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Crisp v. Nelms

Court of Appeals of Tennessee, Knoxville

March 28, 2018

CAROLYN CRISP
v.
MICHAEL NELMS, ET AL.

          January 16, 2018 Session

          Appeal from the Circuit Court for Blount County No. L-18929 Rex H. Ogle, Judge

This appeal arises from a lawsuit over a fatal cycling accident. Carolyn Crisp ("Plaintiff"), surviving spouse of William Andrew Crisp ("Decedent"), sued Michael Nelms ("Nelms") and George Long ("Long") ("Defendants, " collectively) in the Circuit Court for Blount County ("the Trial Court") for negligence. Decedent and four others, including Nelms and Long, were riding as part of a "paceline" group when a crash occurred. Nelms asserted comparative fault, stating that Long slowed down suddenly at the head of the line. Long denied he slowed down suddenly. Defendants filed motions for summary judgment. The Trial Court held, among other things, that paceline cycling inherently is dangerous and that Decedent was at least 50% at fault for his accident. Plaintiff appealed to this Court. We hold, inter alia, that there is a genuine issue of material fact as to whether Long slowed down suddenly at the head of the line and whether a reasonable jury could find Decedent less than 50% at fault in his accident. We reverse the judgment of the Trial Court and remand for the case to proceed.

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

          David T. Black, Melanie E. Davis, and Carlos A. Yunsan, Maryville, Tennessee, for the appellant, Carolyn Crisp.

          P. Alexander Vogel, Knoxville, Tennessee, for the appellee, Michael Nelms.

          Rick L. Powers and William A. Ladnier, Knoxville, Tennessee, for the appellee, George Long.

          D. Michael Swiney, C.J., delivered the opinion of the court, in which Charles D. Susano, Jr. and Thomas R. Frierson, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         On February 25, 2014, five people embarked on a cycling expedition along the shoulder of U.S. Highway 321 near Townsend, Tennessee. The group was riding in a paceline, an activity wherein cyclists ride in a line one after the other in close quarters. This action serves to increase the efficiency of the ride as the riders draft off one another to counteract the wind resistance. At the front of the line was Long. Behind Long was Nelms. Richard Cox was third. Decedent was fourth, and Stacy Napier was at the back of the line. This was not a group of novices. Rather, these were seasoned cyclists riding expensive bicycles. Long and Decedent, friends since childhood and regular cycling companions, were in their 70s.

         The cyclists left Cycology, a bicycle shop on U.S. highway 321 in Blount County, at 10:30 a.m. The riders were traveling at a speed of about 22 miles per hour. Around noon, the incident occurred. Nelms' front tire struck Long's back tire. Nelms wrecked and fell to the pavement. Cox, third in line, swerved and avoided Nelms. Decedent, fourth, steered right but wound up flying off his bicycle and landing on his head. Hospital records reflect that "another rider hit" Nelms. Nelms denies that Decedent hit him, asserting instead that Decedent sharply applied his breaks and thereby caused his own misfortune.

         Decedent was rendered quadriplegic by the wreck. Decedent dictated a note to Nelms, stating in part: "I think it is important for you to know that I place no blame on you for the accident . . . it was just one of those things that you cannot understand." On August 22, 2014, Decedent died.

         In February 2015, Plaintiff, Decedent's widow, sued Nelms in the Trial Court. In April 2015, Nelms filed an answer denying liability. Nelms raised the defense of comparative fault and stated that Long may have been negligent in causing the incident. In June 2015, Plaintiff filed an amended complaint, this time including Long as a defendant. In August 2015, Long filed an answer acknowledging that Nelms struck his bicycle but denying that he slowed down. Long raised the defense of comparative fault with respect to Nelms and Decedent. Discovery ensued.

         Timothy Joganich, a bicycle safety expert testifying for Plaintiff, stated in his deposition:

Q. All right. The last sentence here, "The collision with Mr. Nelms' bike and the wheel of Mr. Long's" -- strike that. "The collision with Mr. Nelms' bike and with the wheel of Mr. Long's bike shows that these duties were breached by Mr. Nelms." That is an opinion you will be giving?
A. Yes.
Q. If Mr. Long's bike slowed suddenly, and Mr. Nelms' front wheel contacted Mr. Long's back wheel, would that be a breach of a duty by Mr. Nelms?
A. You have to define "suddenly" because this is really a control systems problem. The reality is there is a variation in speed of all the cyclists out there, even the one in front. Now, it may be so subtle and so small that you may not perceive it. The fact is that the rider out in front has the duty to maintain a constant pace as possible, and then all the riders following have to respond to any variation in input. Now, if for reason the rider out in front had an emergency braking where the following riders would not respond in time, then you are going to have a crash. In this case, I don't see anything in the evidence to support Mr. Long slowing down in a sudden manner to the point where Mr. Nelms could not respond.
Q. Okay. Well, you read Mr. Nelms' deposition, did you not?
A. Correct. He said that he slowed down suddenly. But when you look at all the other evidence, even Mr. Nelms said that there was nothing in the roadway that he saw -- I should backup and say that the only reason why the rider is going to slow down is for some external factors such as something in the roadway -- I'm talking about an emergency type of condition such as a deer runs out or a squirrel runs out, and that happens all the time. It happens to our group, but there's no evidence of anything like that happening. Mr. Long testified that he was going to go at a constant pace all the way to River Road, so there's no reason for him to slow down. The only other reason for him to slow down is he were going to pull off and switch positions, but there's no evidence of that.
Q. Well, there's been testimony that there was a strong headwind that day. Are you going to give any opinion about the wind conditions on the day of the accident in question?
A. I will certainly refer to it because that is an issue in the case, and it's been discussed in the depositions.
Q. Well, while we are on that topic, and I will cover it again, but I don't see that you give any opinion in your affidavit or in this letter where you discuss the wind conditions. Are you sticking to that?
A. Well, it's not going to be a main point. It may be a sub opinion based on some of the main opinions I'm talking about. If you asked me, was there a wind at the time, then I'm going to talk to you about what the others said and what the climatology report says.
Q. Okay. When Mr. Long says that there was a strong headwind that day, do you have any ...

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