                                                                                          08/30/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 July 19, 2019 Session

JOHNNY ALAN HOWELL, ET AL. v. NELSON GRAY ENTERPRISES, ET
                          AL.

                  Appeal from the Circuit Court for Johnson County
                   No. CC-17-CV-46 James E. Lauderback, Judge
                      ___________________________________

                           No. E2019-00033-COA-R3-CV
                       ___________________________________


This appeal involves a motorcycle/vehicle collision that occurred when a vehicle exited
from a restaurant parking lot and collided with the plaintiffs’ motorcycle on a public
highway. The plaintiffs filed a negligence and premises liability claim against the
property owner, the restaurant owner, and the franchisee. The trial court granted the
defendants’ motion for summary judgment and noted that the defendants did not owe a
duty of care to the plaintiffs, effectively negating an essential element of the plaintiffs’
claim. The plaintiffs appeal. We affirm the grant of summary judgment by the trial
court.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                             Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and THOMAS R. FRIERSON, II, J., joined.

Tyler R. Moffatt, Boone, North Carolina, for the appellants, Johnny Alan Howell and
Charity L. Councill.

David A. Chapman and Adam F. Rust, Knoxville, Tennessee, for the appellees, Heather
Joyner, McDonald’s Corporation, and Nelson Gray Enterprises.

                                        OPINION

                                   I. BACKGROUND

       This action arises out of a vehicular collision near the intersection of South Shady
Street (also commonly known as U.S. Highway 421 or State Route 34) and Pioneer
Village Drive, located in Mountain City, Tennessee in Johnson County. The motorcycle
of Johnny Alan Howell and Charity L. Councill (collectively, “Appellants”) was struck
by an Isuzu Trooper driven by Seth Hunter (“Hunter” or “non-party”)1 that was
attempting to enter the highway from the McDonald’s restaurant “drive-thru.” Howell
and Councill suffered numerous injuries to their persons as a result of this collision.

        Nelson Gray Enterprises (“Nelson Gray”) is a Tennessee general partnership and
is the fee simple owner of a 2.2-acre tract located adjacent to the intersection of Pioneer
Village Drive and South Shady Street. Nelson Gray leases a portion of this property to
McDonald’s Corporation (“McDonald’s Corp.”) who, in turn, subleases that portion to
McDonald’s USA, LLC (“McDonald’s USA”) for the operation of a McDonald’s
franchise restaurant business as of January 5, 2005. McDonald’s USA, as franchisor,
sub-leases the property to Heather Joyner, as franchisee, to operate the restaurant. This
property has three points of egress and two points of ingress. The third point of egress
(“the Third Egress Point”), the subject of this appeal, is a one lane drive to allow
customers to exit the property onto the five-lane undivided South Shady Street (U.S.
Highway 421).

        Appellants filed suit against Nelson Gray as property owner, McDonald’s Corp. as
franchisor, and Joyner as franchisee (collectively, “Appellees”). The complaint
contained both a negligence claim and a negligence per se claim.2 Appellants alleged
that the Third Egress Point is an unreasonably dangerous condition because it “promotes
the uncontrolled flow of vehicular traffic into a five-lane undivided highway” without
traffic control devices or warning signs. It is further alleged that the exit is unreasonably
dangerous because it is “an unabated direct-access one-lane exit into a five-lane
highway” and “permits, without warning” a left turn onto this highway. Appellees
independently filed answers denying liability and subsequently moved for summary
judgment.

       Affidavits by Joyner and J. Alan Parham, P.E. (“Expert”) were submitted by
Appellees in support of the motion for summary judgment. Joyner’s affidavit contained
statements that she, as franchisee owner, was not aware of any other vehicular accidents
involving customers exiting the Third Egress Point. Expert’s affidavit and report,
discussed in detail below, contained statements on the physical aspects of the driveway
and its relation to the standards by which driveways are permitted to connect to public
ways. Appellants submitted no affidavits or any contrary proof.

       Upon oral arguments, the pleadings, and the affidavits, the trial court found that

       1
         Hunter is not and never was a party to this appeal or the underlying case.
       2
         The negligence per se claim asserted that the Third Egress Point did not conform to state
standards for driveway connections. This claim was dropped after evidence came to light that
the driveway conformed to the relevant standards.
                                              -2-
the driveway conformed to all relevant standards, that the accident involving a third-party
vehicle attempting to exit the property was not foreseeable, and that no unreasonably
dangerous condition existed at the time of the accident. Additionally, the trial court held
that Appellees owed no duty to Appellants as a matter of law and that Appellees negated
an essential element of the claim. The court further noted that the proximate cause of the
accident was Hunter’s failure to yield the right-of-way as opposed to any condition or
lack of traffic control on the property. Appellants filed a timely appeal.


