IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
RONALD E. NELSON, ) From the Shelby County Circuit Court ) at Memphis, Tennessee Plaintiff/Appellant, ) ) The Hon. James E. Swearengen, Judge vs. ) ) Trial Court No. 67592 T.D. ) Appeal No. 02A01-9707-CV-00150 ) JAMES P. EVERETT, et al,
Defendants/Appellees. ) ) ) AFFIRMED
W. Lee Whitman FILED ) Memphis, Tennessee March 4, 1998 ) Attorney for Appellant ) Cecil Crowson, Jr. ) Richard Glassman Appellate C ourt Clerk ) Memphis, Tennessee ) Attorney for Appellees
MEMORANDUM OPINION1
HIGHERS, J.
Plaintiff/Appellant, Ronald E. Nelson (“Nelson”) appeals the judgment of the trial
court granting defendants/appellees’, James P. Everett (“Everett”) and Memphis Publishing
Company, Inc., d/b/a The Commercial Appeal (“Memphis Publishing Company”)
(collectively “defendants”), motion for summary judgment. For reasons stated hereinafter,
we affirm the judgment of the trial court.
On February 3, 1995, Nelson filed this suit alleging the negligence of Everett and
his employer Memphis Publishing Company. At approximately 12:00 a.m. on the morning
of February 5, 1994, Everett was driving a vehicle northbound on Third Street in the course
of his employment with Memphis Publishing Company. Specifically, Nelson alleges that
Everett was negligent in the operation of a motor vehicle on February 5, 1994, when
Everett allegedly collided with the person of Nelson.
1 Rule 10 (Co urt of App eals). Memorandum O pinion. -- (b) The Cou rt, with the c onc urre nce of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. There is some dispute as to how the accident occurred. Everett maintains that
Nelson had his back to Everett and suddenly and without warning fell from the curb directly
onto the street in front of the truck Everett was driving. Everett further contends that he
had no time to react or to avoid the collision with Nelson. A witness to the collision stated
in his affidavit that he “saw a black man swaying a little bit, but he did not step into the
street. . . [t]he pedestrian who was then on the sidewalk leaned a little bit and was hit by
the white panel truck.” In his deposition, Nelson states that he was walking down Third
Street after having a few drinks at a local night club that he frequented. As he was
sauntering down Third Street, Nelson states that a car pulled up and shot him in the groin
area. Thereafter, he claims that he walked about six more blocks down Third Street,
became dizzy, felt a “burning” sensation in his crotch, and started waving his jacket for
help. Nelson’s next memory is of waking up in the hospital with the doctors informing him
that he had been shot in the testicles and run over by a vehicle.
In the complaint filed by Nelson in this cause on February 3, 1995, he stated that
he “collapsed and fell into the street in front of the vehicle driven by James P. Everett.” In
their answer, defendants admitted that Nelson “fell into the street suddenly and without
warning in front of the vehicle driven by the Defendant Everett.”
On September 11, 1995, defendants filed a motion for summary judgment
supported by the affidavit of Everett. Nelson countered defendants’ motion for summary
judgment with the affidavit of the sole eyewitness to the incidents in question--Howard J.
Williams. On December 13, 1996, the motion for summary judgment was heard and the
trial court rendered its decision by order which was entered on January 7, 1997, granting
defendants’ motion. This appeal ensued.
Our review of the trial court's order granting summary judgment is de novo on the
record before this Court, with no presumption of correctness. Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn.1995).
2 When considering a motion for summary judgment, the trial court considers whether
a factual dispute exists, whether the disputed fact is material to the outcome of the case
and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d
208, 214 (Tenn.1993). When confronted with a disputed fact, the court must examine the
elements of the claim or defense at issue and determine whether the resolution of the fact
will affect the disposition of the claim or defense. Id. at 215. If there is no genuine issue
as to any material fact and a moving party is entitled to judgment as a matter of law, the
court should grant the moving party's motion for summary judgment. Tenn. R. Civ. P.
56.03. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211 (citations omitted) (emphasis in original).
In order to prevail in an action based upon negligence, a plaintiff must establish:
(1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the
applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4)
causation in fact; and (5) proximate or legal cause. McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn.1995); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993); McClenahan v.
Cooley, 806 S.W.2d 767, 774 (Tenn.1991); Lindsey v. Miami Development Corp., 689
S.W.2d 856, 858 (Tenn.1985).
