John Watson Little and Leslie Earl Little, Executors for the Estate of Leslie H. Llittle, . v. Michael Hogan, Jeff Payne

JOHN WATSON LITTLE and LESLIE )
EARL LITTLE, Executors for the )
Estate of LESLIE H. LITTLE, deceased, )
) Bedford Circuit
Plaintiffs/Appellants, ) No. 7212
)
VS. )
)
MICHAEL HOGAN, JEFF PAYNE, )
and MIKE WILHELM TRUCKING, )
INC., ) Appeal No.
) 01A01-9707-CV-00291
Defendants/Appellees. )
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE CIRCUIT COURT OF BEDFORD COUNTY
AT SHELBYVILLE, TENNESSEE
HONORABLE LEE RUSSELL, JUDGE
D. Russell Thomas, Herbert M. Schaltegger
218 W. Main St., Suite One
Murfreesboro, TN 37130
ATTORNEY FOR PLAINTIFFS/APPELLANTS
James D. Kay Jr.
Washington Square One, Suite 340M
222 Second Avenue, North
Nashville, TN 37201
ATTORNEY FOR DEFENDANTS/APPELLEES
MODIFIED, AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR IN SEPARATE OPINION:
BEN H. CANTRELL, JUDGE
CONCUR WITH SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
JOHN WATSON LITTLE and LESLIE )
EARL LITTLE, Executors for the )
Estate of LESLIE H. LITTLE, deceased, )
) Bedford Circuit
Plaintiffs/Appellants, ) No. 7212
)
VS. )
)
MICHAEL HOGAN, JEFF PAYNE, )
and MIKE WILHELM TRUCKING, )
INC., ) Appeal No.
) 01A01-9707-CV-00291
Defendants/Appellees. )
OPINION
The captioned executors filed this suit to recover damages for the wrongful death of 88
year old Leslie H. Little, deceased, who lost his life in a motor vehicle collision at the
intersection of North Main Street and Colloredo Boulevard in Shelbyville, Bedford County,
Tennessee. Movement of traffic through the intersection was controlled by the multicolored
lights of an ordinary traffic control signal.
Several vehicles were present at the intersection at the time of the collision. Two large
transport trucks, being operated on the business of Mike Wilhelm Trucking, Inc., approached the
intersection from the north, moving south. One of the Wilhelm trucks, operated by Jeff Payne,
approached the intersection in the left southbound lane, but did not enter the intersection because
its approach to the intersection was blocked by the presence of a pick-up truck stopped in the left
lane waiting for the traffic signal to change. As the other Wilhelm truck, operated by Michael
Hogan, approached the intersection in the right southbound lane, the signal for southbound
traffic changed to green and Hogan drove his truck southward across the intersection.
The deceased approached the intersection from the south, moving north, when the signal
for northbound traffic turned green, he entered the intersection and turned left (west) across the
two southbound lanes of North Main Street, in the direction of Colloredo Blvd. West. The
Wilhelm truck, operated by Michael Hogan in the right southbound lane of North Main Street,
proceeded southward across the intersection and struck the right side of the vehicle of deceased.
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After being struck by the Wilhelm truck, the vehicle of deceased was propelled in a southerly
direction to collide with a northbound vehicle which had not arrived at the intersection, and then
moved some distance southward to a point 65 or 70 feet from the point of the original collision
with the Wilhelm truck.
After striking the vehicle of deceased, the Wilhelm truck operated by Hogan, proceeded
southward in the right lane of North Main Street to a point 295 feet from the point of collision.
At the subject intersection, North Main Street was designated as State Route 231.
However, State Route 231 had alternate routings in the city of Shelbyville. “Business South
231" continued south from the intersection through the city square to its intersection with State
Route 82. “Truck Route 231" turned right (west) on Colloredo Boulevard and continued thereon
to its intersection with State Route 82, which led to Lynchburg, the intended destination of both
Wilhelm trucks. The “truck route” around the city was somewhat longer than the “business
route” through the city.
The Trial Court ordered:
1. The motion for summary judgment in favor of
Jeff Payne is granted and all claims against Jeff Payne are
dismissed with prejudice. Mike Wilhelm Trucking, Inc. Is
dismissed with prejudice only as to all claims directed to Jeff
Payne as an employee, agent or driver of Mike Wilhelm
Trucking, Inc.
