                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 October 27, 2015 Session


   VAAL HALL, BY AND THROUGH HIS CONSERVATOR, THERESA
    ANNE HALL, AND THERESA ANNE HALL, INDIVIDUALLY v.
                CHARLES L. OWENS JR., ET AL.

                  Appeal from the Circuit Court for Madison County
                       No. C10326 Donald H. Allen, Judge

                          ________________________________

              No. W2014-02214-COA-R3-CV – Filed November 20, 2015
                      _________________________________

This is an appeal from a trial court’s grant of summary judgment in a negligence case.
Defendant’s truck collided with Plaintiff’s car causing Plaintiff serious injuries. Plaintiff
sued Defendant for injuries stemming from the accident, which he alleged was proximately
caused by Defendant’s negligence. Defendant filed a motion for summary judgment. It was
undisputed that the accident occurred after Plaintiff’s car entered an intersection and
proceeded to turn left across a lane of oncoming traffic despite the fact that the traffic signal
facing him was red. It was further undisputed that the traffic signal facing Defendant was
green as he proceeded into the intersection from the opposite direction in his truck. Traffic
cameras installed at the intersection captured video footage of the collision, which was
admitted as evidence. Based on the video footage and other undisputed evidence, the trial
court determined that no reasonable juror could conclude that Plaintiff was less than 50% at
fault. Plaintiff appealed. We affirm.

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

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

John Hamilton, Jackson, Tennessee, and Thomas F. Bloom, Nashville, Tennessee, for the
appellants, Vaal Hall and Theresa Anne Hall.

James C. Wright, Knoxville, Tennessee, for the appellees, Charles L. Owens, Jr., and Delta
Beverage Group, Inc.
                                               OPINION

                          I. BACKGROUND AND PROCEDURAL HISTORY

         The incident that is the subject of this lawsuit occurred on November 3, 2009 on the
Highway 45 Bypass in Jackson, Tennessee. At approximately 6:00 a.m. on that day,
Plaintiff/Appellant Vaal Hall (“Mr. Hall”) was driving his 2003 Toyota Matrix southbound
on the Highway 45 Bypass approaching its intersection with Channing Way from the north.
As Mr. Hall approached the intersection with Channing Way, he entered the turn lane
intending to turn left across the northbound lane of the Highway 45 Bypass onto Channing
Way. The left-turn traffic signal facing Mr. Hall was red. At the same time,
Defendant/Appellee Charles Owens, Jr. (“Mr. Owens”) was driving a fully loaded tractor-
trailer truck owned by Defendant/Appellee Delta Beverage Group, Inc. (“Delta Beverage”)
northbound on the Highway 45 Bypass approaching its intersection with Channing Way from
the south. Mr. Owens was accompanied in the truck by Derrick Daniel (“Mr. Daniel”). The
traffic signal facing Mr. Owens was green. Mr. Owens’s truck and the intersection were both
well-lit, and there was nothing obstructing the view of either driver. Despite the red left-turn
traffic signal facing him, Mr. Hall accelerated into the intersection and attempted to turn left
across the northbound lane of the Highway 45 Bypass. Mr. Daniel observed Mr. Hall’s car
as it entered the intersection in front of Mr. Owens’s truck and shouted at Mr. Owens to stop.
 Mr. Owens applied the brakes but was unable to avoid Mr. Hall’s car. As Mr. Owens’s
truck skidded into the intersection, it collided with the passenger side of Mr. Hall’s car
causing Mr. Hall serious injuries. Two traffic cameras installed at the intersection captured
video footage of the collision.

