Tennessee Farmers Mutual Insurance Company a/s/o Kenneth L. Couch v. Jackson Madison School System Board of Education

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 14, 2015 Session

TENNESSEE FARMERS MUTUAL INSURANCE COMPANY A/S/O

KENNETH L. COUCH v. JACKSON MADISON SCHOOL SYSTEM

BOARD OF EDUCATION

Appeal from the Circuit Court for Madison County

No. C13114 Kyle Atkins, Judge

________________________________

No. W2014-02218-COA-R3-CV – Filed June 15, 2015

_________________________________

This case arises from a non-contact accident between a John Deere crop sprayer and a school

bus. The sprayer, which is insured by Tennessee Farmers Mutual Insurance Company as

subrogee of the owner, Appellee Kenneth L. Couch, was driven by Mr. Couch‘s employee,

Cameron Martin. The school bus, which is owned by Appellant Jackson Madison School

System Board of Education, was driven by its employee, Lawrence Davis. The trial court

held that Mr. Davis was negligent in failing to appreciate the situation so as to ―take

reasonable action to avoid an accident.‖ We conclude that the evidence preponderates

against the trial court‘s finding of negligence on the part of Mr. Davis. Accordingly, we

reverse the judgment of the trial court and remand for entry of judgment in favor of

Appellant.

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

Reversed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

Jon A. York and Nathan D. Tilly, Jackson, Tennessee, for the appellant, Jackson Madison

School System Board of Education.

Jay G. Bush, Jackson, Tennessee, for the appellee, Kenneth L. Couch.

OPINION

I. Background

On April 26, 2012, Cameron Martin was operating a sprayer owned by Appellee

Kenneth L. Couch and insured by Tennessee Farmers Mutual Insurance Company

(―TFMIC‖).1 Mr. Martin was travelling east on Lower Brownsville Road in Madison County

near the intersection of Westover Road. Lower Brownsville Road is a rural public road

without a painted line demarcating the east and westbound lanes of traffic. The shoulder

along the eastbound lane is narrow due to a ditch and embankment on that side of the road.

The sprayer, which is wider than half the width of Lower Brownsville Road, was

encroaching onto the westbound lane of the road.2 As the sprayer was travelling eastbound,

the school bus, which was owned by Jackson Madison School System Board of Education

(―Appellant,‖ or ―JMSSBE‖) and was driven by JMSSBE‘s employee, Lawrence Davis,

turned onto Lower Brownsville Road and began to travel west.3 The shoulder along the

westbound lane of Lower Brownsville Road is unpaved; however, there is no ditch or

embankment on that side of the road.

The sprayer was able to pass the school bus without contact. However, immediately

after passing the bus, the shoulder gave way, causing the sprayer to veer into the ditch. On

April 26, 2013, TFMIC, as subrogee of Mr. Couch, filed suit against JMSSBE for negligence

on the part of its employee, Mr. Davis. In relevant part, the complaint alleged that:

1

Prior to trial, the parties stipulated that at all times relevant to this action, Mr. Martin was an

employee of Mr. Couch and was acting in the course and scope of his employment.

2

Tennessee Code Annotated Section 55-7-202(a)(1) provides:

No motor vehicle as defined in § 55-1-103 or any trailer or semitrailer, whose width,

including any part of the load, exceeds eight feet (8′) (that is, four feet (4′) on each

side of the center line of the vehicle), or whose height, including any part of the load,

exceeds thirteen and one-half feet (13 1/2′), shall be operated on any highway;

provided, that this section shall not apply to farm tractors or farm machinery

temporarily moving on any highway.

(Emphasis added).

3

The parties also stipulated that Mr. Davis was, at all times relevant to this action, an

employee of JMCSSBE and was acting in the course and scope of his employment.

2

8. Mr. Martin had slowed the sprayer to approximately 15 miles per hour as he

approached Westover Road. As Mr. Martin slowed the sprayer he observed

the [JMSSBE] school bus turning right from Westover onto Lower

Brownsville Road. Mr. Martin attempted to pull the sprayer as far to the right

as possible to allow the school bus to pass.

