richard-c-king-and-wife-kimberly-king-v-wd-schock-inc-south ( 2001 )

RICHARD C. KING, and Wife, )
KIMBERLY KING, )
) Appeal No.
Plaintiffs/Appellants, ) 01A01-9505-CV-00210
)
v. )
)
W.D. SCHOCK, INC., SOUTH CENTRAL ) Davidson Circuit
BELL TELEPHONE COMPANY a/k/a ) No. 93C-1649
BELLSOUTH TELECOMMUNICATIONS, )
INC., and CHARLES LARUE, )
)
Defendants/Appellees, )
)
NASHVILLE ELECTRIC SERVICE, VIACOM )
FILED
CABLEVISION a/k/a VIACOM ) December 18,
INTERNATIONAL, INC., RICHARD LARUE,) 2001
CARLOS LEWIS d/b/a CARLOS LEWIS & )
SON HOME MOVERS, METROPOLITAN ) Cecil Crowson, Jr.
NASHVILLE AIRPORT AUTHORITY and ) Appellate Court Clerk
THE METROPOLITAN GOVERNMENT OF )
NASHVILLE AND DAVIDSON COUNTY, )
ACTING BY AN THROUGH THE ELECTRIC )
POWER BOARD AND OPERATING UNDER )
THE NAME "NASHVILLE ELECTRIC )
SERVICE," )
)
Defendants. )
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE FIFTH CIRCUIT COURT OF DAVIDSON COUNTY
THE HONORABLE WALTER C. KURTZ, JUDGE
DAVID I. KOMISAR SANDRA L. RANDLEMAN
211 Printer's Alley Bldg. 333 Commerce Street, #2101
Suite 400 Nashville, TN 37201-3300
Nashville, TN 37201 ATTORNEY FOR DEFENDANT/APPELLEE
BELLSOUTH TELECOMMUNICATIONS, INC.
CASEY E. MORELAND
Metropolitan Courthouse ROBERT L. ESTES
3rd Floor Stewart, Estes & Donnell
Nashville, TN 37201 Third National Financial Center
ATTORNEYS FOR 424 Church Street, 14th Floor
PLAINTIFFS/APPELLANTS Nashville, TN 37219-2392
ATTORNEY FOR DEFENDANT/APPELLEE
W.D. SCHOCK COMPANY, INC.
C. BENTON PATTON
Manier, Herod, Hollabaugh & Smith
2200 One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219
CHRISTINA K. BOYER
4016 Farnam St.
Omaha, NE 68127
ATTORNEYS FOR DEFENDANT/APPELLEE
CHARLES LARUE
AFFIRMED AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by plaintiffs/appellants, Richard and
Kimberly King, from the trial court's order granting summary
judgment to defendants/appellees, W. D. Schock, Co. ("Schock"),
South Central Bell Telephone Co. a/k/a Bell South
Telecommunications, Inc. ("Bell South"), and Charles LaRue.
The underlying facts of this case developed around 1989. In
or near that year, Metropolitan Nashville Airport Authority
("MNAA") purchased some land along Allen Road as part of a noise
abatement program. It then began to sell the houses on the land.
Later, the new owners moved the houses to a different location.
Pursuant to a contract with MNAA, Schock maintained the land and
managed the land sales. Brian Dillingham purchased the house
located at 842 Allen Road. Mr. Dillingham hired Charles LaRue to
move the house. Mr. LaRue and his employees moved the house
around 12 August 1992. Bell South provided telephone services to
this area.
On the night of 6 September 1992, Mr. King was riding his
motorcycle. At some point in time, he stopped at the Majik
Market. Marty Barnes, a Majik Market employee, asked Mr. King to
chase down a car because the driver had not paid for his or her
gas. Mr. King proceeded east on Allen Road. As he entered the
curve near 837 Allen Road, he claims to have seen a jumble of
cables in the middle of the right hand lane. Mr. King lost
control of his motorcycle and crashed.
