CHARLES M. FLAGG, JR.
HUDSON CONSTRUCTION COMPANY ET AL.
Assigned on Briefs May 1, 2018
from the Circuit Court for Polk County No. 13-CV-93 Lawrence
Howard Puckett, Judge.
motorcyclist sustained severe injuries in an accident on a
recently paved portion of a state maintained highway.
Alleging that his accident was caused by loose gravel on the
highway from the recent paving project, the motorcyclist
filed separate actions against the state contractor who
resurfaced the state highway and the State of Tennessee. The
two actions were consolidated in the circuit court for
discovery and trial. Both defendants moved for summary
judgment arguing that the plaintiff could not prove that the
gravel came from the paving project or that the defendants
had notice of the gravel before the accident. The state
contractor also argued that it was discharged from liability
under the State Construction Projects Liability Act.
See Tenn. Code Ann. § 12-4-503 (2011). The
trial court initially denied the motions. But after the
defendants filed motions to alter or amend based on new
evidence, the court reversed its decision and granted the
defendants summary judgment on all claims. The plaintiff
appealed. Upon review, we conclude that the trial court erred
in excluding lay witness opinion testimony and in ruling that
expert proof was necessary to determine the source of the
gravel. Taking the strongest legitimate view of the evidence
in favor of the nonmoving party, we conclude that the
plaintiff demonstrated genuine issues of material fact
precluding summary judgment. So we reverse.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Reversed and Case Remanded
H. Templeton and Richard A. Schulman, Chattanooga Tennessee,
for the appellant, Charles M. Flagg, Jr.
Alexander Vogel, Knoxville, Tennessee, for the appellee,
Hudson Construction Company.
Herbert H. Slatery III, Attorney General and Reporter,
Andrée S. Blumstein, Solicitor General, and Peako A.
Jenkins, Assistant Attorney General, for the appellee, State
Neal McBrayer, J., delivered the opinion of the court, in
which Thomas R. Frierson II and Arnold B. Goldin, JJ.,
NEAL MCBRAYER, JUDGE.
2012, the Tennessee Department of Transportation
("TDOT") contracted with Hudson Construction
Company to resurface a section of State Highway 315 in Polk
County, Tennessee. The project involved an initial
application of a layer of rock chips and adhesive material to
fill in cracks in the road followed by a thin layer of
microsurfacing for a smoother driving surface. As with all
state road construction projects, a TDOT employee was onsite
throughout the project to supervise the work. See
Tenn. Code Ann. §§ 54-1-126, 54-5-120 (2008).
October 16, Hudson Construction finished application of the
microsurfacing material. The contractor then inspected the
road in preparation for the final step of the project,
permanent striping. Hudson Construction or a subcontractor
periodically cleaned excess gravel and debris from the road
throughout the paving process. But after completing the
microsurfacing, the contractor only cleaned those portions of
the road that it deemed necessary for the permanent striping
to adhere properly. Hudson Construction then left the work
site. On October 16 and 17, a subcontractor applied the
October 19, after receiving notice from the onsite inspector
that the work was finished, Billy Curtis, TDOT's project
supervisor, inspected the completed work. He looked for
excess gravel, overall cleanliness, the integrity of the
permanent striping, and whether the resurfacing complied with
the plans and specifications in the contract. Mr. Curtis
explained that, when inspecting road construction projects,
he typically drove through the construction zone, only
stopping and exiting his vehicle when he deemed it
appropriate. He found no problems with this project. So he
notified Hudson Construction that same day that the work was
acceptable and the road construction signs could be removed.
October 25, 2012, Charles M. Flagg, Jr. and a passenger,
Debra Taylor, were involved in a motorcycle accident on a
recently paved portion of State Highway 315. According to Mr.
Flagg, his rear tire slid on a patch of loose gravel when he
was approaching a curve in the road, causing him to lose
control and crash. Although Ms. Taylor sustained only minor
injuries, Mr. Flagg was transported to an area hospital for
treatment of more serious injuries.
Flagg filed a complaint in the Circuit Court for Polk County,
Tennessee, against Hudson Construction for breach of
contract, negligence, and defective construction. Mr. Flagg
also filed a claim against the State of Tennessee in the
Tennessee Claims Commission, asserting that the State had
negligently inspected and/or maintained the state highway and
failed to remedy a known dangerous condition on the highway.
