Marisa R. Rowland v. Metropolitan Government of Nashville & Davidson County ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 28, 2012 Session
MARISA R. ROWLAND ET AL. v. METROPOLITAN GOVERNMENT OF
NASHVILLE & DAVIDSON COUNTY ET AL.
Appeal from the Circuit Court for Davidson County
No. 04C2916 Hamilton V. Gayden, Jr., Judge
No. M2012-00776-COA-R3-CV - Filed February 28, 2013
In this case involving serious injuries sustained in a collision between a school bus and a
pickup truck, the evidence preponderates against the trial court’s findings. We must,
therefore, reverse the trial court’s judgment in favor of the plaintiffs.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
M.S., P.J., and R ICHARD H. D INKINS, J., joined.
James E. Robinson and Kathryn E. Sinback, Nashville, Tennessee, for the appellant,
Metropolitan Government of Nashville and Davidson County.
Steven Rand Walker, Oakland, Tennessee, and Mark S. Beveridge, Nashville, Tennessee, for
the appellees, Marisa R. Rowland et al.
OPINION
F ACTUAL AND P ROCEDURAL B ACKGROUND
Marisa Rowland and Julian Rowland, students at Dodson Elementary School in
Hermitage, Tennessee, were passengers in a school bus on the afternoon of October 10, 2003
when the bus was hit by a pickup truck. The Rowland parents, individually and on behalf
of their children, filed this lawsuit on October 7, 2004 against a number of defendants,
including the Metropolitan Government of Nashville and Davidson County (“Metro”); the
board of education; Sherrie Rogers, the school bus driver; Gerald Stanley, the driver of the
pickup truck; and five corporations involved in the design, manufacture, and/or sale of the
school bus. The trial court granted Metro’s motion to dismiss the school bus driver and the
board of education. The plaintiffs reached settlements with some of the defendants and
dismissed their claims against the corporations and the truck driver. Thus, Metro was the
only remaining defendant. As to Metro, the plaintiffs alleged negligence in failing “to
exercise reasonable care to provide for the safety of children like Marisa Rowland being
transported on its school bus,” as well as vicarious liability for the negligence of Ms. Rogers.
In September 2008, Metro filed a motion for summary judgment on the ground that,
based upon the undisputed facts, the plaintiffs could not establish their negligence claims
against Metro. The court granted Metro’s motion for summary judgment as to the claims
regarding the structure of the school bus, but denied the motion as to the alleged negligence
of Ms. Rogers, the bus driver, and Metro’s training and supervision of Ms. Rogers.
The trial
The court heard the liability phase of the bifurcated trial on February 21, 2012.
George Donn, a school transportation consultant, testified as an expert witness on behalf of
the plaintiffs. Mr. Donn stated that Mr. Stanley, the truck driver, drove his vehicle over the
center line and into the school bus.1 When asked to give his opinion about the actions of Ms.
Rogers, Mr. Donn identified a number of “question marks”—the fact that Ms. Rogers was
not on the assigned route, the existence of “three crashes” (the truck hitting the bus, the bus
running over a tree, and the bus hitting a tree), the presence of a “boom box” in the bus, the
fact that Ms. Rogers was holding a soft drink can between her legs at the time of the accident,
and the fact that Ms. Rogers did not remember whether she applied the brakes. Mr. Donn
testified that, “when you put all those things together, I think it became a red flag that we
needed to look into the details.”
Mr. Donn had reviewed Metro’s bus driving manuals and found “no fault whatsoever
with their manuals.” The manuals required a bus driver to seek authorization from the
dispatcher or a supervisor before deviating from the assigned route. (It is undisputed that
Ms. Rogers did not seek approval prior to modifying the route she took on the day of the
accident.)
Mr. Donn testified about North New Hope Road, the road on which the accident
occurred, which was not part of Ms. Rogers’s assigned route. The evidence was that Ms.
Rogers chose to drive on North New Hope Road in order to save time because of heavy
traffic. Mr. Donn described North New Hope Road in 2004 as a narrow rural road with trees
growing close to or over the road at some points. He characterized the site of the accident
as having “limited visibility” from the pickup driver’s direction of travel. Mr. Donn gave the
1
Mr. Stanley’s fault is not in dispute in this appeal.
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following opinion as to the appropriateness of a school bus using North New Hope Road:
If there are children on North New Hope Road that need to be picked up, I
think I would rather put them on a bus than have them walk down that road,
because I think the road is dangerous. And I would do that in my position as
the director of transportation. However, I would not use that road as a cut-
through road or road trying to make up time and speed to get from one school
to another. . . . It sounds like the need to get to the second school was
paramount [in Ms. Rogers’s decision to take an alternate route].
Mr. Donn testified that he did not know whether the fact that Ms. Rogers had a drink
between her legs affected her ability to apply the brakes, but that the presence of the drink
“puts a red flag in front of me.” He also did not know whether the boom box had any effect
on what happened and whether it came untethered after the truck crashed into the bus, but
it caused him to have concern that Ms. Rogers was not following the school rules for bus
drivers.
As to Metro’s training and supervision of Ms. Rogers, Mr. Donn opined that Metro
had “done a very good job of outlining everything drivers need to be doing” as well as what
they should not be doing. He assumed that Metro had taught the same information to the
drivers. Mr. Donn stated that, “I think if she had followed the manual and the driver
procedures, basically we wouldn’t be in here today.”
On cross-examination, Mr. Donn acknowledged that he did not know whether Ms.
Rogers applied the brakes and that the initial collision would have occurred whether or not
she applied the brakes. He stated that, “based upon what I read, more likely than not that she
did not apply [the brakes].” Mr. Donn further stated: “I would say based upon the
information that has been provided to me that there was no indication she made any effort
to steer, to eliminate trying to hit the trees or tried to brake after the initial collision. I saw
nothing from anyone that said she did.” Mr. Donn opined that, from the point when the
pickup truck struck the bus, “there are things that Ms. Rogers may or may not have done that
could have impacted the rest of the accident.”
