               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 May 14, 2015 Session


    TENNESSEE FARMERS MUTUAL INSURANCE COMPANY A/S/O
    KENNETH L. COUCH v. JACKSON MADISON SCHOOL SYSTEM
                   BOARD OF EDUCATION

                 Appeal from the Circuit Court for Madison County
                         No. C13114 Kyle Atkins, Judge

                         ________________________________

                 No. W2014-02218-COA-R3-CV – Filed June 15, 2015
                      _________________________________


This case arises from a non-contact accident between a John Deere crop sprayer and a school
bus. The sprayer, which is insured by Tennessee Farmers Mutual Insurance Company as
subrogee of the owner, Appellee Kenneth L. Couch, was driven by Mr. Couch‘s employee,
Cameron Martin. The school bus, which is owned by Appellant Jackson Madison School
System Board of Education, was driven by its employee, Lawrence Davis. The trial court
held that Mr. Davis was negligent in failing to appreciate the situation so as to ―take
reasonable action to avoid an accident.‖ We conclude that the evidence preponderates
against the trial court‘s finding of negligence on the part of Mr. Davis. Accordingly, we
reverse the judgment of the trial court and remand for entry of judgment in favor of
Appellant.

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

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

Jon A. York and Nathan D. Tilly, Jackson, Tennessee, for the appellant, Jackson Madison
School System Board of Education.

Jay G. Bush, Jackson, Tennessee, for the appellee, Kenneth L. Couch.
                                              OPINION

                                           I. Background

       On April 26, 2012, Cameron Martin was operating a sprayer owned by Appellee
Kenneth L. Couch and insured by Tennessee Farmers Mutual Insurance Company
(―TFMIC‖).1 Mr. Martin was travelling east on Lower Brownsville Road in Madison County
near the intersection of Westover Road. Lower Brownsville Road is a rural public road
without a painted line demarcating the east and westbound lanes of traffic. The shoulder
along the eastbound lane is narrow due to a ditch and embankment on that side of the road.
The sprayer, which is wider than half the width of Lower Brownsville Road, was
encroaching onto the westbound lane of the road.2 As the sprayer was travelling eastbound,
the school bus, which was owned by Jackson Madison School System Board of Education
(―Appellant,‖ or ―JMSSBE‖) and was driven by JMSSBE‘s employee, Lawrence Davis,
turned onto Lower Brownsville Road and began to travel west.3 The shoulder along the
westbound lane of Lower Brownsville Road is unpaved; however, there is no ditch or
embankment on that side of the road.

       The sprayer was able to pass the school bus without contact. However, immediately
after passing the bus, the shoulder gave way, causing the sprayer to veer into the ditch. On
April 26, 2013, TFMIC, as subrogee of Mr. Couch, filed suit against JMSSBE for negligence
on the part of its employee, Mr. Davis. In relevant part, the complaint alleged that:



        1
       Prior to trial, the parties stipulated that at all times relevant to this action, Mr. Martin was an
employee of Mr. Couch and was acting in the course and scope of his employment.
        2
            Tennessee Code Annotated Section 55-7-202(a)(1) provides:

        No motor vehicle as defined in § 55-1-103 or any trailer or semitrailer, whose width,
        including any part of the load, exceeds eight feet (8′) (that is, four feet (4′) on each
        side of the center line of the vehicle), or whose height, including any part of the load,
        exceeds thirteen and one-half feet (13 1/2′), shall be operated on any highway;
        provided, that this section shall not apply to farm tractors or farm machinery
        temporarily moving on any highway.

(Emphasis added).
        3
        The parties also stipulated that Mr. Davis was, at all times relevant to this action, an
employee of JMCSSBE and was acting in the course and scope of his employment.
                                                    2
       8. Mr. Martin had slowed the sprayer to approximately 15 miles per hour as he
       approached Westover Road. As Mr. Martin slowed the sprayer he observed
       the [JMSSBE] school bus turning right from Westover onto Lower
       Brownsville Road. Mr. Martin attempted to pull the sprayer as far to the right
       as possible to allow the school bus to pass.