2. The motion for summary judgment in favor of
Michael Hogan is granted in part and denied in part. All
claims against Michael Hogan shall be dismissed with
prejudice with the exception of the issue of speed under the
circumstances.
3. All claims against the defendants for punitive
damages are dismissed with prejudice.
4. The defendant’s motion for protective order is
granted in part and denied in part. The plaintiffs are
precluded from inquiry as to any records which do not relate
to the particular delivery that defendant Mike Hogan was
making on the date of the accident or the hiring of defendant
Hogan as a driver. If the plaintiffs wish to seek additional
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records, and the defendants will not agree to the discovery,
then the plaintiff must apply to the Court for permission to
seek the information.
5. The plaintiffs’ motion to compel is denied.
IT IS FURTHER ORDERED that this order is hereby
expressly deemed a final judgment as to the dismissal of Jeff
Payne as an employee, agent, or driver of Mike Wilhelm
Trucking, Inc., there being no just reason for delay, all in
accordance with Rule 54.02 of the Tennessee Rules of Civil
Procedure.
The plaintiffs have appealed and presented four issues. The first two issues are:
A. The Trial Court erred in granting Defendant
Jeff Payne summary judgment when there are genuine issues
of material fact which, when viewed in a light most favorable
to the plaintiffs, and drawing all reasonable inferences
therefrom, establish at least partial liability on the part of this
Defendant for the death of Decedent Leslie H. Little.
B. Defendant Mike Wilhelm Trucking, Inc.
The Trial Court erred in granting the Defendant Mike
Wilhelm Trucking, Inc. partial summary judgment when there
are genuine issues of material fact which, when viewed in a
light most favorable to the Plaintiffs, and drawing all
reasonable inferences therefrom, establish at least partial
liability on the part of this Defendant for the death of
Decedent Leslie H. Little due to the actions of its agent,
Defendant Jeff Payne, under the doctrine of respondeat
superior.
In support of these issues, plaintiffs argue:
It has been established that Defendant Payne was
proceeding south into the City of Shelbyville and into the
business district rather than following the alternate state route
around the downtown district.
----
The Payne tractor-trailer rig was not following the
posted truck route and was therefore in the wrong lane.
The presence of the Jeff Payne truck in the left southbound lane could be some indication
that he intended to proceed south on the “Business Route”, but, if so, he had not carried out the
intent because his truck never entered the intersection before the other Wilhelm truck struck the
vehicle of deceased.
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Appellants’ argue correctly that, if Payne had approached the intersection in the right
lane in preparation for a right turn to follow the truck route, his truck would have blocked
progress of the Hogan truck and would not have been in the left lane to obstruct the view of
Michael in the direction of deceased. However, the test of the liability of Payne is the
foreseeability of harm from his actions. There is no evidence that Payne should have known that
the Hogan truck was approaching from his rear at high speed and that he should block its path
by using the right lane to prevent Hogan from colliding with a northbound vehicle turning left
across the path of Hogan.
In McClenahan v. Cooley, Tenn. 1991, 806 S.W.2d 767, the question was the liability
of the owner who left his keys in his vehicle. A thief stole the vehicle and a high speed chase
by the policy resulted in the deaths of innocent persons. The Supreme Court held:
[4,5] This Court is of the opinion that the approach
taken by the substantial (and growing) number of jurisdictions
representing the minority view is the approach that should be
taken in Tennessee, in part, because principles of common
law negligence long established in this state provide a
sufficient analytical framework to dispose of cases with fact
patterns similar to the one presented in this appeal. First, it is
axiomatic that in order for there to be a cause of action for
common law negligence, the following elements must be
established: (1) a duty of care owed by the defendant to the
plaintiff; (2) conduct falling below the applicable standard
care amounting to a breach of that duty; (3) an injury or loss;
(4) causation in fact; and (5) proximate, or legal, cause.
----
[6-8] Taken as a whole, our cases suggest a three-
pronged test for proximate causation: (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 of
ordinary intelligence and prudence.
----
[9-12] With respect to superseding intervening causes
that might break the chain of proximate causation, the rule is
established that it is not necessary that tortfeasors or
concurrent forces act in concert, or that there be a joint
operation or a union of act or intent, in order for the
negligence of each to be regarded as the proximate cause of
the injuries, thereby rendering all tortfeasors liable.