The plaintiffs’ next witness was Stephen Felts, a resident of North New Hope Road
whose driveway was located close to the accident site. Mr. Felts described the relevant part
of North New Hope Road as having “two up-and-down hills that really obscure vision.” He
further stated that, at the site where the accident occurred there was a “deceptive” curve in
the road: “As you’re approaching it from either direction, it doesn’t appear to be that much
of a curve, but when you get into it, it really can’t be well negotiated if you’re exceeding the
speed limit for sure.” Bobby Luffman, a resident of North New Hope Road since 1987
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whose yard bordered the curve, also testified. He was aware of three fatal accidents and at
least 15 other wrecks at the curve during the time that he had lived there.
Sherrie Rogers, the bus driver, was called by the plaintiffs to testify. She admitted
that, on the day of the accident and for about three weeks prior to the accident, she had
followed an alternate route when leaving the school in the afternoon to take students home.
When following the assigned route, she had been about 30 minutes late getting to the next
school and had been advised by other drivers of a better route. Ms. Rogers did not ask
permission to change the route although she was aware of the policy requiring her to do so.
Ms. Rogers could not say how fast she was going at the time of the collision, but she
did not dispute the opinion of the school safety investigator that she was traveling about 30
miles per hour. Ms. Rogers did not know whether she hit the brakes. According to Ms.
Rogers, the boom box radio was tethered to the front part of the bus. She admitted having
an open drink bottle between her legs at the time of the accident. As to what happened when
the pickup truck hit the bus, Ms. Rogers testified:
Q. Now, and as I understand it, when the truck hit your bus, it hit—the front
of the truck hit the left front of your bus, correct?
A. Yes, sir.
Q. And the pickup truck kind of stopped right there, didn’t it?
A. I remember it spinning.
Q. Your bus kept going to the right, correct?
A. Yes, sir.
Q. And you ran over a small tree or bush and then came to rest up against
another tree?
A. I don’t remember the first tree. And from my recollection, I didn’t touch
that other tree. I thought I stopped right before that tree. But that’s just what
I remember.
Q. Do you know why your bus didn’t stop sooner?
A. I can’t answer that.
Ms. Rogers further testified that, after the accident, Marisa was on the floor of the bus
unconscious; “her head was facing towards the back door and her feet [were] facing toward
the front of the bus.”
On cross-examination, Ms. Rogers testified that, while she could not say her exact
speed at the time of the accident, she knew she was going under the posted speed limit of 35
miles an hour. When she saw the pickup truck coming toward the bus, Ms. Rogers “braced”
by gripping the steering wheel to maintain control of the bus. As to whether or not she
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applied the brakes, Ms. Rogers gave the following testimony:
Q. You have testified in the past, as [plaintiffs’ attorney] pointed out, that you
didn’t remember when you hit the brakes. Do you recall now in retrospect
whether you hit the brakes or not?
A. Thinking back, seems like I remember hitting the brakes when I was in the
yard.
...
Q. [Showing a picture of the accident]. This is a different angle than the
picture that [plaintiffs’ attorney] showed of the bus, but it’s the same accident
scene. There’s a space you’ll see here between the bus and the tree. Does it
appear—from this picture, is this an accurate representation of what the bus
looked like after the accident?
A. Yes, ma’am.
Q. And looking at that, do you recall anything about that tree, thinking
anything about that tree?
A. Yes. “I got to stop.”
Q. I’m sorry?
A. “I got to stop.”
Q. You thought “I got to stop before I hit that tree”?
A. “I just have to stop” when I seen the tree.
Q. Okay. And somehow, and you may not remember exactly, but somehow
your bus did stop before hitting that tree; is that correct?
A. Yes, ma’am.
...
Q. . . . [Y]ou didn’t impact any trunks like this prior to coming to rest before
this tree?
A. I don’t remember running over anything.
Q. Okay. Fair enough. The bus, it went—I mean, I’m sure when the truck hit,
you may not have had a lot of control over where the bus went; is that correct?
A. I felt like I did.
Q. Did you?
A. Yes, ma’am.
Q. Did you maintain control to the best of your ability?
A. Well, it knocked me—when he hit, it knocked me. And I do feel like I had
control of that bus until I stopped. Yes, ma’am, I did.
Q. Did you keep your hands on the steering wheel the entire time?
A. Well, I did the entire time. I know at the end, I didn’t know my hand was
injured.
Q. Okay. So your hand was injured in the wreck?
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A. Yes, ma’am.
Q. Do you recall gripping the steering wheel tightly?
A. Yes, I do.
Ms. Rogers went on to testify that the drink bottle between her legs did not distract her or
keep her from having control of the bus, and that the boom box did not have any effect on
the accident. After the accident, her drink was on the floor and the boom box “was still
sitting where it was bound.”
Gwen Sales, the school safety investigator assigned to the accident on October 10,
2003, acknowledged that Ms. Rogers had violated the policy of getting prior approval for any
route changes. She further testified:
She did not do as we asked, but under certain circumstances, if something is
preventing the driver to go that direction or they’re asked not to go that
direction, they have an option to use good judgment to go a different way.
Ms. Sales subsequently testified as follows:
A. Like I said, they can [go off the approved route] if there’s something
preventing them from going, you know, from traveling the roads that were
given on the route sheet, they can do that. But they are not really—it’s not
really a real big violation. It’s not a violation to alter the route. Some of them
do it for traffic or other reasons, but . . .
Q. Okay. So you’re saying it’s not important to Metro if the bus drivers
decide they’re not going to follow this procedure and they just decide they
want to go a different road?
A. They have to follow the route sheet, but under other circumstances, they
can go off the route for different reasons. And I’m just saying she might have
tried to call in and the radio might have been tied up or something.
Ms. Sales admitted that she had initially expressed to her colleagues some concern about the
bus being off the approved route at the time of the accident because North New Hope Road
was a winding, hilly two-lane road.
Ms. Sales described her observations at the scene of the accident. Her recollection
was that the boom box had not been secured when she arrived at the scene about 15 to 20
minutes after the accident. Ms. Sales opined that Marisa may have struck her head on
something metal on the handle of the front door of the bus; she based this theory on her
observation of some blood on screws by the door handle. On cross-examination, Ms. Sales
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acknowledged that her job as a school safety investigator was to gather and disseminate
information about the accident, make sure those involved received needed medical attention,
inform the school about the police investigation, and act as a liaison. She had not been
trained to reconstruct the accident or to determine the cause.