       9. After turning from Westover onto Lower Brownsville Road, the operator of
       the [JMSSBE] school bus failed to exercise reasonable care by driving the bus
       at a rate of speed excessive under the circumstances and failing to yield and/or
       slow and move the bus to the right to allow the sprayer to safely pass.

       10. Mr. Martin maneuvered the sprayer into a ditch on the right to avoid a
       collision with the school bus which never slowed down or stopped. . . .

Based upon the foregoing averments, TFMIC alleged the following acts of negligence on
the part of Mr. Davis:

       a. Negligently failing to use that degree of care and caution in the operation of
       his vehicle as was required of a reasonable and prudent person under the same
       or similar circumstances at the time and place of the accident;

       b. Negligently failing to keep a proper look out for other vehicles.

       c. Negligently failing to devote full time and attention to the operation of his
       vehicle.

       d. Negligently operating his vehicle in a reckless manner.

Although Mr. Martin was not injured, prior to trial, the parties stipulated that Mr. Couch
had suffered $43,239.47 in damage to the sprayer.

        On June 13, 2013, JMSSBE filed its answer denying any negligence or liability for the
accident. Specifically, JMSSBE averred that ―[t]he sole or majority of proximate cause of
the injuries Plaintiff allegedly sustained is a result of Plaintiff‘s acts or omission.‖ The case
was tried, without a jury, on October 7, 2014. On October 24, 2014, the trial court entered
judgment in favor of Mr. Couch in the amount of $43,239.47.

                                           II. Issues

       JMSSBE appeals. It raises two issues for review as stated in its brief:
                                           3
       1. Whether [JMSSBE], through the action of its employee, acted negligently
       in operating a school bus and actually caused Cameron Martin, an employee of
       [TFMIC‘s] insured, to crash a crop sprayer into a ditch.

       2. Whether the trial court erred in not allocating any fault to Cameron Martin.

                                   III. Standard of Review

        This case was tried without a jury. Accordingly, we review the findings of fact made
by the trial court de novo, with a presumption of correctness unless the preponderance of the
evidence is to the contrary. Tenn. R. App. P. 13(d). The trial court‘s conclusions of law,
however, are reviewed de novo and ―are accorded no presumption of correctness.‖
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 642 (Tenn. 2008).
Furthermore, when the resolution of an issue in a case depends on the truthfulness of
witnesses, the trial judge, who has had the opportunity to observe the witnesses and their
manner and demeanor while testifying, is in a far better position than this Court to decide
those issues. See Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997);
McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995). The weight, faith, and credit
to be given to any witness‘ testimony lies in the first instance with the trier of fact, and the
credibility accorded will be given great weight by the appellate court. See Whitaker, 957
S.W.2d at 837; McCaleb, 910 S.W.2d at 415; Walton v. Young, 950 S.W.2d 956, 959 (Tenn.
1997).

                                          IV. Analysis

       The plaintiff in an action for negligence, which is generally defined as the failure to
exercise reasonable care, must establish five 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 Housing Authority, 277 S.W.3d 359, 364 (Tenn. 2009) (quoting
McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995)).

       In its October 24, 2014 order, the trial court made the following relevant findings
concerning negligence:

       3. The Court finds that all drivers have a duty to drive with reasonable care, to
       maintain a safe speed, and to use reasonable care to avoid an accident by
       seeing and being aware of what is in the driver‘s view.


                                                4
4. The Court finds the testimony of the independent witness, Myra Davis, to
be credible. Ms. Davis testified that she had been driving behind the spray rig
. . . since turning onto Lower Brownsville Road. Ms. Davis testified that the
spray rig was not speeding. Ms. Davis further testified that the driver of the
spray rig was attempting to get over to the right. This testimony was
corroborated by the photographs in Collective Exhibit 1, specifically
photographs 24, 25, and 32, showing the tire tracks of the spray rig off the
pavement. The school bus video (Exhibit 2) also showed the spray rig was off
the pavement on [the] right side of the road.

5. The Court finds that Ms. Davis testified that the accident happened just a
few seconds after the bus turned onto Lower Brownsville Road. This
testimony was further corroborated by the photographs showing the accident
happening just up from the intersection and from the video on the school bus
camera in Exhibit 2.

