                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 17, 2012 Session

             WADE ROBINSON, ET AL. v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Knox County
                     No. 2-79-07    Wheeler A. Rosenbalm, Judge




                 No. E2011-01540-COA-R3-CV-FILED-JULY 31, 2012




Wade Robinson and Melanie Robinson (“Plaintiffs”) sued the State of Tennessee (“State”)
regarding a motor vehicle accident that resulted in the death of Plaintiffs’ son, Zachary L.
Robinson. After a bench trial, the Trial Court entered its judgment finding and holding, inter
alia, that the State had not violated Tenn. Code Ann. § 9-8-307(a)(1)(I) or § 9-8-307(a)(1)(J),
and that the actions of Zachary L. Robinson were the sole proximate cause of the accident.
We find and hold that the evidence preponderates against the Trial Court’s findings that the
State did not violate Tenn. Code Ann. § 9-8-307(a)(1)(I), that the State did not violate Tenn.
Code Ann. § 9-8-307(a)(1)(J), and that Zachary L. Robinson was the sole proximate cause
of the accident. We find and hold that Zachary L. Robinson was 50% at fault for the accident
and that the State was 50% at fault for the accident.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
          Reversed, in part; Affirmed as Modified, in part; Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.

Donna Keene Holt, Knoxville, Tennessee, and Paul Kaufman, Atlanta, Georgia, for the
appellants, Wade Robinson and Melanie Robinson.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Dawn Jordan, Senior Counsel, for the appellee, State of Tennessee.
                                                OPINION

                                              Background

              This lawsuit arises from a motor vehicle accident (“the Accident”) which
resulted in the tragic and untimely deaths of eighteen year old Zachary L. Robinson and
sixteen year old Lynsey M. Ford. Ms. Ford was a passenger in a vehicle driven by Mr.
Robinson on March 3, 2006. At approximately 11:45 p.m., Mr. Robinson was driving on
Lovell Road in Knoxville, Tennessee and was in the process of attempting to merge on to
Pellissippi Parkway when he lost control of his vehicle and collided with a tractor trailer
truck. Mr. Robinson and Ms. Ford both died.

                Plaintiffs filed suit in the Circuit Court for Knox County individually and as
next of kin of Zachary L. Robinson against Averitt Express, Inc. and Michael L. Knauff.
Plaintiffs also filed suit in the Claims Commission against the State. In separate actions,
Rebecca W. Ford sued Averitt Express, Inc. and Michael L. Knauff in the Circuit Court of
Knox County and also filed suit in the Claims Commission against the State both individually
and as next of kin of Lynsey M. Ford. Plaintiffs’ claims in the Claims Commission were
transferred to Circuit Court and consolidated with their pending Circuit Court case.
Plaintiffs’ claims also were consolidated with Ms. Ford’s claims 1 for purposes of trial2 .
Plaintiffs’ suit and Ms. Ford’s suit were separated again for purposes of appeal. We resolve
Ms. Ford’s appeal in our Opinion in Ford v. State, docket No. E2011-01072-COA-R3-CV,
released contemporaneously with this Opinion.

                At trial, Eric Dewayne Hamby, who witnessed the Accident, testified. Mr.
Hamby stated: “It was after 11:00 p.m. I got called in to work [at the Oak Ridge TVA
facility] to rescue somebody off an elevator, 11:30ish, 11:45ish, something like that.” The
weather was clear and the roads were dry. Mr. Hamby testified that the only traffic on
Pellissippi Parkway was his vehicle and “a transfer truck that I was coming up on. He was
in front of me.” Mr. Hamby explained:

        I was approximately 75 to 100 feet behind the tractor trailer, coming up on
        him. I was traveling maybe 60 miles an hour, and he was traveling slower than
        I was, because I was fixing to pass him pretty soon because I had been coming


        1
         Ms. Ford’s claims in the Claims Commission had similarly been transferred to Circuit Court and
consolidated with her Circuit Court case.
        2
         Prior to trial, Plaintiffs’ and Ms. Ford’s claims against Averitt Express, Inc. and Michael L. Knauff
were voluntarily non-suited.

