                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                February 29, 2012 Session

    ULYSSES DURHAM, JR. EX REL. ULYSSES DURHAM, III, A MINOR
                    v. JOHN NOBLE, ET AL.

                 Appeal from the Circuit Court for Rutherford County
                     No. 54877     Robert E. Corlew, III, Judge


                  No. M2011-01579-COA-R3-CV - Filed July 25, 2012


This appeal arises out of a lawsuit brought by the parents of a minor child who was struck
by a school bus while riding his bicycle. The matter proceeded to a bench trial, and the trial
court found that the child was 58% percent at fault for the accident and that the defendants
were 42% at fault; judgment was entered in favor of the defendants. Plaintiffs appeal. The
trial court’s finding that the child was negligent was proper, and the evidence does not
preponderate against the court’s allocation of fault between the parties; the judgment is
affirmed in all respects.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and F RANK G. C LEMENT, J R., J., joined.

Donald N. Capparella, Amy J. Farrar, Jeffery Shane Roberts, and Jonathan Levoy Griffith,
Nashville, Tennessee, for the Appellants, Ulysses Durham, III, a minor, by next friend,
Ulysses Durham, Jr., and Kimberly Durham.

Richard W. Rucker, Murfreesboro, Tennessee, for the Appellee, John Noble and the City of
Murfreesboro.

                                         OPINION

I. Factual and Procedural History

        This case arises out of a collision near the intersection of Boyd Drive and Tabitha
Street in Murfreesboro, Tennessee. Boyd Drive runs in a north and south direction; Tabitha
Street runs east and west and dead ends at Boyd Drive. There is a sign at the intersection of
Tabitha Street and Boyd Drive, directing Tabitha Street traffic to stop; there is no stop sign
on Boyd Drive. The neighborhood where Tabitha Street and Boyd Drive are located has a
posted speed limit of 30 miles per hour.

       At approximately 4:08 pm, on December 11, 2006, John Noble, Jr. (“Noble”) was
driving a Murfreesboro City School bus when he struck eleven-year old Ulysses Durham, III
(“Ulysses”) who was riding a bicycle. Ulysses was transported to Vanderbilt Children’s
Hospital and treated for a traumatic brain injury, spleen laceration, and several broken bones.
Ulysses was on life support and remained in a coma for ten days. Thereafter, Ulysses was
transferred to Vanderbilt Stallworth Rehabilitation Center where he learned to walk again,
with occasional reliance on a walker, prior to being released in late February. Ulysses
continued to receive treatment including two more surgical procedures on his fractures.
Ulysses continues to suffer from migraines headaches and a reduced ability to participate in
various physical activities.

       At the time of the collision, Noble was driving the bus south on Boyd Drive; the bus
was traveling approximately four feet into the northbound lane on Boyd Drive. Ulysses was
riding his bicycle east on Tabitha Street toward Boyd Drive. The collision occurred when
Ulysses rode onto Boyd Drive as Noble was nearing the intersection.

        Ulysses’ parents, Ulysses Durham, Jr. and Kimberly Durham (“Plaintiffs”),
individually and as next friends of Ulysses, filed suit against the City of Murfreesboro and
Noble (collectively referred to as “Defendants”) pursuant to Tenn. Code Ann. § 29-20-201
et seq. of the Tennessee Governmental Tort Liability Act (“GTLA”). Plaintiffs alleged that
Noble while driving a vehicle owned by the City of Murfreesboro (“City”), failed to keep a
proper lookout, was speeding, and was driving on the wrong side of the road, thereby causing
the accident. Defendants answered, generally denying liability and asserting affirmative
defenses, including negligence on the part of Ulysses; they asserted that Ulysses negligence
should be compared to any negligence found on the part of Noble. The case proceeded to
a non-jury trial on April 19, 2011.

        On May 4, 2011, the court issued a memorandum opinion in which it determined
Ulysses to be 58% negligent and Defendants 42% negligent. The court determined that
Ulysses was 33% negligent for disregarding the stop sign and 25% for failure to keep a
proper lookout. Of the 42% allocated to Defendants, the court determined Noble’s
negligence to be 40% (10% for excessive speed, 5% for not driving the bus in a single lane
of travel, and 25% for failure to keep a proper lookout and failure to see Ulysses sooner) and
the City at 2% for failure to have the bus’ brakes properly adjusted. In light of the percentage
of fault attributed to Ulysses, the court held that Defendants were entitled to judgment in
their favor.