6. The Court finds that Ms. Davis further testified that she never saw the bus
try to move over to the right side to avoid the accident. It appears from
reviewing photographs 22, 23, 26, 29, and 32 of Collective Exhibit 1 that there
was space for the bus driver, Mr. Davis, to pull off the road to avoid this
accident. In reviewing the photographs there was space, not only right when
Mr. Davis turned the school bus onto Lower Brownsville Road, but Mr. Davis
had substantially more shoulder than the driver of the spray rig who appeared
to have just one foot or so of space and then a ditch.

7. The Court finds that Mr. Lawrence Davis, the driver of the school bus,
testified that he saw the spray rig as soon as he turned onto Lower Brownsville
Road; however, Mr. Davis never moved the bus over to avoid the accident.
The photographs in Collective Exhibit 1 show that there was more room to
move off the road on Mr. Davis‘ side of the road than on the spray rig‘s side of
the road.

8. The Court finds that the operator of the spray rig, Cameron Martin, testified
that he was traveling down Lower Brownsville Road and saw the school bus
turn from Westover Road onto Lower Brownsville Road. Mr. Martin testified
that he started slowing down and moving over as far as he could onto the right
shoulder. Mr. Martin further testified that he had his right side wheels going
into the ditch and stated that the school bus did not pull over prior to the spray
rig passing. Mr. Martin further testified that he could have stopped the spray
rig completely if he thought that the bus would not stop, but he only had a split
                                        5
       second to make a decision.

       9. The Court finds that the school bus video (Exhibit 2) shows that the driver
       of the school bus did not start slowing down until he was almost to the spray
       rig and that Mr. Davis appeared not to appreciate the situation at hand.
       Therefore, the court finds that Mr. Davis was negligent in failing to take
       reasonable action to avoid an accident under the circumstances that existed at
       the time of the accident and that Mr. Davis could have foreseen an accident
       happening through the use of reasonable care.

                                    A. Relevant Evidence

        At the trial, Mr. Martin testified that the sprayer was run by a ―hydraulic pump, which
pumps hydraulic fluid to each hydraulic motor on each tire.‖ ―[T]he only thing the motor
really does is control the hydraulic pump.‖ The operational mechanism of the sprayer is
important in that, in order to run properly, the sprayer operator must ―throttle the motor
completely wide open.‖ Mr. Martin testified that he could ―control the speed with the
throttle,‖ but that the sprayer has ―an emergency brake . . . that actually controls the back two
tires.‖ When asked how much distance he would need to stop the sprayer when he was
running it at full throttle, Mr. Martin stated that ―[t]o a complete stop, I would say 70, 80
yards . . . .‖ Mr. Martin testified that he was operating the sprayer at ―17, 18 miles-an-hour . .
. . ‖ Concerning the circumstances of the accident, Mr. Martin testified, in relevant part, as
follows:

              As I was traveling down the road—like I said, I was heading to Boone
       Lane. When I got closer to the end of the road, I had started slowing up to
       turn. And I‘m going to say I was probably 70, 80 yards from the turn. The
       school bus turned in. And I noticed that, so I got over as far as I could,
       common courtesy. And I seen [sic] that he never was going to stop. He just
       kept coming. He just kept coming.
              And, finally, I felt like I was either going to hit him or I was going to
       have to do something to prevent hitting him. So in that case I got over as far as
       I could. When I did, the ground gave away, and I hit the ditch.

Mr. Martin opined that he had slowed to seven or eight miles-per-hour by the time he went
off the roadway and that ―[a]s [he] was passing the school bus, [his] wheels were going off
into the ditch. . . .‖ Mr. Martin went on to testify that:

       If I would have known that he wasn‘t going to stop ahead of time from then, I
       probably could have stopped completely. Still wasn‘t going to be able to pass
                                            6
       one another in that spot right there. I mean, he turned in, I would think,
       obviously faster than you should. I mean, it was just one of those split-second
       deals, you know. I had to make up my mind one way or the other, hit the bus
       or hit the ditch.