                                       II. ISSUES

       We consolidate and restate Appellants’ issues for review as follows:

       A.     Whether the trial court erred in holding that Appellees did not owe a
       duty of care to Appellants;

       B.     Whether the trial court erred in holding that the injuries sustained by
       Appellants were proximately caused by a non-party’s failure to yield the
       right-of-way and not the lack of traffic control measures on the property;
       and

       C.   Whether the trial court erred in granting Appellees’ motion for
       summary judgment.


                             III. STANDARD OF REVIEW

        Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The standard of review following
a trial court’s decision on a motion for summary judgment is de novo with no
presumption of correctness. Tantham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d
734, 748 (Tenn. 2015) (citing Parker v. Holiday Hospitality Franchising, Inc., 446
S.W.3d 341, 346 (Tenn. 2014)). We must make a fresh determination that the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); Hunter v. Brown, 955
S.W.2d 49, 50-51 (Tenn. 1997). When reviewing the evidence, we must determine
whether any factual disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a
factual dispute exists, we must determine whether the fact is material to the claim or
defense upon which the summary judgment is predicated and whether the disputed fact
creates a genuine issue for trial. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 265 (Tenn. 2015); Byrd, 847 S.W.2d at 211. The moving party who does
                                             -3-
not bear the burden of proof at trial “may satisfy its burden of production either (1) by
affirmatively negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye, 477 S.W.3d at
264. If the moving party satisfies the burden of production, the nonmoving party must
respond by setting forth “specific facts showing that there is a genuine issue for trial.”
Tenn. R. Civ. P. 56.06.

       In evaluating the evidence in the summary judgment context, we must view the
evidence in the light most favorable to the nonmoving party, and we must draw all
reasonable inferences in favor of that party. Cumulus Broad., Inc. v. Shim, 226 S.W.3d
202, 373-74 (Tenn. 2007); Abbott v. Blount Cnty., 207 S.W.3d 732, 735 (Tenn. 2006).


                                    IV. DISCUSSION

       To prevail on a negligence claim, a plaintiff must establish the following elements:

       (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the
       defendant falling below the standard of care amounting to a breach of that
       duty; (3) an injury or loss; (4) causation in fact; and (5) proximate or legal
       cause.

Biscan v. Brown, 160 S.W.3d 462, 478-79 (Tenn. 2005) (citing Coln v. City of Savannah,
266 S.W.2d 34, 39 (Tenn. 1998)); See also Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn.
1998). Essentially, Appellants assign error to the trial court’s decision that Appellees
owed no duty of care toward Appellants and that the proximate cause of Appellants’
injuries was a non-party’s failure to yield the right of way contrary to his statutory duty.

       We turn first to the duty element, for without the establishment of a duty, there can
be no negligence. Estes v. Peels, No. E1999-00582-COA-R3-CV, 2000 WL 1424808,
*3, 2000 Tenn. App. LEXIS 641, *9 (unpublished) (Tenn. Ct. App. Sept. 21, 2000)
(citing Doe v. Linder Const. Co., 845 S.W.2d 173, 178 (Tenn. 1992)). Whether a
defendant owes a duty to the plaintiff is a question for the court. Id. (citing Carson v.
Headrick, 900 S.W.2d 685, 690 (Tenn. 1995)).

       In Estes, we summarized the duty element as follows:

       “Duty” has been defined as “the legal obligation owed by defendant to
       plaintiff to conform to a reasonable person standard of care for the
       protection against unreasonable risks of harm. McCall v. Wilder, 913
       S.W.2d 150, 153 (Tenn. 1995). In determining whether a duty exists, we
       must consider whether “such a relation exists between the parties that the
                                         -4-
      community will impose a legal obligation upon one for the benefit of
      others—or, more simply, whether the interest of the plaintiff which has
      suffered invasion was entitled to legal protection at the hands of the
      defendant.” Bradshaw v. Daniel, 854 S.W.2d 865, 869–70 (Tenn.1993)
      (quoting Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858–59
      (Tenn.1985)). A duty to act with due care arises when a risk is
      unreasonable, that is, “if the foreseeable probability and gravity of harm
      posed by defendant’s conduct outweigh the burden upon defendant to
      engage in alternative conduct that would have prevented the harm.”
      McCall, 913 S.W.2d at 153. The Supreme Court has set forth several
      factors to be considered in determining whether a risk is unreasonable,
      including

         the foreseeable probability of the harm or injury occurring; the
         possible magnitude of the potential harm or injury; the importance or
         social value of the activity engaged in by defendant; the usefulness of
         the conduct to defendant; the feasibility of alternative, safer conduct
         and the relative costs and burdens associated with that conduct; the
         relative usefulness of the safer conduct; and the relative safety of
         alternative conduct. Id.

