                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                     October 17, 2001 Session

            MEGAN ARNOLD, ET AL. v. CHARLES ARNOLD, ET AL.

                       Appeal from the Circuit Court for Hawkins County
                             No. 5144-J    John K. Wilson, Judge

                                     FILED FEBRUARY 7, 2002

                                    No. E2001-00596-COA-R3-CV


This is a suit by a minor brought by her mother, and also by her mother individually against the
minor’s grandfather, Charles Arnold and her father Randy Arnold. The child was injured when she
placed her hand into the fan belt of a tractor which was stationary with the engine running. The Trial
Court granted the father’s motion for summary judgment and denied the grandfather’s. We affirm.

  Tenn.R.App.P. 3 Appeal as of Right as to one Defendant; Rule 9 Appeal as to the other
        Defendant ; Judgment of the Circuit Court Affirmed; Cause Remanded

Houston M. Goddard, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.,
and D. MICHAEL SWINEY , JJ., joined.

R. Wayne Culbertson, Kingsport, Tennessee, for the Appellants, Megan Arnold, b/n/f and mother,
Bobbie Arnold, and Bobbie Arnold individually

Thomas L. Kilday, Greeneville, Tennessee, for the Appellant, Charles Arnold

Rockforde D. King, Knoxville, Tennessee, for the Appellee, Randy L. Arnold



                                                OPINION

       This is a suit by Megan Arnold, by her next friend and mother, Bobbie Arnold,1 and Bobbie
Arnold individually against Charles Arnold, grandfather of Megan, and father-in-law of Bobbie, and
Randy L. Arnold, father of Megan, and husband of Bobbie. The suit seeks damages for injuries
incurred by Megan when she placed her hand in an exposed tractor engine, causing severe damage



        1
                The origin al com plaint identified the mo ther as Lillian, but was amended to show the correct
name–Bo bbie.
to her hand. Bobbie seeks damages for medical expenses incurred in connection with Megan’s
injuries.

        The Trial Court granted a summary judgment in favor of Randy, from which Megan and
Bobbie purport to prosecute a Rule 3 appeal as of right and denied Charles’s motion for summary
judgment. We use the word “purport” because it does not appear that this is a final judgment below
and no order was entered declaring the judgment to be final under Tenn.R.Civ.P. 54. In light of the
fact that the Trial Court granted an interlocutory appeal as to the denial of summary judgment as
to Charles, which we accepted, we deem it appropriate to treat this as an appeal under the provisions
of Rule 54 that we might address both the action of the Trial Court in granting a summary judgment
in favor of Randy and in denying summary judgment in favor of Charles.

              Our standard of review has been recently stated in the case of Staples v. CBL &
Associates 15 S.W.3d 83, 89 (Tenn. 2000), as follows:

         The standards governing the assessment of evidence in the summary judgment
         context are also well established. Courts must view the evidence in the light most
         favorable to the nonmoving party and must also draw all reasonable inferences in
         the nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
         Hall, 847 S.W.2d at 210-11. Courts should grant a summary judgment only when
         both the facts and the inferences to be drawn from the facts permit a reasonable
         person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153
         (Tenn.1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995).

        In applying the above standard to the case on appeal we observe that the facts necessary for
disposition of this case are undisputed and are succinctly set out in the brief of Megan and Bobbie:

         On May 15, 1999, Megan Arnold, who had just turned two years old, was
         seriously injured when her hand became caught in the running engine of a tractor.
         The accident occurred on the premises of Charles Arnold, the child’s grandfather.
         Randy Arnold, Megan’s father, and Charles Arnold were loading a fertilizer
         spreader attached to the tractor at the time of the accident. Megan had been in the
         custody, care and control of Randy and Charles Arnold and they failed to
         supervise, watch or control her sufficiently to have prevented her from being
         injured by the tractor.

                 When Randy Arnold and his children first arrived at the Charles Arnold
         premises, they came around the back of Charles Arnold’s truck to the fertilizer
         spreader. The elder Arnold had backed his truck up to the fertilizer spreader and
         was loading bags of fertilizer into the spreader. Randy Arnold took up position
         on the other side of the spreader from Charles Arnold and began helping remove
         the bags from the truck and load their contents into the spreader.



                                                -2-
                  After about five minutes had passed, Megan spotted a water jug and asked
         if she could get a drink of water. She had been standing by Randy Arnold.
         Megan asked Charles Arnold if she could come around to his side of the spreader
         to get a drink. Charles Arnold told her she could do so and to come to his side of
         the spreader. Megan had to pass in front of the running tractor to reach her
         grandfather’s side of the spreader. While she was in the vicinity of the front of the
         tractor, Megan stuck her hand between the fan belt and the alternator.

                 The tractor was running in order to build up a charge in the battery.

                 Both Randy Arnold and Charles Arnold knew Megan Arnold was an
         active child.

        The grandfather’s discovery deposition describes the events leading up to the accident more
particularly:

         Q       What was the water in, a container of some sort? I mean...

         A       Yeah. I generally keep it in a little old jug setting around.

         Q       So, she, she being Megan, apparently saw it?

         A       Uh-huh.

         Q       And were there cups there with the container?

         A       No. It was just sort of a little old bottle like where the water comes in.

         Q       What do you recall her asking you?

         A       She said, Pap-paw, I want a drink of water. I said, well, come around and
                 get it.

         Q       Did you tell her to be careful, and not to come near the tractor?

         A       No. I didn’t tell her. I didn’t think she would...

         Q       I understand. Did her dad say anything to her?

         A       No. He said, go on and get you a drink. That’s all he said.

        As to the suit against the father, the Supreme Court of this State, almost one hundred years
ago, in the case of McKelvey v. McKelvey, 77 S.W. 664 (Tenn.1903), found a parent had absolute


                                                 -3-
immunity from a civil action brought by a child. This determination was reaffirmed by a divided
Court in the case of Barranco v. Jackson, 690 S.W.2d 221 (Tenn. 1985).

      Less than 10 years later a unanimous Court, in Broadwell by Broadwell v. Holmes, 871
S.W.2d 471 (Tenn. 1994), modified the rule as follows (at page 476):

                Parental immunity in Tennessee is limited to conduct that constitutes the
         exercise of parental authority, the performance of parental supervision, and the
         provision of parental care and custody. The operation of an automobile under the
         circumstances alleged in this case is not protected conduct under this standard.

        In the present case the allegations of negligence as to the father are predicated upon his
failing “to supervise, watch and/or control” Megan, resulting in her being attracted to the tractor and
injuring her hand.

       We believe in light of the allegations of the complaint and the depositions introduced, the
case against the father falls within the remaining remnants of parental immunity as set out in
Broadwell.

        We, however, view the suit against the grandfather in a different light. We believe a jury
could reasonably find that--given the fact that the child was an active two-year old, who had been
given permission by the grandfather to come around the tractor with the exposed engine running--
the grandfather was negligent.

        For the foregoing reasons the judgment of the Trial Court sustaining the summary judgment
in favor of Randy L. Arnold is affirmed and the judgment denying the summary judgment in favor
of Charles Arnold is also affirmed. The cause is remanded for further proceedings not inconsistent
with this opinion. Costs of appeal, as well as those below incident to the suit against Randy L.
Arnold are adjudged against Bobbie Arnold. Costs of appeal in the case against Charles Arnold are
adjudged against him.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




                                                 -4-