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       With respect to damages, the court found Ulysses’ medical bills totaled $445,961.21
and that there was evidence of past and future pain and suffering, past and future loss of
capacity for enjoyment of life, and permanent brain, leg, and elbow injuries. The court
assessed Ulysses’ damages at $1,500,000 and held that Ulysses’ parents had suffered loss of
consortium in the amount of $10,000 per parent. The court noted that because the claim was
brought under the GTLA, recovery was capped at $250,000.

        On June 15, 2011, the court entered an order holding that the immunity at Tenn. Code
Ann. § 29-20-201 was removed, dismissing the cause of action against Noble in accordance
with Tenn. Code Ann. § 29-30-310(b), and dismissing the action against the City pursuant
to the apportionment of negligence in the May 4 memorandum.

       Plaintiffs filed a timely appeal and raise the following issues for review:

       1. The trial court erred in assessing 33% of the fault to Ulysses Durham, III
       for failure to stop at the stop sign because there was no evidence admitted at
       trial to show he failed to stop.

       2. Even if the trial court did not err in allocating fault to Ulysses Durham, III
       for failure to stop at a stop sign, the trial court’s allocation of 58% of the fault
       to an 11 year-old boy riding slowly on his bicycle was erroneous, particularly
       when compared with the fault of a professional bus driver who was speeding,
       on the wrong side of the road, and failed to keep a proper lookout.

       3. The plaintiffs are entitled $600,000, the statutory maximum award, as
       damages in this case.

II. Standard of Review

        In a civil case heard without a jury, we review the trial court’s findings of fact de novo
upon the record accompanied by a presumption of correctness unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d). Where the trial judge has not made a
specific finding of fact on a particular matter, the appellate court will review the record to
determine where the preponderance of the evidence lies without employing a presumption
of correctness. Forrest Const. Co., LLC v. Laughlin, 377 S.W.3d 211 (Tenn. Ct. App. 2009).
The trial court’s conclusions of law are not afforded the same presumption of correctness;
rather, the appellate court reaches its own conclusions of law. Nashville Ford Tractor, Inc.
v. Great American Ins. Co., 194 S.W.3d 415 (Tenn. Ct. App. 2005); Arms v. Stanton, 43
S.W.3d 510 (Tenn. Ct. App. 2000).



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III. Discussion

        A. Apportionment of Fault to Ulysses

        Plaintiffs contend that the trial court erred in allocating 58% of the fault for the
accident to Ulysses and in finding Ulysses to be 33% at fault as a result of his failing to stop
at the stop sign at the intersection of Tabitha and Boyd. The apportionment of fault is a
question of fact, which the Court of Appeals reviews with a presumption of correctness.
Hocker v. State, No. E2008-02638-COA-R3-CV, 2009 WL 3518164, at *6 (Tenn. Ct. App.
Oct. 30, 2009); Wilson v. Pickens, 196 S.W.3d 138 (Tenn. Ct. App. 2005); Lewis v. State, 73
S.W.3d 88, 94–95 (Tenn. Ct. App. 2001).

       In a negligence action where a child is a plaintiff and the defense of comparative
negligence is raised, the “Rule of Sevens” is used to determine the extent to which the child’s
negligence, if any, would reduce the child’s recovery. McGlothin v. Bristol Obstetrics,
Gynecology & Family Planning, Inc., No. 03A01-9706-CV-00236, 1998 WL 65459, at *5
(Tenn. Ct. App. Feb. 11, 1998); Roddy v. Volunteer Med. Clinic, 926 S.W.2d 572, 576 (Tenn.
Ct. App. 1996); Cardwell v. Bechtol, 724 S.W.2d 739, 749 (Tenn. 1987). The Rule of
Sevens, also known as the rule of capacity, embodies three presumptions: a child under the
age of seven has no capacity for negligence; there is a rebuttable presumption that a child
between the ages of seven and fourteen does not have the capacity for negligence; there is
a rebuttable presumption of capacity for negligence for a child between the ages of fourteen
and twenty-one. Cardwell, 724 S.W.2d at 745.1 Whether the minor has the capacity for
negligence is determined by the trier of fact. Id. at 749 (holding that the application of the
mature minor exception to the common law rule requiring parental consent for the medical
treatment of minors “is a question of fact for the jury to determine whether the minor has the
capacity to consent to and appreciate the nature, the risks, and the consequences of the
medical treatment involved.”).