        On November 2, 2010, Mr. Hall, by and through his conservator, Theresa Anne Hall
(“Ms. Hall” and collectively with Mr. Hall, the “Halls”), and Ms. Hall, individually, filed this
lawsuit in the Madison County Circuit Court naming Mr. Owens and Delta Beverage as
defendants (the “Defendants”).1 Subsequently, in October 2013, the Halls were permitted to
file an amended complaint. In their amended complaint, the Halls alleged that Mr. Owens’s
negligence was the direct and proximate cause of the collision and the injuries suffered by the
Halls as result of the November 3, 2009 accident. They further alleged that Mr. Owens’s
employer, Delta Beverage, was vicariously liable for the injuries caused by Mr. Owens’s
actions in the scope of his employment. The Halls sought an award of damages in the
amount of $10 million to Mr. Hall for pain and suffering, medical expenses, loss of the
normal pleasures and enjoyments of life, and permanent disability and impairment, as well as


1
 The Halls’ original complaint also named Pepsico d/b/a Pepsi Company, PepsiAmericas, and Pepsi-Cola
Bottling Company as defendants, but an order of voluntary non-suit was later entered as to those defendants.
                                                    2
an award of damages in the amount of $10 million to Ms. Hall for the loss of services of her
spouse and the loss of her spouse’s society and companionship.

        The Halls retained Thomas Langley (“Mr. Langley”), an accident reconstruction
expert, to testify as an expert witness. In August 2013, attorneys from both parties met with
Mr. Langley to take his deposition testimony. During the deposition, Mr. Langley stated that,
based on his knowledge of similar trucks and road surfaces and his assessment of police
photographs of the scene and video footage of the accident, he estimated that Mr. Owens’s
truck was traveling in excess of the posted 55 mile per hour speed limit at a rate of 60 to 65
miles per hour prior to braking. Though Mr. Langley acknowledged that Mr. Hall was the
first driver to set the accident in motion and the last driver with the opportunity to avoid the
accident, he opined that the speed of Mr. Owens’s truck and his lack of proper attention to
the road also contributed to the accident.

       On March 4, 2014, the Defendants filed a motion for summary judgment and an
accompanying statement of undisputed facts. The Defendants relied heavily on the traffic
camera video footage of the accident in support of their motion. First, the Defendants
asserted that the video footage showed that Mr. Hall violated numerous traffic laws by
turning left across the northbound lane of the Highway 45 Bypass despite facing a red traffic
signal and that the video clearly established that his negligence in doing so was the direct and
proximate cause of the accident. Second, the Defendants asserted that the video footage
refuted Mr. Langley’s deposition testimony that Mr. Owens’s truck was traveling 60 to 65
miles per hour prior to braking. In support of that assertion, the Defendants submitted
affidavits of two expert witnesses, David Brill and Joe Warren, stating that, based on an
assessment of the video footage, Mr. Owens’s truck was traveling 52 miles per hour prior to
braking. The Defendants argued that in light of the video footage, no reasonable fact finder
could determine that Mr. Hall was less that 50% at fault for the accident.

        On April 7, 2014, the Defendants filed a motion in limine seeking to exclude Mr.
Langley’s testimony. The Defendants asserted that Mr. Langley’s testimony regarding the
speed of Mr. Owens’s truck prior to braking was flawed because, among other things, he
ignored the video footage of the collision and used exaggerated numbers and a formula
unsupported by scientific literature. The Defendants argued that because the best evidence of
the truck’s speed, the traffic camera video footage, refuted Mr. Langley’s estimation that the
truck was traveling 60 to 65 miles per hour prior to braking, his testimony was untrustworthy
and therefore inadmissible.

      On April 10, 2014, the Halls filed a memorandum in opposition to the Defendants’
motion for summary judgment. The Halls asserted that the physical evidence showed that (1)
Mr. Owens’s truck was traveling 60 to 65 miles per hour; (2) he had six to nine seconds to
                                               3
react to Mr. Hall’s turning car prior to the collision; and (3) he failed to apply the truck’s
brakes in a timely manner. They asserted that if Mr. Owens had been paying attention to Mr.
Hall’s car, he could have applied the truck’s brakes sooner, with less severity, and avoided
the collision. Accordingly, the Halls asserted that the collision was caused by both drivers’
negligence and argued that the case should proceed to trial to allow a jury to allocate fault
between them.

