                       IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                                               FILED
                                                                 June 18, 1999
GRAHAM SCHINDEL and ASPEN             )
SCHINDEL, minors, by next friend      )
                                                              Cecil W. Crowson
and natural guardians, GEARY          )
                                                             Appellate Court Clerk
SCHINDEL and SUSAN SCHINDEL           )
and GEARY SCHINDEL and SUSAN          )
SCHINDEL, individually,               )
                                      )
       Plaintiffs/Appellants,         )      Davidson Circuit No.97C-915
                                      )
v.                                    )
                                      )      Appeal No. 01A01-9711-CV-00655
RICHARD H. BASS and COMDATA           )
NETWORK, INC.,                        )
                                      )
       Defendants/Appellees.          )




             APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                          AT NASHVILLE, TENNESSEE


                     THE HONORABLE BARBARA N. HAYNES, JUDGE


For the Plaintiffs/Appellants:        For the Defendants/Appellees:

Thomas F. Bloom                       E. Todd Presnell
Nashville, Tennessee                  Dana D. Ballinger
                                      Nashville, Tennessee




                                      REVERSED AND REMANDED


                                      HOLLY KIRBY LILLARD, J.



CONCURS:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                             OPINION

       This is a personal injury case arising from an automobile collision. Geary Schindel and

Susan Schindel, on their behalf and on behalf of their two minor children, Graham and Aspen

Schindel, (“Plaintiffs”) filed suit against Richard Bass and his employer Comdata Network, Inc.

(“Defendants”) for personal injuries sustained in an automobile accident. The trial court granted

summary judgment in favor of the Defendants, and the Plaintiffs appeal. We reverse.

       On December 20, 1993, at approximately 6:00 p.m., Susan Schindel (“Schindel”) was driving

her car southbound on Franklin Pike toward the intersection of Franklin Pike and Harding Place in

Nashville, Tennessee. Schindel’s two children, Graham and Aspen, were passengers in the car. It

was a dark and rainy night. At the intersection, the traffic light indicated a green light. Schindel

yielded to oncoming traffic and allowed several cars to pass through the intersection before turning

left. Schindel saw no more cars and began to make the left turn. Her vehicle was struck by a van

driven by Richard Bass (“Bass”), who was traveling northbound on Franklin Pike. Schindel

acknowledges that she did not see Bass but alleges that it was because Bass was driving without

headlights.

       The trial court granted summary judgment in favor of Richard Bass on the grounds that

Plaintiffs had failed to establish the essential elements of their negligence claim through competent

evidence. Plaintiffs appeal.

       A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. Bain, 936 S.W.2d at 622. In Byrd v. Hall, 847

S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

       Once it is shown by the moving party that there is no genuine issue of material fact,
       the nonmoving party must then demonstrate, by affidavits or discovery materials, that
       there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
        provides that the nonmoving party cannot simply rely upon his pleadings but must
       set forth specific facts showing that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

       Summary judgment is only appropriate when the facts and the legal conclusions drawn from

the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.

1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's grant of summary judgment. Bain, 936 S.W.2d at 622. Therefore, our review of the

trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate

of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

       On appeal, Schindel contends that she submitted sufficient evidence to establish a genuine

issue of material fact concerning whether Bass was driving without headlights at the time of the

accident. Schindel argues that a reasonable inference of fact may be drawn from her testimony that

she failed to observe Bass, and that her failure to see Bass must have been because Bass was driving

without headlights at the time of the accident.

       In support of her argument, Schindel cites Rogers v. Bouchard, 449 S.W.2d 431 (Tenn. App.

1969). In Rogers, the plaintiffs, husband (driver) and wife (passenger) left a restaurant located on

U.S. Highway 41A. Rogers, 449 S.W.2d at 434. Highway 41A was a four-lane highway with two

lanes running north and south. Id. The plaintiffs intended to cross the two southbound lanes of

traffic and proceed north. Id. The plaintiffs’ testimony included:

       [T]hat [plaintiff-husband] stopped just a few feet before entering the highway, where
       he could see both to his left (which would be northwardly) and to his right (which
       would be southwardly) for approximately 300 yards in each direction and looked for
       approaching traffic from both directions; that he did not see any traffic or lights
       approaching from either direction and when he asked plaintiff [wife] if she saw any,
       she replied in the negative, whereupon he proceeded to drive across the southbound
       lanes and was there struck by the automobile of defendant . . . just as he was about
       to enter the crossover opening in the median strip . . . .

