Session: December 7, 2017
from the Circuit Court for Warren County No. 15-CV-409 Larry
B. Stanley, Jr., Judge
injury action arising out of accident between a pickup truck
and a dump truck hauling materials for a company that paved
roadways. The pickup truck driver sued the driver of the dump
truck and the paving company to recover for injuries he
sustained in the accident. The trial court granted the paving
company's motion for summary judgment, holding that the
driver of the dump truck was an independent contractor and
that the paving company was not liable for the dump truck
driver's negligence. The injured driver appeals. Upon a
thorough review of the record, we affirm the grant of summary
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Timothy Pirtle, McMinnville, Tennessee, for the appellant,
Jimmy Earl McClure.
Thomas Feeney, Nashville, Tennessee, for the appellee,
Richard H. Dinkins, J., delivered the opinion of the court,
in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
October 24, 2014, Jimmy Earl McClure ("Mr.
McClure") was driving his pickup truck when it was
involved in a collision with a dump truck driven by
Christopher Shawn Cole ("Mr. Cole"). The accident
occurred in Warren County at the intersection of State Route
Highway 287 and U.S. Highway 70S, which was under
construction. Mr. McClure was thrown from his vehicle and
suffered serious injuries.
October 20, 2015, Mr. McClure filed suit to recover for his
injuries, naming Mr. Cole and Highways, Inc.,
("Highways") as defendants. The complaint alleged
that Mr. Cole was acting in the course and scope of his
employment with Highways at the time of the accident and
sought damages based on causes of action for common law
negligence, statutory negligence, and respondeat
superior or agency. Highways answered, denying the
allegations of the complaint and pleading the defense of
course, Highways moved for summary judgment, relying on
nineteen statements of undisputed facts which it contended
demonstrated that Mr. Cole was an independent contractor, not
its employee, thereby relieving it of any liability to Mr.
McClure. Each fact was supported by the affidavit of Mr.
Cole. In response, Mr. McClure disputed nine of the
statements of fact, relying on the affidavit of Mr. Cole, the
deposition testimony of Mr. Cole, and copies of payment
records between "Chris Cole Trucking" and Highways,
a hearing, the court granted the motion, holding that
"there are no material facts in dispute which would
allow the Plaintiff to recover any damages from Highways
Inc." By agreement of the parties, the court directed
that the order be deemed final pursuant to Rule 54.02 of the
Tennessee Rules of Civil Procedure. Mr. McClure appeals,
stating the issue for our review as follows: "Whether
the trial court erred in granting summary judgment dismissing
defendant-appellee, HIGHWAYS, INC., f[rom] the lawsuit."
Our Supreme Court has instructed:
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Tenn. R. Civ. P. 56.04. We review a trial
court's ruling on a motion for summary judgment de novo,
without a presumption of correctness. Bain v. Wells,
936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v.
Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103
(Tenn. 2010). In doing so, we make a fresh determination of
whether the requirements of Rule 56 of the Tennessee Rules of
Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing
Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 471
* * *
[I]n Tennessee, as in the federal system, when the moving
party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either
(1) by affirmatively negating an essential element of the
nonmoving party's claim or (2) by demonstrating that
the nonmoving party's evidence at the summary
judgment stage is insufficient to establish the
nonmoving party's claim or defense. We reiterate that a
moving party seeking summary judgment by attacking the
nonmoving party's evidence must do more than make a
conclusory assertion that summary judgment is appropriate
on this basis. Rather, Tennessee Rule 56.03 requires the
moving party to support its motion with "a separate
concise statement of material facts as to which the moving
party contends there is no genuine issue for trial."
Tenn. R. Civ. P. 56.03. "Each fact is to be set forth
in a separate, numbered paragraph and supported by a
specific citation to the record." Id. When
such a motion is made, any party opposing summary judgment
must file a response to each fact set forth by the movant
in the manner provided in Tennessee Rule 56.03.
"[W]hen a motion for summary judgment is made [and] .
. . supported as provided in [Tennessee Rule 56]," to
survive summary judgment, the nonmoving party "may not
rest upon the mere allegations or denials of [its]
pleading," but must respond, and by affidavits or one
of the other means provided in Tennessee Rule 56, "set
forth specific facts" at the summary judgment
stage "showing that there is a genuine issue for
trial." Tenn. R. Civ. P. 56.06. The nonmoving party
"must do more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co.[, Ltd. v. Zenith
Radio Corp.], 475 U.S.  at 586, 106 S.Ct. 1348');">106 S.Ct. 1348
[(1986)]. The nonmoving party must demonstrate the
existence of specific facts in the record which could lead
a rational trier of fact to find in favor of the nonmoving
party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the
nonmoving party may seek a continuance to engage in
additional discovery as provided in Tennessee Rule 56.07.
However, after adequate time for discovery has been
provided, summary judgment should be granted if the
nonmoving party's evidence at the summary judgment
stage is insufficient to establish the existence of a
genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving
party comes forward with at the summary judgment stage, not
on hypothetical evidence that theoretically could be
adduced, despite the passage of discovery deadlines, at a
Rye v. Women's Care Cntr. of Memphis, MPLLC, 477
S.W.3d 235, 250, 264-65 (Tenn. 2015).
respect to the substantive law at issue in this case,
Tennessee follows the "near universal rule" that
"an employer or general contractor is not ordinarily
liable for the negligence of an independent contractor."
Wilson v. Thompson Const. Co., 86 S.W.3d 536, 541
(Tenn. Ct. App. 2001) (citing Potter v. Tucker, 688
S.W.2d 833 (Tenn. Ct. App. 1985); International Harvester
Co. v. Sartain, 222 S.W.2d 854, 865 (Tenn. Ct. App.
1948)). Summary judgment was granted to Highways because the
trial court held that Mr. Cole was an independent contractor,
and thus Highways could not be vicariously liable for any
negligence on his part.
determine whether Mr. Cole was an independent contractor, as
opposed to an employee, the following factors are to be
considered: "(1) the right to control the conduct; (2)
the right of termination; (3) the method of payment; (4) the
freedom to select and hire helpers; (5) the furnishing of
tools and equipment; (6) self scheduling of work hours; (7)
the freedom to offer services to other entities."
Wilson, 86 S.W.3d at 541 (citing Stratton v.
United Inter-Mountain Telephone Co., 695 S.W.2d 947, 950
Court has held that determining whether a worker is an
employee or an independent contractor is a question of fact,
and that "[e]ach case must depend on its own facts and
ordinarily no one feature of the relation is determinative,
but all must be considered together." Knight v.
Hawkins, 173 S.W.2d 163, 166 (Tenn. Ct. App. 1941).
However, over the years, "the importance of the right to
control the conduct of the work has been repeatedly
emphasized." Stratton, 695 S.W.2d at 950
(citing Carver v. Sparta Electric System, 690 S.W.2d
218 (Tenn. 1985); Wooten Transports, Inc. v. Hunter,535 S.W.2d 858 (Tenn.1976)). "The test is not whether
the right to control ...