Clifton A. Lake and Charleen J. Lake v. The Memphis Landsmen, L.L.C.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
August 25, 2011 Session
CLIFTON A. LAKE and CHARLEEN J. LAKE ET AL.
v.
THE MEMPHIS LANDSMEN, L.L.C., ET AL.
Direct Appeal from the Circuit Court for Shelby County
No. CT-00-6094-00 John R. McCarroll, Jr., Judge
No. W2011-00660-COA-RM-CV - Filed October 21, 2011
This case is before us upon mandate from the Tennessee Supreme Court for reconsideration
of our previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al., No.
W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010), in light of
the United States Supreme Court’s decision in Williamson v. Mazda Motor of America, Inc.,
et al., 131 S. Ct. 1131, 179 L. Ed. 2d 75 (2011). Our conclusion, in Lake, that Appellants’
claims, based upon the type of glass and the lack of passenger seatbelts, are pre-empted is
not disturbed by the Williamson decision because the basis of our holding involved more
than preservation of the manufacturers’ ability to choose under the safety regulations. Under
the law of the case doctrine, and because further review would exceed the scope of the
Tennessee Supreme Court’s mandate, we decline to revisit our decision concerning the
perimeter seating issue. Reversed and Remanded.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Gary K. Smith and C. Philip M. Campbell, Memphis, Tennessee, for the appellants, Clifton
A. Lake and Charleen J. Lake.
James B. Summers, Kirk A. Caraway, and Heather W. Fletcher, Memphis, Tennessee, for
the appellee, Budget Rent A Car System, Inc.
Molly M. Glover, Steven N. Snyder, Jr., Aaron R. Parker, and Eric J. Lewellyn, Memphis,
Tennessee, for the appellee, Metrotrans Corporation.
Kenneth R. Rudstrom, Memphis, Tennessee, and James E. Singer, Atlanta, Georgia, for the
appellee, Memphis Landsmen, L.L.C.
OPINION
Before addressing the decision in Williamson, we first pause for a truncated review
of the relevant factual and procedural history of this case. A thorough recitation is set out
in this Court’s previous opinion, Clifton Lake, et. al. v. Memphis Landsmen, L.L.C., et al.,
No. W2009-00526-COA-R3-CV, 2010 WL 891867 (Tenn. Ct. App. March 15, 2010) (“Lake
I”).
Clifton Lake was injured on March 18, 1998 when the shuttle bus, in which he was
a passenger, collided with a concrete truck. Lake I at *1. The bus, which was owned by
Memphis Landsmen, L.L.C., was on its way to the Budget-Rent-a-Car location in Memphis.
Memphis Landsmen operated the bus under a franchise agreement with Budget. Id. When
the concrete truck struck the bus, the bus spun into a light pole before coming to a stop. Id.
At some point, Mr. Lake was ejected from the bus and hit his head on the concrete curb, thus
sustaining severe brain injury. Id. The bus had perimeter seating, which is seating facing
the center of the bus, tempered glass windows, and no passenger seatbelts.1 Id.
Mr. Lake and his wife (together, “Appellants”) filed suit against Memphis Landsmen,
Metrotrans Corporation (the bus manufacturer) and Budget (together, “Appellees”), alleging
that the shuttle bus was unreasonably dangerous because it did not have passenger seatbelts,
had tempered glass windows and used perimeter seating. Lake I, at *1. The Lakes also
asserted negligence against Memphis Landsmen in the operation and driving of the bus. Id.
The Defendants/Appellees answered, raising the defenses of comparative fault and pre-
emption. Id.
Beginning on August 4, 2008, the case was tried to a jury. Lake I, at *3. At the close
of Plaintiffs’/Appellants’ proof, the trial court denied Appellees’ motions for directed verdict,
and again denied the renewed motions for directed verdict at the close of all proof. Id. The
jury found that the Lakes had suffered $8,543,630.00 in damages; however, the jury
determined that one hundred percent of the fault lay with the driver of the concrete truck,
1
As explained in Lake I, “tempered glass is a glass that has been subjected to a heat treatment to
make it resistant to breaking. Laminate glass is glass that is made up of two layers of glass, with a plastic
layer between the two layers of glass. Glazing refers to different types of glass, i.e., tempered versus
laminate. Advanced glazing refers to laminate or glass-plastic glazing.” Lake I, at *1, n. 2 (citing O’Hara
v. General Motors Corp., 508 F.3d 753, n. 1 (5th Cir. 2007)).