Ms. Sales gave the following testimony concerning North New Hope Road, Metro bus
routes, and the accident:
Q. Okay. As a safety investigator, you make recommendations on safe routes,
on trying to make sure the routes are safe. Have you ever made a
recommendation to take North New Hope Road off of the MNPS bus routes?
A. No, I haven’t.
Q. And it’s a lot like other routes, other roads that people drive on MNPS bus
routes?
A. We have routes—different road conditions that are worse than that one, but
we have to travel them in order to pick up the students that live there.
Q. But even if you had to go pick up students, if there were a road that was
just really inherently dangerous, you wouldn’t let the buses go down that road
as a safety investigator; is that right?
A. That’s left up—we’re giving feedback to the routing specialist, that we
would just actually tell them maybe something that we felt is dangerous about
proceeding through that particular area.
Q. But you never did that with North New Hope Road?
A. No, I did not.
Q. And are you familiar with the other routes [on the approved route], the Old
Hickory Pike and Central and Andrew Jackson?
A. Yes.
Q. Are there dangerous spots on those roads as well?
A. Yes. Dangerous spots and a lot of accidents that occur and a lot of
congestion of traffic in that area.
Q. So when you’re saying that you would have gone one way as opposed to
the other, that’s just your opinion; is that right?
A. Yes.
Q. In your report, or in your investigation, you determined that there was
nothing that Sherrie Rogers could have done that would have prevented Gerald
Stanley from crossing the double yellow line and crashing into her bus; is that
correct?
A. Correct. She did not—she did all she could to control the bus.
At the close of the plaintiffs’ proof, Metro moved for dismissal on the ground that the
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plaintiffs had shown no right to relief. The trial court denied Metro’s motion, and Metro
began putting on its proof. Sergeant Chris Upchurch, the Metro police officer and trained
crash investigator who was dispatched to the accident on October 10, 2003, testified about
his observations at the accident scene. Sergeant Upchurch opined that Mr. Stanley’s
excessive speed and the condition of his tires caused his pickup truck to hydroplane and crash
into the school bus. Based upon his investigation, Sergeant Upchurch concluded that Ms.
Rogers was not speeding before the collision and that she “had no contributing factors in the
crash.” Asked if North New Hope Road was appropriate for school buses to use, the sergeant
responded affirmatively. He stated that he “didn’t see any safety issues”; he noted, in
particular, “the width of the roadway and each lane is wider than that of a vehicle and the
bus.” He did not think that the curve where the accident occurred or the hilliness of the road
made North New Hope Road inappropriate for use by school bus drivers. Sergeant Upchurch
further testified that, based on his investigation, the presence of the boom box radio or a soft
drink bottle did not affect or cause the accident.
Sergeant Upchurch also gave the following testimony about his conclusions
concerning the causes of the accident:
Q. Are you aware of anything that Ms. Rogers should have done that she
didn’t do in either avoiding the collision between her and the school bus and
the pickup truck, or in avoiding some other collision once the bus left the
road?
A. No, sir. My conclusion was the bus driver had zero, meaning no
contributing factors to the crash at all. Doesn’t matter what she would have
done; the crash would have occurred. So no, sir, I don’t know if there was
anything else she could have done. Even swerving to avoid the accident, the
crash still would have occurred.
...
Q. Sergeant Upchurch, are you aware of any law that the bus driver broke or
violated by being on North New Hope Road?
A. No, sir.
...
Q. Now, from your investigation, did you form a conclusion as to what or as
to how Marisa Rowland was injured on the bus?
A. Did I form a conclusion?
Q. Yes.
A. It appeared that she struck the—was thrown to the front of the bus, which
is common when an impact occurs to have something loose hanging out or if
there’s something that can go forward, it goes towards the impact. Whatever
object it is, it goes towards the impact. And it appeared that she was thrown
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up in that direction and hit the door handle that opens up the bus door for the
children to get on and get off.
Q. So from your investigation, there was no indication that a radio hit Marisa
Rowland?
A. No, sir. There was evidence that I saw there that suggested she hit that
door.
Mr. Stanley, the pickup truck driver, was the next witness for the defense. Mr. Stanley
stated that he did not remember the details of the wreck and that the statements he made to
a Metro police officer about six days after the accident would provide a more accurate
account of what happened. Whereupon, a recording of Mr. Stanley’s previous conversation
with the Metro officer was played. In that conversation, Mr. Stanley admitted that he had
been driving too fast, that his tires were in poor condition, and that his vehicle went across
the center line and collided with the school bus.
When called by Metro to testify again, Ms. Rogers reiterated that the boom box was
secured by hooks connected to latches on either side of the “doghouse,” a reference to the
engine compartment. She testified that the radio never left the doghouse and that she saw
it there after the accident.
Todd Hutchison, an accident reconstructionist, testified as an expert for Metro. He
opined that Mr. Stanley’s pickup truck was going too fast around a curve on wet pavement,
skidded in to the other lane, and crashed into the school bus. He testified that, based upon
his investigation, the school bus had been traveling at an appropriate speed for the conditions
and the road it was on. Mr. Hutchison did not find that the school bus driver had done
anything improper; he did not find any evidence to suggest that the school bus driver had
been distracted or failed to react appropriately. According to Mr. Hutchison, the accident
was caused by Mr. Stanley leaving his lane of traffic and colliding with the school bus, not
by anything Ms. Rogers did or did not do. The evidence showed that the school bus was
within its lane of traffic right before the collision. In fact, “there was evidence that the
school bus even moved over to the right side of the lane . . . .” On cross-examination, Mr.
Hutchison opined that the school bus did not actually impact the trunk of the tree near which
it came to rest.
The final witness was Tracey DeMoss, routing/special services coordinator for
Metro’s transportation department. She described the process by which Metro determined
the routes prescribed for its school bus drivers. After explaining that Metro sometimes
designates a street as “no travel,” Ms. DeMoss further testified:
Q. And was North New Hope Road one of those flagged roads?
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A. No, ma’am.
...
Q. Do you know how many routes you had that were routed by EDULOG [a
computerized routing program] to go down that road? Or by routing, I should
say, since it’s human and computer, to go down North New Hope Road?
