                                                                                                  06/28/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        May 17, 2017 Session

                    TONY E. HANCOCK v. STATE OF TENNESSEE

                       Appeal from the Tennessee Claims Commission
                     No. T20131030    Robert N. Hibbett, Commissioner,
                       Tennessee Claims Commission, Middle Division
                           ___________________________________

                                 No. M2016-01501-COA-R3-CV
                             ___________________________________


Appellant was injured in an automobile collision with a State Trooper. After a trial, the
Claims Commissioner found in favor of the State and dismissed the claim. Discerning no
error, we affirm.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                                        Affirmed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, and BRANDON O. GIBSON, JJ., joined.

Jon E. Jones, Cookville, Tennessee, for the appellant, Tony E. Hancock.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor
General; Amanda S. Jordan, Assistant Attorney General, for the appellee, State of
Tennessee.

                                   MEMORANDUM OPINION1



1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
                                       Background

       On the night of February 25, 2012, Tennessee State Trooper Bobby Barker (“the
Trooper”) was driving westbound in a Tennessee Highway Patrol car on State Highway
70 in Cumberland County, Tennessee, a rural two-lane road. As he approached Highland
Lane, he collided with Plaintiff/Appellant Tony E. Hancock’s (“Appellant”) black pick-
up truck. The rear tires of Appellant’s truck were stuck in a ditch, and, as a result, the
front end of his truck sat perpendicular across the road, blocking the westbound travel
lane. It is unclear whether Appellant was inside or outside of the truck, but he was
subsequently found lying nearby in the driveway of a church. Both Appellant and the
Trooper were administered blood alcohol tests. Appellant sustained serious injuries,
incurring $368,282.28 in medical expenses.

       On February 20, 2013, Appellant filed a statement of claim in the Tennessee
Claims Commission against the State of Tennessee (“the State”). The claim alleged that
the Trooper was negligent in operating his patrol car and that the State was liable for its
employee’s negligence. In the meantime, Appellant was also charged with driving under
the influence in connection with the accident. In this criminal case, Appellant filed a
motion to suppress the blood alcohol test evidence, and after a full evidentiary hearing, an
order was entered suppressing the results because the destruction of the blood sample
before Appellant could re-test it constituted spoliation. Appellant also filed a motion to
suppress the toxicology report in the civil case on grounds of spoliation and constitutional
violations. The Claims Commissioner denied Appellant’s motion to suppress.

        The claim was tried before the Claims Commissioner on March 22 and 23, 2016.
The recording from the Trooper’s dashboard camera was played for the Claims
Commissioner, and a still photograph taken from the video recording was admitted into
evidence. Appellant testified that he had no memory of the accident, its aftermath, or the
five weeks prior thereto. There was no dispute that Appellant suffered catastrophic
injuries as a result of the collision. The Trooper generally testified that he did not see
Appellant’s truck in the road until it was too late to avoid a collision. The Trooper could
not recall if his high beam headlights were in use at the time of the collision but indicated
his belief that such were not legally required. There was no dispute that the Trooper was
traveling at an appropriate speed at the time of the collision or that the Trooper’s
toxicology report showed no evidence of intoxicating substances in the Trooper’s system.
Both the Trooper and the responding officer testified regarding their inspection of the
vehicle and the scene, each noting the odor of alcohol near Appellant’s truck. Each party
called expert witnesses to testify as to whether the Trooper could have avoided the
collision by utilizing his high beam lights and keeping a proper lookout.

      An evidentiary dispute occurred during trial that is relevant to this appeal.
Although the Claims Commissioner had previously ruled that constitutional and
                                      -2-
spoliation issues did not prevent the State from introducing the results of Appellant’s
toxicology report, at trial, Appellant objected to the admission of this evidence on
reliability and chain of custody grounds. The Claims Commissioner nevertheless allowed
the report to be admitted into evidence, ruling that the report was self-authenticating.