        On April 17, 2014, the trial court heard oral arguments on the Defendants’ motion for
summary judgment. On the same day, the Halls filed an affidavit of Mr. Langley in
opposition to the Defendants’ motion for summary judgment. In the affidavit, Mr. Langley
stated that he was an accident reconstruction expert with 33 years of experience. Mr. Langley
stated that he produced a scaled diagram of the accident based on his examination of the
scene, measurement of the skid marks, photographs, and video footage, and that he was
prepared to testify that (1) Mr. Owens’s truck was traveling 60 to 65 miles per hour in a 55
mile per hour zone; (2) Mr. Owens had approximately six to nine seconds of clear visibility
of Mr. Hall’s car; (3) Mr. Hall turned left against a red traffic signal; (4) Mr. Owens failed to
respond to Mr. Hall’s car prior to entering the intersection; (5) if Mr. Owens’s truck had not
been exceeding the posted speed limit, the wreck might not have happened; (6) if Mr. Owens
had been paying attention, he could have braked sooner and with less severity and avoided
the collision; and (7) the speed of Mr. Owens’s truck and his lack of attention caused the
collision. In response to the affidavits of the Defendants’ expert witnesses, Mr. Langley
opined that the resolution of the traffic video footage was too low to be used in making an
accurate determination as to the speed of Mr. Owens’s truck prior to braking.

        On April 22, 2014, the trial judge sent a letter to the parties’ attorneys to inform them
that he had decided to grant summary judgment in favor of the Defendants. In the letter, the
trial judge outlined the evidence presented and the reasoning he employed to determine that
the Defendants were entitled to a judgment as a matter of law. The letter stated that, in light
of the traffic camera video footage, “no reasonable minds could find anything other than the
fact that Mr. Hall’s actions in driving that morning of the accident constituted negligence,
and negligence per se, and that his actions were the proximate cause of the accident, at least
to the extent of 50% fault.” Moreover, the letter indicated that the trial court found Mr.
Langley’s estimate of the speed of Mr. Owens’s truck prior to braking to be “fundamentally
flawed.” It stated that Mr. Langley’s opinion “failed to consider the weight of the
defendant’s vehicle, the type or air pressure of the tires of the vehicle, or the conditions of the
road surface,” and also “failed to orient the location of the vehicles involved just prior to the
accident, or how the defendant’s truck was loaded and whether the brakes were functioning
properly.” In closing, the letter instructed counsel for the Defendants to draft an order
granting the motion for summary judgment.

                                                4
        On May 19, 2014, prior to the entry of an order granting the Defendants’ motion for
summary judgment, the Halls filed a second affidavit of Mr. Langley. Many of the
statements in Mr. Langley’s second affidavit were identical to those included in his first
affidavit. In the second affidavit, however, Mr. Langley also set forth a detailed explanation
of the formula he used to estimate the speed of Mr. Owens’s truck prior to braking.

        On June 4, 2014, the trial court entered an order granting the Defendants’ motion for
summary judgment. In large part, the language in the order was taken directly from the trial
judge’s letter to the attorneys. In its order, the trial court stated that although the allocation of
fault in comparative negligence cases is normally left to the jury, the presence of video
footage of the accident made this case unique. The trial court stated that based on the video
footage, no reasonable person could find that Mr. Hall was less than 50% at fault for the
accident. Additionally, the trial court stated that the Halls had failed to demonstrate or cite
any material facts in dispute. The trial court noted that the Halls admitted that Mr. Hall was
the first driver to set the accident in motion and the last driver with the opportunity to avoid
the collision. The trial court rejected Mr. Langley’s opinion concerning the speed of Mr.
Owens’s truck prior to the collision stating that his opinions were “fundamentally flawed”
and therefore inadmissible.

