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Flagg v. Hudson Construction Co.

Court of Appeals of Tennessee, Knoxville

May 28, 2019


          Assigned on Briefs May 1, 2018

          Appeal from the Circuit Court for Polk County No. 13-CV-93 Lawrence Howard Puckett, Judge.

         A 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.

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

          John H. Templeton and Richard A. Schulman, Chattanooga Tennessee, for the appellant, Charles M. Flagg, Jr.

          P. 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 of Tennessee.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Thomas R. Frierson II and Arnold B. Goldin, JJ., joined.




         In July 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).

         On 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.[1] 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 permanent stripes.

         On 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.

         On 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.

         Mr. 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).

         Hudson 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."

         The 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.

         After 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.


         Summary 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.

         In this 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.

         If a 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. 56.06).

         A trial 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 763.

         A. Admissibility of Mr. Flagg's Affidavits

         In an 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 paving job."

         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 ...

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