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which was owned and operated by a non-party, Horn Lake Redi-Mix, barring recovery. Id.
An order on the jury verdict was entered on October 10, 2008. Id. The Lakes’ motion for
new trial was denied by order of January 27, 2009, and they appealed to this Court.
As is relevant to the instant remand, in Lake I this Court determined that the Lakes’
state law claims concerning the use of tempered glass in the bus’ side widows were impliedly
pre-empted by Federal Motor Vehicle Safety Standards (“FMVSS”) 205. Id. at *9.
Concerning the lack of seatbelts in the bus, we concluded that this claim, too, was pre-
empted under FMVSS 208. Id. at *11. Moreover, we concluded that the Appellees’ motion
for directed verdict on the Lakes’ negligence and products liability claims based on the use
of perimeter seating should have been granted because the Lakes failed to present evidence
as to where Mr. Lake was seated (or if he was seated) at the time of the accident. Id. at *13.
Based upon the lack of such evidence, we concluded that the Lakes had failed to meet their
burden to provide evidence that “affords a reasonable basis for the conclusion that it is more
likely than not that the conduct of the [Appellees] was a cause in fact of [Mr. Lake’s
injuries].” Id.
Following the March 15, 2010 filing of our opinion in Lake I, the Lakes filed a
Tennessee Rule of Appellate Procedure 11 application for permission to appeal to the
Tennessee Supreme Court on May 14, 2010. On May 27, 2010, the Lakes filed a Citation
to Supplemental Authority, pursuant to Tennessee Rule of Appellate Procedure 27(d),
noticing the Tennessee Supreme Court of the fact that the United States Supreme Court had
granted a petition for writ of certiorari in the case of Williamson v. Mazda Motor of
America. The Supreme Court issued its opinion in Williamson on February 23, 2011.
On March 24, 2011, the Tennessee Supreme Court issued its order granting the Lakes’
Tennessee Rule of Appellate Procedure 11 application for the narrow purpose of remanding
the case to this Court for reconsideration in light of the United States Supreme Court’s
opinion in Williamson v. Mazda Motor of America, Inc., et al., 131 S. Ct. 1131 (2011). We
now turn to address the relevant facts and holdings in Williamson.
In 2002, the Williamson family, riding in their 1993 Mazda minivan, was struck head
on by another vehicle. Williamson, 131 S. Ct. at 1134. Thanh Williamson was sitting in a
rear aisle seat, wearing a lap belt; she died in the accident. Id. Delbert and Alexa
Williamson were wearing lap-and-shoulder belts; they survived. Id. They, along with
Thanh’s estate, subsequently brought a California state tort suit against Mazda, claiming that
Mazda should have installed lap-and-shoulder belts on rear aisle seats, and that Thanh died
because Mazda equipped her seat with a lap belt instead. Id.
The California trial court dismissed the tort claim, and the California Court of Appeals
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affirmed. Williamson, 131 S. Ct. at 1134. In affirming, the California Court of Appeals
relied upon the case of Geier v. American Honda Motor Co., 529 U.S. 861, 120 S. Ct. 1913,
146 L. Ed. 2d 914 (2000), and held that the federal regulation at issue gives the manufacturer
a choice between two different types of seatbelts, i.e., lap belts or lap-and-shoulder belts, for
use in rear inner seats. Id. Consequently, the California intermediate appellate court
concluded that a state lawsuit that premises tort liability on a failure to install a particular
kind of seatbelt, namely lap-and-shoulder belts, would, in effect, deprive the manufacturer
of the choice contemplated under the regulation, and thus found that the Williamsons’ suit
was pre-empted. Id.
The United States Supreme Court granted certiorari, in Williamson, to address the
question of whether its holding in Geier had been misinterpreted by lower courts, which had
held that FMVSS 208 pre-empts state tort suits that allege liability based upon the fact that
manufacturers should have installed lap-and-shoulder belts, not lap belts, on rear inner seats
of passenger vehicles. Williamson, 131 S.Ct. at 1135. In finding that the Williamsons’
claims were not pre-empted, the Supreme Court distinguished their case from the Geier case.