        Following the entry of the trial court’s order, the Halls filed a motion to alter or
amend, which the trial court denied on October 8, 2014. On November 5, 2014, the Halls
filed a notice of appeal to this Court.

                                              ISSUES

         The Halls present the following issues on appeal, as they are stated in their appellate
brief:

         1. Whether the trial court erred in finding that [Mr. Langley’s] opinions,
            including the speed at which [Mr. Owens’s] vehicle was traveling at the
            time of the collision, were “fundamentally flawed” and inadmissible under
            case law.

         2. Whether the trial court erred in finding no genuine issue of material fact
            and granting the Defendants’ motion for summary judgment.




                                                 5
                                   STANDARD OF REVIEW

        This appeal arises from the trial court’s grant of the Defendants’ motion for summary
judgment. We review the trial court’s ruling on a motion for summary judgment de novo,
with no presumption of correctness. Abshure v. Methodist Healthcare-Memphis Hosp., 325
S.W.3d 98, 103 (Tenn. 2010). In doing so, we must make a fresh determination of whether
the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.
Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 2013). Rule 56.04 provides that summary
judgment is appropriate when the “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.” A
disputed fact is “material” if it must be decided in order to resolve the substantive claim or
defense at which the summary judgment motion is directed. Martin v. Norfolk S. Ry. Co.,
271 S.W.3d 76, 84 (Tenn. 2008) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). A
disputed fact only presents a “genuine issue” if “a reasonable jury could legitimately resolve
that fact in favor of one side or the other.” Id. (citing Byrd, 847 S.W.2d at 215). The party
moving for summary judgment has the ultimate burden of persuading the court that there are
no genuine issues of material fact and that it is entitled to judgment as a matter of law. Town
of Crossville Hous. Auth. v. Murphy, 465 S.W.3d 574, 578 (Tenn. Ct. App. 2014) (citing
Byrd, 847 S.W.2d at 215). When the moving party does not bear the burden of proof at trial,
the moving party may make the required showing and shift the 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 v. Women’s Care Ctr.
of Memphis, MPLLC, __ S.W.3d __, No. W2013-00804-SC-R11-CV, at *22 (Tenn. Oct. 26,
2015). “If the moving party makes a properly supported motion for summary judgment, the
burden of production shifts to the nonmoving party to demonstrate the existence of a genuine
issue of material fact requiring trial.” Town of Crossville Hous. Auth., 465 S.W.3d at 578
(citing Byrd, 847 S.W.2d at 215). At the summary judgment stage, the courts must accept the
nonmoving party’s evidence as true and resolve all doubts concerning the existence of a
genuine issue of material fact in the nonmoving party’s favor. Martin, 271 S.W.3d at 84
(citing McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998)).

                                          ANALYSIS

        The Tennessee Supreme Court has adopted the modified system of comparative fault.
McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992). In Tennessee, “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. The Halls contend that the trial court erred
                                               6
in concluding that Mr. Langley’s estimate of the speed of Mr. Owens’s truck prior to the
collision was inadmissible. They argue that by accepting their evidence, including Mr.
Langley’s estimates, as true and resolving all doubts in their favor, this Court should
conclude that they established a genuine issue of material fact requiring resolution by the trier
of fact. Thus, we first address whether, accepting all of the Halls’ evidence as true and
resolving all doubts in their favor, a reasonable juror could find Mr. Hall to be less than 50%
at fault for his injuries. See Maxwell v. Motorcycle Safety Found., Inc., 404 S.W.3d 469, 473
(Tenn. Ct. App. 2013) (“Summary judgment should only be granted when both the facts and
the inferences to be drawn from the facts permit a reasonable person to reach but one
conclusion.” (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)).