        At the conclusion of the proof, the Claims Commissioner took the matter under
advisement. Each party thereafter submitted proposed findings of fact and conclusions of
law. On July 24, 2016, the Claims Commissioner issued his written ruling containing
detailed and thorough findings of fact and conclusions of law. Therein, the Claims
Commissioner found that the Trooper was traveling at a safe speed and maintaining a
proper lookout at the time of the collision but had not engaged his high beam headlights
pursuant to state law. The Claims Commissioner found, however, that regardless of this
failure, “if [the] Trooper [] bears any comparative fault, it is no more than twenty-five
percent.” In addition, the Commissioner ruled that because the Trooper could not have
reasonably foreseen that Appellant’s truck would be blocking the highway and the
Trooper did not see the truck until it was too late to avoid the collision, the Trooper’s
negligence was not the proximate cause of the accident. The Commission therefore
dismissed Appellant’s claim. In reaching this result, the Commissioner stated that the
results contained in the toxicology report allegedly performed on Appellant “ha[d] no
bearing on the judgment because the truck was stationary at the time of the accident.”

                                    Issues Presented

       Appellant raises a number of claims in this appeal; however, we conclude that the
issues here are as follows:

   1. Whether the Commissioner erred in admitting the results of the toxicology report
      allegedly performed on Appellant following the collision.
   2. Whether the Commissioner erred in dismissing Appellant’s claim based upon
      issues of proximate cause and comparative fault.

                                       Discussion

        Appellant’s claim is governed by the Tennessee Governmental Tort Liability Act
(“GTLA”). Under the GTLA, governmental immunity is removed for injuries resulting
from the negligent operation of a motor vehicle or other equipment by an employee in the
scope of employment. See Tenn. Code Ann. § 29-20-202(a). In this case, there is no
dispute that the Trooper was a governmental employee acting in the scope of his
employment in operating his vehicle at the time of the collision. Rather, Appellant argues
that the Claims Commissioner erred in finding that he was the party more responsible for
his injuries. Our review of the Claims Commissioner’s judgment is governed by the rules
applicable in all appeals to this Court. See Tenn. Code Ann. § 9-8-403(a)(1) (“The
decisions of the individual commissioners or, when rendered, decisions of the entire
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commission regarding claims on the regular docket may be appealed to the Tennessee
court of appeals pursuant to the same rules of appellate procedure which govern
interlocutory appeals and appeals from final judgments in trial court civil actions[.]”). We
therefore review the Claims Commissioner’s findings of fact de novo with a presumption
of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No
presumption of correctness, however, attaches to the Claims Commissioner’s conclusions
of law, and our review is de novo. Blair v. Brownson, 197 S.W.3d 681, 684 (Tenn.
2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).

       Appellant first argues that the Claims Commissioner’s decision was tainted by the
erroneous admission of the report regarding the toxicology test allegedly performed on
Appellant. Although Appellant raised constitutional challenges to the testing in the
underlying proceeding, Appellant abandoned that argument on appeal. Rather, Appellant
argues that the Claims Commissioner erred in admitting the report based on the
following: (1) lack of foundation regarding the identity or qualifications of the person
performing the blood test,2 or the chain of custody; (2) lack of reliability indicating that
Appellant was the individual tested3 and lack of accuracy given Appellant’s blood loss at
the scene of the accident;4 and (3) collateral estoppel based upon the previous ruling of
the criminal court that the toxicology report was inadmissible due to spoliation of the
sample.

      Generally, the Claims Commissioner’s decision regarding the admission of
evidence is reviewed for an abuse of discretion. Rothstein v. Orange Grove Ctr., Inc., 60
S.W.3d 807, 811 (Tenn. 2001). In Ingram v. Phillips, 684 S.W.2d 954 (Tenn. Ct. App.
1984), this Court held that when the case is tried without a jury, the admission of
inadmissible evidence will be insufficient to require reversal of the judgment where
        2
          Appellant argues that such evidence was required for the hearsay toxicology report to be
admitted pursuant to Tennessee Code Annotated section 55-10-408(a), which provides:

                The procurement of a sample of a person's blood for the purpose of conducting a
        test to determine the alcohol content, drug content, or both, of the blood shall be
        considered valid if the sample was collected by a person qualified to do so, as listed in §
        55-10-406(b)(1), or a person acting at the direction of a medical examiner or other
        physician holding an unlimited license to practice medicine in Tennessee under
        procedures established by the department of health.