A. At the time of this accident?
Q. Yes.
A. There were two runs. A high school run and an elementary run who was
designated with stops on North New Hope Road.
Q. Okay.
...
Q. Technically—and the Plaintiff will ask you about, I’m sure, the policies of
calling and requesting—I think there’s two policies. One is that you should
call and request permission from a supervisor or dispatcher before altering
your route, before changing your route. And the other one is, if you were
going to alter your route, make it go through the EDULOG system to alter it.
Can you describe those two policies for me?
A. Those policies in particular, as far as with the EDULOG, clearing it with
routing, that is more specific for if you are—if there’s a need to change your
route on a permanent basis, you need to turn in a route update, come in and
talk to someone in routing so that it can be changed officially on your route.
If you are altering based upon—usually when a driver will call in by radio that
I’m having to change my route, it’s generally traffic purposes. And, of course,
they’re the ones who are out there. If a driver calls in to, you know, “I need
to change” or “I’m going a different way,” then they are the ones who are out
there, they know what the situation is. Dispatch would generally say, “That’s
a 10-4, be careful, use caution,” depending on what the situation is. Having
worked in dispatch, I don’t know of any time that we’ve ever told a driver,
“Oh, no, you can’t change your route.” And most of the time whenever
someone calls in, it’s if it will affect dropping off students. Say there’s an
accident at the end of a road and they can’t go down it and they have stops
down there, they’ll call us to let, you know, let someone know that they can’t
get down there, they’re going to have to come back with a child or make
arrangements for the child to get off, you know, maybe at a different location
than normal.
Q. As a dispatcher, would there have been any reason that you would have
told someone calling in not to go down North New Hope Road?
A. No.
Q. What type of discretion do you leave to your bus drivers?
A. Well, we depend a lot on the bus driver’s judgment. Like I said, they’re
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the ones who are out there. They’re the ones ultimately responsible for the
bus. So, you know, we have them use their discretion and judgment on a daily
basis.
Q. Would a bus driver be disciplined for failing to call in if they went a
different route or a different way to their first stop on their route?
A. No.
Q. Why not?
A. Well, I’ve never really been asked the question, but my feeling on that is
we don’t know from day-to-day what the situation is out on the road. The
driver is out there. So sometimes they have to make a judgment call.
Sometimes—especially in years past when we had one radio for—at one time
it was for all buses, we had one radio system, and unless there was just an
extreme emergency, it was hard to even get on the radio to get through because
there were so many people calling for different reasons on the radio. . . . But
to just go a different road, a different street because of traffic or a tie-up or
something, that just wouldn’t warrant discipline, I don’t believe. Technically,
according to what’s in the handbook, yes, it could be considered a violation,
but not one that would warrant discipline, I don’t think.
...
Q. Have any of your safety investigators or anyone else ever recommended
removing North New Hope Road from bus routes?
A. No. Not to my knowledge at all.
Q. Do you sometimes have to send buses down roads that have curves and
hills and have had accidents?
A. Yes. There are many roads in Davidson County that buses go on that meet
that criteria.
Q. Was North New Hope Road appreciably different in any way than bus
routes that you send buses down every day in Metro Nashville Public Schools?
A. No, ma’am.
Decision of trial court
At the conclusion of the proof on liability, the trial court ruled that Mr. Stanley was
75% at fault and Metro was 25% at fault. The court’s findings will be discussed below as
pertinent to the issues on appeal. After the damages phase of the trial, the court entered its
final judgment in which it found total damages for Marisa in the amount of $2,000,000 and
for Julian in the amount of $30,000. Based upon Metro’s 25% liability and the statutory
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maximums allowable under the Governmental Tort Liability Act,2 the court found Metro
liable to Marisa for $250,000 and to Julian for $7,500. The individual claims of the parents
were dismissed.
Issues on appeal
On appeal, Metro argues that the trial court erred (1) in ruling that Ms. Rogers
breached her duty of care and that her actions were the direct and proximate cause of the
accident, (2) in applying the wrong standard of care, (3) in considering and entering into
evidence certain deposition transcripts and associated exhibits of witnesses who testified at
trial, and (4) in applying the missing witness rule.
S TANDARD OF R EVIEW
In an appeal of a decision rendered after a bench trial, we review the trial court’s
findings of fact de novo with a presumption of correctness unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). Moreover, we “give great weight to the trial court’s assessment
of the evidence because the trial court is in a much better position to evaluate the credibility
of the witnesses.” Boyer v. Heimerman, 238 S.W.3d 249, 255 (Tenn. Ct. App. 2007). We
review questions of law de novo with no presumption of correctness. Nelson v. Wal-Mart
Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).
A NALYSIS
I. Standard of care
Metro argues that the trial court erred in applying the standard of care applicable to
common carriers.
There is no dispute in this case that the appropriate standard of care for school bus
drivers is not the standard of care applicable to common carriers. Our Supreme Court has
made clear that a school system does not have the same duty of care as a common carrier,
which must exercise the “highest practical degree of care.” Hawkins Cnty. v. Davis, 391
S.W.2d 658, 663 (Tenn. 1965). Rather, a school bus driver has a duty “to exercise reasonable
and ordinary care under the circumstances.” Traylor v. Coburn, 597 S.W.2d 319, 321 (Tenn.
Ct. App. 1980). When a school bus is transporting young children, reasonable and ordinary
care under the circumstances “requires that the driver exercise special care proportionate to
2
Tenn. Code Ann. § 29-20-101 et seq.
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the age of the child and its ability, or lack of ability, to care for itself.” Hawkins, 391 S.W.2d
at 660.
In support of its argument that the trial court erroneously applied the common carrier
standard of care, Metro relies solely upon a single statement made the by the trial court. The
statement, italicized below, was made in the context of the court’s discussion of what caused
the accident:
But the speed of the car, speed of the bus, was a contributing factor to this
case, and therefore, the Court finds that Metro Government violated some
standard of policy and procedures. The Court finds that it was a high duty, not
only as a driver of a school bus, but also similar to that of a common carrier,
and the procedure has to be followed. It was not in this case. It was not
followed on the route for three weeks. Never was changed even afterwards,
which the Court takes into evidence.