9. After turning from Westover onto Lower Brownsville Road, the operator of

the [JMSSBE] school bus failed to exercise reasonable care by driving the bus

at a rate of speed excessive under the circumstances and failing to yield and/or

slow and move the bus to the right to allow the sprayer to safely pass.

10. Mr. Martin maneuvered the sprayer into a ditch on the right to avoid a

collision with the school bus which never slowed down or stopped. . . .

Based upon the foregoing averments, TFMIC alleged the following acts of negligence on

the part of Mr. Davis:

a. Negligently failing to use that degree of care and caution in the operation of

his vehicle as was required of a reasonable and prudent person under the same

or similar circumstances at the time and place of the accident;

b. Negligently failing to keep a proper look out for other vehicles.

c. Negligently failing to devote full time and attention to the operation of his

vehicle.

d. Negligently operating his vehicle in a reckless manner.

Although Mr. Martin was not injured, prior to trial, the parties stipulated that Mr. Couch

had suffered $43,239.47 in damage to the sprayer.

On June 13, 2013, JMSSBE filed its answer denying any negligence or liability for the

accident. Specifically, JMSSBE averred that ―[t]he sole or majority of proximate cause of

the injuries Plaintiff allegedly sustained is a result of Plaintiff‘s acts or omission.‖ The case

was tried, without a jury, on October 7, 2014. On October 24, 2014, the trial court entered

judgment in favor of Mr. Couch in the amount of $43,239.47.

II. Issues

JMSSBE appeals. It raises two issues for review as stated in its brief:

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1. Whether [JMSSBE], through the action of its employee, acted negligently

in operating a school bus and actually caused Cameron Martin, an employee of

[TFMIC‘s] insured, to crash a crop sprayer into a ditch.

2. Whether the trial court erred in not allocating any fault to Cameron Martin.

III. Standard of Review

This case was tried without a jury. Accordingly, we review the findings of fact made

by the trial court de novo, with a presumption of correctness unless the preponderance of the

evidence is to the contrary. Tenn. R. App. P. 13(d). The trial court‘s conclusions of law,

however, are reviewed de novo and ―are accorded no presumption of correctness.‖

Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).

Furthermore, when the resolution of an issue in a case depends on the truthfulness of

witnesses, the trial judge, who has had the opportunity to observe the witnesses and their

manner and demeanor while testifying, is in a far better position than this Court to decide

those issues. See Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997);

McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995). The weight, faith, and credit

to be given to any witness‘ testimony lies in the first instance with the trier of fact, and the

credibility accorded will be given great weight by the appellate court. See Whitaker, 957

S.W.2d at 837; McCaleb, 910 S.W.2d at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn.

1997).

IV. Analysis

The plaintiff in an action for negligence, which is generally defined as the failure to

exercise reasonable care, must establish five essential elements: ―(1) a duty of care owed by

defendant to plaintiff; (2) conduct below the applicable standard of care that amounts to a

breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.‖

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 364 (Tenn. 2009) (quoting

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995)).

In its October 24, 2014 order, the trial court made the following relevant findings

concerning negligence:

3. The Court finds that all drivers have a duty to drive with reasonable care, to

maintain a safe speed, and to use reasonable care to avoid an accident by

seeing and being aware of what is in the driver‘s view.

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4. The Court finds the testimony of the independent witness, Myra Davis, to

be credible. Ms. Davis testified that she had been driving behind the spray rig

. . . since turning onto Lower Brownsville Road. Ms. Davis testified that the

spray rig was not speeding. Ms. Davis further testified that the driver of the

spray rig was attempting to get over to the right. This testimony was

corroborated by the photographs in Collective Exhibit 1, specifically

photographs 24, 25, and 32, showing the tire tracks of the spray rig off the

pavement. The school bus video (Exhibit 2) also showed the spray rig was off

the pavement on [the] right side of the road.

5. The Court finds that Ms. Davis testified that the accident happened just a

few seconds after the bus turned onto Lower Brownsville Road. This

testimony was further corroborated by the photographs showing the accident

happening just up from the intersection and from the video on the school bus

camera in Exhibit 2.