                                                     -2-
       up on him for the past mile or so.… We come up on the Lovell Road exit and
       actually passed where you get off of Lovell Road and was coming up on where
       Lovell Road comes into Pellissippi and you can get back on from Lovell Road
       to Pellissippi. The transfer truck was in the right lane. I was in the right lane
       behind him. Just off to [the] right, I could see a small car coming around the
       curve almost straight into the side of the transfer truck at about where the jacks
       or the rear wheels are of the transfer truck, maybe just a little further back.
       The car was almost perpendicular to the transfer truck.… [H]e had actually
       passed - - you have a curve and it comes into a drive-out lane to where you
       merge, a merge lane, I guess, where you would merge into Pellissippi, I guess
       you would call it. He was at the curve. The transfer truck had already passed
       the mouth of the curve, and the car was coming across the curve and never
       really actually got to the drive-out into the Pellissippi lane. He just drove
       straight across.

              When asked to estimate the speed of the car, Mr. Hamby stated:

       He was going at least 50, probably closer to 55 or 60, when he came around
       the curve, just a guess, just from what I observed. I’m no expert.… He could
       have been going 70 or 75. I don’t know. He was definitely going - - the
       wheels were cut to the right and he was sliding, skidding toward the transfer
       truck.… I could see the car coming across through there. It looked to me like
       he was going at a high rate of speed for that curve. In my mind, I thought he’s
       not going to make that curve. He’s going to hit the truck.

Mr. Hamby did not see the brake lights on either the car or the truck.

               James Alan Parham testified as an expert witness for Plaintiffs. Mr. Parham
is a licensed professional engineer who works for Parham Engineering Consultants, which
he described as “a civil and forensic engineering consulting practice specializing in accident
reconstruction” Mr. Parham is a registered professional engineer in Tennessee and five other
states.

               Mr. Parham reconstructed the Accident. When asked what methodology he
uses in his reconstructions, Mr. Parham stated: “I will evaluate three different components
of the accident generally, to start with, and focus on each of those. One is the driver
behavior. The second is mechanical or the vehicle characteristics. And the third would be
the roadway itself.” He further explained:

       In - - in the methodology I was looking at the path the vehicles, both vehicles,

                                              -3-
        were traveling prior to the point of impact. The - - the car was traveling along
        a curved path, came up to a sharper turn in the roadway at the end of this on-
        ramp or during the process of this on-ramp, whereas the tractor-trailer was
        traveling down-grade along a straight section of roadway. And that would be
        where I would look at the driver behavior aspects.… The next step would be
        to look at the vehicle characteristics, the size difference between the two in this
        particular case, and any kind of characteristics that may have been - - was there
        a mechanical malfunction.… The next step was to look at the roadway itself
        in which the vehicles were being operated. And in this process was to evaluate
        the geometrics of the roadway, the weather conditions that were in play at the
        time, and things environmentally related to this location.

               Mr. Parham formed an opinion regarding how fast Mr. Robinson’s vehicle was
traveling and testified: “The - - the speed that I have been able to derive would be based upon
the skid marks that are left here approaching the area of impact.… The minimum speed
would be approximately 30 miles per hour.” Mr. Parham opined: “The primary cause of this
accident was the inconsistency or the inappropriateness of this ramp and the lack of warning
leading up to this ramp advising the driver of the impending situation.” Mr. Parham testified
that a safe speed on the ramp would be 30 or 35 miles per hour. He admitted that it was
possible that someone could drive on the ramp at 40 miles per hour.

               Mr. Parham testified that the 1965 American Association of State Highway
Officials (“AASHO”)3 blue book was in effect and in place as the design manual for the State
when Pellissippi Parkway was designed in 1968. He stated: “Typical DOTs, cities, counties
will adopt this [the AASHO blue book] in and use these principles directly out of the manual
or they will modify them as they might see need to in different parts.” Mr. Parham stated:
“In the original design [of Pellissippi Parkway], the - - the bridge - - the ramp itself came up
to a stop sign condition where it connects to Pellissippi Parkway, and there was no
acceleration lane in the original design to - - that would cross the bridge or that would
approach the bridge.”