In his direct testimony, Mr. Martin stated that the sole cause of the accident was the
fact that the school bus did not pull off the road:

       Q. Is there any way this accident could have been avoided?

       A. Yes, sir.

       Q. How do you think it could have been avoided?

       A. If the school bus could have possibly pulled over.

On cross-examination, however, Mr. Martin testified:

       Q. Mr. Martin, if you had brought the crop sprayer to a complete stop as the
       bus was approaching, is that another way the accident could have been
       avoided?

       A. Yes, sir.

       Q. Now, how fast were you going when you noticed the bus turning onto
       Lower Brownsville Road?

       A. When I noticed the bus coming, I‘m going to say 17 to 18 miles-an-hour. I
       was coming up to a—to stop.

       Q. And I believe you stated that you were probably about 70 or 80 yards from
       the intersection when you first noticed the bus?

       A. Correct.

       Q. And I think you also testified that you need about 70 to 80 yards to come to
       a complete stop.

       A. Right, if traveling wide open 30 miles-an-hour.

                                             7
       Q. And you say that you were driving around 17, 18 miles-an-hour?

       A. Correct.

        Ms. Myra Davis (no relation to Mr. Lawrence Davis) also testified at trial. As set out
in its order, supra, the trial court specifically found that Ms. Davis‘ testimony was credible.
In relevant part, Ms. Davis testified that she was behind the sprayer as it traveled down
Lower Brownsville Road. She stated that, as she and the sprayer approached the end of the
road, the bus turned onto Lower Brownsville Road. ―And the sprayer, he was trying to get
over to let the bus come by, and he got on the shoulder of the road, and he went over into the
ditch. The bus went by, it went on . . . .‖ Ms. Davis further stated that she did not believe the
sprayer was operating at an excessive speed.

       Mr. Lawrence Davis, the driver of the school bus, testified that when he turned the bus
onto Lower Brownsville Road, he observed that the ―sprayer was approximately about five or
six houses down the road . . . .‖ The school bus was equipped with three cameras, showing
three different angles. The video from these cameras was admitted at the hearing as Trial
Exhibit 2. Trial Exhibit 2 also contains a GPS recording, showing the bus‘ location and
speed. Mr. Davis testified that, after turning onto Lower Brownsville Road, he accelerated to
approximately sixteen miles per hour. The GPS data indicates that, at the time the sprayer
began to pass the bus, i.e., when the sprayer‘s tire was visible on the video, the bus had
slowed to four miles-per-hour. Immediately after the sprayer passes, the GPS indicates that
the bus came to a complete stop that lasted approximately three to four seconds. After the
sprayer passed, the GPS shows the bus accelerating to one mile-per-hour. The GPS data,
coupled with the video evidence, indicates that Mr. Davis did, in fact, slow the bus to a
gradual stop, but that he did not pull the bus onto the shoulder. It is undisputed that the
sprayer left the road only after it had cleared the bus. Mr. Davis testified that, after the
sprayer went into the ditch, he did not stop the bus, or call for help. Rather, he stated that he
did not stop or call for help ―because [the sprayer] did not make any contact with the bus.‖

       Mr. Davis further testified:

       Q. Would you agree that the intersection has enough room for a vehicle to pull
       off to the side if there‘s a wider vehicle approaching from the opposite lane?

       A. Not in particular a school bus. I would say no, sir, it is not.

                                           *   *   *

       Q. You would agree, though, that yielding to a wider agricultural vehicle,
                                         8
       that‘s your protocol as a [JMSSBE] bus driver; is that correct?

       A. Correct.

                                            *   * *

       Q. Okay. And you knew that that sprayer was approaching as you turned onto
       Lower Brownsville Road; is that correct?

       A. That is correct.

       On cross-examination, Mr. Davis testified:

       Q. Now, when you turned onto Lower Brownsville Road, I believe you
       testified that you saw the crop sprayer about five or six houses down the road?