Id. at 434. In addition to the testimony of the plaintiffs in Rogers, a third witness testified that he

looked at the southbound lanes of the highway and observed no traffic or headlights of oncoming

cars. Id. at 435. The defendant testified that his lights were on at the time of the accident. Id. at

436. At trial, the jury returned a verdict in favor of the defendant and against the plaintiff-husband

but found in favor of the plaintiff-wife in her action against the defendant. Id. at 432. The defendant

appealed the decision on the grounds that the trial court erred in failing to grant the defendant’s

motion for directed verdict and motion for a new trial. Id. at 432-33. This Court sustained the jury’s

                                                   2
verdict on the grounds that the jury could have reasonably found as fact that the defendant was

driving without headlights, based upon the testimony of the three witnesses. Id. at 437.

       In the present case, the evidence submitted regarding the issue of whether Bass operated the

vehicle without headlights consisted of Schindel’s deposition and affidavit. In her deposition,

Schindel stated:

       Q: Had you, in fact, yielded to some oncoming traffic?
       A: Yes, I had.
       ***
       Q: Were there cars in the lane--in the turn lane of the northbound--
       A: Yes.
       Q: --traffic lane?
       A: Yes.
       Q: You specifically recall cars-
       A: Uh-huh.
       Q: --being in that lane?
       A: Two.
       Q: Two cars?
       A: Uh-huh.
       Q: Were their headlights on?
       A: Yes, and their blinkers.
       ***
       Q: When did you first see Mr. Bass’ vehicle?
       A: I didn’t see Mr. Bass’ vehicle until after he hit us.
       Q: Why did you not see his vehicle?
       A: I don’t know why I didn’t see his vehicle. I didn’t see it. It wasn’t because I
       wasn’t looking.

Schindel testified later in her deposition:

       Q: Do you know whether or not the driver of the van had his lights on at the time of
       impact?
       A: I didn’t see the vehicle. I can only assume that if the lights were on I would have
       seen the vehicle. I didn’t see the vehicle.
       Q: So you can’t really say?
       A: That’s right. I certainly saw other vehicles in the intersection that had their lights
       on.

Subsequently, Schindel filed an affidavit stating in part: “I did not see the automobile driven by

Richard H. Bass because he did not have his lights on. I am certain that he did not have his lights

on as I saw other vehicles prior to making my turn.” Bass asserts that he had his headlights on at

the time of the accident.

       Additional conflicting circumstantial evidence was presented on the issue. Bass, in a

deposition, testified that the headlights were on at the time of the accident. After the accident,

according to Bass, he turned the headlights off because the lights were shining into oncoming traffic.

A witness, John Butterfield, had a conversation with Bass after the accident in which Bass allegedly




                                                  3
stated, “I should have left my lights on.” Bass contends that he stated, “I should have left the

headlights on after the accident had occurred.”

        We have recognized that “[t]he range of reasonable inferences to be drawn from the evidence

depends upon the unique facts of each case. An inference is reasonable and legitimate only when

the evidence makes the existence of the fact to be inferred more probable than the nonexistence of

the fact.” Underwood v. HCA Health Services, Inc., 892 S.W.2d 423, 426 (Tenn. App. 1994)

(citing Hollingsworth v. Queen Carpet, Inc., 827 S.W.2d 306, 309 (Tenn. App. 1991); Benson v.

H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn. App. 1985); Franklin v. Collins Chapel

Connectional Hosp., 696 S.W.2d 16, 19 (Tenn. App. 1985)).

        This case presents a very close question. Bass distinguishes Rogers by noting that, in

Rogers, three witnesses testified that they looked in the direction of the defendant’s vehicle and saw

no cars coming; whereas, in this case, there is no evidence to corroborate Schindel’s testimony. Bass

also argues that, in Rogers, all three witnesses testified that they looked specifically in the direction

of the defendant’s vehicle and saw no cars approaching, while Schindel states only that she had seen

and let by two cars from the turn lane from which Bass’ vehicle approached, and that she did not see

Bass’ vehicle.

        The fact that Schindel’s testimony is not corroborated by the testimony of other witnesses

is not fatal to her case, provided Schindel’s testimony is sufficient to support a finding that Bass did

not have his headlights on. See Rupe v. Sims, No. 223, 1990 WL 198902 (Tenn. App. Dec. 12,

1990). In Rogers, the witnesses testified specifically that they looked in the direction of the

defendant’s vehicle and saw no cars coming. In this case, Schindel testified that she had been

looking in the direction of Bass’ vehicle, saw two other cars with their lights on, let them turn and

proceeded forward, not seeing Bass’ vehicle. These facts are simply too similar to find that Rogers

is distinguishable. We find that the evidence presented by the plaintiff is barely sufficient to support

a factual finding that Bass was operating his vehicle without the headlights on. Consequently, we

must conclude that the trial court erred in granting summary judgment in favor of the defendants.



        The decision of the trial court is reversed, and the cause is remanded for further proceedings

consistent with this Opinion. Costs are assessed against the Appellees, for which execution may

issue if necessary.


                                                   4
                      HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




                             5