         The statute further provides that a toxicology report made pursuant to this section will “be
admissible, in any criminal proceeding, as evidence of the facts therein stated[.]” Tenn. Code Ann. § 55-
10-408(d). Appellant argues that it is therefore inapplicable to render the report admissible in a civil
proceeding.
         3
           In support of this argument, Appellant notes that evidence at trial showed that the toxicology
test was originally marked as being performed on “John Doe,” and that Appellant’s name was added later.
         4
           In support of this argument, Appellant notes that evidence at trial showed that the toxicology
test was performed nearly two hours after the accident occurred and after Appellant received 3,000 mL of
fluid, and 200 mL of packed red blood cells, which Appellant argues could have distorted the results.
                                                   -4-
“there is ample evidence to support the [trial judge’s or claims commissioner’s] judgment
without the consideration of the so-called ‘hearsay’ testimony.” Id. at 956. Rather, any
error in that situation is merely harmless. Id. (citing Tenn. R. App. P. 36(b) (“A final
judgment from which relief is available and otherwise appropriate shall not be set aside
unless, considering the whole record, error involving a substantial right more probably
than not affected the judgment or would result in prejudice to the judicial process.”)).
This rule is especially applicable here where the Claims Commissioner explicitly noted
that the toxicology report “had no bearing on the judgment[.]” Because we conclude that
the Claims Commissioner’s judgment is supported by the preponderance of the evidence
even in the absence of the toxicology report, we need not tax the length of this Opinion
with consideration of the Claims Commissioner’s alleged evidentiary error. We will
therefore proceed to discuss whether the evidence in the record preponderates against the
Claims Commissioner’s findings.

        Here, the Claims Commissioner appears to have dismissed Appellant’s claim on
two alternative bases: 1) that the Trooper was no more than twenty-five percent at fault
for the collision; and (2) the Trooper’s negligence, if any, was not the proximate cause of
the accident. Under the GTLA, in order to hold a governmental actor liable for
negligence, the fact-finder must “first determine that the employee’s or employees’ act or
acts were negligent and the proximate cause of plaintiff’s injury.” Tenn. Code Ann. § 29-
20-310(a). This is consistent with the essential elements applicable in all negligence
cases. See Potts v. Nashville Elec. Serv., No. M2005-00368-COA-R3-CV, 2006 WL
468727, at *3 (Tenn. Ct. App. Feb. 27, 2006) (noting that causation is an element in
common law negligence claims, as well as statutory GTLA claims); Keaton v. Hancock
Cnty. Bd. of Educ., 119 S.W.3d 218, 224 (Tenn. Ct. App. 2003) (holding that the claim
was “controlled by general principles of negligence and the GTLA”). As such, in order to
prevail on a claim of negligence, a plaintiff must show the following essential elements:
“‘(1) a duty of care owed by defendant to plaintiff; (2) conduct below the applicable
standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in
fact; and (5) proximate, or legal, cause.’” Giggers v. Memphis Hous. Auth., 277 S.W.3d
359, 364 (Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

        The Claims Commissioner’s decision also involves an analysis of comparative
fault. In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992), the Tennessee Supreme
Court adopted a system of modified comparative fault applicable in tort actions wherein
“so long as a plaintiff’s negligence remains less than the defendant’s negligence the
plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion
to the percentage of the total negligence attributable to the plaintiff.” Id. at 57.
Accordingly, Appellant may only recover if the evidence shows that the Trooper was
more than fifty percent at fault for Appellant’s injuries. Both proximate cause and
determinations regarding comparative fault are issues of fact, which we review with a
presumption of correctness. See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)
(involving proximate cause); Green v. Roberts, 398 S.W.3d 172, 178 (Tenn. Ct. App.
                                            -5-
2012) (involving comparative fault). For the evidence to preponderate against a finding
of fact, it must support another finding of fact with greater convincing effect. 4215
Harding Road Homeowners Ass’n. v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App.
2011); Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

       Appellant argues that the Claims Commissioner erred in assigning any fault to him
due to the fact that Appellant had no memory of the accident or how his truck came to be
parked in the road. Here, the Claims Commissioner credited Appellant’s testimony that
he had no memory of the collision or the five weeks preceding it. The State does not
dispute this finding. Tennessee law recognizes that “an amnesiac is afforded
the presumption that he acted with due care [however,] such presumption continues only
in the absence of evidence to the contrary.” Jeffreys v. Louisville & N. R. Co., 560
S.W.2d 920, 921 (Tenn. Ct. App. 1977). The presumption is not evidence that the
defendant was negligent, does not shift the burden of proof, and does not authorize
speculation as to the cause of any accident. Stinson v. Daniel, 414 S.W.2d 7, 9 (Tenn.
1967).