(Emphasis added). The “procedures” referenced by the court appear to be Metro’s assigned
school bus routes. While the trial court’s language here is somewhat confusing, the court
stated that Metro’s duty was “similar to that of a common carrier,” not that Metro had the
same duty as a common carrier. In the absence of any other support, we find Metro’s
argument here unpersuasive.
II. Missing witness rule
Before proceeding further with the negligence analysis, we must resolve the issue of
the trial court’s application of the missing witness rule.
Some background is necessary to understand the issue. During her deposition in July
2006, Ms. Rogers was questioned about a written statement she made on October 16, 2003
about the accident. When a two-page copy of the statement was presented to her at the
deposition, there seemed to be something missing. At the bottom of the first page, the
following text appeared: “I could see Marisa face down in.” At the top of the second page,
the following text appeared: “screaming. I opened the door and two girls came running out
of the house . . . .” Putting the phrase at the bottom of the first page with the word at the top
of the second page yields the following: “I could see Marisa face down in screaming.” At
the deposition, Ms. Rogers stated that she did not recall how many pages were in her written
statement, but that there may have been a page missing given the fact that the above sentence
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appeared to say that Marisa was screaming, which was not accurate.3
At trial, during Mr. Donn’s testimony, the trial court asked whether he had seen Ms.
Rogers’s written statement and asked that a copy of the statement be produced by the parties.
Mr. Donn testified that he thought he had seen a copy of the written statement in preparing
for the trial. The trial court inquired about the original of the document, and plaintiffs’
counsel stated that he did not think the original had been produced.
At the end of the plaintiffs’ proof on liability, Metro moved for dismissal under Tenn.
R. Civ. P. 41.02. The trial court denied the motion and made the following statements:
Ms. Rogers could have been and probably was in her lane; however, the Court
just can’t get past, and I’m sorry that I cannot, that the Metro Government has
a public duty to keep their records. It is a public record, and this record is
deficient in some very key points.
That raises a question of credibility, not only as to Ms. Rogers’s testimony,
which, by the way, I do not find her that credible, as opposed to Ms. Sales,
who I do find extremely credible. If Ms. Sales says the radio was not attached
and Ms. Rogers says it was, I believe Ms. Sales.
Ms. Rogers was asked to draw a diagram of the accident, wherein there’s
another page of this missing to make these words fit. Where is it? So what we
have, and unfortunately that is before us, is a finding of spoliation by the
Court. Metro had a duty to preserve. It’s not here. The Court cannot give Ms.
Rogers credibility until I see that, based on the conflicting testimony between
her and Ms. Sales.
And I cite you to the case of Clark Construction v. City of Memphis. It’s a
2005 case in the Federal District Court, No. 01-2780, where a similar question
came up about the obligation of the city to preserve public records. So what
we have here is an adverse inference. So the Court at this point relies on
adverse inferences. This child had an unusual accident, and it could have been
as a result of a missile, as well as anything else. Could have been as a result
of the radio or glass bottle or something else.
The court then asked Metro to produce the original document. Counsel for Metro pointed
3
Ms. Rogers likewise testified at the trial that these statements did not make sense and that perhaps
there was a page missing.
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out that no party had ever requested the original of the document in the five years since Ms.
Rogers’s deposition.
During its proof, Metro recalled Ms. Rogers to the stand and introduced into evidence
a more complete copy of her written statement. This copy showed that the deposition copy
had been missing a line from the top of the second page. The new copy showed the
statement to say: “I could see Marisa face down in between the seats in the aisle. The other
kids were screaming.” Ms. Rogers testified that this copy represented her full written
statement. She did not recall drawing a diagram of the accident location as requested on the
form.
Later in the trial, Metro asked the court to reconsider its ruling regarding spoliation
of evidence. Metro pointed out that it had not needed to introduce at trial the written
statement that was attached to Ms. Rogers’s deposition since Ms. Rogers was a witness at
trial. No party had attempted to introduce the statement at trial. Moreover, Metro argued,
the new copy was fully consistent with Ms. Rogers’s testimony. Noting that it would have
liked to see the diagram (if any) that Ms. Rogers might have drawn on the written statement,
the trial court nevertheless granted Metro’s motion to reconsider.
In making its ruling on liability, however, the trial court revisited Ms. Rogers’s written
statement:
The fact that the accident report that she made to the Transportation
Department does not show the original backside, the Court has backed off the
spoliation finding. I do not back off the missing witness rule, that the backside
of the document was very appropriate to the Court and is missing. And there
is an inference that she knew it was a dangerous intersection—dangerous
curve. . . . In fact, it could have been with the length of the bus and the fact
that the bus was almost 10 feet in width and the lane was only 10 feet in width,
physically from a physics’ standpoint, that is, it could show that the bus was
over the line, at least part of the bus. Even though Mr. Stanley went over the
yellow line and hit this bus head-on, it could show that that bus could not
negotiate that curve with that part of it being over the side. I’d love to see that
diagram, which I don’t have.
(Emphasis added).
With this procedural history in mind, we must determine whether the trial court
properly applied the missing witness rule. In light of the fact that Ms. Rogers testified at the
trial, there is no missing witness in this case, so we fail to see how that rule was applicable
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here. Perhaps the trial court was actually referencing the missing evidence rule, which is
similar to the missing witness rule. Either rule allows a trial court, under certain
circumstances, to “instruct a jury that they may consider the absence of a witness or evidence
to conclude the witness’s testimony or missing evidence would have been adverse to the
party who failed to introduce it.” In re Estate of Hamilton, No. M2009-01882-COA-R3-CV,
2011 WL 532296, at *5 (Tenn. Ct. App. Feb. 14, 2011).
It is clear from the transcript that the trial court was bothered by the absence of the
original of Ms. Rogers’s written statement. Once the missing line from the top of the second
page was revealed, the trial court questioned whether, as requested on the form on which the
written statement appeared, Ms. Rogers may have drawn a diagram of the accident location
on the reverse side of the first page. Even if the circumstances allowing application of the
missing evidence rule had been met in this case, however, we fail to see how the absence of
Ms. Rogers’s original written statement, which may or may not have included a diagram of
the accident, could properly lead to the inference drawn by the trial court: that Ms. Rogers
knew that this was a dangerous curve. Moreover, all of the evidence presented at trial as to
the location of the school bus preponderates against any inference that the bus crossed the
center line prior to the collision. Furthermore, the missing witness/evidence rule relates to
a trial court’s instructions to the jury regarding allowable inferences. Id. at *6; Richardson
v. Miller, 44 S.W.3d 1, 26 (Tenn. Ct. App. 2000). We fail to see how the rule would apply
in the context of a bench trial. See Estate of Hamilton, 2011 WL 532296, at *6.
