of the City to

outfit the Sweeper with the lighting it did and by failing to implement

“guidance” recommendations from the MUTCD for mobile operations were

“operational” decisions versus “planning” decisions, thus improperly

denying the City immunity pursuant to the discretionary function exception

under the GTLA as found at Tennessee Code Annotated section 29-20-

205(2)?

3. Whether the trial court erred by finding that the City is not entitled to

immunity under the Public Duty Doctrine despite the Son failing to plead or

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prove a special duty of care was owed Driver by the City through the

operation of the Sweeper as opposed to the general public?

4. Whether the trial court erred by failing to dismiss this case against City

pursuant to Tennessee Code Annotated section 55-8-190, which, the City

submits, specifically excludes liability for the operation of a street sweeper

under the facts established at trial?

5. Whether the trial court erred by failing to grant the City’s Rule 41.02

Motion for involuntary dismissal at the close of Son’s proof or at the close

of all proof on any of the following grounds: that the Son failed to prove

more than 50 percent of the fault should be assigned to the City; that the City

failed to comply with the MUTCD; or that the City was not entitled to

discretionary function immunity under GTLA immunity under the Public

Duty Doctrine and/or immunity pursuant to Tennessee Code Annotated

section 55-8-190?

The issues presented by Son on appeal are as follows:

1. A defense provided by Tennessee Code Annotated section 55-8-190 must

be pleaded or it is waived, and the failure to plead the defense in the present

case resulted in its waiver.

2. Under the “obvious and routine” rule for medical special damages, the trial

court should have awarded as additional damages the medical expenses from

the initial hospital treatment and stay at UT Medical Center: hospital-based

treatment for an open femur fracture is obvious and routine enough to be

compensated without specific expert proof of necessity.

III. STANDARD OF REVIEW

Our review of the trial court’s judgment following a non-jury trial is de novo upon

the record with a presumption of correctness as to the trial court’s findings of fact unless

the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d); Rogers v.

Louisville Land Co., 367 S.W.3d 196, 204 (Tenn. 2012). “In order for the evidence to

preponderate against the trial court’s findings of fact, the evidence must support another

finding of fact with greater convincing effect.” Wood v. Starko, 197 S.W.3d 255, 257

(Tenn. Ct. App. 2006) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W. 291,

296 (Tenn. Ct. App. 2001)). We review the trial court’s conclusions of law de novo with

no presumption of correctness. Hughes v. Metro Gov’t of Nashville & Davidson Cnty., 340

S.W.3d 352, 360 (Tenn. 2011). The trial court’s determination’s regarding witness

credibility are entitled to great weight on appeal and shall not be disturbed absent clear and

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convincing evidence to the contrary. See Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn.

2011); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

Review of a trial court’s ruling on a motion for involuntary dismissal under Rule

41.02(2) of the Tennessee Rules of Civil Procedure is governed by Rule 13(d) of the

Tennessee Rules of Appellate Procedure. Bldg. Materials Corp. v. Britt, 211 S.W.3d 706,

711 (Tenn. 2007). When reviewing a decision on a motion for involuntary dismissal, the

trial court’s factual findings are reviewed de novo with a presumption of correctness.

Barnes v. Barnes, 193 S.W.3d 495, 498 (Tenn. 2006). The court’s legal conclusions are

reviewed de novo with no presumption of correctness. Eberbach v. Eberbach, 535 S.W.3d

467, 473 (Tenn. 2017).

IV. DISCUSSION

A. Negligence

The negligence claims raised by Son require the following elements: “(1) a duty of

care owed by the defendant to the plaintiff; (2) conduct falling below the applicable

standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in

fact; and (5) proximate, or legal cause.” Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.

1993). As noted by the trial court in this case:

If a defendant does owe a plaintiff a duty of care, the trier of fact must answer

whether the defendant exercised reasonable care in light of the

circumstances specific to that case. “[T]he term reasonable care must be

given meaning in relation to the circumstances. Ordinary or reasonable, care

is to be estimated by the risk entailed through probable damages attending

the particular situation and is to be commensurate with the risk of injury.”