   The trial court did not specifically find that the presumption that 11 year-old Ulysses was
incapable of negligence was rebutted or state its factual findings in that regard; consistent
with our standard of review, therefore, we review the record to determine where the
preponderance of the evidence lies. In our review of the court’s allocation of fault to
Ulysses, we apply the standard set forth in Cardwell:




        1
          The Legal Responsibility Act of 1971, codified at Tenn. Code Ann. § 1-3-113, lowered Tennessee’s
age of majority from twenty-one to eighteen; thus, for children between the ages of fourteen and eighteen,
there is a rebuttable presumption of capacity for negligence. John Doe, et al. v. Mama Taori’s Premium
Pizza, LLC, et al., No. M1998-00992-COA-R9-CV, 2001 WL 327906, at *5 (Tenn. Apr. 15, 2001).

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              Whether a minor has the capacity to [be negligent] depends on the age,
          ability, experience, education, training, and degree of maturity or judgment
          obtained by the minor, as well as upon the conduct and demeanor of the
          minor at the time of the incident involved. Moreover, the totality of the
          circumstances, the [minor’s conduct at issue] and its risks or probable
          consequences, and the minor’s ability to appreciate the risks and
          consequences are to be considered. Guided by the presumptions in the Rule
          of Sevens, these are questions of fact for the jury to decide.

Id. at 748.

        Ulysses was eleven years old and in the fifth grade when the accident occurred. His
parents, Ulysses Durham, Jr. and Kimberly Durham, testified that prior to the accident
Ulysses was a “deep thinker” and a good student who made “As and Bs.” Mrs. Durham
testified that the Plaintiffs had lived on Tabitha Street for one and-a-half to two years and that
Ulysses had previously ridden around the streets of the neighborhood by himself or with
others. She testified further that Ulysses was familiar with the stop sign located at the
intersection of Tabitha Street and Boyd Drive, that he had been taught to stop and look both
ways before crossing the street, and that his habit was to stop at the stop sign when riding a
bicycle. Moreover, Mrs. Durham testified that she reminded Ulysses on the day of the
accident to “watch out where he was going” and to “make sure he looked both ways” when
crossing the street.

        Testimony of witnesses related to the circumstances of the accident provided evidence
of Ulysses’ conduct at the time of the accident. A neighbor, Zhoante Taylor (“Ms. Taylor”),
testified that she was standing on the top step behind her home with an unobstructed view
of the intersection at Tabitha Street and Boyd Drive. She testified that she witnessed Ulysses
and Tylon “T.J.” York (“T.J.”) riding bicycles and talking to each other as they rode toward
the intersection, that she did not see either boy stop at the stop sign before entering Boyd
Drive, and that she did not know if the boys noticed the bus approaching the intersection.

       T.J. testified that Ulysses was riding the bicycle with one hand while racing a girl
named Angelica and that his speed on the bicycle was consistent. T.J. testified that he was
riding ahead of Ulysses and was the first to enter Boyd Drive; that he called out to warn
Ulysses of the bus, but Ulysses was turned away and did not immediately respond; and that
Ulysses did not see the bus until right before he was struck.

        The evidence recounted above shows that Ulysses was knowledgeable in the operation
of a bicycle, was familiar with the rules of the road, that he should stop at stop signs, and that
he knew to look both ways before crossing the street. The evidence also shows that he was


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familiar with the neighborhood, that he had a level of understanding commensurate with his
age to understand the dangers associated with riding a bicycle, and that he had been
cautioned immediately before the accident to stop at the stop sign. The evidence rebuts the
presumption that Ulysses was not capable of negligence at the time of the accident;
consequently, the trial court did not err in apportioning fault to Ulysses.

       Having determined that Ulysses had the capacity for negligence, we address the
court’s allocation of fault to him for failing to stop at the stop sign and failing to keep a
proper lookout.

       B. Apportionment of Fault Between the Parties

       “A claim of negligence requires proof of the following 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.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). Duty is the legal
obligation owed to conform to a reasonable person standard of care for the protection against
unreasonable risks of harm. Id. In considering Ulysses’ negligence, we focus on the duty
imposed on him and the evidence showing a breach of that duty.

       A duty to exercise reasonable care under the circumstances always exists. Doe v.
Linder Construction Co., 845 S.W.2d 173, 177 (Tenn. 1992). In addition, Tenn. Code Ann.
§ 55-8-172 provides that persons riding bicycles on roadways are subject to “all of the duties
applicable to the driver of a vehicle.” Tenn. Code Ann. § 55-8-149(c) requires drivers to stop
at posted stop signs. Tenn. Code Ann. § 55-8-136(b) requires all drivers to exercise due care
by operating the vehicle at a safe speed, keeping a safe lookout, keeping the vehicle under
proper control, and by devoting full time and attention to operating the vehicle.