               At some time later, changes were made to the ramp. Mr. Parham contrasted
the site before and after the changes explaining:

        Along the - - the exterior portion, there appear to be delineators that were
        called for here, and there were no delineators in this area at this time. And this
        was operated as a stop sign, whereas here is a yield sign. There were no


        3
         Mr. Parham explained that in the 1970s the AASHO brought in transportation officials and changed
its name to AASHTO. (59-60)

                                                  -4-
       chevrons in this one. There are two chevrons here. In the original there was
       no acceleration lane, whereas there is a small acceleration lane provided here.

Mr. Parham had performed a field examination of the Accident site around May of 2005,
prior to the Accident. He stated that, sometime after his May 2005 field examination of this
site, two chevrons were placed in the island alongside the lane approaching Pellissippi
Parkway. Mr. Parham stated that the only difference at the site between May of 2005, when
he did his field examination related to a different incident, and March of 2006, when the
Accident happened, is the chevrons.

              Mr. Parham opined that the compound curve transition of the ramp from Lovell
Road on to Pellissippi Parkway does not meet the AASHO guidelines. He stated it goes from
a long-radius to a very short-radius curve and this makes it a compound curve. He testified
that the 1965 AASHO book provided:

       Compound curves with large differences in curvature introduce problems
       similar to those that arise at a tangent approach to a circular curve. In
       compounding, the radius of the flatter circular arc should not be more than 50
       percent greater than the radius of the sharper circular arc. Where this is not
       feasible, an intermediate curve or spiral should be used to provide the
       necessary transition.

              Mr. Parham testified about driver expectation and the compound curve stating:

       There was no warning otherwise provided anywhere back through here that
       this was not a high-speed on-ramp. There is a grade separation, there is the
       curved path, and this would be very consistent with a high-speed on-ramp
       versus what’s right across the facility here, where it is not a high-speed; it’s
       just a direct intersection type design where the driver’s approaching it like they
       would a typical intersection. But one here has the appearance of being a high-
       speed on-ramp.

When asked what could be done to address driver expectancy in a situation such as this, Mr.
Parham stated:

       There are two things that can be done primarily. One is that the radius be
       compatible, this - - on the entrance terminal would be compatible with the
       ramp section proper, and this would be that this radius would be no less than
       one-half of the ramp proper terminal - - or, excuse me, the ramp proper radius.
       This could be no more difference than one-half. (Indicating)

                                              -5-
              If there is a situation that’s constructed like this, then there is a
       mechanism where you could come in and warn the drivers, give advance
       notice as they’re coming up here, of this situation.

When asked if there were driver warning signs, Mr. Parham stated: “No. There were no
signs approaching this - - this area here advising the drivers in advance of this condition or
of a need for speed reduction or anything like that at the time of this accident.”

              Mr. Parham was asked about safe vehicle speed, and he stated:

       Coming through the ramp proper, this is designed to be able to accommodate
       traffic that’s driving approximately 35 to 40 miles per hour. As the vehicle
       would approach this tighter-radius area, the vehicles - - the speed would be on
       the line of 14 miles per hour. So we have a speed diff - - difference of 35 to
       14. This is at least a 20-mile-an-hour differential.… And this would be a - -
       this would violate the drivers’ expectancy. They would not expect something
       like this without warning of the impending situation.

              The posted speed limit on Pellissippi Parkway at the time of the Accident was
55 miles per hour. Mr. Parham stated:

       This - - this has two - - two negatives, or two issues, I should say. One is the
       large speed differential between the large radius and the small radius is a - - is
       a driver expectancy violation. The driver is not warned of this situation;
       therefore, they don’t have time to react to this, and it can cause issues right
       here with the vehicle not being able to travel on this. (Indicating)

              The second issue is with this low radius - - small radius and low design
       speed, the speed differential between the entering traffic stream and the
       through traffic stream is very great, and that itself can form a hazardous
       condition on the main lines of the roadway.