After sending out Mr. King, Marty Barnes asked William
Pennington, Jr. and his wife, who were also on motorcycles, if
they would go look for a man travelling down Allen Road. The
couple agreed to help Mr. Barnes. When they arrived at the
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scene, the accident had already occurred, but neither the police
nor an ambulance had arrived. Mr. Pennington testified that as
he approached the scene he ran over a cable in the lying in the
road. He also stated that his wife pulled the cable out of the
roadway. Finally, Mr. Pennington testified that he noticed the
cable was hanging from a pole.
Later, Marty Barnes arrived at the scene. In his
deposition, he testified that he ran over a "tangle" of cable or
wire as he entered the curve. He also testified that the cable
was lying on the right side of the right-hand lane and that he
noticed a wire hanging from a pole. Finally, Mr Barnes testified
that he did not tell any of the investigating officers at the
scene about the cable.
Appellants' theory is that someone or something disconnected
the drop wire which serviced 842 Allen Road, and this left the
wire hanging from the utility pole numbered 09832003. Somehow,
appellants contend, the wire got into the roadway. The night of
the accident, Mr. King ran over the wire which became entangled
in the bike causing Mr. King to loose control and crash.
Interestingly, Mr. King testified that he did not know if the
bike made any contact with the wires.
Appellees, however, argue that Mr. King's recklessness was
the proximate cause of the accident. In support of this theory,
they point to Officer Taylor's deposition. In his deposition,
Officer Taylor concluded that the cause of the accident was Mr.
King's inability to negotiate the curve. Further, as to the
location of the wire, Officer Taylor testified as follows:
Q. Okay. Did you see any evidence out there at the
scene, I'm talking about physical evidence now, of
where the motorcycle left the highway or the roadway
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and the path it took to wherever it stopped?
A. Yes, sir. There is a -- there was a distinct skid
mark through the grass across a paved driveway.
Actually, it was more metal marks that it was tire
marks.
. . . .
Q. All right. Now, did you see some cable?
A. There is a pole marked there. I've got it marked
by number, 09832003. That was probably about 15 -- I'd
say 10 to 15 feet off the roadway.
Q. Okay.
A. There was a cable coming from that pole, and if
I'm not mistaken, it was running east to the pole,
laying on the ground.
Q. Okay. Was that cable in any way in the path of
the motorcycle, whose path you saw, indicated by the
gouge marks you talked about earlier?
A. When I got to the scene, the cable was away from
the accident scene.
. . . .
Q. Could you estimate how many feet it was away from
the path of the motorcycle?
. . . .
A. From the path of the motorcycle, where I've showed
it laid down, I would say the cable was three or four
feet from that laid down mark.
As a result of the accident, Mr. King suffered serious
injuries and was permanently disabled. He filed a complaint in
the Fifth Circuit Court of Davidson County on 3 September 1993.
Initially the only named defendant was Schock. Later, Mr. and
Mrs. King filed an amended complaint naming numerous parties as
defendants including Bell South and Mr. LaRue. Appellants'
amended complaint alleged that defendants were negligent with
respect to the dangling cable. At various points in time, each
of the defendants filed motions for summary judgment. Although
the court disposed of the motions individually, on 27 February
1995, the trial judge entered a final order dismissing all claims
against each of the defendants. Subsequently, appellants filed
this appeal against Schock, Bell South, and Charles LaRue.
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Appellants only issue on appeal is whether the trial court
erred in granting appellees' motions for summary judgment. We
are of the opinion that the trial court did not err and that it
properly entered judgment in favor of appellees. We discuss our
decision as to each appellee below.
I. Bell South and W. D. Schock Company
Bell South and Schock each filed a motion for summary
judgment. Bell South argued that it did not have notice of the
downed drop wire and that neither its acts nor its omissions
proximately caused appellants' injuries. Schock claimed that
summary judgment was appropriate because it did not owe a duty to
appellants and, like Bell South, that it did not commit an act or
omission which proximately caused the accident. In two separate
orders, the trial court granted the motions of each party.
A. Duty
"No claim for negligence can succeed in the absence of any
one of the following elements: (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." Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993). The issue of whether a person owes another a duty of care
is a question of law for the court to decide. Id. Further, the
purpose of a summary judgment proceeding "is to resolve
controlling issues of law, and that alone." Bellamy v. Federal
Express Co., 749 S.W.2d 31, 33 (Tenn. 1988). Because the
existence of a duty of care is a legal issue and is an essential
element of negligence, a court may grant summary judgment if it
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finds that the defendant did not owe a duty of care to the
plaintiff. Doe v. Linder Constr. Co., 845 S.W.2d 173, 183 (Tenn.