       In this case, the Claims Commissioner recognized and applied the presumption of
due care given Appellant’s memory loss but found that the presumption was rebutted by
circumstantial evidence that Appellant “was in control of his vehicle at the time it came
to be stationary in the road” and therefore was “legally responsible for its location at the
time of the accident.” Whether the presumption of due care has been rebutted is again a
question of fact that this Court reviews with a presumption of correctness. See Fergus v.
Action Cartage & Distribution, Inc., No. 60, 1990 WL 43463, at *5 (Tenn. Ct. App.
Apr. 17, 1990) (noting that the issue of whether the presumption of due care applied was
a question of fact for the fact-finder).

       Appellant has not shown that the evidence preponderates against the Claims
Commissioner’s finding on this issue. Here, there is no dispute that Appellant was the
only person driving his truck prior to it coming to rest in the roadway and that therefore
he had sole control over the vehicle. In addition, the dashboard camera video shows that
the weather the night of the accident was clear. The video likewise shows no obstructions
in the roadway that would have caused Appellant’s car to come to rest perpendicular to
the road, blocking the roadway. Indeed, evidence at trial from the Trooper showed that
the vehicle’s engine was still running, even after the collision. In addition, both the
Trooper and a responding officer testified that they noticed the odor of alcohol at the
scene near Appellant’s truck. The Claims Commissioner expressly credited both the
Trooper’s and the officer’s testimony on these issues. When the resolution of the issues in
a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity
to observe the manner and demeanor of the witnesses while testifying is in a far better
position than this Court to decide those issues. In re Arteria H., 326 S.W.3d 167, 176
(Tenn. Ct. App. 2010) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.
1995)). If the Claims Commissioner’s factual determinations are based on his assessment
                                            -6-
of witness credibility, this Court will not reevaluate that assessment absent clear and
convincing evidence to the contrary. Franklin Cnty. Bd. Of Educ. v. Crabtree, 337
S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002)). Here, there is no clear and convincing evidence to undermine the Claims
Commissioner’s credibility findings regarding these witnesses. Based on the record as a
whole, we must conclude that the evidence does not preponderate against the Claims
Commissioner’s factual finding that the presumption of due care was rebutted by
evidence that Appellant’s own negligence caused his truck to come to rest blocking the
roadway.

        Having affirmed the Claims Commissioner’s ruling that the presumption of due
care was rebutted and Appellant was at least partially responsible for the collision,
Appellant next argues that the Claims Commissioner erred in determining that the
Trooper’s negligence was not the proximate cause of the collision and assigning, at most,
twenty-five percent of the fault to the Trooper, thereby preventing any recovery by
Appellant. Here, the Claims Commissioner found that the Trooper was driving at an
appropriate rate of speed and keeping a proper lookout, but that he did commit
negligence by failing to utilize his high beam headlights. See Tenn. Code Ann. § 55-9-
407 (requiring an “upper distribution of light” while operating a motor vehicle in certain
situations). In addition, the Claims Commissioner found that the Trooper “did not see the
truck until the moment before he struck it.” Accordingly, the Claims Commissioner
ultimately ruled that the Trooper’s conduct was not the proximate cause of the collision.

       Here, the parties presented competing expert testimony as to whether the Trooper
could have avoided the accident had he exercised a proper lookout. The Claims
Commissioner expressly credited the testimony and findings of the expert offered by the
State. Appellant has shown no clear and convincing proof to undermine the Claims
Commissioner’s credibility finding on this issue, and we must therefore accept the
Claims Commissioner’s finding for purposes of this appeal. SIee Jones, 92 S.W.3d at
838. According to the State’s expert, the Trooper was unable to avoid the accident
because the truck did not become visible in a sufficient amount of time for the Trooper to
appropriately react.