[Owings v. Owings, 661 S.W.3d 141,] 146 [(Tenn. Ct. App. 2022)]; quoting

Doe v. Linder Const. Co., Inc., 45 S.W.2d 173, 178 (Tenn. 1992). The

singular fact that an accident or injury occurred does not necessarily mean

that a defendant breached his duty of car or was negligent.

The City raised the affirmative defense of comparative fault, contending that

Driver’s negligent operation of his own vehicle contributed to the crash. The City also

asserts that the evidence preponderates against a finding that a cloud of dust existed at the

scene and contributed to the accident. The City maintains that even if there was a breach

of duty of care owed through the failure to use water jets, the breach did not create dust or

visual obstruction. According to the City, it complied with the specialized lighting

requirements of the MUTCD, meaning it had a lawful right to travel at a reduced speed.

The trial court found at least three acts of negligence by the City, holding as follows:

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Defendant’s negligent operation of the street sweeper created a dangerous

condition which substantially contributed to the accident, and without which

the accident would not have occurred. The sweeper was traveling below the

minimum speed limit, 7 mph on a four-lane highway with a speed limit of 40

mph. The sweeper was excepted from its exemption to travel at a minimum

speed and from liability per Tenn. Code Ann. § 55-8-190(b), as it was not

being operated in compliance with the National Highway Administration’s

MUTCD.5 Per the operator’s own admission, the sweeper was “kicking up a

lot of dust,” which likely obscured the visibility of approaching motorists.

The sweeper was also being operated without implementing those safety

precautions which the MUTCD states “should” be used in “typical”

situations, i.e. the use of a shadow vehicle equipped with an arrow board or

warning sign, and the placement of warning signs along the roadway. The

fact that said safety precautions exist for mobile operation establishes that it

is reasonably foreseeable that an injury may occur if they are not

implemented. Therefore, Defendant’s negligent operation of the street

sweeper was both a cause in fact and legal cause of the injury sustained by

Mr. Hurst.

Employee admitted that the water jets were not engaged on the date of the incident.

At trial, he initially testified that he was not using the water jets on the day of the incident

because it “wasn’t dusty.” However, upon being shown the body camera video showing

him admitting that he was “kicking up a lot of dust,” he acknowledged that it was dusty.

Employee declared:

Mr. Terry: So you indicated that was a big factor — or the reason … the

accident could have happened was because of the dust?

Employee: Yes

The trial court expressly found Employee’s testimony on the dust issue at trial to be non-

credible and found his statement to an officer in the immediate aftermath of the crash to be

important. The evidence supports the determination of the trial court finding that

Employee’s failure to activate the water jets was a negligent act.

As to the next negligent acts, the trial court found that the Sweeper was operated at

5

Section 55-8-190(b) provides as follows:

(b) If operated in compliance with the national highway traffic safety administration

standards, . . . a street sweeper may . . . travel at a speed below the lawful minimum

speed . . . .

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about seven mph or less in a 40 mph speed limit area without sufficiently warning

approaching motorists. As noted by the trial court, mobile operations, Section 6G.02 of the

MUTCD, provides in pertinent part:

Support: Mobile operations also include work activities where workers and

equipment move along the road without stopping, usually at slow speeds.

The advance warning area moves with the work area.

Guidance: When mobile operations are being performed, a shadow vehicle

equipped with an arrow board or a sign should follow the work vehicle,

especially when vehicular traffic speeds or volumes are high. Where feasible,

warning signs should be placed along the roadway and moved periodically

as work progresses.

Under high-volume conditions, consideration should be given to scheduling

mobile operations work during off-peak hours.

If there are mobile operations on a high-speed travel lane of a multi-lane

divided highway, arrow boards should be used.

