Terry T. Johnson v. Michael H. McCommon & MLG & W ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
TERRY T. JOHNSON, )
)
Plaintiff/Appellant, ) Shelby Circuit No. 39380 T.D.
)
VS. ) Appeal No. 02A01-9502-CV-00029
)
MICHAEL H. MCCOMMON and
MLG&W,
)
)
)
FILED
Defendants/Appellees. )
May 9, 1996
Cecil Crowson, Jr.
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
Appellate C ourt Clerk
AT MEMPHIS, TENNESSEE
THE HONORABLE WYETH CHANDLER, JUDGE
A. WILSON WAGES
ALICE L. GALLAHER
A. WAGES LAW FIRM
Memphis, Tennessee
Attorney for Appellant
JOSEPH G. LITTLE
Memphis, Tennessee
Attorney for Appellee, MLG&W
AFFIRMED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
HOLLY KIRBY LILLARD, J.
This action was brought against Michael McCommon and Memphis Light, Gas, and
Water (MLG&W) for personal injuries sustained when McCommon, an employee of
MLG&W, struck plaintiff with his vehicle. McCommon was dismissed from the suit prior to
trial. Following a bench trial, the lower court held that plaintiff's negligence was greater than
that of the defendant and that plaintiff proximately caused her own injuries. Because we
do not find that the evidence preponderates against the trial court's determination, we
affirm the judgment dismissing plaintiff's case.
On October 12, 1990, Terry Johnson ("plaintiff") was driving a friend's car on
Interstate 240 in Memphis. The car stalled in the center lane of the interstate and plaintiff
was unable to restart the vehicle. Plaintiff proceeded to get out of the vehicle in order to
warn approaching motorists of the obstruction. Plaintiff testified that defendant's vehicle
struck her as she emerged from the car with her back facing oncoming traffic. In contrast,
McCommon testified that when plaintiff got out of the car, she began running across the
left lane toward the median. McCommon testified that he reduced his speed as soon as
he saw plaintiff and that he swerved into the median to avoid hitting her. Defendant's
testimony was corroborated by an eye-witness, Mr. Elton Harris, who testified by deposition
that after plaintiff got out of the car, she took "running steps" across the left lane of
oncoming traffic. Harris testified that he saw McCommon brake and serve into the median
in an attempt to avoid striking plaintiff. Plaintiff suffered substantial physical injury as a
result of the incident.
Following a bench trial, the judge held that the plaintiff's own negligence in running
into oncoming traffic was the proximate cause of her own injuries and that plaintiff was
more than 50% responsible for her own injuries. Accordingly, judgment was entered in
favor of defendant.
Plaintiff has raised two issues on appeal, which are: (1) whether the trial court erred
in admitting the deposition testimony of Elton Harris; and (2) whether the trial court erred
in finding that Plaintiff proximately caused her own injuries and was more than 50%
responsible for her own injuries.
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The plaintiff's first contention is that the trial court erred in admitting the deposition
testimony of Elton Harris into evidence. Plaintiff argues that the deposition should not have
been admitted because defendant failed to issue a subpoena for Harris.
Prior to trial, defendant filed an affidavit with the trial court stating that Harris resided
in Mississippi and that defendant would be unable to procure Harris' presence by
subpoena because there was no known Tennessee address to which defendant could
issue a subpoena. The trial court agreed to admit the deposition on the condition that the
parties attempt to locate the witness and report the results of such attempt to the court.
The parties confirmed to the court that Harris still resided out of state. Plaintiff argues that
defendant's failure to subpoena Harris was error for two reasons. First, plaintiff asserts
that Harris did not reside at a distance greater than 100 miles from the place of trial, and
thus, defendant failed to comply with Tenn. R. Civ. P. 32.01(3). Next, plaintiff argues that
defendant should have complied with the subpoena requirement because Harris stated in
his deposition that he was willing to come to trial to testify.
Tenn. R. Civ. P. 32.01(3) provides in part:
Rule 32.01. Use of Depositions. - At the trial or upon
the hearing of a motion or an interlocutory proceeding, any part
or all of a deposition, so far as admissible under the Rules of
Evidence applied as though the witness were then present and
testifying, may be used against any party who is present or
represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the
following provisions:
...
(3) The deposition of a witness, whether or not a party,
may be used by any party for any purpose if the court finds:
(A) That the witness is dead; or (B) that the witness is at a
greater distance than one hundred miles from the place of trial
or hearing or is out of the state, unless it appears that the
absence of the witness was procured by the party offering the
deposition; or (C) that the witness is unable to attend or testify
because of age, illness, infirmity or imprisonment; or (D) that
the party offering the deposition has been unable to procure
the attendance of the witness by subpoena or the witness is
exempt from subpoena to trial under T.C.A. § 24-9-101; or (E)
upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the
deposition to be used. Notwithstanding the foregoing
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provisions, depositions of experts taken pursuant to the
provision of Rule 26.02(4) may not be used at trial except to
impeach in accordance with the provisions of Rule 32.01(1).
The admissibility of evidence lies within the sound discretion of the trial court and
its decision will not be reversed on appeal unless there has been a demonstration of a
manifest abuse of discretion. Inman v. Aluminum Co. of America, 697 S.W.2d 350 (Tenn.
App. 1985); Otis v. Cambridge Mutual Fire Ins. Co., 850 S.W.2d 439 (Tenn. 1992).
In the present case, Harris' deposition was admitted into evidence in full compliance
with Tenn. R. Civ. P. 34.02 because Harris resided out of state. Additionally, we find the
fact that Harris agreed to testify at trial to be without significance. Accordingly, we hold that
the trial court did not abuse its discretion in admitting Harris' deposition testimony and that
such testimony was properly admitted.
Plaintiff next alleges that the trial court erred in its finding that plaintiff proximately
caused her own injuries, and that plaintiff was more than 50% negligent.
Our standard of review on this issue is de novo upon the record, accompanied by
a presumption of correctness of the trial court's findings of fact. T.R.A.P. 13(d). This Court
must affirm the trial court's findings of fact, unless the evidence preponderates otherwise.
T.R.A.P. 13(d).
Proximate cause is that which is the procuring, efficient, and predominate cause.
Nash v. Love, 440 S.W.2d 593 (Tenn. App. 1968). An actor's conduct will be considered
the proximate or legal cause of injury if three requisites are met. First, the actor's conduct
must be a substantial factor in bringing about the harm. Next, there must be no legal rule
that would operate to relieve the actor from liability. Finally, the harm that occurred must
have been reasonably foreseeable. McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.
1991).
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In light of the above factors, we agree with the trial court that plaintiff's act of
emerging from her vehicle and stepping into oncoming traffic was the proximate cause of
her own injuries. Similarly, we do not find that the evidence preponderates against the trial
court's determination that plaintiff was more that 50% responsible for her own injuries. In
fact, we find very little evidence from the record that would support the conclusion that
defendant was negligent in any respect.
The judgment of the trial court is affirmed. Costs are taxed to plaintiff.
HIGHERS, J.
CONCUR:
CRAWFORD, P.J.,W.S.
LILLARD, J.
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