               Mr. Parham opined that the warnings on the actual ramp portion are not
sufficient to address the dangers created by the compound curve configuration. He stated:

       The chevrons that were placed in the island here are alongside the roadway.
       They - - in order to be effective, they would need to have extended beyond, as
       required by the MUTCD, the Manual on Uniform Traffic Control Devices,
       through the extent of the situation, and they did not. (Indicating) Also, these

                                              -6-
       chevrons simply do tell the directional change of a curve. They do not tell the
       amount of speed that would need to be reduced or what a safe operating speed
       is at this location.

               Furthermore, there was no advance warning, such as a yield ahead or
       a turn ahead sign with a supplemental speed plate or anything else to advance
       warning directly, clearly, as the manual states it should, prior to this location
       in time that the driver, the approaching driver, could make the appropriate
       actions and reduce their speed.

               Mr. Parham explained that the Manual on Uniform Traffic Control Devices
(“MUTCD”) was developed by the Federal Highway Administration starting in the 1930s.
The MUTCD is designed to provide consistent and uniform signs, markings, traffic signals,
etc. as indicators for drivers to make them uniform across the country. Mr. Parham testified
that Tennessee adopted the MUTCD as is from the Federal Highway Administration.

          Mr. Parham opined that the site of the Accident was not in compliance with the
MUTCD on the date of the Accident. He stated:

       Two of the larger - - three of the larger areas of concern where it is out of
       compliance are as follows: One is there is a sharp turn ahead. There is no
       advance notice of this, telling the driver of this impending condition as they
       approach and warning the drivers of what speed would be advisable to drive
       the roadway at that location.

               The second one is there is no advance notice of this yield sign provided.
       Granted, the yield sign can physically be seen from a further distance back. It
       is outside of the driver’s field of view until they’re very close to it. There’s no
       advance - - because of the curve of the road, there is no advance warning given
       here.

                                             ***

              The third issue is positive guidance, which is addressed in the MUTCD.
       There is no guidance delineating this curved area here, this sharp area, to the
       driver as they would approach this.

              Mr. Parham testified about the traffic signs existing at the site as of the date of
the Accident stating that it is 50 feet from the yield sign to Pellissippi, which he admitted is
pretty much the limit of how far from the through road such a sign should be set according

                                               -7-
to the MUTCD. He stated that the yield sign did not provide advance warning of the
dangerous condition because: “It is located near the dangerous condition, not in advance of
it.” He also testified that the chevrons which were in place did not provide advance warning
because they are at and not before the dangerous situation. Mr. Parham testified that he
would qualify this as a hazardous area.

             Mr. Parham admitted that the yield sign can be seen from approximately 400
feet away. When asked if the yield sign would be visible to the same extent at night, Mr.
Parham stated:

       Not under typical motor operations, not at nighttime, it would not be.…
       Because the vehicle headlights would be facing away from it or would not be
       aimed at it as the vehicle is coming around the curve. They would be shining
       on the outside of the curve, and so the vehicle would have to be in relatively
       close proximity to the yield sign for the driver - - for it to illuminate.

              These signs are designed to reflect light back toward the vehicle, toward
       the source, and so if the light is not getting onto it, it will not reflect back.
       Also, the angle at which the sign is placed is - - is going to be turned so that
       you’ve got to be up fairly close to get the light from the headlights to reflect
       back to it as well.

When asked if there was ample sight distance down Pellissippi from the ramp, Mr. Parham
stated: “Yes. If it were set up as an intersection, there would be ample sight distance.”

               Mr. Parham determined that a driver of an automobile would be able to see the
yield sign at night at approximately 100 feet. He testified that a car traveling 40 miles per
hour would travel approximately 160 feet in two and a half seconds. When asked what the
purpose of a yield sign is, Mr. Parham stated:

       The purpose of the yield sign is to establish who has the yield or to give the
       right of way to oncoming traffic. It does not require a full stop unless there - -
       it’s not mandatory to have a full stop. It’s basically so you can slow down but
       still progress at a low speed through a - - into the intersection or the merge
       activity. I think that yield signs are very appropriately used in a lot of places.