6. The Court finds that Ms. Davis further testified that she never saw the bus

try to move over to the right side to avoid the accident. It appears from

reviewing photographs 22, 23, 26, 29, and 32 of Collective Exhibit 1 that there

was space for the bus driver, Mr. Davis, to pull off the road to avoid this

accident. In reviewing the photographs there was space, not only right when

Mr. Davis turned the school bus onto Lower Brownsville Road, but Mr. Davis

had substantially more shoulder than the driver of the spray rig who appeared

to have just one foot or so of space and then a ditch.

7. The Court finds that Mr. Lawrence Davis, the driver of the school bus,

testified that he saw the spray rig as soon as he turned onto Lower Brownsville

Road; however, Mr. Davis never moved the bus over to avoid the accident.

The photographs in Collective Exhibit 1 show that there was more room to

move off the road on Mr. Davis‘ side of the road than on the spray rig‘s side of

the road.

8. The Court finds that the operator of the spray rig, Cameron Martin, testified

that he was traveling down Lower Brownsville Road and saw the school bus

turn from Westover Road onto Lower Brownsville Road. Mr. Martin testified

that he started slowing down and moving over as far as he could onto the right

shoulder. Mr. Martin further testified that he had his right side wheels going

into the ditch and stated that the school bus did not pull over prior to the spray

rig passing. Mr. Martin further testified that he could have stopped the spray

rig completely if he thought that the bus would not stop, but he only had a split

5

second to make a decision.

9. The Court finds that the school bus video (Exhibit 2) shows that the driver

of the school bus did not start slowing down until he was almost to the spray

rig and that Mr. Davis appeared not to appreciate the situation at hand.

Therefore, the court finds that Mr. Davis was negligent in failing to take

reasonable action to avoid an accident under the circumstances that existed at

the time of the accident and that Mr. Davis could have foreseen an accident

happening through the use of reasonable care.

A. Relevant Evidence

At the trial, Mr. Martin testified that the sprayer was run by a ―hydraulic pump, which

pumps hydraulic fluid to each hydraulic motor on each tire.‖ ―[T]he only thing the motor

really does is control the hydraulic pump.‖ The operational mechanism of the sprayer is

important in that, in order to run properly, the sprayer operator must ―throttle the motor

completely wide open.‖ Mr. Martin testified that he could ―control the speed with the

throttle,‖ but that the sprayer has ―an emergency brake . . . that actually controls the back two

tires.‖ When asked how much distance he would need to stop the sprayer when he was

running it at full throttle, Mr. Martin stated that ―[t]o a complete stop, I would say 70, 80

yards . . . .‖ Mr. Martin testified that he was operating the sprayer at ―17, 18 miles-an-hour . .

. . ‖ Concerning the circumstances of the accident, Mr. Martin testified, in relevant part, as

follows:

As I was traveling down the road—like I said, I was heading to Boone

Lane. When I got closer to the end of the road, I had started slowing up to

turn. And I‘m going to say I was probably 70, 80 yards from the turn. The

school bus turned in. And I noticed that, so I got over as far as I could,

common courtesy. And I seen [sic] that he never was going to stop. He just

kept coming. He just kept coming.

And, finally, I felt like I was either going to hit him or I was going to

have to do something to prevent hitting him. So in that case I got over as far as

I could. When I did, the ground gave away, and I hit the ditch.

Mr. Martin opined that he had slowed to seven or eight miles-per-hour by the time he went

off the roadway and that ―[a]s [he] was passing the school bus, [his] wheels were going off

into the ditch. . . .‖ Mr. Martin went on to testify that:

If I would have known that he wasn‘t going to stop ahead of time from then, I

probably could have stopped completely. Still wasn‘t going to be able to pass

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one another in that spot right there. I mean, he turned in, I would think,

obviously faster than you should. I mean, it was just one of those split-second

deals, you know. I had to make up my mind one way or the other, hit the bus

or hit the ditch.