After carefully reviewing the record, we conclude that Nelson has failed to prove an
essential element of his claim for negligence--that Everett’s conduct in operating the
vehicle fell below the applicable standard of care amounting to a breach of his duty of
reasonable care. In his deposition, Nelson stated:
Q. And you don’t know how you came into contact with the vehicle owned by the Commercial Appeal or Scripps Howard?
A. No.
Q. And you don’t have any knowledge as to what the driver of that
3 vehicle did or didn’t do that caused you and that vehicle to come in contact with each other?
A. I have no idea.
Q. So you have absolutely no information as to how you ended up in the street in front of the Commercial Appeal vehicle?
A. No, I don’t.
Q. And you have absolutely no information as to what, if anything, the Commercial Appeal vehicle did that was wrong in the process of striking you?
A. I didn’t even know I had been run over until somebody told me.
In Everett’s affidavit testimony, he provided in part:
6. The Plaintiff, with his back to me, suddenly and without any warning, fell from the curb directly onto the street in front of the vehicle I was driving;
7.
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IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON
RONALD E. NELSON, ) From the Shelby County Circuit Court ) at Memphis, Tennessee Plaintiff/Appellant, ) ) The Hon. James E. Swearengen, Judge vs. ) ) Trial Court No. 67592 T.D. ) Appeal No. 02A01-9707-CV-00150 ) JAMES P. EVERETT, et al,
Defendants/Appellees. ) ) ) AFFIRMED
W. Lee Whitman FILED ) Memphis, Tennessee March 4, 1998 ) Attorney for Appellant ) Cecil Crowson, Jr. ) Richard Glassman Appellate C ourt Clerk ) Memphis, Tennessee ) Attorney for Appellees
MEMORANDUM OPINION1
HIGHERS, J.
Plaintiff/Appellant, Ronald E. Nelson (“Nelson”) appeals the judgment of the trial
court granting defendants/appellees’, James P. Everett (“Everett”) and Memphis Publishing
Company, Inc., d/b/a The Commercial Appeal (“Memphis Publishing Company”)
(collectively “defendants”), motion for summary judgment. For reasons stated hereinafter,
we affirm the judgment of the trial court.
On February 3, 1995, Nelson filed this suit alleging the negligence of Everett and
his employer Memphis Publishing Company. At approximately 12:00 a.m. on the morning
of February 5, 1994, Everett was driving a vehicle northbound on Third Street in the course
of his employment with Memphis Publishing Company. Specifically, Nelson alleges that
Everett was negligent in the operation of a motor vehicle on February 5, 1994, when
Everett allegedly collided with the person of Nelson.
1 Rule 10 (Co urt of App eals). Memorandum O pinion. -- (b) The Cou rt, with the c onc urre nce of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. There is some dispute as to how the accident occurred. Everett maintains that
Nelson had his back to Everett and suddenly and without warning fell from the curb directly
onto the street in front of the truck Everett was driving. Everett further contends that he
had no time to react or to avoid the collision with Nelson. A witness to the collision stated
in his affidavit that he “saw a black man swaying a little bit, but he did not step into the
street. . . [t]he pedestrian who was then on the sidewalk leaned a little bit and was hit by
the white panel truck.” In his deposition, Nelson states that he was walking down Third
Street after having a few drinks at a local night club that he frequented. As he was
sauntering down Third Street, Nelson states that a car pulled up and shot him in the groin
area. Thereafter, he claims that he walked about six more blocks down Third Street,
became dizzy, felt a “burning” sensation in his crotch, and started waving his jacket for
help. Nelson’s next memory is of waking up in the hospital with the doctors informing him
that he had been shot in the testicles and run over by a vehicle.
In the complaint filed by Nelson in this cause on February 3, 1995, he stated that
he “collapsed and fell into the street in front of the vehicle driven by James P. Everett.” In
their answer, defendants admitted that Nelson “fell into the street suddenly and without
warning in front of the vehicle driven by the Defendant Everett.”
On September 11, 1995, defendants filed a motion for summary judgment
supported by the affidavit of Everett. Nelson countered defendants’ motion for summary
judgment with the affidavit of the sole eyewitness to the incidents in question--Howard J.