Estes, 2000 WL 1424808, at *3. We continued: “After consideration of these factors, we
must then balance ‘the foreseeability and gravity of the potential harm against the burden
imposed in preventing that harm.’ Coln v. City of Savannah, 966 S.W.2d at 39; see also
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000); Rice, 979 S.W.2d at
308; McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 902 (Tenn. 1996);
McCall, 913 S.W.2d at 153.” Id.

       In addition to the elements of negligence, a plaintiff seeking to prevail against a
property owner on a premises liability claim must prove either that:

      (1) the condition was caused or created by the owner, operator, or his agent,
      or (2) if the condition was created by someone other than the owner,
      operator, or his agent, that the owner had actual or constructive notice that
      the condition existed prior to the accident.

Parker v. Holiday Hosp. Franchising, Inc., 446 S.W.3d at 350 (quoting Blair v. West
Town Mall, 130 S.W.3d 761, 764 (Tenn. 2004)). Further, “a plaintiff is required to prove
that the injury was a reasonably foreseeable probability and that some action within the
defendant’s power more probably than not would have prevented the injury.” Dobson v.
State, 23 S.W.3d 324, 331 (Tenn. Ct. App. 1999)).

      In Tennessee, a property owner or occupier may owe a duty to persons on a public
                                         -5-
thoroughfare adjacent to the premises if some condition on the property creates a
foreseeable risk of harm. See, e.g., De Ark v. Nashville Stone Setting Corp., 279 S.W.2d
518, 521 (Tenn. Ct. App. 1955) (“the public right of passage in a road, street, or
sidewalk, carries with it the obligation upon occupiers of abutting land to use reasonable
care not to endanger such passage, by excavations or other hazards so close to the public
way as to make it unsafe to persons using it with ordinary care”); see also Helton v.
Glenn Enterprises, Inc., 209 S.W.3d 619, 627 (Tenn. Ct. App. 2006) (holding that a
motel had a duty to prevent reasonably foreseeable thefts of automobiles in an adjacent
parking lot that the motel led patrons to believe was on motel property). However, the
property owner is not responsible for removing or warning against “conditions from
which no unreasonable risk was to be anticipated.” Parker, 446 S.W.3d at 350.

       In Estes, we held that the owner of a manufacturing plant owed no duty to a
passing motorist who was struck by a vehicle exiting the parking lot because “it was not
foreseeable to [property owner] that a person would attempt to exit the plant without
yielding to oncoming traffic.” Id., 2000 WL 1424808, at *6. Additionally, even if this
conduct were foreseeable, we noted that “imposing a duty on [property owner] to prevent
a driver from pulling out on a highway without yielding to oncoming traffic would be an
onerous burden.” Id. at *7. Furthermore, we recognized that “[t]he responsibility for the
placement and maintenance of traffic controls on the public way rests with the
government, not a private entity . . . .” Id. (citing Gorman v. Earhart, 876 S.W.2d 832,
836 (Tenn. 1994) (holding Manual on Uniform Traffic Control devices applies only to
public authorities and those entities with a contractual relationship with public authorities
for the construction, operation, or maintenance of public roads and highways)); see also
Tenn. Code Ann. § 55-8-113 (1998) (prohibiting the display of any unauthorized sign or
device on a highway attempting to direct traffic).

       In the case at bar, Appellants argue that the existence of the Third Egress Point is
an unreasonable risk “because the foreseeable probability and gravity of harm outweighs
the burden upon Appellees to engage in alternative conduct that would have prevented or
lessened the likelihood of the harm.” Appellants further contend that the Third Egress
Point “promotes the uncontrolled flow of vehicular traffic into a five-lane undivided
highway . . . .” In response, Appellees argue that there is no condition on the property
triggering a liability under the premises liability theory and submit an affidavit and report
of Expert regarding his comprehensive review of the accident scene, applicable
documentation, and legal authority as to the construction of driveways and entrances to
highways. This affidavit provides a comparison of both Tennessee Department of
Transportation’s Manual for Constructing Driveway Entrances on State Highways, 2015
Edition (“TDOT Manual”) and the Manual on Uniform Traffic Control Devices
(“MUTCD”) published by the Federal Highway Administration of the United States
Department of Transportation.