We must conclude that the trial court erred in applying the missing witness/evidence
rule in this matter and that, even if the rule applied, the evidence preponderates against the
inferences made by the trial court.
III. Breach of duty and proximate cause
The elements of a negligence claim are a duty of care, breach of the duty of care,
injury or loss, cause in fact, and proximate or legal cause. Rathnow v. Knox Cnty., 209
S.W.3d 629, 633 (Tenn. Ct. App. 2006). In this case, the disputed issues are breach of duty
and proximate cause, both questions of fact. Rains v. Bend of the River, 124 S.W.3d 580,
588 (Tenn. Ct. App. 2003). Metro asserts that the plaintiffs failed to meet their burden of
proof regarding breach of duty and proximate cause.
We must examine the record to determine whether the evidence preponderates against
the trial court’s findings regarding breach of duty and proximate or legal cause. Proof by a
preponderance of the evidence requires proof that the alleged fact “is more likely true than
not true.” McEwen v. Tenn. Dep’t of Safety, 173 S.W.3d 815, 825 n.19 (Tenn. Ct. App.
2005); see also Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005). A
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fact may be proven by direct and/or circumstantial evidence. McEwen, 173 S.W.3d at 825.
Circumstantial evidence is “‘evidence of a fact or set of facts from which the evidence of
another fact may be reasonably inferred.’” Parish & Parish Mining Co. v. Serodino, Inc.,
372 S.W.2d 433, 450 (Tenn. Ct. App. 1963) (quoting P ROSSER ON T ORTS 291 (1941)).
While the trial court did not include factual findings in its order of judgment, the court
did make some relevant factual rulings from the bench:
The Court finds that [Ms. Rogers] was speeding, going too fast for the
conditions on the road of New Hope. Going 30 to 35 miles an hour in an area
that’s a dangerous curve, where the suggested speed is at least 20 miles per
hour on one sign. I think that’s what the officer says, “suggestive speed,”
Officer Upchurch, who’s in the courtroom. And that that speed was a
contributing factor to the kinetics of the accident and could very well have
been circumstantial and added to the head injury that affected Marisa, who
landed, by the way, six rows back from the front seat where she was seated
seated with her brother.
In fact, in the record, although it wasn’t developed, she was actually
standing, apparently, according to some children on the bus. And the only
person standing, apparently.
But be that as it may, I must look at Ms. Rogers’s credibility, what she
was doing, the many ways she did violate the policies and procedures. One,
going on a route that was not approved. That, in and of itself, the Court would
not find against Metro Government, but when you consider that in light of the
fact that she had a Coke bottle in her lap, she said it was plastic, Mr. Donn said
it was a can, who knows? The fact that she said that she had a boombox that
was tied down, Ms. Sales’s credibility I put above Ms. Rogers’s, disputes that.
I think it was not tied down.
In fact, the words of Ms. Rogers herself somewhere in the record says
that, “At the moment of collision, everything went flying.” I have yet to hear
her identify what was flying other than perhaps glass. The fact that the
accident report that she made to the Transportation Department does not show
the original backside, the Court has backed off the spoliation finding. I do not
back off the missing witness rule, that the backside of the original document
was very appropriate to the Court and is missing. And there is an inference
that she knew it was a dangerous intersection—dangerous curve. Excuse me.
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In fact, it could have been with the length of the bus and the fact that
the bus was almost 10 feet in width and the lane was only 10 feet in width,
physically from a physics’ standpoint, that is, it could show that the bus was
over the line, at least part of the bus. Even though Mr. Stanley went over the
yellow line and hit this bus head-on, it could show that that bus could not
negotiate that curve with that part of it being over the side. I’d loved to see
that diagram, which I don’t have.
So it gets to credibility. Ms. Rogers denied most everything that Ms.
Sales found to be true, and the Court comes down on the part of Ms. Sales.
So, she hit a tree, then hit another tree, and came to a stop. How this child was
hurt, could have been a missile, could she have gone, as Mr. Upchurch
surmises, and hit the front door turning the apparatus? Maybe. But the Court
believes circumstantially that this young lady was probably hit by a flying
object of some kind and it could have been anything.
But the speed of the car, speed of the bus, was a contributing factor to
this case, and therefore, the Court finds that Metro Government violated some
standard of policy and procedures. The Court finds that it was a high duty, not
only as a driver of a school bus, but also similar to that of a common carrier,
and the procedure has to be followed. It was not in this case. It was not
followed on the route for three weeks. Never was changed even afterwards,
which the Court takes into evidence.
The Court takes into evidence that the bus from mirror to mirror was 10
feet, approximately 10 feet, and the lane was 10.1 feet, with overhanging trees,
it is a very rural and dangerous road. The Court finds, in fact, that the curve
was dangerous. With all of that put together, the Court believes and is of the
opinion that Metro contributed to this accident 25 percent.
In its analysis, the trial court focused on three main factual issues: the speed of the
bus, the bus driver’s lack of compliance with school policies, and the route taken by the bus
driver.4 We will discuss each of these topics separately.
A. Speed of the school bus
4
In our analysis above regarding the missing witness rule, we rejected the trial court’s inferences
regarding the bus crossing the center line and Ms. Rogers’s alleged knowledge that North New Hope was
a dangerous road.
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The trial court reached the conclusion that the school bus was traveling at an excessive
speed under the circumstances (road conditions and the dangerousness of the road) and that
the bus’s speed was a contributing factor to the injuries suffered by Marisa. What is the
evidence pertinent to the appropriateness of the bus’s speed and the effect of that speed on
the plaintiffs’ injuries, including those sustained after the initial impact between the bus and
the pickup truck?
There is no real dispute that Ms. Rogers was driving the school bus at about 30 miles
per hour at the time of the accident and that the posted speed limit was 35 miles per hour.