In Geier, the Supreme Court found that the state law stood as an “‘obstacle’ to the
accomplishment” of a significant federal regulatory objective, namely the maintenance of
manufacturer choice. Geier, 529 U.S. at 886. The gravamen of the Geier decision was the
Supreme Court’s determination that, giving an automobile manufacturer a choice among
different types of passive restraint devices was a “significant objective of the federal
regulation.” Id.; Williamson, 131 S. Ct. at 1136. In Williamson, the Supreme Court
determined that, unlike Geier, manufacturers’ choice was not a significant regulatory
objective of FMVSS 208. Id. at 1137. This holding was further explained by Justice
Sotomayor, in her separate concurrence, wherein she notes:
[T]he mere fact that an agency regulation allows manufacturers
a choice between two options is insufficient to justify implied
pre-emption; courts should only find pre-emption where
evidence exists that an agency has a regulatory objective—e.g.,
obtaining a mix of passive restraint mechanisms, as in
Geier—whose achievement depends on manufacturers having a
choice between options. A link between a regulatory objective
and the need for manufacturer choice to achieve that objective
is the lynchpin of implied pre-emption when there is a saving
clause.
Williamson, 131 S. Ct. 1140.
As noted by Justice Sotomayor, important to the Williamson holding was the fact that
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the federal regulation at issue also contains a saving clause, which states that “[c]ompliance
with a federal safety standard “does not exempt any person from any liability under common
law.” Williamson, 131 S. Ct. at 1135 (emphasis in original). The Williamson Court was
careful to note that the mere existence of a saving clause does not, ipso facto, foreclose the
operation of ordinary conflict pre-emption considerations:
In light of Geier, the statute’s express pre-emption clause cannot
pre-empt the common-law tort action; but neither can the
statute’s saving clause foreclose or limit the operation of
ordinary conflict pre-emption principles.
Williamson, 131 S.Ct. at 1135.2
From our reading, the Williamson holding is narrow; it does not upset the Geier
holding. Consequently, as a threshold matter, our reliance upon Geier in Lake I was not
error. Rather, Williamson merely clarifies that manufacturer choice alone is not sufficient
to find implied pre-emption of state tort claims. Rather, the inclusion of manufacturer choice
must be in furtherance of a specific regulatory objective in order to form the basis of implied
pre-emption of the state suit. See, e.g., Morris v. Mitsubishi Motors North America, Inc.,
No. CV-08-0396-RMP, 2011 WL 1085873, at *8 (E.D. Wash. March 23, 2011) (interpreting
Williamson to hold that “[a] tort claim may proceed, even if it may have the effect of
restricting the manufacturer's choice, when a Court finds that the choice allotted to
manufacturers by a regulation is not intended to further a significant regulatory objective”).
With this in mind, we turn to address our holdings in Lake I concerning both the Lakes’ glass
claim and their seatbelt claim.
Pre-emption of Glass Claims
FMVSS 205 specifies the requirements for glazing materials used in motor vehicles
and is codified at 49 C.F.R. §571.205. The National Highway Transportation Safety
Administration (“NHTSA”) has stated that the purpose of FMVSS 205 is to “reduce injuries
resulting from impact and glazing surfaces, to ensure a necessary degree of transparency in
2
In his separate concurrence, Justice Thomas opines that the plain language of the saving clause
should end the pre-emption inquiry, and that the majority goes too far in deciding the issue on the grounds
of whether the lawsuit “stands as an obstacle to the accomplishment and execution of the full purposes and
objectives” of FMVSS 208. Justice Thomas specifically rejects “purpose-and-objectives pre-emption as
inconsistent with the Constitution because it turns entirely on extratextual ‘judicial suppositions’”
Williamson, 131 S. Ct. 1142 (quoting Wyeth v. Levine, 129 S. Ct. 1187, 1214 (2009)). As noted above, the
majority opinion in Williamson does not reject the Geier analysis; rather, the majority holding is based upon
its conclusion that manufacturer choice was not a significant objective of the specific regulation at issue.
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motor vehicle windows for driver visibility, and to minimize the possibility of occupants
being thrown through the vehicle windows in a collision.” 49 C.F.R. §571.205 S2. FMVSS
205 incorporates, by reference, the American National Standards Institute (“ANSI”)
Standards for Safety Glazing Materials, ANSI/SAE Z26.1. At the time of the accident at
issue in Lake I, and currently, FMVSS 205 provides a choice in the installation of laminated
glass, tempered glass, and glass-plastics, with tempered glass allowed in any window other
than the windshield. 49 C.F.R. §571.205 S2 (citing ANSI/SAE Z26.1 (1996)). Under the
Williamson holding, the inclusion of manufacturer choices in the regulation is not, by itself,
sufficient to support a finding of pre-emption of a state tort claim. However, manufacturer
choice was not the sole basis of our determination of pre-emption in Lake I. Therein, we
specifically stated that “it is undisputed that the windows of the bus at issue complied with
FMVSS 205.” Lake I, at *6. The question then became whether the Lakes’ claim that
laminate, as opposed to tempered, glass should have been installed in the shuttle bus stood
as “an obstacle to the accomplishment or execution of congressional objectives under the
Safety Act,” when both types of glass were specifically allowed under FMVSS 205. Id.