Standard: Mobile operations shall have appropriate devices on the

equipment (that is, high-intensity rotating, flashing, oscillating, or strobe

lights, signs, or special lighting), or shall use a separate vehicle with

appropriate warning devices.

MUTCD Section 6G.02, 18-22 (emphasis in original).

The trial court found that the Sweeper was not equipped with any high intensity

lights or signs. Additionally, the court observed that no separate vehicle was employed to

warn motorists of the slow-moving Sweeper. As stated by the court, “[a]bsent such

adequate lighting on the equipment in use, a separate vehicle with appropriate warning

devices should be used.” The court also observed that there was nothing about the Highway

“that would render placing warning signs along the roadway unfeasible.” Thus, the court

found that the Sweeper “was not being operated in compliance with the MUTCD.”

The City argues the trial court erred in focusing too greatly on MUTCD “guidance”

or options to support its rulings, rather than the mandatory requirements or “standards” that

do not allow for “discretion” about whether to implement. The City maintains that the

lighting on the Sweeper was consistent with the MUTCD requirements. The trial court

observed, however, that it used the MUTCD not as a standard, but rather as guidance in

determining the foreseeability of danger created by the slowly moving Sweeper. The court

stated:

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[T]he MUTCD mandatory “standards” are not the standard by which this

Court determines whether Defendant’s operation of the street sweeper was

negligent. The question is whether Defendant used reasonable care in its

operation of the sweeper in relation to the circumstances as they existed at

that time and location of the accident.

The trial court thereafter concluded:

To be clear, the Court does not find that the lack of adequate lighting was a

significant contributing factor to the accident, which occurred at

approximately 11:00 a.m. on a sunny and clear March morning. Rather, the

significance of the Court’s finding regarding the lack of adequate lighting

per the MUTCD is that it removes Defendant from the exception to liability,

and the exception to travel below the speed limit provided by Tenn. Code

Ann. § 55-8-190.

We conclude the evidence of record supports the trial court’s finding that the City’s

conduct fell below a reasonable standard of care. As indicated by the trial court, “[t]he fact

that said precautions exist for mobile operations establishes that it is reasonably foreseeable

that an injury may occur if they are not implemented.” The City owed Driver a duty to

exercise reasonable care in its operation of the Sweeper in the circumstances then and there

existing. See generally West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn.

2005) (“If a defendant fails to exercise reasonable care under the circumstances, then he or

she has breached his or her duty to the plaintiffs. The term reasonable care must be given

meaning in relation to the circumstances.”) Cf. Tenn. Code Ann. § 55-8-136. Accordingly,

we find that the evidence supports the trial court’s determination that the negligent

operation of the Sweeper was both a cause in fact and legal cause of Driver’s injury.

As the trial court found in its memorandum opinion, Driver’s negligent operation of

his vehicle “was also a substantial contributing factor to the collision, without which his

injury would not have occurred.” The court specifically held as follows:

Mr. Hurst did not exercise due care, he did not maintain a safe look out, he

did not devote his full time and attention to operating the vehicle, and he did

not observe what was there to be seen. The fact that he did not brake or

otherwise attempt to avoid the collision supports this unavoidable

conclusion. It is indisputably foreseeable that one’s failure to maintain a

proper lookout while operating an automobile may result in accident and

injury. Still, while Mr. Hurst’s inattention cannot be excused, the safety

precautions prescribed by the MUTCD seem to exist to guard against driver

inattention, or to ensure driver attention, especially when “the normal

function of the roadway . . . is suspended[;]” creating a hazardous situation.

MUTCD Section 6A.01, 03. Accordingly, the Court finds that Mr. Hurst is

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49% at fault for the accident, and Defendant is 51% at fault.

Upon our review, we find that a preponderance of the evidence supports the trial court’s

determination as to the negligence of the parties.

B. Immunity

GTLA, Tennessee Code Annotated section 29-20-101, et seq., the statute that effects

a waiver of immunity for certain acts of negligence by local governmental units that would

otherwise have sovereign immunity, states, in relevant part:

Immunity from suit of all governmental entities is removed for injuries

resulting from the negligent operation by any employee of a motor vehicle

or other equipment while in the scope of employment.