Williams. On December 13, 1996, the motion for summary judgment was heard and the
trial court rendered its decision by order which was entered on January 7, 1997, granting
defendants’ motion. This appeal ensued.
Our review of the trial court's order granting summary judgment is de novo on the
record before this Court, with no presumption of correctness. Carvell v. Bottoms, 900
S.W.2d 23, 26 (Tenn.1995).
2 When considering a motion for summary judgment, the trial court considers whether
a factual dispute exists, whether the disputed fact is material to the outcome of the case
and whether the disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d
208, 214 (Tenn.1993). When confronted with a disputed fact, the court must examine the
elements of the claim or defense at issue and determine whether the resolution of the fact
will affect the disposition of the claim or defense. Id. at 215. If there is no genuine issue
as to any material fact and a moving party is entitled to judgment as a matter of law, the
court should grant the moving party's motion for summary judgment. Tenn. R. Civ. P.
56.03. In Byrd, the Tennessee Supreme Court stated:
Once it is shown by the moving party that there is no genuine issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving party cannot simply rely upon his pleadings but must set forth specific facts showing that there is a genuine issue of material fact for trial.
Id. at 211 (citations omitted) (emphasis in original).
In order to prevail in an action based upon negligence, a plaintiff must establish:
(1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the
applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4)
causation in fact; and (5) proximate or legal cause. McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn.1995); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993); McClenahan v.
Cooley, 806 S.W.2d 767, 774 (Tenn.1991); Lindsey v. Miami Development Corp., 689
S.W.2d 856, 858 (Tenn.1985).
After carefully reviewing the record, we conclude that Nelson has failed to prove an
essential element of his claim for negligence--that Everett’s conduct in operating the
vehicle fell below the applicable standard of care amounting to a breach of his duty of
reasonable care. In his deposition, Nelson stated:
Q. And you don’t know how you came into contact with the vehicle owned by the Commercial Appeal or Scripps Howard?
A. No.
Q. And you don’t have any knowledge as to what the driver of that
3 vehicle did or didn’t do that caused you and that vehicle to come in contact with each other?
A. I have no idea.
Q. So you have absolutely no information as to how you ended up in the street in front of the Commercial Appeal vehicle?
A. No, I don’t.
Q. And you have absolutely no information as to what, if anything, the Commercial Appeal vehicle did that was wrong in the process of striking you?
A. I didn’t even know I had been run over until somebody told me.
In Everett’s affidavit testimony, he provided in part:
6. The Plaintiff, with his back to me, suddenly and without any warning, fell from the curb directly onto the street in front of the vehicle I was driving;
7. Without any opportunity to avoid the Plaintiff, I ran directly over the Plaintiff with the curb-side, or right side, tires on the vehicle I was driving.
8. I had absolutely no opportunity to apply my brakes or avoid the Plaintiff in any way, as he fell directly in front of the vehicle I was driving without any warning whatsoever.
Additionally, Nelson provided the affidavit of Williams to counter defendants’ motion
for summary judgment. Williams averred that he saw a black man “swaying” on the
sidewalk and he “leaned a little,” but did not actually step off the sidewalk. There is no
statement in the affidavit that Everett ever left his lane of travel, jumped the curb or
otherwise breached his duty of care to Nelson. We conclude that Williams’ testimony fails
to raise any genuine issues of material fact concerning whether or not Everett breached
his duty to maintain a safe lookout. As such, Nelson has failed to respond adequately to
defendants’ motion for summary judgment with affidavits or discovery materials to show
that there is a genuine issue of material fact concerning an essential element of Nelson’s
claim of negligence.
A breach of Everett’s duty of care is an essential element of Nelson’s claim in this
negligence action. Summary judgment is appropriate when an essential element of
4 negligence is missing. Doe v. Linder Construction Co., 845 S.W.2d 173, 183 (Tenn. 1992).
In this case, Nelson presented no proof as to how Everett breached his duty to maintain
proper lookout when operating a vehicle. In failing to do so, Nelson has failed to establish
an essential element his negligence claim and, as such, cannot establish a prima facie
case of negligence. Therefore, the trial court did not err in granting defendants’ motion
for summary judgment.
In light of the foregoing, we affirm the judgment of the trial court granting
defendants’ motion for summary judgment. Costs of this appeal are assessed against
Nelson, for which execution may issue if necessary.
FARMER, J.
LILLARD, J.