In his direct testimony, Mr. Martin stated that the sole cause of the accident was the

fact that the school bus did not pull off the road:

Q. Is there any way this accident could have been avoided?

A. Yes, sir.

Q. How do you think it could have been avoided?

A. If the school bus could have possibly pulled over.

On cross-examination, however, Mr. Martin testified:

Q. Mr. Martin, if you had brought the crop sprayer to a complete stop as the

bus was approaching, is that another way the accident could have been

avoided?

A. Yes, sir.

Q. Now, how fast were you going when you noticed the bus turning onto

Lower Brownsville Road?

A. When I noticed the bus coming, I‘m going to say 17 to 18 miles-an-hour. I

was coming up to a—to stop.

Q. And I believe you stated that you were probably about 70 or 80 yards from

the intersection when you first noticed the bus?

A. Correct.

Q. And I think you also testified that you need about 70 to 80 yards to come to

a complete stop.

A. Right, if traveling wide open 30 miles-an-hour.

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Q. And you say that you were driving around 17, 18 miles-an-hour?

A. Correct.

Ms. Myra Davis (no relation to Mr. Lawrence Davis) also testified at trial. As set out

in its order, supra, the trial court specifically found that Ms. Davis‘ testimony was credible.

In relevant part, Ms. Davis testified that she was behind the sprayer as it traveled down

Lower Brownsville Road. She stated that, as she and the sprayer approached the end of the

road, the bus turned onto Lower Brownsville Road. ―And the sprayer, he was trying to get

over to let the bus come by, and he got on the shoulder of the road, and he went over into the

ditch. The bus went by, it went on . . . .‖ Ms. Davis further stated that she did not believe the

sprayer was operating at an excessive speed.

Mr. Lawrence Davis, the driver of the school bus, testified that when he turned the bus

onto Lower Brownsville Road, he observed that the ―sprayer was approximately about five or

six houses down the road . . . .‖ The school bus was equipped with three cameras, showing

three different angles. The video from these cameras was admitted at the hearing as Trial

Exhibit 2. Trial Exhibit 2 also contains a GPS recording, showing the bus‘ location and

speed. Mr. Davis testified that, after turning onto Lower Brownsville Road, he accelerated to

approximately sixteen miles per hour. The GPS data indicates that, at the time the sprayer

began to pass the bus, i.e., when the sprayer‘s tire was visible on the video, the bus had

slowed to four miles-per-hour. Immediately after the sprayer passes, the GPS indicates that

the bus came to a complete stop that lasted approximately three to four seconds. After the

sprayer passed, the GPS shows the bus accelerating to one mile-per-hour. The GPS data,

coupled with the video evidence, indicates that Mr. Davis did, in fact, slow the bus to a

gradual stop, but that he did not pull the bus onto the shoulder. It is undisputed that the

sprayer left the road only after it had cleared the bus. Mr. Davis testified that, after the

sprayer went into the ditch, he did not stop the bus, or call for help. Rather, he stated that he

did not stop or call for help ―because [the sprayer] did not make any contact with the bus.‖

Mr. Davis further testified:

Q. Would you agree that the intersection has enough room for a vehicle to pull

off to the side if there‘s a wider vehicle approaching from the opposite lane?

A. Not in particular a school bus. I would say no, sir, it is not.

* * *

Q. You would agree, though, that yielding to a wider agricultural vehicle,

8

that‘s your protocol as a [JMSSBE] bus driver; is that correct?

A. Correct.

* * *

Q. Okay. And you knew that that sprayer was approaching as you turned onto

Lower Brownsville Road; is that correct?

A. That is correct.

On cross-examination, Mr. Davis testified:

Q. Now, when you turned onto Lower Brownsville Road, I believe you

testified that you saw the crop sprayer about five or six houses down the road?