Mr. Parham agreed that one objective of a yield sign is to allow for ramp traffic to safely
transition into the primary traffic. He stated that he believes that this yield sign accomplishes
this objective. He opined, however, that the features of positive guidance on the ramp
including the yield sign were inadequate.

                                               -8-
              Mr. Parham admitted when asked that the MUTCD states that engineering
judgment is required for placing signs. He testified that the MUTCD states:

       The decision to use a particular device at a particular location should be made
       on the basis of either an engineering study or the application of engineering
       judgment. Thus, while this manual provides standards, guidance, and options
       for design and application of traffic control devices, this manual should not be
       considered a substitute for engineering judgment.

He further testified that the MUTCD defines engineering judgment stating: “Engineering
judgment shall be exercised by an engineer … for the purposes of deciding upon the
applicability, design, operation, or installation of a traffic control device.”

              Mr. Parham opined that: “The primary cause of this accident was the
inconsistency or the inappropriateness of this ramp and the lack of warning leading up to this
ramp advising the driver of the impending situation.” He further opined: “If these [warnings
such as a speed advisory sign and additional chevrons] had been in place at the time, more
probably than not, this accident would not have occurred.”

               Amanda Snowden, the Assistant Regional Director for the Tennessee
Department of Transportation, Region 1, testified as the State’s representative. Ms. Snowden
is a licensed professional engineer. At trial, Ms. Snowden was qualified as an expert on
traffic engineering.

               Ms. Snowden testified that one of her jobs is to decide what kind of signs to
place to improve the safety of intersections and interchanges. In 2005, she was the assistant
regional traffic accident engineer and her job involved sign changes. Ms. Snowden stated
that she would look at locations and make recommendations about sign changes and then “it
would be up to the traffic engineer to decide what to install.”

              Ms. Snowden testified that the interchange at issue had a stop sign when it was
designed. At some time the stop sign was changed to a yield sign, but the State has no data
as to when this change was made. The acceleration lane was added to the ramp when this
sign change was made. Ms. Snowden agreed that all highways in Tennessee are required to
conform to AASHTO and TDOT safety standards. She stated: “The actual length of the
acceleration lane did not comply with AASHTO standards. However, it complied because
of the presence of the yield sign.”

             Ms. Snowden testified that a safe speed on the gentle portion of the ramp curve
would be 35 to 40 miles per hour. She admitted that it could potentially be driven safely at

                                             -9-
45 miles per hour. She stated that a safe speed on the sharp final portion of the curve would
be somewhere between 10 and 15 miles per hour. Ms. Snowden agreed that a car traveling
at a safe speed would have to drop its speed by around 30 or 35 miles per hour to negotiate
the final sharp curve.

              Ms. Snowden admitted that as of May of 2005 the chevrons were not at the site,
but that as of March 3, 2006, the date of the Accident, the chevrons were there. Ms.
Snowden was asked what signs were present at time of Accident, and she stated:

       Based on what we’ve reviewed, we can tell that there were route markers as
       you turn onto the ramp. There would be signing that would be placed probably
       on Lovell Road to tell motorists their direction onto 162. Once you approach
       the gore area of the ramp, I believe we have the presence of two chevrons and
       a yield sign with a one way sign above it.

There were no speed limit signs on the ramp.

              Several critical admissions were made by Ms. Snowden at trial, and we quote
several sections of questions and answers from her trial testimony as follows:

       Q.     Would the State generally have an advisory speed in conjunction with
              chevrons if cars going the standard speed of the roadway would not be
              able to negotiate the curve?

       A.     Yes.

       Q.     If the speed limit on a roadway is 55 and you can’t negotiate that curve
              at 45, then speed limits below that ten mile per hour reduction would
              have to be signed with an advisory speed. Do you agree with that?

       A.     Yes.

       Q.     That’s for the safety of the drivers?

       A.     Yes.

       Q.     Now, we have already established that if a car is safely going 45,
              there’s at least a 30 mile an hour reduction required to get through this
              last curve?



                                            -10-
A.   Yes.