1992); see Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859
(Tenn. 1985) (quoting W. Page Keeton et al., Prosser and Keeton
on the Law of Torts § 37, at 236 (5th ed. 1984)); Nichols v.
Atnip, 844 S.W.2d 655, 658 (Tenn. App. 1992).
The determination of whether a person owes a duty to another
begins with the realization that "all persons have a duty to use
reasonable care to refrain from conduct that will foreseeability
cause injury to others." Bradshaw, 854 S.W.2d at 870. It
follows, therefore, that a duty of care does not arise unless the
injury is reasonably foreseeable based on all of the
circumstances at the time the negligent conduct occurred. Doe,
845 S.W.2d at 178. An injury is reasonably foreseeable when "a
reasonable person could foresee the probability of its occurrence
or if the person was on notice that the likelihood of danger to
the party to whom is owed a duty is probable." Id. Finally,
"the degree of foreseeability needed to establish a duty of care
decreases in proportion to the magnitude of the foreseeable
harm." Pittman v. Upjohn Co., 890 S.W.2d 425, 433 (Tenn.
1994).
In this case, appellants argued that Schock had a duty to
coordinate the removal of the drop wire from the utility pole and
to ensure that it was properly secured. We can not agree with
appellants because Mr. King's injuries were not a reasonably
foreseeable consequence of Schock's failure to fulfill its duty
as defined by appellants. Likewise, we cannot agree with
appellants' contention that Bell South had a duty to inspect the
Allen Road area for improperly cut drop wires hanging from
utility poles.
6
To begin with, it is necessary to determine when the
purported negligent act occurred.1 On or about 23 July 1992, Mr.
Dillingham purchased the home at 842 Allen Road from MNAA. In
August of 1992, Mr. Dillingham entered into a house moving
agreement with Mr. LaRue. Mr. Dillingham testified that he did
not request anyone to remove any wires from the house. In
addition, there was testimony that neither Richard LaRue, Ernest
LaRue, Charles LaRue, nor any of the other house movers
disconnected any wires from the house at 842 Allen Road.
Further, Ernest LaRue testified that there was not a Bell South
wire connected to the house when the house movers began to remove
the house. Ms. McClain, who lived on Allen Road, testified that
she had seen the wire hanging from the pole approximately one
week prior to the accident. She further stated that the wire was
rolled up like a water hose and placed beside the pole. Given
the above, it is difficult to determine when the wire was cut and
when the negligent act, leaving the wire dangling from the pole,
occurred. Assuming that the wire was connected to the house when
MNAA sold it to Mr. Dillingham, the best point in time from which
to make the determination would be from the date of the sale and
thereafter.
It is impossible to say that the injury was a reasonably
foreseeable probability on that day or any day thereafter because
a reasonable person could not foresee the probability of its
occurrence. Doe, 845 S.W.2d at 178. In order for this accident
to have occurred as appellants suggested, an unauthorized
individual had to cut the wire or something had to happen to pull
the wire down. Next, someone would have had to roll the wire up
and place it next to the pole at least one week before the
accident. Later, that same person or another unidentified
1
During oral argument, appellants stated that "the negligence was in the manner in which
that drop wire was left dangling along the pole."
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individual would have had to move the wire seventeen feet2 and
place it in the road. Then a person, traveling on a motorcycle
at a high rate of speed in pursuit of a gas thief, would have had
to come down the road at night and run over the wire. Finally,
it would have to be reasonably foreseeable that the wire would
somehow get caught in the motorcycle causing the driver to lose
control and crash. Even in a situation such as this where the
probability of injury was significant, the possibility of these
events occurring is simply too remote to impose a duty upon
either Bell South or Schock.
