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Gummo v. Ward

United States District Court, M.D. Tennessee, Nashville Division

October 29, 2014

Andrea May Gummo, individually and on behalf or her minor child, Maykayla Deeanna Gummo, Plaintiff,
v.
Robert Lee Ward, Shelaena Rhea Ward, Ward Construction, Robert Lee Ward d/b/a Ward Construction, and Shelaena Rhea Ward d/b/a Ward Construction, Defendants

Page 872

[Copyrighted Material Omitted]

Page 873

For Andrea May Gummo, individually and on behalf of her minor child, Maykayla Deeanna Gummo, Plaintiff: William Lyon Chadwick, Jr., LEAD ATTORNEY, David Randolph Smith, Dominick R. Smith, Law Offices of David Randolph Smith & Associates, Nashville, TN.

For Robert Lee Ward, doing business as Ward Construction, Shelaena Rhea Ward, doing business as Ward Construction, Ward Construction, Defendants: Daniel P. Berexa, LEAD ATTORNEY, Thomas I. Carlton, Jr., Cornelius & Collins, LLP, Nashville, TN.

For The State of Tennessee, Intervenor Defendant: Joseph Paul Ahillen, Tennessee Attorney General's Office, Nashville, TN.

Page 874

MEMORANDUM

KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE.

Pending before the Court is Defendants' fully-briefed Motion for Summary Judgment and to Strike Opinion Testimony of Plaintiff's Expert (Docket No. 69).[1] For the reasons that follow, the Motion for Summary Judgment will be granted in part and denied in part. The Motion to Strike will be denied, but, if necessary, the Court will hold a Daubert hearing[2] (outside the presence of the jury) in relation to allowing the proffered expert to testify.

I. FACTUAL BACKGROUND

This is a personal injury action that arose after two fifteen-year old girls, Maykayla Deeanna Gummo and Kaitlin Ward were injured in an accident involving a 2007 Honda TRX 420 TM/FX four wheel all-terrain vehicle (" ATV" ). At the time of the accident, which occurred at approximately 11:00 p.m. on January 27, 2012, Maykayla was driving the ATV on a public roadway that was wet. For reason which are not definitively answered by the record, as Maykayla drove the ATV down a hill and into a curve, it went off the road. The vehicle plunged approximately 50' and landed in a creek bed.

Maykayala suffered significant injuries in the accident. Those injuries included a fractured femur, seven fractured vertebrae, and amputation of her left arm above the elbow.

At the time of the accident, Maykayla and Kaitlin were following another ATV operated by Tye Ward, age seventeen, who had just dropped his sixteen year old girlfriend Sasha Biggs off at her home. Tye is the nephew of Defendant Robert Lee Ward who is also Kaitlin's grandfather. Mr. Ward is married to Defendant Shelaena Rhea Ward.

On the night of the accident, Maykayla and Kaitlin intended to spend the night at the Ward residence. Sasha was visiting Tye who lived in the house.

As the hour became late, Tye asked Mrs. Ward if he could take Sasha home in his uncle's SUV, as he had done on numerous occasions in the past. Mrs. Ward refused and told Tye to take her home on one of the ATVs. Kaitlin and Maykayla either received permission or were instructed by Mrs. Ward to follow Tye and then return straight home.

The two ATVs utilized on the night of the accident were bought by Mr. Ward for use in his construction business, Ward Construction. After use in Louisiana, Mr. Ward moved the ATVs to his farm in Tennessee.

At least for the first year after purchase, Robert Ward d/b/a Ward Construction treated the ATV involved in the accident as an asset of the sole proprietorship's construction business for tax purposes.

Page 875

He also depreciated the ATV and deducted maintenance expenses on his tax returns.

Mr. Ward testified that he only performed maintenance on the ATVs when a service light indicated the need, but there was no maintenance light on the ATV involved in the accident. Only one service record has been produced for that ATV since it was moved to Tennessee. That record indicates maintenance work was performed at Paul's Repair shop in Westmoreland, Tennessee in July 2010 (approximately sixteen months before the accident). Ward Construction paid for the maintenance, although Mrs. Ward claims she probably reimbursed that entity for the services performed on the ATV.

There is some evidence that prior to the accident there may have been problems with the subject ATV. The brakes were said to " squeak" and may have locked up on more than one occasion.

When the Wards married, they entered into a pre-nuptial agreement whereby Mr. Ward maintained sole ownership of " the entire business." Nevertheless, Defendants claim that Mrs. Ward bought or was given the ATV in question. However, there is no bill of sale, contract, transfer of title or any other document showing that ownership of the subject ATV was ever sold, transferred or gifted to Mrs. Ward.

As noted, Tye lived in the Ward residence. He worked for Ward Construction every day after school. He used the ATVs to ride out and mend fences on the Ward farm, and testified in his deposition that he sometimes had difficulty shifting gears.

Prior to the incident in question, Tye had been allowed by Mr. Ward to use the ATVs on public roads to drive Sasha home. Defendants claim, however, that Tye had to get Mrs. Ward's permission whenever he used what they claim to be her ATV. Also according to Defendants, Tye was supposed to use the most direct route both to and from Sasha's home.

Returning to the night in question, Mr. Ward was away on business in North Dakota. Through a phone conversation with his wife earlier in the day, Mr. Ward knew that Katlin, Sasha and Maykayla were coming to the house and that Kaitlin and Maykayla intended to spend the night.

Mrs. Ward did not specify that night who should drive which of the three ATVs and it was by happenstance that Katilin and Maykyla chose the 2007 Honda TRX 420 TM/FX. That vehicle was age-limited by the manufacturer to drivers sixteen years of age and older.

Plaintiff claims that Mrs. Ward did not specify who should drive. Defendants insist that Mrs. Ward instructed Kaitlan to drive and it appears undisputed that Maykayla did not ask to drive the ATV. Mrs. Ward had no knowledge of Maykalya's competence as an ATV driver, had never seen her drive an ATV, and had only seen her on an ATV as a passenger.

The trip to Sasha's house was apparently uneventful. Because she was " freezing," however, Kaitlin asked MayKayla to drive back. Maykalya had never driven (or been a passenger on) an ATV on a paved road. She allegedly was ...


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