        Even taking all of the Halls’ evidence as true and viewing it in the light most
favorable to them, the Halls have failed to establish a genuine issue of material fact. The
Halls admit that the traffic signal facing Mr. Hall was red at the time he entered the
intersection. The Halls admit that Mr. Hall proceeded to make an illegal left turn across the
path of oncoming traffic in the northbound lane of the Highway 45 Bypass. The Halls admit
that the traffic signal facing Mr. Owens was green at the time he entered the intersection in
the northbound lane. The Halls admit that Mr. Owens’s truck was well-illuminated and there
was nothing blocking Mr. Hall’s view of it. The Halls’ expert witness, Mr. Langley, testified
in his deposition that Mr. Hall was the first driver to set the accident in motion and was the
last driver with the opportunity to avoid the collision. The Halls assert that Mr. Owens’s
truck was traveling in excess of the posted 55 mile per hour speed limit at a rate of 60 to 65
miles per hour prior to braking and that Mr. Owens could have avoided the collision by
braking sooner. Assuming these facts to be true, however, no reasonable juror could
conclude that Mr. Owens was at least 50% at fault for the accident in light of the undisputed
facts that Mr. Hall ran a red light to turn left across oncoming traffic and was hit by Mr.
Owens’s truck as it proceeded through the intersection on a green light. At best, the Halls’
evidence only shows that Mr. Hall may not have been 100% at fault for the accident; no
reasonable juror could find Mr. Hall to be less than 50% at fault for the accident.

        In their motion for summary judgment and supporting documents, the Defendants
negated an essential element of the Halls’ negligence claim by establishing that Mr. Hall’s
own negligence was the proximate cause of the accident. In doing so, the Defendants shifted
the burden of production to the Halls to demonstrate the existence of a genuine issue of
material fact. To defeat the Defendants’ motion for summary judgment, the Halls were
required to demonstrate evidence that would permit a reasonable juror to find that Mr. Hall
was less than 50% at fault for the accident. To satisfy this burden required more than simply
showing that there was some metaphysical doubt as to the material facts. See Mosley v.
Metro. Gov’t of Nashville & Davidson Cnty., 155 S.W.3d 119, 123 (Tenn. Ct. App. 2004)
(citing RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965); 4 Fowler V. Harper, et al.,
                                               7
The Law of Torts § 20.2 at 91 (2d ed.1986); W. Page Keeton, Prosser and Keeton on the Law
of Torts, § 41, at 264 (5th ed.1984)). The determination of whether the evidence is sufficient
to permit a reasonable juror to find that the defendant’s negligence proximately caused the
plaintiff’s loss is “a common sense analysis of the facts that lay persons can undertake as
competently as the most experienced judges.” Id. “While comparative fault is typically a
question for the trier of fact, summary judgment is appropriate in those situations where
reasonable minds could only conclude that . . . plaintiff’s fault was equal to or greater than
the fault of the defendant.” Norris v. Pruitte, No. 01A01-9709-CV-00506, 1998 WL
1988563, at *3 (Tenn. Ct. App. Aug. 24, 1998) (citing JOHN A. DAY & DONALD
CAPPARELLA, TENNESSEE LAW OF COMPARATIVE FAULT, p. 12-18 (1997)). In light of the
evidence presented in this case, particularly the video footage of the accident at issue, a
reasonable juror could only conclude that Mr. Hall was primarily responsible for the
accident. 2 We therefore agree with the trial court’s decision to grant summary judgment in
favor of the Defendants.

                                              CONCLUSION

        The judgment of the trial court is affirmed. The costs of this appeal are taxed to the
appellants, Vaal Hall and Theresa Anne Hall, and their sureties, for which execution may
issue if necessary.



                                                          _________________________________
                                                          ARNOLD B. GOLDIN, JUDGE




2
  In reaching this conclusion, we accepted the opinions of the Halls’ expert, Mr. Langley, as true and viewed
them in light most favorable to the Halls. The issue raised by the Halls regarding the admissibility of Mr.
Langley’s testimony is therefore pretermitted, and we decline to address it.
                                                      8