       Expert’s affidavit included the following conclusions in regards to the TDOT
                                          -6-
Manual:

      1. The edge clearance for the subject driveway access is approximately 29.6
      feet, which exceeds the requirement of 20 feet;

      2. The driveway angle for the subject driveway is 90 degrees, which is the
      required angle;

      3. The width of the subject driveway is approximately 19 feet at its widest
      point, which is within the required range of 12 to 24 feet;

      4. The corner clearance for the subject driveway to Pioneer Village Road is
      136.6 feet, which exceeds the requirement of 100 feet for this type of
      application; and

      5. The available sight distance for vehicles entering U.S. Highway 421 at
      the subject driveway exceeds 1,000 feet looking north and 1.400 feet
      looking south, which exceeds the required sight distance of 625 feet for 50
      miles per hour design speed.

      In regard to the MUTCD, Expert’s affidavit included the following conclusions:

      1. The MUTCD states that “parking areas, including the driving aisles
      within those parking areas, that are either publicly or privately owned shall
      not be considered to be ‘open to public travel’ for purposes of MUTCD
      applicability;”

      2. The driveway entrances from other businesses along the section of U.S.
      Highway 421/State Route 34 where the subject property is located do not
      have signage or other traffic control devices for controlling right-of-way
      access or traffic guidance;

      3. Design practices for driveway exits/entrances to roadways do not
      typically include traffic control devices such as stop signs, yield signs, etc.
      As outlined in the Tennessee Comprehensive Driver License Manual,
      drivers entering the roadway from a driveway are required to yield the
      right-of-way to traffic already on the roadway; and

      4. The subject driveway entrance is not required to have traffic control
      devices.

      Appellants further contend that the Third Egress Point is a “known dangerous and
hazardous intersection” and has a history involving motor vehicle accidents. However,
                                          -7-
Appellants do not offer nor is there any evidence in the record for this proposition. In
contrast, Appellees submitted an affidavit from Joyner stating that she was not aware of
any other accident involving a vehicle pulling out from the driveway either before or
since the accident involving Appellants. Accordingly, the trial court found the following:

       The Defendants have produced uncontroverted expert proof from Alan
       Parham, P.E. that the driveway and third point of egress on the property
       were constructed in accordance with TDOT requirements and meet or
       exceed the specifications for driveway access outlined in [TDOT Manual]
       promulgated by TDOT. Per the manual and applicable TDOT regulations,
       the driveway is not required to have traffic control devices.

Furthermore, the court concluded that:

       The Defendants have negated an essential element of the Plaintiffs’ claim in
       that the accident of September 4, 2016 involving a third-party vehicle
       attempting to exit the property was not foreseeable, and, accordingly, the
       Defendants owed no duty to the Plaintiffs as a matter of law. The
       proximate cause of the accident, moreover, was [the non-party’s] failure to
       yield the right of way to the Plaintiffs as opposed to any condition or lack
       of traffic control on the property. Finally, the driveway did not constitute
       an unreasonably dangerous condition at the time of the accident.

       Accordingly, on review of the evidence, we agree with the trial court’s decision to
grant summary judgment. Appellees submitted uncontroverted expert proof that there
was no unreasonably dangerous condition on Appellees’ property at the time of the
accident. There is no evidence in the record revealing any obstacle that blocked the view
of the non-party. An accident involving a third-party exiting the property and failing to
yield the right-of-way is unforeseeable. See Estes, 2000 WL 1424808, at *6. To hold
otherwise would be an onerous burden on not only Appellee but every property owner.
See id. at *7. Therefore, in accordance with the case law cited above3, Appellees owed
no duty to Appellants and successfully negated an essential element of Appellants’ claim.

       Because we affirm the trial court’s decision that Appellees owed no duty of care
toward Appellants, we need not address the proximate cause element. All other issues
are pretermitted.

       3
        Appellants argue that the trial court used the incorrect standard by substituting the
TDOT standards to find that Appellees were not negligent in this case. This argument is without
merit. Expert’s affidavit, photographs, and other pleadings are merely proof submitted to negate
an element of the negligence claim. Appellants had the opportunity to submit evidence to the
contrary but failed to do so. The trial court, in its ruling, stated the correct standards of
negligence and premises liability on which its holdings were based.
                                             -8-
                                   IV. CONCLUSION

      For the reasons stated above, we affirm the decision of the trial court in its grant of
summary judgment in favor of Appellees. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellants, Johnny
A. Howell and Charity L. Councill.


                                                  _________________________________
                                                  JOHN W. MCCLARTY, JUDGE




                                            -9-