Consistent with Williamson, in addressing this question, we necessarily examined the
regulation, its history, its objectives, and the agency’s view on the regulation. In addition to
noting the stated purpose of FMVSS 205, supra, we also discussed NHTSA studies on
glazing:
The NHTSA studied the use of advanced glazing in windows in
the early 1990's.3 Following a mandate from Congress, the
NHTSA issued notice of proposed rulemaking on both rollover
prevention and occupant ejection prevention. In 2002, the
NHTSA terminated rulemaking on advance glazing stating that
it would focus on “establishing safety performance requirements
for ejection mitigation that will allow vehicle manufacturers the
discretion to choose any technology that fulfills the
requirements.” The agency noted that it had concluded in its
studies on ejection mitigation that it would not require advanced
glazing due to safety and cost concerns. The NHTSA explained
that the two primary reasons for this conclusion were (1) “the
advent of other ejection mitigation systems,” and (2) the fact
that advanced side glazing increased the risk of neck injury in
some cases. NHTSA also cited an additional reason of the cost
associated with modifying vehicles to allow use of windows
3
As noted in Lake I, “advanced glazing” refers to laminated glass and glass-plastic glazing materials,
the type of glass that the Lakes suggest should have been used. Lake I at *8, n. 9 (relying on O’Hara, 508
F.3d at n. 1).
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with advanced glazing.
Lake I at *8 (internal citations and footnotes omitted).
Based upon the foregoing studies and in light of the specific purpose of FMVSS 205
to prevent both ejection and injuries resulting from impact, we concluded that:
Requiring laminated glass in side windows may decrease the
risk of ejection, but would increase the risk of injury from
impact with the glass. It appears that the NHTSA left the
options for glass open so that the manufacturers could choose
the safety features that best accomplished both purposes.
Id.
As in Geier, we determined that the Lakes’ claims “would present an obstacle to the
variety and mix of devices that the federal regulation sought” and would also serve as “an
obstacle to the accomplishment and execution of a federal policy.” Id. at *9. This holding
was not, however, based solely upon the preservation of manufacturer choice. Rather, the
manufacturer choice allowed under FMVSS 205 promotes the ultimate purpose of the
regulation, which is to provide the best protection against passenger ejection—a decision that
the NHTSA clearly determined was best left to the manufacturer.
Based upon the foregoing, we conclude that our analysis concerning the Lakes’ claim
vis-a-vis the type of glass used in the shuttle bus, is not disturbed by the Supreme Court’s
holding in Williamson as our determination was not based solely upon the preservation of
manufacturer choice, but was instead based upon consideration of NHTSA studies and the
stated goal of the regulation.
Pre-emption of Seatbelt Claim
As noted in Lake I, FMVSS 208, 49 C.F.R. §571.208, does not require seatbelts for
passengers on buses with a gross vehicle weight of 10,000 pounds or more. Lake I at *10.
It is undisputed that the shuttle bus at issue in this case had a gross weight in excess of
10,000 pounds. Id. In their brief, the Lakes argue, inter alia, that the NHTSA “is on the
verge of requiring passenger seatbelts in large buses.” Thus, the Lakes contend that this
imminent requirement renders our holding in Lake I inconsistent with a significant regulatory
objective, i.e., requiring seatbelts on all buses. We respectfully disagree with the Lakes’
argument. In the first instance, this Court cannot speculate as to what the NHTSA may do
at some future date. Rather, we are charged with deciding the case upon the regulations and
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policies that exist at the time. Moreover, it appears that the Lakes’ assertion that the
NHTSA will soon require passenger seatbelts on all buses is misplaced as it relies upon
pending regulation aimed at motorcoaches, a vehicle category that is separate and distinct
from the shuttle bus at issue here.