Tenn. Code Ann. § 29-20-202(a). As noted by the trial court, “before holding a

governmental entity liable for damages, [a court] must first determine that the employee’s

or employees’ acts were negligent and the proximate cause of plaintiff’s injury, that the

employee or employees acted in the scope of their employment and that none of the

exceptions listed in § 29-20-205 are applicable to the facts before the Court.” Tenn. Code

Ann. § 29-20-310(a). Here, no dispute exists that Employee was operating the “motor

vehicle or other equipment while in the scope of employment.”

The City argues that the trial court erred when it failed to find immunity attached to

the City on any of three separate grounds: 1) The plan put in place by the City and executed

by Employee with regard to street sweeping activities entitles the City to discretionary

function immunity as is described in the GTLA; 2) If discretionary function immunity does

not apply, then the Public Duty Doctrine does and entitles the City to immunity; and/or 3)

The City is immune pursuant to Tennessee Code Annotated section 55-8-190, which waves

liability for the operation of a street sweeper, so long as the operation of it complies with

“the national highway safety manual,” which all parties and the court concede is the

MUTCD. See Russell v. Anderson Co., No. E2010-00189-COA-R3-CV, 2011 WL 486900,

at *2, n.4 (Tenn. Ct. App. Feb. 11, 2011).

Discretionary Function Immunity

To determine whether a governmental entity is entitled to immunity for a

discretionary decision, we apply the “planning-operational test.” Bowers v. City of

Chattanooga, 826 S.W.2d 427, 430 (Tenn. 1992). As noted in Giggers v. Memphis Hous.

Auth., 363 S.W.3d 500, 507 (Tenn. 2012), “[a] governmental entity is immune from suit

for actions involving ‘planning or policy-making.’” Helton v. Knox Cnty., 922 S.W.2d 877,

885 (Tenn. 1996) (quoting Bowers, 826 S.W.2d at 430). “When the act is merely

‘operational,’ the entity is not immune.” Id. The Giggers Court observed as follows:

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In Bowers, we determined that a planning decision usually involves

consideration and debate regarding a particular course of action by those

charged with formulating plans or policies. Bowers, 826 S.W.2d at 431; see

also Helton, 922 S.W.2d at 885. A planning decision frequently requires a

governmental entity to create policies or plans, formulate specifications or

schedules, allocate resources, or determine priorities. Bowers, 826 S.W.2d at

431. Planning or policy-making decisions are not subject to tort liability, and

a review of these decisions requires judicial restraint. Limbaugh [v. Coffee

Med. Ctr.], 59 S.W.3d [73,] 85 [Tenn. 2001].

Operational decisions, however, implement “preexisting laws,

regulations, policies, or standards” that are designed to guide the actions of

the governmental entity. Bowers, 826 S.W.2d at 431. An operational decision

requires that the decision-maker act reasonably when implementing

preexisting policy. Limbaugh, 59 S.W.3d at 85. Unlike a planning or policy-

making decision, an operational decision does not involve the formulation of

new policy.

Giggers, 363 S.W.3d at 507-508.

On the issue of discretionary versus operational, the trial court in the instant case

held as follows:

While Defendant moved the Court to dismiss Plaintiff’s cause of

action on discretionary function immunity, neither Defendant nor Plaintiff

articulated with any specificity, or referred to any facts, as to why the Court

should consider the operation of the sweeper discretionary or operational.

The Court concludes, however, that Defendant’s operation of the street

sweeper was an operational act. It is important to clarify that the Court

considers the implementation of the safety protocols established by the

MUTCD as part and parcel of the operation of the sweeper. Defendant’s

employee(s) made the decision to operate the street sweeper on East Morris

Blvd. beginning at approximately 10:00 a.m. on March 8, 2021. The

sweeper’s operation did not comply with the preexisting laws, regulations,

and standards specifically designed to guide mobile operations in typical

situations.