A second reason that the injury was not reasonably
foreseeable is that neither Bell South nor Schock "reasonably
knew or should have known of the probability of an occurrence
such as the one which caused the [appellants'] injuries." Doe,
845 S.W.2d at 178. There is no evidence in the record
demonstrating that Schock knew that there was a probability of an
improperly cut drop wire getting into the road. In fact,
appellants did not even argue that Schock had the necessary
notice.
As to Bell South, however, appellants argued that because
Bell South knew or should have known about the relocation project
the probability of someone improperly cutting a drop wire was
foreseeable. We can not agree. The fact that the house was in a
relocation project does not increase the probability that someone
would improperly cut the drop wire. While it is true that it
increases the need for cutting the wires, it does not increase
the likelihood of them being negligently cut and left dangling.
Thus, the issue of whether Bell South had notice of the
relocation project is irrelevant because knowledge of the project
2
In an affidavit, a Bell South employee testified in that he went to the accident scene and
measured the distance between the road and the pole. It was seventeen feet and three inches.
8
would not have lead to notice that the likelihood of the danger
to appellants was probable.
In further support of this position, there was no evidence
that Bell South had notice that the drop wire was improperly cut.
Bell South did receive requests to terminate telephone services
at 835, 836, 837, 840, and 842 Allen Road, but the requests did
not include the removal of the drop wires from the houses. In
addition, there is no evidence that Bell South received all of
these requests at the same location. Bell South has 523 service
representatives in five different Tennessee cities. These
representatives service customers in Tennessee, Alabama, North
Carolina, Georgia, Kentucky, and Mississippi. Finally, no one
called to report that a drop wire was dangling from a pole or
that someone was tampering with the wires.
Because appellants' injuries were not reasonably
foreseeable, neither Schock's nor Bell South's duty of care
arose. Doe, 845 S.W.2d at 178. Summary judgment is appropriate
when an essential element of negligence is missing. In this case
that element is the existence of a duty of care. Therefore, the
trial court did not err in granting summary judgement as to
appellees Schock and Bell South.
B. Proximate Cause
In order for a plaintiff to prevail in a case based on
negligence, the plaintiff must prove that the defendant's act or
failure to act breached a duty of care owed to plaintiff and
proximately caused plaintiff's injuries. Bradshaw, 854 S.W.2d
at 869. The Tennessee Supreme Court has explained the concept of
proximate cause as follows:
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"An injury that is the natural and probable consequence
of an act of negligence is actionable. But an injury
which could not have been foreseen nor reasonably
anticipated as the probable result of an act or
omission is not actionable; and such act or omission is
either the remote cause or no cause whatever of the
injury."
Moody v. Gulf Refining Co., 142 Tenn 280, 290, 218 S.W. 817, 819
(1919) (quoting Kreigh v. Westinghouse, C. K. & Co., 152 Fed.120,
122 (1907)). It is not necessary to establish that every aspect
of the injury was foreseeable. Instead, the plaintiff only need
show that the accident in general was foreseeable. McClenahan v.
Cooley, 806 S.W.2d 767, 775 (Tenn. 1991). In addition, the
negligent conduct "must have been a 'substantial factor' in
bringing about the harm. . . ." Id. A party may break the chain
of proximate cause by establishing the existence of an
unforeseeable, intervening cause of the accident. Id. The issue
of proximate cause is one for the jury. Nevertheless, a court
may rule on the issue when the facts and the inferences drawn
from them are such that "all reasonable persons must agree on the
proper outcome." Id.The issues of whether the accident was foreseeable and
whether the omissions were substantial factors are irrelevant
because there were at least two intervening acts which relieved
Schock and Bell South of liability. One of these acts was Mr.
King driving his motorcycle at a high rate of speed at night
while pursuing an alleged gas thief. The other was perpetrated
when an unidentified individual moved the wire into the road.
Viewing this factual situation at the point in time when the wire
was cut, coiled up, and placed next to the pole, it is apparent
that the likelihood that someone would move it onto the road
seventeen feet away is unforeseeable. It is also unforeseeable
that a person, other than a police officer, would come down the
road on a motorcycle in hot pursuit of another vehicle.