A. Yes, sir.

Q. Did you consider that to be nearby to you?

A. Not at that particular time, no, sir, I did not.

Q. Could you tell what speed the sprayer was operating at?

A. It looked like it was coming at a pretty good rate of speed.

In fact, the video evidence shows the sprayer passing the bus at a considerably greater speed

than the bus is traveling. Mr. Davis testified that it did not look like the sprayer was slowing

down as it approached the bus. On redirect, Mr. Davis clarified that ―the road there is very

narrow. And, like I say, when I pulled in that entrance, I went down a little piece, like I said,

about two or three houses and pulled the bus as far to the right as I could.‖ He was then

asked whether ―there was room anywhere along that road before you met the sprayer where

you could have pulled that bus to the right?‖ He answered: ―As far as my recollection, I did

pull the bus as far to the right as I could have.‖

B. Breach of Duty

From its order, it appears that the trial court primarily focused on the prima facie

elements of duty and breach in reaching its conclusion that Mr. Davis was negligent. In

Paragraph 3 of its order, supra, the court sets out the duty requirement. As discussed in

9

Rowland v. Metropolitan Government of Nashville, No. M2012–00776–COA–R3–CV,

2013 WL 784582 (Tenn. Ct. App. Feb. 28, 2013):

[T]he appropriate standard of care for school bus drivers is not the standard of

care applicable to common carriers. Our Supreme Court has made clear that a

school system does not have the same duty of care as a common carrier, which

must exercise the ―highest practical degree of care.‖ Hawkins Cnty. v. Davis,

216 Tenn. 262, 391 S.W.2d 658, 663 (Tenn.1965). Rather, a school bus driver

has a duty ―to exercise reasonable and ordinary care under the circumstances.‖

Traylor v. Coburn, 597 S.W.2d 319, 321 (Tenn. Ct. App. 1980). When a

school bus is transporting young children, reasonable and ordinary care under

the circumstances ―requires that the driver exercise special care proportionate

to the age of the child and its ability, or lack of ability, to care for itself.‖

Hawkins, 391 S.W.2d at 660.

Id. at *9.

As discussed above, the instant case arose when the sprayer and the bus met on

a narrow road. Tennessee Code Annotated Section 55-8-116 addresses passing

vehicles proceeding in opposite directions. The statute provides:

Drivers of vehicles proceeding in opposite directions shall pass each other to

the right, and upon roadways having width for not more than one (1) line of

traffic in each direction, each driver shall give to the other at least one half

(1/2) of the main-traveled portion of the roadway as nearly as possible.

8 Am. Jur. 2d Automobiles § 817 states, in relevant part, that:

In cases involving meeting at narrow places in a street or road, if one of the

approaching drivers has an opportunity to stop at a wide place in the road

while the other does not, the driver having such an opportunity might be

chargeable with negligence in continuing ahead into the narrow passage.

Findings of negligence have been sustained upon evidence that one or the

other of the vehicles meeting on a narrow road failed to yield half of the

roadway.

As in other cases, the mere possession of the right of way at a point where the

road has been narrowed by obstructions does not entitle a driver to continue

blindly ahead into a collision where he or she can avoid the accident by the

exercise of reasonable care.

10

Id. (footnotes omitted). Likewise, 60A C.J.S. Motor Vehicles § 709 provides:

Vehicles approaching each other from opposite directions must keep to the

right. While this rule is based on custom, exists independently of any statutory

provisions, and applies to vehicles of every character, it is very generally

embodied in statutes or ordinances regulating traffic. Such statutes are

mandatory. Statutes requiring motorists to drive as near as possible to the

right-hand edge of a highway are not intended for the protection of vehicles

proceeding in opposite directions.

Under the rule, the duty of each driver is to allow the other vehicle room for a

clear passage by turning or keeping the vehicle to the right of the center of the

traveled portion of the highway whenever it is practicable to do so. A driver

who is already in such position on the highway should maintain such position

until the other vehicle has passed. A driver who is in the center or on the left-

hand side of the road should turn to the right of the center in ample time to

permit the other vehicle to pass freely without the necessity of slackening its

speed.

Id. (footnotes omitted). ―However, the general rule applies only when the vehicles involved

are of customary dimensions, and the rule is inapplicable in cases where one of the vehicles

is overwide, and this is the sole reason why the vehicles cannot pass on the bridge or

passageway.‖ 60A C.J.S. Motor Vehicles § 714 (citing Yell v. Wooten, 362 P.2d 1102 (Okla.