        Appellant argues, however, that the State’s expert’s opinion is based on the fact
that the Trooper had not engaged his high beam headlights at the time of the accident.
Rather, Appellant notes that his expert testified that had high beam lights been engaged
prior to the collision, the Trooper would have been able to see approximately 500 feet
ahead, allowing sufficient visibility to avoid the accident even under the State’s expert’s
calculations. Appellant therefore argues that the Trooper was “the last wrongdoer with a
reasonable opportunity to avoid the accident” and therefore the proximate cause of the
collision pursuant to the last clear chance doctrine. Gray v. Roten, No. W2010-00614-
COA-R3-CV, 2011 WL 236115, at *8 (Tenn. Ct. App. Jan. 18, 2011).

                                           -7-
       Appellant’s argument is unavailing for two reasons. First, as noted by both parties,
the last clear chance doctrine had been “subsumed into Tennessee’s system of
comparative fault.” McIntyre, 833 S.W.2d at 57. Under this system, the “circumstances
formerly taken into account” under the last clear chance doctrine are “addressed when
assessing relative degrees of fault.” Id. Thus, even if this Court were to conclude that the
Trooper had the last clear chance to avoid the accident, a fact not found by the Claims
Commissioner, such a conclusion could “not form the only basis for fault” against the
Trooper. Gray, 2011 WL 236115, at *8. Thus, even if the Trooper could have avoided the
accident by engaging his high beams, this fact is but one of many factors that must be
compared to determine the parties’ relative degrees of fault.

        Additionally, we note that the Claims Commissioner expressly stated that he did
not accredit the portion of Appellant’s expert’s testimony regarding the Trooper’s ability
to see the truck in the road if high beam headlights had been engaged. Again, no clear
and convincing evidence has been presented to rebut this explicit credibility finding.
Moreover, Appellant’s expert admitted in his testimony that his conclusion was based
upon supposition, having never examined the Trooper’s car or calculated the actual
visibility increase when the patrol car’s high beam headlights were operating. Rather, the
Claims Commissioner concluded that the totality of the evidence supported a finding that
the Trooper’s only negligence was his failure to engage his high beam headlights and that
this failure was simply not a substantial factor in the collision, as required to sustain a
finding of proximate cause. As explained by the Tennessee Supreme Court:

                In Tennessee, courts use a three-pronged test to assess proximate
       cause:

                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.

King v. Anderson Cnty., 419 S.W.3d 232, 247 (Tenn. 2013) (quoting Hale v. Ostrow,
166 S.W.3d 713, 719 (Tenn. 2005)). In another case, this Court has held that the act of
blocking a roadway “was a substantial factor in causing plaintiff’s damage.” Carney v.
Goodman, 38 Tenn. App. 55, 62, 270 S.W.2d 572, 575 (Tenn. Ct. App. 1954). In fact,
the Court held that “it was the most important factor, for it really put the others into
operation.” Id. In contrast, given the Claims Commissioner’s rejection of Appellant’s
evidence that the Trooper’s failure to engage his high beam headlights had any effect on
the Trooper’s ability to see the truck and avoid the accident, the evidence does not
preponderate against the Claims Commissioner’s finding that this failure was not a
                                           -8-
“substantial factor” in the collision. Rather, considering the evidence as a whole and the
Claims Commissioner’s explicit credibility findings, the record supports the Claims
Commissioner’s finding that the Trooper could not have avoided the accident and
therefore was not the proximate cause, or alternatively, was responsible for no more than
twenty-five percent of the fault, for causing the collision. Because there is sufficient
evidence in the record to support the trial court’s ultimate finding in favor of the State
without consideration of the toxicology report, we conclude that any alleged error
regarding the admission of the toxicology report was harmless. See Ingram, 684 S.W.2d
at 956. The judgment of the Claims Commissioner is therefore affirmed.

                                      Conclusion

       The judgment of the Tennessee Claims Commission is affirmed, and this cause is
remanded for all further proceedings as are necessary and consistent with this Opinion.
Costs of this appeal are taxed to Appellant, Tony E. Hancock, and his surety, for which
execution may issue if necessary.



                                                _________________________________
                                                J. STEVEN STAFFORD, JUDGE




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