TENNESSEE FARMERS MUTUAL INSURANCE COMPANY A/S/O KENNETH L. COUCH
JACKSON MADISON SCHOOL SYSTEM BOARD OF EDUCATION
Session Date: May 14, 2015
Appeal from the Circuit Court for Madison County No. C13114 Kyle Atkins, Judge
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.
Kenny Armstrong, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.
KENNY ARMSTRONG, JUDGE
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”). 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. 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. 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:
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.
JMSSBE appeals. It raises two issues for review as stated in its brief:
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).
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.
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 ...