Session: July 9, 2019
from the Circuit Court for Davidson County No. 16C-769
Hamilton V. Gayden, Jr., Judge
sued defendant-company and its employee for damages to its
real property when the defendant-company's
tractor-trailer collided with the plaintiff's residential
properties while the truck was unmanned. The plaintiff raised
claims of negligence, gross negligence, recklessness,
trespass, negligent hiring, negligent entrustment, and
punitive damages. A jury trial occurred, and the trial court
granted the defendants' motion for a directed verdict as
to all but the plaintiff's negligence claim. The jury
later awarded the plaintiff $185, 000.00 for the diminution
in value to the real property. Both parties appealed.
Discerning no reversible error, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
W. Baggott, Nashville, Tennessee, for the appellant, Twenty
B. Scott and Kobina P. Ankumah, Nashville, and Jay W. Mader,
Knoxville, Tennessee, for the appellees, Land South TN, LLC,
and Brandon Majors.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which Richard H. Dinkins and W. Neal McBrayer, JJ.,
STEVEN STAFFORD, JUDGE
and Procedural History
Twenty Holdings, LLC ("Plaintiff") owned real
property in Nashville consisting of a duplex rented to two
separate tenants. A nearby tenant, Defendant/Appellee Brandon
Majors, drove a 2008 Mack Truck ("the truck" or
"the tractor") for his employer, Defendant/Appellee
Land South TN, LLC ("Land South" and together with
Mr. Majors, "Defendants"). On December 5, 2015, Mr.
Majors parked the truck, with an attached 53 foot trailer
(together with the tractor, "the tractor-trailer"),
near his residence at the top of a steep hill with the front
of the truck pointing toward the drop off of the hill and
toward Plaintiff's property. According to Mr.
Majors's later testimony, he parked the tractor-trailer
on a relatively flat portion of land before a drop off, which
he believed was safe due to his more than a decade of
experience driving trucks of this kind. Moreover, he
testified that he took various precautions in securing the
tractor-trailer, including engaging the parking brake,
placing garden timbers under the wheels, letting the trailer
down, and placing the tractor-trailer in reverse.
the precautions, within hours of parking the tractor-trailer
at his residence, the tractor-trailer rolled down the hill
for a distance of approximately 600 feet. The trailer of the
truck detached and stopped on the hill; the truck, however,
barreled into Plaintiff's properties, stopping in one
home's living area. Two residents were home during the
collision, but fortunately were uninjured.
filed a complaint against Defendants on March 21, 2016,
asserting claims of negligence, gross negligence,
recklessness, trespass, vicarious liability, negligent
entrustment, negligent hiring, and punitive damages. The
complaint alleged that the collision had caused significant
damage to Plaintiff's properties, as it destroyed a
common fire wall between the properties, as well as the
properties' front brick wall. The complaint sought $350,
000.00 in compensation for all the claims other than the
claim for punitive damages, for which Plaintiff sought $500,
filed an answer on May 13, 2016, admitting that
Plaintiff's property was damaged but denying all
liability. Later, on June 28, 2017, Defendants filed a motion
for partial summary judgment, seeking dismissal of the
punitive damages claim. Plaintiff responded in opposition to
Defendants' motion for partial summary judgment on August
meantime, on August 3, 2017, Plaintiff filed a motion in
limine and request for sanctions alleging that Defendants had
sold the tractor-trailer, spoliating critical evidence.
Plaintiff noted that it learned that the tractor-trailer was
no longer in Defendants' possession by virtue of
interrogatories sent on August 29, 2016, and answered on
October 27, 2016. The tractor, however, was sold on September
12, 2016. As such, Plaintiff sought an order of default
judgment against Defendants or, in the alternative, an order
establishing that the tractor-trailer was not in good working
order, was not parked in a safe manner, that these facts were
known to Defendants, and that Defendants acted in conscious
disregard of known risks. Plaintiff also sought to prevent
Defendants from presenting evidence opposing Plaintiff's
claims, as well as a jury instruction requiring a negative
inference that examination of the tractor-trailer would have
been detrimental to Defendants.