In a report dated August 18, 2010, NHTSA responded to the National Traffic Safety
Board’s recommendation that all buses be required to have passenger seatbelts. Federal
Motor Vehicle Safety Standards; Motor Coach Definition; Occupant Crash Protection, 75
Fed. Reg. 50958 (Aug. 18, 2010). In response to this recommendation, NHTSA extensively
reviewed national crash and fatality data for buses from 1999 to 2008. Id. Based upon its
review of this data, NHTSA concluded that only 12% of passenger fatalities occurred on
buses less than 26,000 pounds. Id. Accordingly, rather than requiring seatbelts on all buses,
the NHTSA identified buses over 26,000 pounds as the vehicles that presented the most
significant risk for passengers and developed a new classification of buses, known as
motorcoaches, which were defined as weighing more than 26,000 pounds, having sixteen or
more seating positions, and two or more rows of forward-facing seats behind the driver. Id.
It is the newly designated classification of motorcoaches that would be required to have
seatbelts at every seating position. However, NHTSA has declined to recommend passenger
seatbelts for buses such as the shuttle bus at issue here, which weighed more than 10,000
pounds but less than 26,000 pounds. Having determined that the Lakes’ reliance upon
regulations addressing requirements for motorcoaches is misplaced, we now turn to address
the substantive question of whether the Williamson holding has any effect upon our decision
that the Lakes’ seatbelt claim is pre-empted.
In Lake I, we conceded that, if a manufacturer chooses to install passenger seatbelts
in large buses (i.e., more than 10,000 pounds, but less than 26,000 pounds) that manufacturer
would still be in compliance with FMVSS 208. Id. However, our analysis of this issue did
not rest upon the concession that a manufacturer has a choice in whether to install seatbelts:
We agree with the MCI [Sales & Service, Inc. v. Hinton, 272
S.W.3d 17 (Tx. Ct. App. 2008)] that it is not impossible to
install passenger seatbelts and still be in compliance with federal
regulations. That finding, however, does not end our analysis on
the preemption issue. Instead we must determine whether the
Lakes’ claims would be “an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”
Lake I at *10 (citation omitted). In pursuit of the answer to the obstacle question, we
specifically reviewed FMVSS 208 itself, “along with its history and the agency’s
interpretation of it.” Id. Concerning the regulation itself, we concluded that:
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FMVSS 208 addresses the necessity of seatbelts in all buses. It
requires seatbelts for passengers in smaller buses [i.e., less than
10,000 pounds], but only requires a seatbelt for the driver in
larger buses. This does not mean that there is not a federal
standard for large buses. If a manufacturer wishes to build a bus
without seatbelts, it must build that bus so that its gross vehicle
weight is greater than 10,000 pounds.
Id. at *11. Following this determination, we specifically turned to address “the policy behind
that standard and whether the Lakes’ claim would be an obstacle to that policy.” Id. In our
policy inquiry, we noted that:
As with the windows, the NHTSA has studied the need for
seatbelts in large buses and has decided not to adopt a
requirement for seatbelts in these vehicles. In an August 19,
1992 letter, Paul Jackson Rice, chief counsel of the NHTSA,
explained “NHTSA expressly determined that there is not a
safety need for safety belts or another type of occupant crash
protection at [the passenger] seating positions.”
Id. The Lakes argue that our reliance upon Mr. Rice’s letter was erroneous. We disagree.
While we recognized that Mr. Rice was not a safety expert, Carl Nash, former NHTSA
employee, testified that letters, such as Mr. Rice’s, are reviewed by the safety experts at
NHTSA and are approved before being disseminated. Id. At any rate, we did not rely upon
this letter for its pre-emptive effect on FMVSS 208 because it addressed the question of
whether a proposed state statute would be pre-empted and, so, was not directly on point. Id.
Rather, we considered the letter “for the policy and reasons behind the requirements of
FMVSS 208.”4 Id. In our review of this letter, we concluded that the NHTSA had
“determined that seat belts should not be required for passengers on large buses due to both
safety and cost concerns.” Id. While we recognized that Mr. Rice had relied upon a decision
made in 1974 in reaching his conclusion, we noted that FMVSS 208 adopted new seatbelt
requirements for buses effective September 1, 1991, and that these revisions did not require
passenger seatbelts in large buses. Id. Therefore, we concluded that the Lakes’ claim vis-a-
vis the lack of seatbelts on the bus:
4
We specifically determined that it is the purview of this Court to look at the reasons behind the
policy in determining if the claim would frustrate the purpose of the policy as the Supreme Court, itself, had
looked at the reasons behind FMVSS 208 on a no-air-bag claim in Geier, and again on a claim against the
Coast Guard based upon its failure to adopt a propeller-guard policy in Spreitsma v. Mercury Marine, 537
U.S. 51, 123 S. Ct. 518, 154 L. Ed. 2d 466 (2002). Lake I at *11.