----
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“An intervening act will not exculpate the original
wrongdoer unless it appears that the negligent intervening act
could not have been reasonably anticipated.”
----
“It is only where misconduct was to be anticipated,
and taking the risk of it was unreasonable, that liability will
be imposed for consequences to which such intervening acts
contributed.”
In the present case, this Court holds as a matter of law that no reasonable jury would find
that Jeff Payne should have anticipated that the presence of his truck stopped in the left lane of
traffic would create or contribute to the injury which occurred. The first issue therefore presents
no ground for reversal.
Plaintiffs’ insist that Wilhelm is liable for the fault of Payne under the doctrine of
respondeat superior, but, without culpable fault of the agent, there is no vicarious liability of the
principal. Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263 (1932): Goodman v. Wilson, 129
Tenn. 464, 166 S.W. 752 (1914); Loveman & Co. v. Bayless, 128 Tenn. 307, 160 S.W. 841(1913).
No ground of reversal is presented by the first two issues.
Plaintiffs’ third issue is:
(3) The Trial Court erred in granting Defendant
Mike Hogan partial summary judgment as to all issues except
for speed under the circumstances when there are genuine
issues of material fact which, when viewed in a light most
favorable to the Plaintiffs, and drawing all reasonable
inferences therefrom, establish at least partial liability on the
part of this Defendant for the death of Decedent Leslie H.
Little under the theory of negligence per se.
Plaintiffs’ argument in support of this issue is verbatim:
First, all arguments raised above with reference to
negligence per se concerning Defendants Payne and Mike
Wilhelm Trucking are full applicable and germane; the same
statutes were violated by Defendant Hogan under the very
same facts. Therefore, Defendant Hogan is guilty of
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negligence per se. Further, it is not at all unforeseeable that
such negligence per se could or would lead to a fatal accident
of this type. Had Defendant Hogan been following the
designated state truck route around the downtown Shelbyville
area, he would not have been approaching the intersection at
between 30 and 40 miles per hour (Hogan Depo., pp. 35-36).
Instead, he would have been moving much more slowly as he
prepared to make the right-hand turn onto Colloredo
Boulevard; it is a reasonable inference that but for Defendant
Hogan’s failure to follow the state truck route, he would have
not collided with and killed the Decedent Mr. Little.
The foregoing quotation intimates that the failure of a truck to follow a “truck route” is
unlawful, and therefore negligence per se. Appellants cite TCA § 54-5205 which authorizes the
transportation department to select the streets upon which state highways are routed, and 55-8-
101(33) and 55-8-109(a) requires that drivers obey traffic-control devices including “signs,
signals markings and devices placed by authority of a public body or official having
jurisdiction.”
No evidence is cited or found as to who posted the “truck route” signs. If the signs were
posted with due authority, then they would indicate that a right turn should be made at the
intersection by trucks whose destination was not within the City of Shelbyville. The intended
destination of the two subject trucks was not within the city of Shelbyville.
Nevertheless, the intent of the driver to proceed straight through the intersection instead
of turning right to the “truck route” was not the proximate cause of the collision for lack of
reasonable anticipation. That is, a reasonable truck driver in the position of Hogan would not
have anticipated that proceeding through the intersection at a safe speed would result in a
collision with a vehicle turning across the path of the truck.
The proximate negligence of Hogan must be based upon excessive speed or failure to
avoid collision with another vehicle in the intersection.
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The Trial Court reserved the issue as to negligent speed. Therefore, when the Trial Judge
reserved speed, he also reserved negligence per se by speed. The issue of negligent failure to
avoid collision also remains for resolution.
No ground for modification or reversal is presented by plaintiffs’ third issue.
Plaintiffs’ fourth issue is:
4) The Trial Court erred in granting the
Defendant summary judgment as to Plaintiffs’ claims for
punitive damages when there are genuine issues of material
fact which, when viewed in a light most favorable to the
Plaintiffs, and drawing all reasonable inferences therefrom
demonstrate patterns of outrageous conduct sufficient to allow
a claim for punitive damages to be submitted to a jury.
T.C.A. § 55-8-143 defines the duties of drivers of vehicles at intersections where one vehicle
is turning across the path of another vehicle. Material provisions are summarized and discussed as
follows:
(a) The turning driver must first see that said
movement can be made with safety. The requirement is not
an absolute, but applies within the bounds of reason. That is,
the turning driver must make that ascertainment of safety
which a reasonable person would make under the same or
similar circumstances. The determination of the
reasonableness of the ascertainment of safety is for the jury.