See Tenn. Code Ann. § 9-8-307(a)(1)(I), (J)
(Supp. 2018). After the Claims Commission transferred the
claim against the State to the circuit court, the two actions
were consolidated for purposes of discovery and trial.
See id. § 9-8-404(b) (2012).
Construction and the State filed separate motions for summary
judgment challenging Mr. Flagg's ability to establish
essential elements of his claims. The contractor also argued
that it was discharged from liability under the State
Construction Projects Liability Act. See id. §
12-4-503 (2011). In response, Mr. Flagg filed several lay
witness affidavits, pictures of the accident scene, and
portions of the road construction contract. The trial court
initially denied the defendants' motions based on
multiple genuine issues of material fact. In doing so, the
court relied upon "compelling" pictorial evidence.
According to the court, the pictures showed a
"spotty" permanent white line from which it would
be reasonable to infer that "either the surface of the
road had loose gravel on it when it was painted (striped)
with the white paint or the surface material, due to defect
in construction, gave way after it was painted."
State filed a motion to alter or amend the court's ruling
based on new evidence. The State submitted additional
photographs of the accident scene showing a solid white line
and an explanatory affidavit from Mr. Curtis. Hudson
Construction also moved to alter or amend the court's
ruling relying on the new evidence.
reviewing the new evidence, the trial court determined that
the permanent white line was solid rather than spotty. The
court then re-evaluated its previous ruling based on the
amended finding. The court excluded opinion testimony in Mr.
Flagg's lay witness affidavits, ruling that such
testimony should come from an expert. Based on the remaining
evidence, the court found that Mr. Flagg could only prove
that gravel was on the road October 18 and the day of the
accident. Because Mr. Flagg could not prove that the gravel
on the day of the accident came from the paving job or that
the defendants had notice of the gravel before the accident,
the court granted summary judgment to the defendants on all
claims. This appeal followed.
judgment may be granted only "if 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. The party moving for
summary judgment has "the burden of persuading the court
that no genuine and material factual issues exist and that it
is, therefore, entitled to judgment as a matter of law."
Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If
the moving party satisfies its burden, "the nonmoving
party must then demonstrate, by affidavits or discovery
materials, that there is a genuine, material fact dispute to
warrant a trial." Id.
case, the party moving for summary judgment does not bear the
burden of proof at trial. Thus, the burden of production on
summary judgment could be satisfied "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." Rye v. Women's Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). Satisfying this
burden requires more than a "conclusory assertion that
summary judgment is appropriate," rather the movant must
set forth specific material facts as to which the movant
contends there is no dispute. Id.
motion for summary judgment is properly supported, the
nonmoving party must then come forward with something more
than the allegations or denials of its pleadings.
Id. at 265. The nonmoving party must "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.'" Id. (quoting Tenn. R. Civ. P.
court's decision on a motion for summary judgment enjoys
no presumption of correctness on appeal. Martin v.
Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);
Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn.
2004). We review the summary judgment decision as a question
of law. Martin, 271 S.W.3d at 84; Blair,
130 S.W.3d at 763. Accordingly, we must review the record de
novo and make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been met. Eadie v. Complete Co., 142
S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at
Admissibility of Mr. Flagg's Affidavits
effort to show a genuine issue for trial, Mr. Flagg filed
affidavits from Donald Franke and Anna and Kristen DeLee.
Donald Franke, a fellow motorcycle enthusiast, had a
motorcycle accident in the same location as Mr. Flagg on
October 18. According to Mr. Franke, he crashed his
motorcycle after encountering an unexpectedly large amount of
loose gravel in his lane of travel. Anna and Kristen DeLee,
Mr. Flagg's granddaughters, visited the site of Mr.
Flagg's accident a week after the accident and took
pictures of gravel on the road. All three witnesses described
the gravel they saw as the same color and consistency as the
new asphalt and opined that it "appeared to be from the
defendants argued that only a paving expert could accurately
determine the source of the gravel. Todd Nance, Hudson
Construction's project manager, had worked in the paving
industry for 25 years. He described the size and type of rock
chips used in the paving process and the steps the contractor
took to ensure that all excess gravel was removed from the
road. Based on his knowledge and experience, he ...