Sergeant Upchurch, the police department’s accident investigator/specialist in accident
reconstruction, opined that the accident was caused by Mr. Stanley’s excessive speed and the
lack of tread on his tires. He found no evidence to suggest that the school bus entered the
truck’s lane. Based upon his investigation, Sergeant Upchurch concluded that the school bus
was not speeding before the collision and that “there was no contributing factors caused by
the bus itself.” Mr. Stanley testified that the school bus did not enter the northbound lane of
traffic and did not appear to be speeding at the time of the accident.
Mr. Hutchison, Metro’s accident reconstruction expert, testified that the school bus
was traveling at an appropriate speed in light of the road conditions and the characteristics
of the road itself. He found no fault with the actions of the bus driver. There was no
evidence that the bus entered the other lane; in fact, the evidence suggested that the driver
was moving over toward the shoulder in an attempt to avoid the collision. Mr. Hutchison
opined that a bus traveling at 30 to 35 miles per hour heading into the curve in question on
wet pavement could safely navigate the curve. He testified that there was no evidence that
the school bus hit the trunk of the tree near which it came to rest. Mr. Donn, the plaintiffs’
expert, did not give any testimony that Ms. Rogers was traveling at an excessive speed or that
the speed of the school bus was a contributing factor.
The trial court made a specific finding that speed “was a contributing factor to the
kinetics of the accident and could very well have been circumstantial and added to the head
injury that affected Marisa . . . .” We find no evidence in the record to support this theory.
We find that the evidence preponderates against the trial court’s conclusions regarding
the speed of the school bus. While there may have been a sign giving a suggested speed of
20 miles per hour near the curve in question, there is no evidence to support the trial court’s
conclusion that the speed of the school bus was excessive in light of the road and the weather
conditions or that the bus’s speed contributed to the accident or the injuries it caused. In fact,
all of the evidence supports the opposite conclusion—that the bus’s speed was appropriate
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and did not contribute to the collision or the severity of the injuries.5
B. Driver’s lack of compliance with school policies regarding radio and drink
It is important to note here that violation of a school system’s internal policies and
procedures does not constitute negligence per se. Haney v. Bradley Cnty. Bd. of Educ., 160
S.W.3d 886, 892 (Tenn. Ct. App. 2004); Sharp v. Anderson Cnty., No. 03A01-9508-CV-
00282, 1996 WL 42237, at *3-4 (Tenn. Ct. App. Feb. 5, 1996). Rather, the defendants’
actions must be judged according to the standard of care discussed above—reasonable and
ordinary care under the circumstances. Sharp, 1996 WL 42237, at *3.
The trial court made several findings with respect to the bus driver’s actions in having
a soda bottle between her legs and a boom box at the front of the bus in violation of school
policy.6 The court found the credibility of Ms. Sales to be greater than that of Ms. Rogers
and reached the conclusion that the boom box was not tied down. The court then concluded
“circumstantially that this young lady [Marisa] was probably hit by a flying object of some
kind and it could have been anything.”
What is the evidence with respect to the soft drink bottle and the boom box? Mr.
Donn, the plaintiffs’ expert, testified that the presence of the soda bottle and the boom box
caused him to question what happened and whether Ms. Rogers was able to brake with a soda
bottle between her legs. These facts raised “a red flag that we needed to look into the
details.” Mr. Donn testified that he did not know whether the soda bottle affected Ms.
Rogers’s ability to brake or whether the boom box was tethered, but these factors made him
think that the school bus driver had the attitude “that I’m going to operate the way I want to
operate and maybe I’ll follow the rules and maybe I won’t.”
Ms. Rogers testified that she did have a soda bottle between her legs at the time of the
accident but that the bottle did not distract her, keep her from braking, or keep her from
having control of the bus. Ms. Rogers also testified that the boom box was tethered on the
engine compartment or “doghouse” and did not distract her in any way. After the accident,
the soda bottle was on the floor board and the boom box radio “was still sitting where it was
bound” on the doghouse.
5
The preponderance of the evidence also fails to support the plaintiffs’ theory that Ms. Rogers’s
failure to exercise reasonable care (allegedly reflected in the speed of the bus and her failure to exert
adequate control) caused the bus to hit a tree, thereby worsening Marisa’s injuries.
6
The bus driver’s failure to follow the prescribed route, another policy violation, will be discussed
separately below.
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During later questioning with respect to photographs taken after the accident, Ms.
Rogers identified the boom box sitting on top of the doghouse and attached there with
bungee cords. She reiterated that the boom box did not leave the doghouse during the
accident and that she recalled seeing it there after the accident.
Ms. Sales, the school safety investigator, testified that she arrived at the accident scene
about 15 or 20 minutes after the accident, after all of the injured persons had been taken to
the hospital. She had concerns about whether the boom box may have “gone airborne”
during the accident:
Q. Okay. And I think you said in your deposition, I asked you—we talked
about the yellow radio there on the doghouse, and I said was that
radio—“Where was the radio when you got there?” And you answered, “Well,
it wasn’t in that position. They went airborne. They weren’t tied down, so
they went airborne.” . . . Do you recall telling me that in your deposition?
A. It wasn’t tied down.
Q. Okay. There was some photographs that appeared to see [sic] it’s on the
doghouse and there’s some tethers to it or something. But you’re saying it
wasn’t tied down, it wasn’t secured?
A. No. It wasn’t secured.
...
Q. Okay. And I believe you testified in your deposition that it was your
opinion that Marisa had struck her head on something metal on the front of the
bus, correct?
A. Yes. That’s my opinion.
Q. And you indicated there was some blood on some screws by the handle that
opens the door, and that’s what you thought probably cause[d] the head injury,
correct?
A. Yes. That was my opinion at the time.
Sergeant Upchurch, a trained accident reconstructionist, reached the conclusion that
Marisa was thrown toward the front of the bus and hit the door handle. He opined that there
was no evidence that the radio/boom box hit Marisa. Sergeant Upchurch further stated that,
from his investigation, the presence of the radio had no effect on the collision. Mr.
Hutchison, the expert accident reconstructionist testifying for Metro, opined that neither the
boom box nor the soda distracted the bus driver or slowed her reaction to the collision.