1961)).

It is undisputed that Mr. Davis pulled the bus to the edge of the pavement. Indeed, the

video evidence clearly shows that the bus is completely to the far right of the westbound lane

of Lower Brownsville Road. We find no precedent that would require Mr. Davis to pull the

bus completely off the roadway into some person‘s yard in order to allow the sprayer to pass.

In fact, here, it was the sprayer that was encroaching into the westbound lane that was

occupied by the bus. In the face of this situation, Mr. Davis (as evidenced by the video from

the bus) slowed the bus to four miles-per-hour. Under these facts, it is difficult to conclude

that Mr. Davis breached a duty concerning roadway safety.

However, even if we assume, arguendo, that Mr. Davis breached a duty, a breach of

duty, alone, will not satisfy the prima facie requirements for a showing of negligence. From

its order, it appears that the trial court did not analyze each of the prima facie elements of

negligence in reaching its conclusion that Mr. Davis was negligent. However, by holding

that Mr. Davis was negligent, the trial court inferentially found that TFMIC had, in fact,

11

proven all of the prima facie requirements of the tort. Kilpatrick v. Bryant, 868 S.W.2d 594,

598 (Tenn. 1993) (―No claim for negligence can succeed in the absence of any one of [the

prima facie] elements.‖). However, after our review of the record, we are particularly

concerned with whether TFMIC has proven the elements of causation in this case.

C. Causation

Cause in fact and proximate causation are questions to be determined by the finder of

fact. Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn.1994). In order to succeed in its

claim, TFMIC would have to show that Mr. Davis‘ alleged failure to avoid the accident (by

slowing down, stopping, or moving the bus from the roadway) was both the cause in fact and

the proximate cause of the accident. See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)

(―Causation [in fact] and proximate cause are distinct elements of negligence, and both must

be proven by the plaintiff by a preponderance of the evidence.‖) (quoting Kilpatrick, 868

S.W.2d at 598). As this Court has explained:

The distinction between cause in fact and proximate, or legal, cause is not

merely an exercise in semantics. The terms are not interchangeable. Although

both cause in fact and proximate, or legal, cause are elements of negligence

that the plaintiff must prove, they are very different concepts. Ridings [v.

Ralph M. Parsons Co.,] 914 S.W.2d [79,] 83 [(Tenn. 1996)]; Kilpatrick v.

Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact refers to the cause

and effect relationship between the defendant‘s tortious conduct and the

plaintiff‘s injury or loss. Thus, cause in fact deals with the ―but for‖

consequences of an act. The defendant‘s conduct is a cause of the event if the

event would not have occurred but for that conduct. Kilpatrick, 868 S.W.2d at

598. In contrast, proximate cause, or legal cause, concerns a determination of

whether legal liability should be imposed where cause in fact has been

established. Id. Proximate or legal cause is a policy decision made by the

legislature or the courts to deny liability for otherwise actionable conduct

based on considerations of logic, common sense, policy, precedent and ―our

more or less inadequately expressed ideas of what justice demands or of what

is administratively possible and convenient.‖ Bain v. Wells, 936 S.W.2d 618,

625 (Tenn. 1997); George v. Alexander, 931 S.W.2d 517, 521 (Tenn. 1996);

Kilpatrick, 868 S.W.2d at 598; Smith v. Gore, 728 S.W.2d 738, 749 (Tenn.

1987).

Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 n.6 (Tenn. 1997).

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17 John A. Day, Donald Capparella, & John Walker Wood, Tennessee Practice Series

Tennessee Law of Comparative Fault §6:3 (2d ed. 2014) contains the following discussion on

cause in fact:

A plaintiff must prove that plaintiff's injury or harm would not have occurred

―but for‖ the defendant‘s negligent conduct. Cause in fact must be proved by

the party bearing the burden of proof by a preponderance of the evidence.