Upon our review, we find that the record contains no basis upon which to reverse the trial

court’s ruling. The evidence supports the determination of the court that the City is not

entitled to discretionary immunity.

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Public Duty Doctrine

The City asserts entitlement to immunity under the Public Duty Doctrine, which

“provide[s] an additional layer of defense to acts or omissions not immune under the

GTLA.” Matthews v. Pickett Cnty., 996 S.W.2d 162, 165 (Tenn. 1999). It “shields

governmental entities and their employees from ‘suits for injuries that are caused by the …

breach of a duty owed to the public at large.’” Lawson v. Hawkins Cnty., 661 S.W.3d 54,

60 (Tenn. 2023) (quoting Ezell v. Cockrell, 902 S.W.2d 394, 397 (Tenn. 1995)).

The trial court determined that with the express waiver of sovereign immunity in

Tennessee Code Annotated section 29-20-202 for negligent operation of vehicles, “[t]he

General Assembly expressed its clear intent to limit scope of the public duty doctrine by

removing immunity for certain claims,” such as the one before us. The court found that the

doctrine does not apply here because the Employee negligently operated the Sweeper by

not implementing safety protocols under the MUTCD. The court held:

If the Court were to allow the public duty doctrine to trump § 29-20-202, as

Defendant argues, this would nullify the clear intent of the General Assembly

and render its enactment useless and an absurdity. See Lawson v. Maryville

City Schools, 202 WL 7391151, *5 (Tenn. App. 2020). It is important to be

clear: the Court finds that the implementation of the safety protocols set forth

for typical mobile operations in the MUTCD is attendant to, and a necessary

part of, Defendant’s operation of the street sweeper, such that they are one

and the same. Accordingly, the Court finds that the public duty doctrine does

not apply to Plaintiff’s cause of action, particularly in light of the proof

presented at trial.

Under the unique facts of this case, we find that the evidence supports the trial

court’s ruling regarding the inapplicability of the public duty doctrine. This court must

“presume that the General Assembly did not intend to enact a useless statute . . . .” Lee

Med., Inc. v. Beecher, 312 S.W.3d 515, 527 (Tenn. 2010) (quoting Fletcher v. State, 951

S.W.2d 378, 382 (Tenn. 1997)).

Tennessee Code Annotated section 55-8-190(c) Immunity

Section 55-8-190 provides a limited grant of immunity from criminal and civil

liability in subsection (c):

Absent noncompliance with this section, operator negligence or an

intentional tort by an operator, operation of a street sweeper in compliance

with this section shall not be a violation of law, and shall not subject the street

sweeper to liability for claims for personal injury, property damage or death.

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Tenn. Code Ann. § 55-8-190(c).6

A grant of immunity such as the one in section 55-8-190 must be construed “strictly”

and confined “to its ‘express terms.”’ Welch v. Oaktree Health & Rehab. Ctr. LLC, 674

S.W.3d 881, 894 (Tenn. 2023). The trial court observed in its findings that “the significance

of the court’s finding regarding the lack of adequate lighting per the MUTCD is that it

removes Defendant from the exception to liability, and the exception to travel below the

speed limit provided by Tenn. Code Ann. § 55-8-190.” Thus, the finding of negligent acts

precludes the applicability of Tennessee Code Annotated section 55-8-190 in the present

case.

Furthermore, for all the reasons provided above, we find the trial court properly

denied the City’s motion for involuntary dismissal.

As to the issue of damages, the trial court noted as follows:

D. DAMAGES

Our Supreme Court has succinctly stated:

A person who is injured by another’s negligence may recover damages from

the other person for all past, present, and prospective harm. An award of

damages, which is intended to make a plaintiff whole, compensates the

plaintiff for damage or injury caused by a defendant’s wrongful conduct. The

party seeking damages has the burden of proving them.