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. . .directly conflicts with the findings and requirements of the
NHTSA. If we were to find that the claims were not preempted,
and a jury were to find that the Appellees breached their duty by
failing to install seatbelts, then all large buses in Tennessee
would be required to have passenger seatbelts—a requirement
that is a direct obstacle to the policies and decisions of the
NHTSA. Further, such a decision would, in effect, require large
buses across the country to have passenger seatbelts. This
would absolutely conflict with Congress’ goal of uniformity in
the motor vehicle industry.
Id. (citation omitted). In short, our decision was not based upon the protection of the
manufacturers’ choice of whether to install seatbelts in large buses; rather, it was based upon
a review of the plain language of FMVSS 208, and the policies and reasoning behind that
regulation. Consequently, our determination that the Lakes’ seatbelt claim is pre-empted is
not contrary to the Supreme Court’s holding in Williamson.
Directed Verdict on Perimeter Seating Issue
Upon remand from the Tennessee Supreme Court, the Lakes ask us to also revisit our
holding that the Lakes’ claim, based on the use of perimeter seating, should have been
dismissed by grant of directed verdict because of the lack of evidence presented at the trial.
For the reasons set out below, we decline this invitation.
As noted above, the Tennessee Supreme Court’s mandate in remanding this case to
us was limited and specific as it directed this Court to reconsider its decision in Lake I in
light of the United States Supreme Court’s opinion in Williamson. As discussed in detail
above, the Williamson decision concerned only the issue of pre-emption, i.e., whether a
FMVSS standard that gave automobile manufacturers choices as to the type of seatbelts
installed in certain passenger seating positions pre-empted state law claims for negligence
against the manufacturer for failing to install the option not chosen.
Our Supreme Court has held that “inferior courts must abide by the orders, decrees
and precedents of higher courts.” Weston v. State of Tennessee, 60 S.W.3d 57, 59 (Tenn.
2001). Moreover, “[n]either a trial court nor an intermediate court has the authority to
expand the directive or purpose of [the Tennessee Supreme Court] imposed upon remand.”
Id. Under the Weston holding, this Court has no authority to expand the purpose of the
remand by considering issues not related to Williamson and its holdings on pre-emption.
Even if we assume, arguendo that this Court has the authority on remand to reconsider
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the perimeter seating issue, our prior decision on this issue in Lake I constitutes the law of
the case. The “law of the case” is a “legal doctrine that generally prohibits reconsideration
of issues that have already been decided in a prior appeal of the same issue.” Memphis
Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306
(Tenn. 1998). Under this doctrine, “an appellate court’s decision on an issue of law is
binding in later trials and appeals of the same case if the facts on the second trial or appeal
are substantially the same as the facts in the first trial or appeal.” Id. The doctrine is “based
on the common sense recognition that issues previously litigated and decided by a court of
competent jurisdiction ordinarily need not be revisited.” Id. Only in certain, limited,
circumstances may courts deviate from the law of the case. These exceptions are triggered
when: (1) the evidence offered at a trial or hearing after remand was substantially different
from the evidence in the initial proceeding; (2) the prior ruling was clearly erroneous and
would result in a manifest injustice if allowed to stand; (3) the prior decision is contrary to
a change in the controlling law, which has occurred between the first and second appeal. Id.
at 306.
In Lake I, we held that the Lakes “failed to present any evidence upon which a jury
could find that Mr. Lake was seated in the bus.” Lake I at *13. On that issue, the evidence
now before us is the same as that considered in reaching our decision in Lake I.
Furthermore, there has been no decision rendered that is contrary to the law applied in Lake
I, and there are no grounds for finding that our decision concerning the perimeter seating was
erroneous. In short, none of the exceptions to the law of the case doctrine are applicable
here. Consequently, were this Court to revisit the issue of directed verdict on the perimeter
seating issue, that decision would not only be outside the scope of the Tennessee Supreme
Court’s remand, but it would also be a direct violation of the law of the case.
For the foregoing reasons, we conclude that the United States Supreme Court’s
decision in Williamson does not effect our previous holding in Lake I. Consequently, that
decision is affirmed. Costs of this appeal are assessed against the Appellants, Clifton A.
Lake and Charleen J. Lake, and their surety.
_________________________________
J. STEVEN STAFFORD, JUDGE
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