Defendants responded in opposition to Plaintiff's motion
in limine relative to spoliation. Therein, Defendants noted
that Plaintiff did not request to inspect the
tractor-trailer, but merely asked via interrogatory for the
location of the truck, in its August 2016 interrogatory.
According to Defendants, Plaintiff only asked to inspect the
truck in a third request for production served on or about
March 17, 2017, nearly a year after the filing of the
complaint. Defendants also too issue with Plaintiff's
attempts to conflate the tractor with the trailer involved in
the accident; while the tractor, i.e., the truck, was sold,
the trailer was not sold and was available for inspection.
September 5, 2017, the trial court entered an order denying
Defendants' motion for partial summary judgment and
granting, in part, Plaintiff's first motion in limine.
With regard to spoliation, the trial court explained as
After due proceedings had before this Court and upon
considering the pleadings, memoranda, evidence submitted to
this Court, the arguments of the parties and the oral
arguments of Counsel at the hearing, this Court:
FINDS that the defendants did not have an obligation to ask
this Court for permission to sell the Tractor in this case,
but did have an obligation to act in good faith;
FINDS that the Tractor was in the control of the defendants;
FINDS that the defendant knew or should have known that the
Tractor was relevant to this litigation;
FINDS the defendants did not act in good faith when they sold
FINDS that the plaintiff was prejudiced by the
defendants' sale of the Tractor;
FINDS that the spoliation of the Tractors by the defendants
is clear; and
FINDS that the evidence that Tractor would have supplied
would have been unfavorable to the defendants.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that the
plaintiff's First Motion in Limine and for Rule 37
Sanctions Due to Spoliation of Evidence is GRANTED.
Considering the totality of the circumstances, this Court, in
its discretion, declines to enter the sanctions proposed by
the plaintiff and determines that the proper sanction is that
this Court will provide a negative inference related to the
Tractor and will: (a) instruct the jury in this matter that
the defendants spoliated the Tractor in bad faith so that the
evidence the Tractor would have provided could not be brought
to this Court; (b) instruct the jury that it may draw a
negative inference related to the Tractor due to its
spoliation, specifically including that it may, for all
purposes, infer that the Tractor was not in good working
condition and that it may infer that evidence that would have
been provided by the Tractor would be unfavorable to the
defendants. Plaintiff is directed to prepare the jury
instruction, which shall be submitted to this Court at the
appropriate time before trial.
trial court further ruled that the spoliation of evidence
could be related to Plaintiff's punitive damages claim.
As such, the trial court denied Defendants' motion for
partial summary judgment as to that claim.
filed a second motion in limine on April 27, 2018. Among
other things, Plaintiff sought entry of an order declaring
the truck a "commercial vehicle" rather than a
"farm vehicle," and a jury instruction directing
the jury to draw a negative inference from Defendants'
failure to comply with regulations applicable to commercial
vehicles. Plaintiff also sought an order that the proper
measure of damages was cost of repair.
addition to filing a response to Plaintiff's second
motion in limine relative to damages, Defendants filed their
own motion in limine on April 27, 2018. Therein, Defendants
asked the trial court to determine the proper measure of
damages in advance of trial. Specifically, Defendants asked
that Plaintiff be prevented from arguing that the measure of
damages should be cost of repair and that the measure of
damages be set as the difference between the reasonable
market value of the property prior to and after the
collision. Plaintiff responded in opposition to
Defendants' motion in limine on May 7, 2018, requesting
that the trial court rule, as a matter of law, that the
damage to Plaintiff's property was temporary and the
proper measure of damages is cost to repair.