Taking into account all of the evidence, we find that the evidence preponderates
against the conclusion that Ms. Rogers’s possession of the plastic soda bottle or boom box
had any effect on the collision or Marisa’s injuries. The trial court expressly credited the
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testimony of Ms. Sales over that of Ms. Rogers concerning whether the boom box “went
airborne” when the vehicles collided. The testimony of Ms. Sales, who acknowledged that
she was not an accident reconstructionist and that her job was not to determine the cause of
the accident, is contradicted by the testimony of Sergeant Upchurch and Mr. Hutchison,
Metro’s expert, both of whom were trained to reconstruct accidents. Moreover, the post-
accident photos indicate that the boom box remained tethered. Mr. Donn, the plaintiffs’
expert, testified that the soda bottle and the boom box raised questions, but he could not state
that they actually had any effect. Even accepting Ms. Sales’s testimony that the boom box
was not secured after the accident, there is no evidence that the boom box hit Marisa. Ms.
Sales, Sergeant Upchurch, and Mr. Hutchison all testified that Marisa hit the handle to the
bus door. Thus, there is nothing to support the trial court’s conclusion that Marisa was
probably injured by a flying object.
C. Route taken by school bus driver
Ms. Rogers violated school board policy by deviating from her assigned route without
permission. (As discussed above, such a violation of school policy does not constitute
negligence per se.) Was Ms. Rogers’s decision to take North New Hope Road a breach of
her duty of care and the proximate cause of the accident?
Mr. Donn, the plaintiffs’ expert, opined that he would not have used North New
Hope Road unless there were children who lived on that road (not the situation here).
According to Mr. Donn, a school bus measures almost ten feet from mirror to mirror while,
according to the accident reconstructionist (Mr. Upchurch), the lane on North New Hope
Road measured 10.1 feet.
Mr. Felts and Mr. Luffman, residents on North New Hope Road, testified about
previous accidents at the curve where the accident happened. On cross-examination, Mr.
Luffman was asked about one of the roads on the school bus’s assigned route, Earhart Road.
The witness described it as “very crooked, narrow and hilly.” When asked whether Earhart
was as hilly or hillier than North New Hope, Ms. Luffman stated: “It’s just like our roads.
They’re all back country roads.” The plaintiffs introduced into evidence a list of previous
accidents on North New Hope Road.
Ms. Rogers, the school bus driver, testified that Earhart Road and Tulip Grove Road,
part of her assigned route, were worse roads in her opinion than North New Hope Road. She
stated that she opted to take North New Hope Road to avoid the congestion and traffic that
day on her assigned route. Ms. Rogers further testified that she did not think that North New
Hope Road was more dangerous than other roads she had to drive on. Ms. Sales, the school
safety investigator, testified that, while school policy required a bus driver to receive prior
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approval before deviating from her assigned route, bus drivers were also instructed to use
their good judgment since they were the ones actually on the road. Ms. Sales expressed
safety concerns about Ms. Rogers being off of her assigned route on North New Hope Road
at the time of the accident.
Mr. Hutchison opined that North New Hope Road, as it existed at the time of the
accident, could safely accommodate a school bus. He did not think that the curve in question
made the road inappropriate for a school bus. Mr. Hutchison also testified as follows:
Q. In your time as an accident reconstructionist in Davidson County, have you
had an opportunity to look at various roads in Davidson County?
A. I have. Many roads.
Q. Now, considering the hill or hills on North New Hope Road where this
collision occurred, is this hill considerably steeper or different than many other
hills in Davidson County?
A. It’s not.
Q. And considering the curve on North New Hope Road where the accident
took place, is that curve sharper or different from the many other curves in
Davidson County?
A. No.
Ms. DeMoss, Metro’s school bus routing supervisor, testified that Metro designated
certain roads as “no travel,” which meant they were unsafe for school buses. North New
Hope Road was not flagged as “no travel.” When asked about calls received by drivers
needed to modify their route on a particular day, Ms. DeMoss stated: “Having worked in
dispatch, I don’t know of any time that we’ve ever told a driver, ‘Oh, no, you can’t change
your route.’” She opined that there would have been no reason for a dispatcher to deny
permission to a driver to use North New Hope Road. Ms. DeMoss testified that, to her
knowledge, no bus driver had recommended removing North New Hope Road from the bus
routes. She stated that Metro often had to send buses over roads with curves and hills, that
there were many such roads in Davidson County used by school buses, and that North New
Hope was not significantly different from other such roads used by Metro school buses.
The evidence preponderates against the trial court’s factual findings that North New
Hope Road was dangerous and that Ms. Rogers knew it was dangerous. Overall, we find that
the evidence preponderates against the trial court’s finding that Ms. Rogers/Metro failed to
act reasonably under the circumstances in taking the alternate route she chose. Moreover,
the evidence preponderates against the trial court’s conclusion that Ms. Rogers’s decision to
use North New Hope Road was the proximate or legal cause of the plaintiffs’ injuries. There
is a three-prong test applicable to proximate cause:
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(1) the tortfeasor’s conduct must have been a “substantial factor” in bringing
about the harm being complained of; and (2) there is no rule or policy that
should relieve the wrongdoer from liability because of the manner in which the
negligence has resulted in the harm; and (3) the harm giving rise to the action
could have reasonably been foreseen or anticipated by a person or ordinary
intelligence and prudence.
Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn. 1994) (quoting McClenahan v.
Cooley, 806 S.W.2d 767, 775 (Tenn. 1991)). While there is no doubt that this particular
accident would not have occurred had Ms. Rogers not been driving on North New Hope
Road, we disagree that her actions were a substantial factor in causing the accident. See
Spurlock v. Jackson Cnty., No M1999-01407-COA-R3-CV, 2000 WL 1231381, at *7 (Tenn.
Ct. App. Aug. 31, 2000). It was the actions of Mr. Stanley, which were not reasonably
foreseeable, that resulted in this accident.7
C ONCLUSION
The judgment of the trial court is reversed. Costs of appeal are assessed against the
plaintiffs, and execution may issue if necessary.
______________________________
ANDY D. BENNETT, JUDGE
7
Because of these conclusions, we need not consider the other issue raised by Metro on appeal
(concerning the trial court’s consideration, sua sponte, of certain evidence).
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