       A. Yes, sir.

       Q. Did you consider that to be nearby to you?

       A. Not at that particular time, no, sir, I did not.

       Q. Could you tell what speed the sprayer was operating at?

       A. It looked like it was coming at a pretty good rate of speed.

In fact, the video evidence shows the sprayer passing the bus at a considerably greater speed
than the bus is traveling. Mr. Davis testified that it did not look like the sprayer was slowing
down as it approached the bus. On redirect, Mr. Davis clarified that ―the road there is very
narrow. And, like I say, when I pulled in that entrance, I went down a little piece, like I said,
about two or three houses and pulled the bus as far to the right as I could.‖ He was then
asked whether ―there was room anywhere along that road before you met the sprayer where
you could have pulled that bus to the right?‖ He answered: ―As far as my recollection, I did
pull the bus as far to the right as I could have.‖

                                     B. Breach of Duty

      From its order, it appears that the trial court primarily focused on the prima facie
elements of duty and breach in reaching its conclusion that Mr. Davis was negligent. In
Paragraph 3 of its order, supra, the court sets out the duty requirement. As discussed in
                                             9
Rowland v. Metropolitan Government of Nashville, No. M2012–00776–COA–R3–CV,
2013 WL 784582 (Tenn. Ct. App. Feb. 28, 2013):

       [T]he appropriate standard of care for school bus drivers is not the standard of
       care applicable to common carriers. Our Supreme Court has made clear that a
       school system does not have the same duty of care as a common carrier, which
       must exercise the ―highest practical degree of care.‖ Hawkins Cnty. v. Davis,
       216 Tenn. 262, 391 S.W.2d 658, 663 (Tenn.1965). Rather, a school bus driver
       has a duty ―to exercise reasonable and ordinary care under the circumstances.‖
       Traylor v. Coburn, 597 S.W.2d 319, 321 (Tenn. Ct. App. 1980). When a
       school bus is transporting young children, reasonable and ordinary care under
       the circumstances ―requires that the driver exercise special care proportionate
       to the age of the child and its ability, or lack of ability, to care for itself.‖
       Hawkins, 391 S.W.2d at 660.

Id. at *9.

       As discussed above, the instant case arose when the sprayer and the bus met on
a narrow road. Tennessee Code Annotated Section 55-8-116 addresses passing
vehicles proceeding in opposite directions. The statute provides:

       Drivers of vehicles proceeding in opposite directions shall pass each other to
       the right, and upon roadways having width for not more than one (1) line of
       traffic in each direction, each driver shall give to the other at least one half
       (1/2) of the main-traveled portion of the roadway as nearly as possible.

       8 Am. Jur. 2d Automobiles § 817 states, in relevant part, that:

       In cases involving meeting at narrow places in a street or road, if one of the
       approaching drivers has an opportunity to stop at a wide place in the road
       while the other does not, the driver having such an opportunity might be
       chargeable with negligence in continuing ahead into the narrow passage.
       Findings of negligence have been sustained upon evidence that one or the
       other of the vehicles meeting on a narrow road failed to yield half of the
       roadway.

       As in other cases, the mere possession of the right of way at a point where the
       road has been narrowed by obstructions does not entitle a driver to continue
       blindly ahead into a collision where he or she can avoid the accident by the
       exercise of reasonable care.
                                            10
Id. (footnotes omitted). Likewise, 60A C.J.S. Motor Vehicles § 709 provides:

       Vehicles approaching each other from opposite directions must keep to the
       right. While this rule is based on custom, exists independently of any statutory
       provisions, and applies to vehicles of every character, it is very generally
       embodied in statutes or ordinances regulating traffic. Such statutes are
       mandatory. Statutes requiring motorists to drive as near as possible to the
       right-hand edge of a highway are not intended for the protection of vehicles
       proceeding in opposite directions.

       Under the rule, the duty of each driver is to allow the other vehicle room for a
       clear passage by turning or keeping the vehicle to the right of the center of the
       traveled portion of the highway whenever it is practicable to do so. A driver
       who is already in such position on the highway should maintain such position
       until the other vehicle has passed. A driver who is in the center or on the left-
       hand side of the road should turn to the right of the center in ample time to
       permit the other vehicle to pass freely without the necessity of slackening its
       speed.