Q.   Wouldn’t you agree that this curve, in 2005, should have had the
     advisory speed ahead, along with the chevrons, since there was such a
     big drop in speed required?

A.   There’s no doubt that you can always add additional signing. That’s the
     whole premise of the manual and traffic control devices in general.
     The addition of a speed advisory certainly would have been something
     that would have been a supplement to the area.

Q.   Is that a yes? My question was, since you agreed that with a reduction
     of 15, the chevrons must be accompanied by a speed advisory reduction
     sign, wouldn’t you agree that, in this situation in 2005, that the State
     was required to have a speed reduction sign with these chevrons?

A.   With it being our rule of thumb at the time and a guideline, it does seem
     that it probably would have been - - should have been in place.

                                   ***

Q.   You have told us that a safe speed in the soft portion of the curve was
     35 to 45?

A.   Yes.

Q.   And you have told us that a safe speed in the sharp curve was 10 to 15?

A.   Yes.

Q.   That is a reduction of more than ten miles per hour to safely make that
     curve, isn’t it?

A.   Yes.

Q.   That would place an advisory speed sign requirement, according to the
     Tennessee Department of Transportation rule, in advance of that curve,
     wouldn’t it?

A.   Yes.

                                   -11-
Q.   There was none, was there, on March 3rd, 2006?

A.   No.

Q.   You don’t know why there wasn’t one there, do you?

A.   I do not, no.

                                    ***

Q.   Wouldn’t you agree that, with the information available in mid 2005,
     that the exercise of risk of engineering judgment doing a risk/benefit
     analysis would show that the benefit of placing the ten mile an hour
     ramp speed, advisory speed sign, the benefit would overwhelmingly
     outweigh the risk?

A.   Well, as we have stated, adding traffic control devices, no matter what
     they are, is going to be a benefit to the motorist. So the answer, I guess,
     would be yes to your question. It would certainly be a benefit to a
     location.

                                    ***

Q.   Just in applying engineering judgment without a study, wouldn’t you
     agree that there’s a risk to the motorist of omitting the ten mile an hour
     ahead sign, the risk being that he won’t know that he needs to slow
     down by that much to safely negotiate the sharp curve ahead?

A.   Yes, as far as knowing the speed he needs to slow down to, yes.

Q.   Would you agree that there’s a benefit to the motorist to have the slow
     90 degree curve sign ahead painted on the road?

A.   Yes. It’s a benefit, yes.

Q.   And that’s there’s a risk to the motorist of omitting that?

A.   Yes.



                                    -12-
Q.   You would agree that there’s a benefit to the motorist of having the
     extra chevrons and the chevrons with an arrow added?

A.   Yes.

Q.   There’s a risk to the motorist of omitting those?

A.   Yes.

Q.   I believe you said that the State must do all it reasonably can to warn
     motorists of specific hazards ahead that it is aware of?

A.   Yes.

Q.   In fact, would you agree that once the State is made aware of a
     situation, really no matter what it is, that it’s the State’s responsibility
     to ensure that we do our best to make it as safe as possible?

A.   Yes.

Q.   Wouldn’t you agree that, in mid 2005, the State reasonably could have
     placed the ten mile an hour ahead sign?

A.   Yes, we could have.

Q.   And the State reasonably could have placed rumble strips?

A.   Yes.

Q.   And the State reasonably could have placed the slow 90 degree curve
     sign?

A.   Yes.

Q    The State reasonably could have placed extra chevrons?

A.   Yes.

Q.   The State reasonably could have put reflective poles on bigger
     chevrons?

                                     -13-
       A.     Reflective strips on the posts, yes.

              Ms. Snowden also stated:

       Well, a yield sign in and of itself is a traffic control devoice [sic]. So a driver
       needs to take warning to every traffic control device. Is it adequate? Probably
       not. There’s other ways to warn the driver, but it is there, so it is something
       that the driver needs to be aware of.

