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Nelson v. Wilderness Hunting Lodge, LLC

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

July 10, 2017

JOHN NELSON, Plaintiff,


          ALISTAIR E. NEWBERN United States Magistrate Judge.

         On March 23, 2015, Plaintiff John Nelson was involved in an accident while hunting at Defendant Wilderness Hunting Lodge (Wilderness) in Monterey, Tennessee. Nelson was injured when a utility task vehicle (UTV) driven by a Wilderness employee and in which Nelson was a passenger suddenly lurched forward and hit a tree. Nelson claims that the accident resulted from the driver's negligence. Wilderness states that Nelson caused the accident by placing his foot on the driver's foot, causing the UTV to accelerate and the driver to lose control.

         Pending before the Court is a Motion for Summary Judgment filed by Wilderness (Doc. No. 34), to which Nelson has responded (Doc. No. 50), and Wilderness has filed a reply (Doc. No. 53). For the reasons stated herein, the Motion for Summary Judgment is DENIED.

         I. Statement of the Case

         A. Factual Background

         On May 23, 2015, Nelson was hunting boar on the property of Wilderness Hunting Lodge in Monterey, Tennessee. (Doc. No. 10, PageID# 26-27, ¶ 5; Doc. No. 36, PageID# 101, ¶ 1; Doc. No. 36-2, PageID# 123; Doc. No. 51, PageID# 198, ¶ 1.) After a morning outing, Nelson and another guest, Kevin Lixfield, got into a UTV driven by Wilderness employee Cory Looper to be driven back to the lodge. (Doc. No. 10, PageID# 26-27, ¶¶ 5-6; Doc. No. 36, PageID# 101-02, ¶¶ 2-3; Doc. No. 36-1, PageID# 109; Doc. No. 36-2, PageID# 124; Doc. No. 36-3, PageID# 128- 29; Doc. No. 51, PageID# 198-99, ¶¶ 2-3.) Nelson sat in the middle of the UTV's front seat, with Lixfield on the passenger side and Looper in the driver's seat. (Doc. No. 36-1, PageID# 109; Doc. No. 36-2, PageID# 124.) After Looper got into the UTV and started the motor, the vehicle suddenly lurched forward and struck a tree. (Doc. No. 36, PageID# 104, ¶ 11; Doc. No. 36-1, PageID# 111- 12, 115; Doc. No. 36-2, PageID# 124-25; Doc. No. 51, PageID# 202, ¶ 11.) Nelson claims that his arm was severely injured in the accident. (Doc. No. 10, PageID# 28-29, ¶¶ 13-16.)

         What happened immediately before collision to cause the accident is a matter of dispute. Nelson testified that, after getting into the UTV, he put his left leg on top of the “hump” between the driver's side and passenger's side of the vehicle and his right leg on the passenger's side floor. (Doc. No. 36-1, PageID# 109-11.) Looper and Lixfield entered the vehicle on either side of Nelson. (Id. at PageID# 111-12.) The next thing Nelson knew, he was “[i]nto the dash” of the vehicle and in pain. (Id. at PageID# 112-13.) Nelson testified that he does not know what happened between the time Looper entered the vehicle and the accident. (Id.) In deposition testimony, Nelson stated, “I can't tell you that he grabbed the steering wheel. I can't tell you he moved his butt. All that I know is I was sitting there like that, and the next thing I knew, I was in pain.” (Id.) Nelson testified that he could hear talking but did not know what was being said because he was in so much pain. (Id. at PageID# 114.) He stated, “All that I . . . can remember is the pain, and I thought I lost my arm.” (Id.)

         Nelson also testified that, to his knowledge, he did not cause his foot to hit Looper's foot or leg, or do anything from the middle seat to cause the accident. (Id. at PageID# 119.) He stated that he knows this “[b]ecause [his] foot was up here on that rise and [his] other foot was down on the passenger side” and he “would have no reason to take [his] left foot and push on the gas pedal” because he was not driving. (Id. at PageID# 121.) Asked whether he knew if Looper was reckless in handling the vehicle, Nelson testified that he thought, earlier in the day, “for the conditions, . . . [Looper] was going just a little too fast.” (Id. at PageID# 116.) Nelson did not have any memory of whether Looper drove recklessly coming down the mountain after the accident. (Id. at PageID# 116-17.)

         Looper testified that the accident happened because Nelson put his foot on Looper's foot, which was on the accelerator. (Doc. No. 51-1, PageID# 208.) Looper testified that Nelson's foot pinned his foot down. (Id.) Looper couldn't bend his foot back up and struggled to control the vehicle. (Id.) He testified he was pushing Nelson with his elbow, saying “Get off of me, man, get off of me.” (Id.) Looper believed Nelson “was having a heart attack or something.” (Id.) Looper stated “it was just like [Nelson] tromped [Looper's] foot and braced his whole body against [Looper's] foot.” (Id. at PageID# 210-11.) Looper testified that he did not let go of the steering wheel, stating “there's no way I was letting go of that wheel . . . [b]ecause there could have been worse happened than what did if I had let go of the wheel.” (Id. at PageID# 209.)

         Looper stated that Lixfield told him, after the accident, that Lixfield “didn't see what happened” but said that Looper's explanation about Nelson's foot “made sense. He said . . . I wondered why you just hit that tree for no reason.” (Id. at PageID# 210.)

         Looper also testified that his employer originally “believed that [Looper] . . . driving too fast is what caused the accident.” (Id. at PageID# 218.) Looper stated that he initially told his employer that “Nelson pushed the pedal on his own, and [Looper] couldn't get [Nelson's] foot off of it” because Looper “didn't think [his employer] would believe that [Looper] couldn't get that old man's foot off [his own].” (Id. at PageID# 218.) Looper admitted that story was not true and that Nelson's foot had pushed Looper's own foot on the accelerator. (Id.) Looper stated that he told his employer the truth after the lawsuit was filed. (Id.)

         Lixfield, in turn, testified that, as the UTV lurched forward, he “could see [Looper] struggling with [Nelson's] leg trying to get his foot off the guides [sic] foot. [Nelson's] foot was on top of the driver's foot.” (Doc. No. 36-2, PageID# 124.) Lixfield stated that he thought Nelson “had been fidgeting in his seat trying to adjust his comfort level or what have you in his seat and he had actually stood up on the driver's foot.” (Id.) Contradicting Looper, Lixfield stated that he saw Looper's “right hand . . . groping at [Nelson's] leg or pulling at it. It was some sort of motion with his right hand towards the left leg of Mr. Nelson.” (Id. at PageID# 126.)

         B. Procedural History

         Nelson's amended complaint brings one claim of negligence under Tennessee law against Wilderness. (Doc. No. 10.) Specifically, Nelson alleges that Wilderness's employee or agent: (1) “[f]ailed to keep a proper lookout while operating the [UTV] under the conditions then and there existing, ” (2) “[o]perated the . . . vehicle in a negligent manner by failing to keep the vehicle from striking the tree, ” (3) “[o]perated the . . . vehicle in a negligent manner under the conditions then and there existing, ” and (4) “[s]aw or should have seen that an accident would result and failed to make all reasonable efforts and precautions to avoid the collision.” (Doc. No. 10, PageID# 28, ¶ 11.) Nelson ...

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