Id. (footnotes omitted). ―However, the general rule applies only when the vehicles involved
are of customary dimensions, and the rule is inapplicable in cases where one of the vehicles
is overwide, and this is the sole reason why the vehicles cannot pass on the bridge or
passageway.‖ 60A C.J.S. Motor Vehicles § 714 (citing Yell v. Wooten, 362 P.2d 1102 (Okla.
1961)).

       It is undisputed that Mr. Davis pulled the bus to the edge of the pavement. Indeed, the
video evidence clearly shows that the bus is completely to the far right of the westbound lane
of Lower Brownsville Road. We find no precedent that would require Mr. Davis to pull the
bus completely off the roadway into some person‘s yard in order to allow the sprayer to pass.
 In fact, here, it was the sprayer that was encroaching into the westbound lane that was
occupied by the bus. In the face of this situation, Mr. Davis (as evidenced by the video from
the bus) slowed the bus to four miles-per-hour. Under these facts, it is difficult to conclude
that Mr. Davis breached a duty concerning roadway safety.

        However, even if we assume, arguendo, that Mr. Davis breached a duty, a breach of
duty, alone, will not satisfy the prima facie requirements for a showing of negligence. From
its order, it appears that the trial court did not analyze each of the prima facie elements of
negligence in reaching its conclusion that Mr. Davis was negligent. However, by holding
that Mr. Davis was negligent, the trial court inferentially found that TFMIC had, in fact,
                                                11
proven all of the prima facie requirements of the tort. Kilpatrick v. Bryant, 868 S.W.2d 594,
598 (Tenn. 1993) (―No claim for negligence can succeed in the absence of any one of [the
prima facie] elements.‖). However, after our review of the record, we are particularly
concerned with whether TFMIC has proven the elements of causation in this case.

                                       C. Causation

       Cause in fact and proximate causation are questions to be determined by the finder of
fact. Haynes v. Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn.1994). In order to succeed in its
claim, TFMIC would have to show that Mr. Davis‘ alleged failure to avoid the accident (by
slowing down, stopping, or moving the bus from the roadway) was both the cause in fact and
the proximate cause of the accident. See Hale v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)
(―Causation [in fact] and proximate cause are distinct elements of negligence, and both must
be proven by the plaintiff by a preponderance of the evidence.‖) (quoting Kilpatrick, 868
S.W.2d at 598). As this Court has explained:

       The distinction between cause in fact and proximate, or legal, cause is not
       merely an exercise in semantics. The terms are not interchangeable. Although
       both cause in fact and proximate, or legal, cause are elements of negligence
       that the plaintiff must prove, they are very different concepts. Ridings [v.
       Ralph M. Parsons Co.,] 914 S.W.2d [79,] 83 [(Tenn. 1996)]; Kilpatrick v.
       Bryant, 868 S.W.2d 594, 598 (Tenn. 1993). Cause in fact refers to the cause
       and effect relationship between the defendant‘s tortious conduct and the
       plaintiff‘s injury or loss. Thus, cause in fact deals with the ―but for‖
       consequences of an act. The defendant‘s conduct is a cause of the event if the
       event would not have occurred but for that conduct. Kilpatrick, 868 S.W.2d at
       598. In contrast, proximate cause, or legal cause, concerns a determination of
       whether legal liability should be imposed where cause in fact has been
       established. Id. Proximate or legal cause is a policy decision made by the
       legislature or the courts to deny liability for otherwise actionable conduct
       based on considerations of logic, common sense, policy, precedent and ―our
       more or less inadequately expressed ideas of what justice demands or of what
       is administratively possible and convenient.‖ Bain v. Wells, 936 S.W.2d 618,
       625 (Tenn. 1997); George v. Alexander, 931 S.W.2d 517, 521 (Tenn. 1996);
       Kilpatrick, 868 S.W.2d at 598; Smith v. Gore, 728 S.W.2d 738, 749 (Tenn.
       1987).


Snyder v. LTG Lufttechnische GmbH, 955 S.W.2d 252, 256 n.6 (Tenn. 1997).