Atchley v. Sims, 23 Tenn App. 167, 128 S.W.2d 975 (1938).
Among the facts to be considered by the jury in the present
case are the obstruction of the vision of deceased and Hogan
by the truck of Payne stopped north of the intersection and
the observable movement and speed of the truck operated by
Hogan.
----
(2) Drivers receiving a signal for a left turn must
“keep their vehicle under complete control and shall be able
to avoid an accident resulting from a misunderstanding of
such signal.” Wright v. City of Knoxville, Tenn. 1995, 898
S.W.2d 177. There is evidence in this record that Hogan
approached an intersection where his vision was partially
blocked by the truck in the left southbound lane, and that
Hogan’s speed was such that the collision knocked the vehicle
of deceased into another stopped vehicle and beyond, a total
of 65 or 70 feet from the point of collision with the Hogan
truck, and the Hogan truck continued its southbound course
295 feet past the point of collision before stopping. Under
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these facts, it will be for the jury to decide whether Hogan
was driving at an unreasonably high speed and whether his
action or inaction constituted ordinary negligence and/or such
gross negligence as justified the award of punitive damages.
Coppinger Color Lab, Inc. v. Nixon, Tenn. 1985, 698 S.W.2d
72; Huckeby v. Spangler, Tenn. 1978, 563 S.W. 555.
Evidently, the Trial Court was of the opinion that the evidence was not sufficient as a matter
of law to justify exemplary damages, as held in Walgreen Co. v. Walton, 16 Tenn. App. 213, 16
S.W.2d 44 (1933). The circumstances of the present case are distinguishable from those of the cited
case. In addition to the claim of exemplary for the misconduct of Hogan, plaintiffs claim exemplary
damages for the misconduct of Mike Wilhelm Trucking, Inc., in the general conduct of its trucking
business such as selection and training of drivers, overloading and instruction or encouraging drivers
to violate the law. This Court holds that the allowance of punitive damages from Mike Wilhelm
Trucking, Inc., on these grounds may be pursued further in the Trial Court.
The judgment of the Trial Court is modified to reserve the questions of punitive damages
heretofore discussed.
Plaintiffs’ fifth, and last, issue is:
5) The Trial Court erred in granting the
Defendants’ motion for a protective order when the material
sought is directly relevant to Plaintiffs’ claims for liability and
punitive damages and when those materials were required by
federal law to be maintained by the Defendant as part of its
trucking enterprise.
The requested discovery included the following:
Come now the plaintiffs, John Watson Little and
Leslie Earl Little, Executors for the Estate of Leslie H. Little,
pursuant to Rule 34, Tenn. R. Civ. P., and hereby requests
that the defendants, Michael Hogan, Jeff Payne and Mike
Wilhelm Trucking, Inc. a/k/a Southern Grain, hereinafter
referred to as Mike Wilhelm Trucking, produce for
inspection and copying at the office of plaintiffs’ attorney,
within thirty days (30) days from the receipt hereof, the
originals or complete and clearly readable copies of the items
defined and described herein:
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1. Drivers’ trip records
2. Receipts for trip expenses
3. Pick up and delivery orders
4. All communications regarding transportation of cargo
5. All bills of lading and manifests
6. All equipment or cargo loading documents
7. All cargo freight bills
8. All written instructions to drivers
9. Dispatch records
10. All drivers’ calls in records
11. Accounting records
12. All drivers’ trip check-in financial sheets
13. All drivers’ fuel purchase and mileage reports
14. Copies of all checks issued to Hogan and Payne
15. All special fuel permits
16. All trip lease contracts
17. All other operation or trip related documents
18. Complete “Driver Qualification” files of Hogan and Payne
19. Any pre-employment documents
20. Complete application of employment of a driver
21. All medical examination records
22. All drivers’ violation statements
23. All drivers’ road tests
24. All drivers’ written tests
25. All drivers’ test certificates
26. All inquiries to former employers
27. All answers of former employers
28. All inquiries and answers regarding violations or accidents
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29. Test cards issued by former employers
