Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McClure v. Cole

Court of Appeals of Tennessee, Nashville

June 22, 2018

JIMMY EARL McCLURE
v.
CHRISTOPHER SHAWN COLE, ET AL.

          Session: December 7, 2017

          Appeal from the Circuit Court for Warren County No. 15-CV-409 Larry B. Stanley, Jr., Judge

         Personal 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 judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Jimmy Earl McClure.

          John Thomas Feeney, Nashville, Tennessee, for the appellee, Highways Inc.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         I. Factual and Procedural History

         On 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.

         On 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 comparative fault.

         In due 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, Inc.

         Following 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."

         II. Analysis

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 (Tenn. 2012)).

* * *

[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. [574] 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 future trial.

Rye v. Women's Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn. 2015).

         With 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.

         To 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 (Tenn. 1985)).

         This 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.