10
Even if one concludes that the intervening acts were
foreseeable, Schock's and Bell South's omissions were not the
proximate cause of appellants' injuries for a second reason. In
order for appellants to establish that Schock's and Bell South's
omissions were the proximate causes of the accident, they must
prove that the motorcycle came into contact with the wire. The
evidence in the record, however, failed to establish this fact.
In his deposition, Mr. King testified as follows:
Q. Do you know for sure that your tires, or any part
of the motorcycle, came in contact with the cables?
A. Am I sure?
Q. Yes.
A. No, I couldn't say yes, that they did.
Appellants only other evidence is the affidavit of Mr. Pennington
and the deposition of Martin Barnes. Mr. Pennington testified
that he and his wife arrived at the accident scene before the
police or the ambulance. He claims that he ran over a cable as
he drove down Allen Road on his motorcycle. Finally, he stated
that his wife pulled the cable out of the road so that no one
else would hit it. Mr. Barnes, who was at the accident scene at
the same time as the police, also testified that he ran over some
wire laying in the main travel lane. This evidence is
contradictory and fails to establish that Mr. King's motorcycle
touched the wire.
The issue of whether the motorcycle hit the wire is material
because it is essential to the determination of proximate cause.
Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). Appellants,
however, have failed to provide the court with evidence to
contradict the testimony of Mr. King that he did not hit the
wire. Id.; Armes v. Hulett, 843 S.W.2d 427, 429 (Tenn. App.
1992). Thus, there is no genuine issue for trial. Because
11
appellants can not prove contact with the wire, they can not
establish proximate cause. Therefore, the trial court did not
err when it granted appellees' motions for summary judgment.
II. Charles LaRue
Appellants claim that the trial court erred when it granted
LaRue's motion for summary judgment. This issue is without
merit. As previously stated, summary judgment is appropriate
when it is shown that one of the essential elements of negligence
is missing. Doe, 845 S.W.2d at 183; see Lindsey, 689 S.W.2d at
859 (quoting Prosser , Sec. 37 at 236); Nichols, 844 S.W.2d at
658. A moving party will prevail if it provides the court with
uncontradicted evidence of the nonmoving parties' inability to
establish an element of negligence. Armes, 843 S.W.2d at 429.
In other words, the moving party's evidence must be such that a
reasonable juror could not legitimately resolve that fact in
favor of one side or the other. Byrd, 847 S.W.2d at 215.
In this case, LaRue provided the trial court with a great
deal of evidence indicating that he did not disconnect the wire.
The house moving agreement between Dillingham and LaRue did not
authorize LaRue to remove any wires or cables from the house.
Charles LaRue and all of his employees testified that they did
not remove any wires or cables from the house at 842 Allen Road.
LaRue also testified that his standard procedure was to call the
appropriate utility company whenever he needed a wire or cable
removed from a house. In fact, Ms. McClain testified that LaRue
asked her to call NES because he needed the electrical wire
disconnected from the house. Further, Ms. McClain testified
that, although she had seen LaRue and his men preparing the house
at 842 Allen Road for removal, she had not seen any of the men or
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LaRue disconnect any wires from any of the houses they moved.
This evidence establishes that LaRue did not do anything which
could be considered a breach of his duty of care.
Therefore, the next issue is whether appellants provided the
trial court with any evidence that LaRue did cut the wire and,
thus, breached his duty of care. Appellants contend that the
fact that LaRue moved the house produces a reasonable inference
that he cut the wire. When reviewing a trial court's ruling on a
motion for judgment, this court is to "view the evidence in a
light favorable to the nonmoving party and allow all reasonable
inferences in his favor." Id. Without additional evidence,
however, this court can not say that moving the house creates a
reasonable inference that LaRue cut the wire. The connection is
simply too tenuous. Because appellants failed to establish that
there is a genuine issue as to the material fact of breach of
duty, the trial court correctly determined that summary judgment
was appropriate.
Therefore, it follows that the judgment of the trial court
is affirmed in all respects and is remanded for any further
necessary proceeding. All costs on appeal are taxed to
appellants.
____________________________________
SAMUEL L. LEWIS, JUDGE
Concur:
____________________________________
HENRY F. TODD, P.J., M.S.
____________________________________
BEN H. CANTRELL, JUDGE
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