trial court entered an order on June 11, 2018, denying the
parties' motions in limine relative to the measure of
damages. Instead, the trial court ruled that the jury would
first decide by questionnaire whether the damage to
Plaintiff's property was temporary or permanent and the
trial court would thereafter instruct the jury on the proper
measure of damages. The trial court also denied
Plaintiff's motion in limine related to whether the
tractor was a farm or commercial vehicle. As such, the trial
court ruled that neither party would be permitted to present
evidence as to this issue.
filed a third motion in limine on June 20, 2018, requesting
inter alia, an order preventing Defendants from
presenting any evidence "that contradicts" the
trial court's previous order finding spoliation of the
tractor. The trial court eventually denied this request by
order entered July 2, 2018.
case was tried before a jury June 25 through 28, 2018.
Defendants admitted negligence immediately prior to trial.
After the jury was selected, on the second day of trial, the
trial court heard oral argument on its previously ordered
spoliation ruling, presumably as it related to
Plaintiff's third motion in limine, discussed
supra. The trial court orally ruled that its
spoliation ruling would be amended to provide only a
rebuttable presumption that the evidence was spoliated and
detrimental to Defendants. Counsel for Plaintiff then argued
that because of this ruling, the trial court's prior
ruling excluding evidence of whether the tractor was a farm
or commercial vehicle should be reversed and Plaintiff be
permitted to submit evidence that Defendants did not comply
with applicable regulations. The trial court agreed, but
counsel for Defendants objected that it was not prepared to
present proof on this issue, having relied on the earlier
exclusion. The trial court then essentially offered Plaintiff
two options: withdraw its request to present evidence on this
issue or take a mistrial. Plaintiff chose to proceed with the
trial. The trial court gave a spoliation instruction to the
jury that contained a rebuttable presumption and Plaintiff
discussed spoliation in its opening statement.
trial, Mr. Majors testified that he took several precautions
in securing the tractor-trailer when he parked. Over
objection, the police investigator assigned to the case gave
his opinion that the brakes on the truck were not
"set" prior to the incident. The parties also
presented competing evidence on the damages incurred by
Plaintiff. Plaintiff presented proof that the total damages,
including lost rent and cost of repair, totaled $391, 400.00.
In contrast, Defendants' real estate expert testified
that the difference in market value of the property before
and after the collision was $0, i.e., that the land was worth
the same amount with or without the structures on it.
trial court granted Plaintiff a directed verdict on
negligence and vicarious liability at the close of
Plaintiff's proof. At the same time, the trial court
granted a directed verdict to Defendants as to gross
negligence, recklessness, trespass, negligent entrustment,
negligent hiring, and punitive damages. In ruling, the trial
court specifically rejected the police investigator's
testimony regarding the tractor-trailer's brakes as being
outside his area of expertise. The trial court at that time
also reversed its previous ruling regarding spoliation,
finding instead that Defendants should not be found to have
spoliated the tractor, given that Plaintiff had ample time to
request inspection of the tractor prior to its sale. In
addition, the trial court noted that Plaintiff's
complaint did not include allegations that the truck was
malfunctioning at the time of the incident.
the presentation of Defendants' proof, the parties and
the trial court also participated in a charge conference
concerning the jury instructions. In particular, Plaintiff
objected to the inclusion of Tennessee Pattern Jury
Instruction Civil 14.45, arguing that it conflicted with two
special instructions chosen by the parties. The trial court
overruled Plaintiff's objection and presented the jury
with four damages instructions outlining the measure of
damages appropriate as to both permanent and temporary
damage. During deliberations, the jury asked the following
question: "If we go with permanent damages, are we
limited to the fair value before and after the
accident?" After a conference with the parties, the
trial court responded in the affirmative.
jury then returned a unanimous verdict for the diminished
value of the property in the amount of $185, 000.00 and $0.00
for lost rental income. Plaintiff filed separate motions for
discretionary costs and prejudgment interest on July 9, 2018.