Stated differently, the party with the burden of proof must demonstrate that the

negligence more likely than not caused the injury. As the Supreme Court said

in Lindsey v. Miami Development Corp.:

The plaintiff must introduce evidence which affords a

reasonable basis for the conclusion that it is more likely than not

that the conduct of the defendant was a cause in fact of the

result. A mere possibility of such causation is not enough; and

when the matter remains one of pure speculation or conjecture

or the probabilities are at best evenly balanced, it becomes the

duty of the Court to direct a verdict for the defendant. . . .

The plaintiff is not, however, required to prove the case beyond

a reasonable doubt. The plaintiff need not negative entirely the

possibility that the defendant's conduct was not a cause and it is

enough to introduce evidence from which reasonable persons

may conclude that it is more probable that the event was caused

by the defendant than that it was not . . .

It is important to note that there can be multiple causes of one injury, and there

is no requirement that a cause of an injury ―be the sole cause, the last act, or

the one nearest to the injury.‖ In the words of the court of appeals:

The rule is well established in this State that if an injury occurs

from two causes, both due to the negligence of different persons,

but together constituting an efficient cause, all persons whose

acts contribute to the injury are liable therefor, and the

negligence of one does not excuse the negligence of the other.

Dean Prosser defines the ―but for‖ test as follows: ―The defendant‘s conduct is

a cause of the event if the event would not have occurred but for that conduct;

conversely, the defendant‘s conduct is not a cause of an event, if the event

would have occurred without it.‖

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Id. (footnotes omitted).

On the other hand, proximate cause focuses on ―whether the policy of the law will

extend responsibility for that negligent conduct to the consequences that have occurred.‖

Kilpatrick, 868 S.W.2d at 598. As this Court has stated, ―‗legal responsibility must be limited

to those causes which are so closely connected with the result and are of such significance

that the law is justified in imposing liability.‘‖ Id. (quoting Doe v. Linder Const. Co., Inc.,

845 S.W.2d 173, 181 (Tenn.1992); and Prosser and Keeton, The Law of Torts 264 (5th

ed.1984)). Proximate cause is the means by which courts determine where that boundary will

lie. Id. ―Proximate cause puts a limit on the causal chain, such that, even though the

plaintiff's injury would not have happened but for the defendants' breach, defendants will not

be held liable for injuries that were not substantially caused by their conduct or were not

reasonably foreseeable results of their conduct.‖ Hale, 166 S.W.3d at 719 (citing Haynes v.

Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn.1994)). ―Proof of negligence without proof of

causation is nothing.‖ Doe v. Linder Const. Co., Inc., 845 S.W.2d at 181 (quoting Drewry v.

Cnty. of Obion, 619 S.W.2d 397, 398 (Tenn. Ct. App.1981)).

In Tennessee, courts use a three-pronged test to assess proximate cause: (1) the

tortfeasor‘s conduct must have been a ‗substantial factor‘ in bringing about the harm being

complained of; and (2) there is no rule or policy that should relieve the wrongdoer from

liability because of the manner in which the negligence has resulted in the harm; and (3) the

harm giving rise to the action could have reasonably been foreseen or anticipated by a person

of ordinary intelligence and prudence. Hale, 166 S.W.3d 713, 719 (citing Haynes, 883

S.W.2d at 612).

In the instant case, it is undisputed that the bus never made contact with the sprayer.

The lack of contact, however, is not dispositive on the question of causation. For example, in

South v. Roberts, No. 03A01-9611-CV-00375, 1997 WL 367233 (Tenn. Ct. App. June 30,

1997), plaintiff's decedent lost her life when a car driven by Roberts struck the car in which

the decedent was riding. South alleged that Roberts was racing another driver, Cannon. The

Cannon vehicle never came into contact with decedent‘s vehicle. At the close of the proof,

the trial judge granted a verdict for Cannon. The plaintiff then settled with Roberts and

appealed the dismissal of Cannon. This Court reversed and remanded for a new trial, saying

that ―[a] factfinder could reasonably infer that Cannon incited and encouraged Roberts to

drive in a fast and reckless manner, and they were jointly engaged in a series of acts which

directly led to the collision, and that Cannon‘s acts were a contributing proximate cause to

the accident.‖ Id. at *4. Although the Court used the phrase ―proximate cause,‖ it really was

referring to cause in fact. Id. The Roberts holding demonstrates that the actions of a person

who participates in an illegal drag race can be deemed to be a cause in fact of injuries or

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death to another even if his or her vehicle does not actually collide with the plaintiff‘s person

or vehicle. Stated differently, cause in fact may be found even absent physical impact

between a negligent defendant and the plaintiff.