                                             12
       17 John A. Day, Donald Capparella, & John Walker Wood, Tennessee Practice Series
Tennessee Law of Comparative Fault §6:3 (2d ed. 2014) contains the following discussion on
cause in fact:

      A plaintiff must prove that plaintiff's injury or harm would not have occurred
      ―but for‖ the defendant‘s negligent conduct. Cause in fact must be proved by
      the party bearing the burden of proof by a preponderance of the evidence.
      Stated differently, the party with the burden of proof must demonstrate that the
      negligence more likely than not caused the injury. As the Supreme Court said
      in Lindsey v. Miami Development Corp.:

             The plaintiff must introduce evidence which affords a
             reasonable basis for the conclusion that it is more likely than not
             that the conduct of the defendant was a cause in fact of the
             result. A mere possibility of such causation is not enough; and
             when the matter remains one of pure speculation or conjecture
             or the probabilities are at best evenly balanced, it becomes the
             duty of the Court to direct a verdict for the defendant. . . .

             The plaintiff is not, however, required to prove the case beyond
             a reasonable doubt. The plaintiff need not negative entirely the
             possibility that the defendant's conduct was not a cause and it is
             enough to introduce evidence from which reasonable persons
             may conclude that it is more probable that the event was caused
             by the defendant than that it was not . . .

      It is important to note that there can be multiple causes of one injury, and there
      is no requirement that a cause of an injury ―be the sole cause, the last act, or
      the one nearest to the injury.‖ In the words of the court of appeals:

             The rule is well established in this State that if an injury occurs
             from two causes, both due to the negligence of different persons,
             but together constituting an efficient cause, all persons whose
             acts contribute to the injury are liable therefor, and the
             negligence of one does not excuse the negligence of the other.

      Dean Prosser defines the ―but for‖ test as follows: ―The defendant‘s conduct is
      a cause of the event if the event would not have occurred but for that conduct;
      conversely, the defendant‘s conduct is not a cause of an event, if the event
      would have occurred without it.‖
                                            13
Id. (footnotes omitted).

        On the other hand, proximate cause focuses on ―whether the policy of the law will
extend responsibility for that negligent conduct to the consequences that have occurred.‖
Kilpatrick, 868 S.W.2d at 598. As this Court has stated, ―‗legal responsibility must be limited
to those causes which are so closely connected with the result and are of such significance
that the law is justified in imposing liability.‘‖ Id. (quoting Doe v. Linder Const. Co., Inc.,
845 S.W.2d 173, 181 (Tenn.1992); and Prosser and Keeton, The Law of Torts 264 (5th
ed.1984)). Proximate cause is the means by which courts determine where that boundary will
lie. Id. ―Proximate cause puts a limit on the causal chain, such that, even though the
plaintiff's injury would not have happened but for the defendants' breach, defendants will not
be held liable for injuries that were not substantially caused by their conduct or were not
reasonably foreseeable results of their conduct.‖ Hale, 166 S.W.3d at 719 (citing Haynes v.
Hamilton Cnty., 883 S.W.2d 606, 612 (Tenn.1994)). ―Proof of negligence without proof of
causation is nothing.‖ Doe v. Linder Const. Co., Inc., 845 S.W.2d at 181 (quoting Drewry v.
Cnty. of Obion, 619 S.W.2d 397, 398 (Tenn. Ct. App.1981)).

         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. Hale, 166 S.W.3d 713, 719 (citing Haynes, 883
S.W.2d at 612).

        In the instant case, it is undisputed that the bus never made contact with the sprayer.
The lack of contact, however, is not dispositive on the question of causation. For example, in
South v. Roberts, No. 03A01-9611-CV-00375, 1997 WL 367233 (Tenn. Ct. App. June 30,
1997), plaintiff's decedent lost her life when a car driven by Roberts struck the car in which
the decedent was riding. South alleged that Roberts was racing another driver, Cannon. The
Cannon vehicle never came into contact with decedent‘s vehicle. At the close of the proof,
the trial judge granted a verdict for Cannon. The plaintiff then settled with Roberts and
appealed the dismissal of Cannon. This Court reversed and remanded for a new trial, saying
that ―[a] factfinder could reasonably infer that Cannon incited and encouraged Roberts to
drive in a fast and reckless manner, and they were jointly engaged in a series of acts which
directly led to the collision, and that Cannon‘s acts were a contributing proximate cause to
the accident.‖ Id. at *4. Although the Court used the phrase ―proximate cause,‖ it really was
referring to cause in fact. Id. The Roberts holding demonstrates that the actions of a person
who participates in an illegal drag race can be deemed to be a cause in fact of injuries or
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death to another even if his or her vehicle does not actually collide with the plaintiff‘s person
or vehicle. Stated differently, cause in fact may be found even absent physical impact
between a negligent defendant and the plaintiff.