Defendants also sought an award of discretionary costs by
motion filed July 12, 2018. The jury verdict was filed on
July 16, 2018, and a substituted order of judgment was
entered on the same day.
August 9, 2018, Plaintiff filed a request for findings of
fact and conclusions law pursuant to Rule 52.01 of the
Tennessee Rules of Civil Procedure. On August 14, 2018,
Plaintiff also filed a motion for new trial. On August 17,
2018, the trial court entered an order granting
Plaintiff's motion for discretionary costs but denying
Plaintiff's motion for prejudgment interest and
Defendants' motion for discretionary costs. On September
20, 2018, the trial court entered an order denying
Plaintiff's motion for new trial, except to the extent
that the trial court had denied prejudgment interest.
Instead, the trial court ruled that it would allow
prejudgment interest from the date of the incident at 5%. The
trial court also denied Plaintiff's request for
additional findings of fact and conclusions of law. Plaintiff
thereafter filed a timely notice of appeal to this Court.
raises the following issues, which are taken and slightly
restated from its brief:
1. Whether the trial court erred when it declined to rule on
the determination of whether the Tractor was a commercial
vehicle or a farm vehicle and excluded the evidence that the
defendants failed to maintain the records required by the
Federal Motor Carrier Regulations.
2. Whether the trial court erred by applying an incorrect
legal standard when granting the directed verdict on the
trespass claim at the close of Plaintiff's proof.
3. Whether the trial court erred when it reversed its prior
evidentiary ruling and sanction on spoliation at the close of
4. Whether the trial court erred when it granted a directed
verdict on plaintiff's claims for gross negligence,
recklessness, trespass, negligent entrustment, negligent
hiring and punitive damages.
5. Whether the trial court erred when instructed the jury on
the measure of damages, specifically that it instructed the
Jury on both permanent damages and temporary damages and
issued conflicting instructions.
6. Whether the trial court erred when it failed to award the
plaintiff pre-judgment interest at the rate of 10% per annum.
posture of Appellee, Defendants argue that the trial court
erred in awarding prejudgment interest.
Exclusion of Evidence that Tractor-trailer was a
first asserts that the trial court erred in refusing to make
a determination as to whether the tractor-trailer was a farm
or commercial vehicle and thereafter excluding evidence that
Defendants failed to maintain records on the vehicle pursuant
to Tennessee regulations applicable to commercial vehicles.
"Issues regarding admission of evidence in Tennessee are
reviewed for abuse of discretion." DeLapp v.
Pratt, 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004) (citing
Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn. Ct. App.
2001)). "[T]rial courts are accorded a wide degree of
latitude in their determination of whether to admit or
exclude evidence, even if such evidence would be
relevant." Dickey, 63 S.W.3d at 723.
case, the evidence in dispute concerns Defendants'
alleged noncompliance with certain reporting regulations
applicable to commercial vehicles. See Tenn. Comp.
R. & Regs. 1340-06-01-.08 (adopting federal motor carrier
safety regulations); see also 49 C.F.R. § 390.5
(defining a "Covered farm vehicle"); 49 C.F.R.
§ 396.3 (requiring regular inspections, maintenance, and
record keeping of motor carriers); 49 C.F.R. § 396.11
(requiring daily reports from drivers). Plaintiff asserts
that the tractor-trailer was not a farm vehicle, but a
commercial vehicle, and was therefore subject to all relevant
inspection, maintenance, and record keeping regulations.
Plaintiff further contends that the trial court exclusion of
evidence that Defendants did not comply with these
regulations was an abuse of discretion and should result in
reversal on appeal, as these failures support Plaintiff's
claim of gross negligence, recklessness, trespass, and
disagree that the trial court erred in excluding this
evidence, arguing that the tractor-trailer was a combined
farm vehicle under Tennessee law. Moreover, Defendants argue
that Plaintiff cannot now complain regarding the exclusion of
this evidence where it was ...