        There was no evidence that Ulysses stopped; to the contrary, Ms. Taylor and T.J.
testified that they did not see Ulysses stop at the stop sign. The testimony of T.J. shows that
Ulysses did not devote his attention to operating the bicycle and supports the court’s holding
that Ulysses did not maintain a safe lookout. Ulysses’ failure to stop at the stop sign and to
maintain a proper lookout were breaches of his duty to use reasonable care under the
circumstances. There is no dispute that Ulysses’ failure to stop at the stop sign was a cause
in fact of the accident.

       The evidence does not preponderate against the trial court’s holding that Ulysses was
negligent in failing to stop at the stop sign and to keep a proper lookout.

       We next consider the percentages of fault attributed by the trial court to Ulysses as
well as the percentages attributed to Defendants. As noted previously, the court allocated

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responsibility as follows: 58% to Ulysses – 33% for his negligence in disregarding the stop
sign and 25% for failing to keep a proper lookout; 40% to Noble – 10% for excessive speed,
5% for not driving the bus in a single lane of travel, and 25% for failing to keep a proper
lookout and to see Ulysses sooner; and 2% to the City for failing to have the bus’ brakes
properly adjusted.

       Steve Binkley (“Binkley”), Plaintiffs’ expert witness, testified that the posted speed
limit was 30 miles per hour and that Noble’s average speed from the curve on Boyd Drive
until the bus came to a stop, was 31 miles per hour. Conversely, Leighton Sissom
(“Sissom”), Defendant’s expert witness, testified that Noble’s average speed over the same
distance was 29 miles per hour and that at the time of impact the bus was traveling 18.2 miles
per hour. Noble also testified that he was traveling between 25 to 30 miles per hour on Boyd
Drive. The court held that Noble was traveling in excess of the posted speed limit, but that
his speed “was extremely insignificant” and “evidence shows that the accident would have
occurred . . . at a slower speed.”

       The finding that the bus was being driven above the speed limit supports the court’s
holding that Noble was negligent. Plaintiffs have not shown that the evidence supports a
percentage of negligence higher than that the court assigned. Affording the court the
presumption of correctness, we affirm the allocation of 10% of fault to Noble for excessive
speed.

        With respect to the court’s allocation of 5% of fault for failing to keep the bus in the
proper lane of travel, Binkley testified that Boyd Drive is 35 feet wide and that after the
impact the left edge of the bus rested 21 and ½ feet from the right curb of the roadway and
was 4 to 4 and ½ feet into the northbound lane of traffic. He further testified that had the bus
been 5 feet further to the right, the accident would have been avoided. Sissom testified that
if the bus had been 2-3 feet to the right then the impact would have occurred at the location
of the bus’ outside mirror rather than the front of the bus and that, if the bus had been 5 feet
further to the right, it “could have been possible” to avoid the accident.

        The evidence does not show that the accident would not have occurred if the bus had
been entirely in the southbound lane of Boyd Drive. Neither does it show that a higher
percentage of negligence should be attributed to Noble in this regard. Again affording the
court the presumption of correctness, the evidence does not preponderate against the court’s
allocation of 5% of fault in this regard.

        The Plaintiffs also contend that the court effectively compared the negligence of an
11 year-old with that of an adult driver when it allocated 25% of fault to each of them for
failing to keep a proper lookout; we do not agree with this characterization of the court’s


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action. Ulysses was riding a bicycle and the duty attendant thereto was unique to him;
similarly, the duties required of Noble were unique. The evidence that Ulysses did not keep
a proper lookout has been explained previously. Noble testified that he used the appropriate
scanning techniques to watch for children playing near the road, but he did not see Ulysses
until it was too late to avoid the collision. The court’s allocation of fault to Ulysses and
Noble for this element is supported by the evidence.

       In light of our affirmance of the allocation of 58% of fault to Ulysses and 40% to
Noble, any issue regarding the allocation of 2% fault to the City of Murfreesboro is moot.
For the same reason, Plaintiff’s issue relative to the monetary limits of the Tennessee
Governmental Tort Liability Act is moot.

IV. Conclusion

      For the foregoing reasons, the judgment of the Circuit Court for Rutherford County
is AFFIRMED.




                                                  ____________________________
                                                  RICHARD H. DINKINS, JUDGE




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