       Turning back to the record, when he saw the sprayer approaching, Mr. Davis slowed
to approximately 4 miles-per hour and pulled the bus to the right edge of the roadway. In the
absence of any law requiring Mr. Davis to leave the roadway or even to pull the bus partially
onto the shoulder, Mr. Davis did what he was required to do, which was to slow his speed
and keep to the far right of the road. On the other hand, although Mr. Martin testified that he
appreciated the fact that the bus was occupying the westbound lane and the fact that the
sprayer occupied more than half the roadway, he took no immediate action to bring the
sprayer to a stop. Rather, as set out in the foregoing testimony, he continued travelling
toward the bus at approximately fifteen miles-per-hour. Mr. Martin further testified that he
was capable of stopping the sprayer before he attempted to pass the bus. This he did not do.
Rather, he continued his progression down the narrow road knowing that the bus was there
and apparently expecting Mr. Davis to pull the bus off the roadway to accommodate the
sprayer. Mr. Martin testified that the accident could have been avoided if he had brought the
sprayer to a stop. The evidence, in this regard, preponderates in favor of a finding that the
cause in fact of the accident rests with Mr. Martin‘s actions, or lack thereof.

        Further, a subtle point adduced in Mr. Martin‘s testimony indicates that the cause of
the accident was not the location of the bus. The sprayer had completely passed the bus
when it went off the roadway. In his testimony, set out in full context above, Mr. Martin
states, ―I got over as far as I could. When I did, the ground gave away, and I hit the
ditch.‖ (Emphasis added). Based upon his testimony, Mr. Martin had to move the sprayer‘s
right tires off the road in order to pass the bus. So, we may reasonably assume that, at the
instance the sprayer passed the bus, its tires were already off the paved road; otherwise, there
would have been some contact between the sprayer and the bus. In fact, Mr. Martin testifies
that he ―got over as far as I could,‖ as soon as he saw the bus turn onto Lower Brownsville
Road. Here, the sprayer undisputedly cleared the bus, and, as Mr. Martin testified, it was not
until the sprayer was past the bus that it went into the ditch. Mr. Martin stated that the
sprayer went into the ditch when ―the ground gave way‖ at some point after he passed the
bus. Accordingly, the evidence indicates that it was not the fact that the sprayer‘s tires were
off the pavement due to the bus‘ location that caused the accident, but rather the fact that the
ground gave way at the place where the sprayer went into the ditch. Additionally, there is
no indication that after clearing the bus, Mr. Martin attempted to move the sprayer‘s tires
back onto the pavement. Perhaps there was no time to do so, but this would likely be due to
the sprayer‘s speed, or lack of maneuverability. Regardless, Mr. Martin‘s failure to correct
the sprayer back onto the road cannot be attributed to any action or inaction on Mr. Davis‘
part.
                                                15
       From the totality of the circumstances, we conclude that the evidence preponderates
against the trial court‘s finding that Mr. Davis was negligent. Specifically, we conclude that
the evidence is insufficient to establish the prima facie elements of cause in fact and
proximate cause, which are Mr. Couch‘s burdens. Having determined that the evidence does
not support the prima facie claim for negligence, we pretermit the remaining issue
concerning comparative fault.

                                      IV. Conclusion

       For the foregoing reasons, we reverse the order of the trial court. We remand the case
for entry of judgment in favor of the Appellant, Jackson Madison School System Board of
Education, and for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellee, Kenneth L. Couch, for which
execution may issue if necessary.




                                                  _________________________________
                                                  KENNY ARMSTRONG, JUDGE




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