A plaintiff who is injured by another’s negligence is entitled to recover two

types of damages: economic (or pecuniary) damages and non-economic (or

personal) damages. Economic damages include past medical expenses,

future medical expenses, lost wages, and lost earning potential. A plaintiff

may seek recovery for all economic losses that naturally result from the

defendant’s wrongful conduct.

Non-economic damages include pain and suffering, permanent impairment

and/or disfigurement and loss of enjoyment of life. Non-economic damages

are often highly subjective and are not susceptible to proof by a specific

dollar amount. While there must be some evidence to justify the amount

awarded, plaintiffs are not required to prove the monetary value of non-

economic damages because such injuries are not easily quantified in

6

Sovereign immunity has been waived for negligent operation of motor vehicles, including a street

sweeper vehicle, under Tennessee Code Annotated section 29-20-202(a).

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economic terms. For this reason, the trier of fact is given broad latitude in

fixing the monetary amount of non-economic damages.

Dedmon v. Steelman, 535 S.W.3d 431, 437-38 (Tenn. 2017) (internal

citations and quotations omitted).

1. Medical Expenses

In order to recover past medical expenses, “a plaintiff must prove that

the medical bills paid or accrued because of the defendant’s negligence were

both necessary and reasonable.” Id. at 438 (internal quotations and citations

omitted). Typically, proof of necessity and reasonableness must be

established by expert testimony. A treating physician or physician familiar

with the treatment the plaintiff has received may give an expert opinion

regarding the reasonableness and necessity of the medical bills. Id. Under

certain circumstances, Tenn. Code Ann. § 24-5-113 provides a statutory

mechanism to create a rebuttable presumption that the elements necessary to

recover past medical expenses have been established.

For small claims, subsection (a) of said statute provides for a

rebuttable presumption that medical bills of $4,000 or less that are itemized

and attached to the complaint create a prima facie presumption that the bills

are both necessary and reasonable. Subsection (b) of the same statute sets

forth another procedure to create a rebuttable presumption of the

reasonableness (but not the necessity) of the plaintiff’s medical bills. The

presumption of reasonableness in subsection (b) can apply to medical

expense claims of any size. Id. at 439. Our Supreme Court has observed:

As is apparent from the statutory language, the presumption statute

establishes two different presumptions. Compliance with subsection (a) of

Section 24-5-113 creates a presumption of both necessity and

reasonableness. In contrast, compliance with subsection (b) of Section 24-5-

113 creates a presumption only that the medical bills are reasonable.

Id. (emphasis in original) (citations omitted). Thus, when relying on

subsection (b), a plaintiff must still establish by competent expert testimony

that the medical bills incurred were necessary.

The only evidence Plaintiff introduced at trial regarding Mr. Hurst’s

medical expenses was . . . a previous court filing of October 13, 2023 titled

Plaintiff’s Itemization of Medical Bills Pursuant to Tennessee Code

Annotated § 24-5-113(b). Attached to the court filing . . . is a one-page,

cursory itemization of medical bills purported to have been incurred by Mr.

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Hurst totaling $273,579.79. No medical bills or other medical records were

attached to the exhibit/filing, and none were otherwise introduced into

evidence at trial. Still, it appears upon the exhibit’s face that the itemization

was served upon Defendant at least 90 days prior to trial, and Plaintiff is

entitled to a rebuttable presumption that the itemized medical bills are

reasonable. Even so, Plaintiff still bears the burden of proving that Mr.

Hurst’s medical bills were necessary.

The depositions of Dr. Witherspoon7 and Dr. Triantafillou, two of Mr.

Hurst’s treating physicians, were introduced at trial. The Court’s careful

reading of the depositions reveals that neither doctor reviewed any medical

bills or itemization of medical bills, nor did either doctor offer an opinion

regarding the necessity of any of Mr. Hurst’s medical bills because Plaintiff

did not elicit any testimony about medical expenses during their deposition.