Turning back to the record, when he saw the sprayer approaching, Mr. Davis slowed

to approximately 4 miles-per hour and pulled the bus to the right edge of the roadway. In the

absence of any law requiring Mr. Davis to leave the roadway or even to pull the bus partially

onto the shoulder, Mr. Davis did what he was required to do, which was to slow his speed

and keep to the far right of the road. On the other hand, although Mr. Martin testified that he

appreciated the fact that the bus was occupying the westbound lane and the fact that the

sprayer occupied more than half the roadway, he took no immediate action to bring the

sprayer to a stop. Rather, as set out in the foregoing testimony, he continued travelling

toward the bus at approximately fifteen miles-per-hour. Mr. Martin further testified that he

was capable of stopping the sprayer before he attempted to pass the bus. This he did not do.

Rather, he continued his progression down the narrow road knowing that the bus was there

and apparently expecting Mr. Davis to pull the bus off the roadway to accommodate the

sprayer. Mr. Martin testified that the accident could have been avoided if he had brought the

sprayer to a stop. The evidence, in this regard, preponderates in favor of a finding that the

cause in fact of the accident rests with Mr. Martin‘s actions, or lack thereof.

Further, a subtle point adduced in Mr. Martin‘s testimony indicates that the cause of

the accident was not the location of the bus. The sprayer had completely passed the bus

when it went off the roadway. In his testimony, set out in full context above, Mr. Martin

states, ―I got over as far as I could. When I did, the ground gave away, and I hit the

ditch.‖ (Emphasis added). Based upon his testimony, Mr. Martin had to move the sprayer‘s

right tires off the road in order to pass the bus. So, we may reasonably assume that, at the

instance the sprayer passed the bus, its tires were already off the paved road; otherwise, there

would have been some contact between the sprayer and the bus. In fact, Mr. Martin testifies

that he ―got over as far as I could,‖ as soon as he saw the bus turn onto Lower Brownsville

Road. Here, the sprayer undisputedly cleared the bus, and, as Mr. Martin testified, it was not

until the sprayer was past the bus that it went into the ditch. Mr. Martin stated that the

sprayer went into the ditch when ―the ground gave way‖ at some point after he passed the

bus. Accordingly, the evidence indicates that it was not the fact that the sprayer‘s tires were

off the pavement due to the bus‘ location that caused the accident, but rather the fact that the

ground gave way at the place where the sprayer went into the ditch. Additionally, there is

no indication that after clearing the bus, Mr. Martin attempted to move the sprayer‘s tires

back onto the pavement. Perhaps there was no time to do so, but this would likely be due to

the sprayer‘s speed, or lack of maneuverability. Regardless, Mr. Martin‘s failure to correct

the sprayer back onto the road cannot be attributed to any action or inaction on Mr. Davis‘

part.

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From the totality of the circumstances, we conclude that the evidence preponderates

against the trial court‘s finding that Mr. Davis was negligent. Specifically, we conclude that

the evidence is insufficient to establish the prima facie elements of cause in fact and

proximate cause, which are Mr. Couch‘s burdens. Having determined that the evidence does

not support the prima facie claim for negligence, we pretermit the remaining issue

concerning comparative fault.

IV. Conclusion

For the foregoing reasons, we reverse the order of the trial court. We remand the case

for entry of judgment in favor of the Appellant, Jackson Madison School System Board of

Education, and for such further proceedings as may be necessary and are consistent with this

opinion. Costs of the appeal are assessed against the Appellee, Kenneth L. Couch, for which

execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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