30. All annual reviews
31. All other contents of driver qualification files
32. Records of drug tests
33. Records of training
34. Additions to Hogan and Payne file since June 10, 1994
35. Complete drivers’ personal file to date
36. Application contracts and agreements
37. Hiring, suspensions, warnings
38. Prior health, accidents, sickness, shortage reports
39. Law Enforcement reports
40. Other documents on Hogan and Payne
41. Complete driver qualification file of Hogan and Payne
42. Addition to file of any driver operating same equipment
43. Documents in possession of other drivers
44. Drivers’ licenses of all drivers that operated equipment before accident
45. Copies of violation notices of all drivers that operated same equipment
46. All objects, pictures, drawings or statements regarding subject accident
47. A more verbose repetition of 46.
48. All accident files on drivers of subject equipment
49. All drivers’ records of Hogan and Payne
50. All drivers’ records of other operators
51. Repetition of 50
52. Verbose repetition of previous request
53. Maintenance records
54. Verbose repetition of 53
55. Titles to both vehicles
56. Vehicle movement records
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57. Leasing contracts
58. Purchase of rental payments
59. Company manuals
60. Maintenance records
61. Computer records
62. Instructions and logs of drivers
63. Notices to drivers
64. Operational documents of driver
65. State registration of vehicles
66. Operating Permits of Hogan and Payne
67. Safety Instructions
68. List of all employees of Wilhelm
69. All Dispatch records
70. All operation forms
71. Income tax forms of Hogan and Payne
72. Fleet Evaluation Surveys
73. Correspondence with insurers
74. Driver Training manuals
75. Employees substance abuse policy
The foregoing summarizes plaintiffs’ 21-page demand for production of documents.
The judgment of the Trial Judge ruled as follows on these demands:
As to the discovery issues, it appears that the Plaintiffs
are exploring a number of areas which might or might not
uncover sloppy business practices, but which are totally
irrelevant to the cause of this accident. If it is undisputed that
Defendant Hogan did not apply his brakes until the time of
impact, then maintenance of brake records is irrelevant. If it
is undisputed that Defendant Payne sat at the red light to wait
for a truck to turn across the intersection, then it is irrelevant
how much his load weighed. It is equally certain that the
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failure to maintain some particular document back at Wilhelm
corporate headquarters did not kill anyone at the intersection.
----
In the current state of the record, the Plaintiffs are
precluded from inquiry as to any records which do not relate
to the particular delivery that Defendant Hogan was making
on the day of the accident or to the hiring of Defendant Hogan
as a driver. If the Plaintiffs wish to seek additional records
and the Defendants will not agree to that discovery, then the
Plaintiffs will have to apply to the court for permission to
seek the information. The written discovery heretofore filed
by the Plaintiffs is extremely oppressive, but no sanctions will
be ordered and no avenue of inquiry is finally precluded, but
the Plaintiffs will have to make a showing to the court on an
ad hoc basis that information sought is reasonably calculated
to lead to the discovery of admissible, relevant evidence.
A trial court has wide discretion in enforcing discovery. T.R.C.P. Rule 26, Strickland v.
Strickland, Tenn. App. 1981, 618 S.W.2d 496. The issuance of a protective order limiting discovery
lies within the sound discretion of the trial judge. Brown v. Brown, Tenn. App. 1993, 863 S.W.2d
432. It is within the inherent powers of a trial judge to take appropriate corrective action against a
party for discovery abuse. Lyle v. Exxon Corp., Tenn. 1988, 746 S.W.2d 694.
The judgment of the Trial Court is modified to require the plaintiffs to specify in detail the
grounds upon which punitive damages are claimed and to require a discovery conference pursuant
to TRCP Rule 26.06 for the purpose of identifying issues for discovery and appropriately limiting
its scope.
The judgment of the Trial Court is modified to delete the partial summary judgment
dismissing plaintiffs’ suit against Michael Hogan and Mike Wilhelm Trucking, Inc., for punitive
damages. As modified, the judgment of the Trial Court is affirmed. One-half the costs of this appeal
is taxed against the plaintiffs-appellants and their surety, and one-half of said costs are taxed against
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the defendants, Mike Hogan and Mike Wilhelm Trucking, Inc. The cause is remanded for further
proceedings.
MODIFIED, AFFIRMED AND REMANDED
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR IN SEPARATE OPINION:
BEN H. CANTRELL
CONCUR WITH SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
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