Put simply, there is no expert testimony regarding the necessity of Mr.

Hurst’s medical bills as reflected on the itemization because no expert ever

reviewed the bills or any other tabulation of the expenses. See Holzmer v.

Estate of Walsh, 2023 WL 4836691, *5 (Tenn. App. 2023). A review of the

exhibits introduced during each deposition, and attached thereto, reveals that

neither the itemization nor any actual medical bills were reviewed by the

deponents or made exhibits to the depositions. The Court of Appeals has

recently addressed this very issue, holding:

[E]ven when a plaintiff is entitled to the statutory rebuttable presumption of

reasonableness of medical expenses, there is no presumption regarding the

necessity of the care and expenses described in the bills. Distilling and

applying these principles, we find that the trial court did not abuse its

discretion in excluding Plaintiff’s medical bills because there was no expert

testimony on the necessity of the expenses. It was Plaintiff’s burden to prove

that her medical expenses were necessary.

Id. at *6-7 (emphasis in original). Moreover, in the instant action, there are

no actual medical bills in evidence for the trier of fact to independently

review. Accordingly, the Court excludes Plaintiff’s itemization of medical

bills from consideration. There was no other evidence introduced at trial

regarding any other economic damages sustained by Mr. Hurst. Plaintiff,

therefore, is awarded no economic damages.

Regarding the requisite proof to establish medical expenses, our Supreme Court has

explained, in pertinent part, as follows:

7

Nancy Witherspoon, D.O., was the medical director and attending physician at Life Care Center

of Jefferson City, where Driver resided prior to his death.

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[A] plaintiff must prove that the medical bills paid or accrued because of the

defendant’s negligence were both “necessary and reasonable.” Borner v.

Autry, 284 S.W.3d 216, 218 (Tenn. 2009) (citing 22 Am. Jur. 2d Damages §

166 (2003 & Westlaw 2008); 25 C.J.S. Damages § 259 (2002 & Westlaw

2008)); see West [v. Shelby County Healthcare Corp.], 459 S.W.3d at 44

[(Tenn. 2014)] (“[R]ecoveries for medical expenses in personal injury cases

are limited to those expenses that are ‘reasonable and necessary.’”). “In all

but the most obvious and routine cases, plaintiffs must present competent

expert testimony to meet this burden of proof.” Borner, 284 S.W.3d at 218.

“A physician who is familiar with the extent and nature of the medical

treatment a party has received may give an opinion concerning the necessity

of another physician’s services and the reasonableness of the charges.” Long

v. Mattingly, 797 S.W.2d 889, 893 (Tenn. Ct. App. 1990) (citing Emp’rs. Ins.

of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn. 1975)). “To be qualified

to render these opinions, the physician must first demonstrate (1) knowledge

of the party’s condition, (2) knowledge of the treatment the party received,

(3) knowledge of the customary treatment options for the condition in the

medical community where the treatment was rendered, and (4) knowledge of

the customary charges for the treatment.” Id.

Dedmon, 535 S.W.3d at 438.

In the record before us, the trial court correctly noted that no medical bills or medical

records were attached to Son’s itemization of medical bills. No medical bills or medical

records were introduced into evidence at trial to even allow the trier of fact to independently

review them. Neither doctor deposed in the case reviewed any medical bills or itemization

of medical bills, nor did either physician offer an opinion as to the necessity of the Driver’s

medical bills, as Son did not elicit any testimony about medical expenses in the depositions.

As observed by the trial court, “there is no expert testimony regarding the necessity of Mr.

Hurst’s medical bills as reflected on the itemization because no expert ever reviewed the

bills or any other tabulation of the expenses.” It is too late for Son to now argue for the first

time on appeal that “some of the medical expenses” should be considered. The trial court

did not abuse its discretion in excluding the Driver’s medical bills.

V. CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs

of the appeal assessed against the City, for which execution may issue if necessary.

_________________________________

JOHN W. MCCLARTY, JUDGE

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