              Ms. Snowden testified: “In the MUTCD, there is sign legibility values, as well
as advanced placement for signs. So that’s used whenever we place our signs in the field.”
She stated: “we try to make sure signs are visible during daytime and nighttime conditions,
which would mean if headlights hit a sign, they are going to reflect. They are reflective. So
if your headlights hit a sign, they are going to reflect back to the driver’s eye.”

               Ms. Snowden agreed that warning signs are relatively inexpensive to an overall
highway construction project. Ms. Snowden was asked where funds come from for new
highway signs and she stated: “TDOT obviously has a maintenance budget every year, an
annual budget. As we put signs up, they are charged to the county in which they are
installed, and that comes out of our total maintenance budget.” She further stated the money
would be from State funds, unless they were working on a federal aid project, but added that
in 2005 and 2006 there were no federal construction projects at the interchange at issue in
this suit.

               Ms. Snowden was asked about a file maintained by the State with regard to the
intersection at issue, which contained two earlier accident reports. Ms. Snowden was asked
what the purpose was for this file, and she stated:

       Typically, whenever we get a concern or a complaint come in, we will make -
       - if it’s an intersection, we make it an intersection file. They are signified with
       colored dots, was the way we did it. The intersection file had a green dot on
       it. So once we actually had knowledge of a location, we would make a file on
       it, if it was an intersection type location.

She further admitted that although there is no record of when or why the chevrons were
placed, the State would have received some type of complaint or notification about a
potentially dangerous condition on the interchange, or the chevrons would not have been
placed.

              After trial, the Trial Court entered its judgment on April 15, 2011 incorporating

                                              -14-
by reference its Memorandum Opinion in which it found and held, inter alia:

              Lynsey Ford and Zachary Robinson’s unfortunate and untimely deaths
      occurred on March 3, 2006 at approximately 11:45 p.m. as a result of a motor
      vehicle accident. That accident occurred at the intersection of Lovell Road
      and Pellissippi Parkway here in Knox County. Pellissippi Parkway is a state
      highway, as I recall, and the record shows it is identified as State Highway
      162. At the time of the accident, Zachary Robinson was driving a Honda
      vehicle that was occupied by Lynsey Ford as a guest passenger. And the
      plaintiffs were attempting to enter the eastbound lanes of Pellissippi Parkway
      by way of a ramp that joined the eastbound lanes of Pellissippi Parkway with
      Lovell Road.

             There is no serious dispute about how the accident in this case occurred.
      It was witnessed by Mr. Eric Hamby. And the Court does find that Mr. Hamby
      was a most credible witness. His testimony indicated that he was giving
      careful attention to his surroundings, and that he is a reliable witness to the
      things that occurred during the course of this accident or during part of the
      accident. And so there is no serious dispute in the mind of the Court about
      how the accident occurred.

             The eye witness, Mr. Hamby, was traveling eastbound in the right-hand
      lanes of Pellissippi Parkway. He was going about 60 miles an hour, and was
      following an Averitt Express tractor trailer. Mr. Hamby was approximately 75
      to 100 feet behind that tractor trailer, which he says was going about 55 miles
      an hour. And so Mr. Hamby was slowly gaining or catching up, gaining on or
      catching up with the tractor trailer. There were no other vehicles at that place
      on Pellissippi Parkway at that time.

              When Mr. Hamby reached a point near where the Lovell Road ramp
      intersects with Pellissippi Parkway, he saw the Honda car driven by Mr.
      Robinson come around the curving ramp, which was over to Mr. Hamby’s
      right, at a high rate of speed. The car left the ramp lane and traveled straight
      across the gore area that separates Pellissippi Parkway from the Lovell Road
      ramp. And Mr. Robinson’s car ran straight into the right side of the tractor
      trailer driven or operated by Averitt Express. The car collided with the right
      side of that tractor trailer at a point near the front of the rear wheels on the
      tractor trailer. And the physical evidence that other proof shows is that the
      tractor trailer’s right rear wheels ran up on the Robinson car and came to rest
      on top of the vehicle.

                                            -15-
        Mr. Hamby testified that he had observed the Robinson car for three or
four seconds before its impact with the tractor trailer. He estimated that the
Honda car was going at least 55 to 60 miles an hour as it left the ramp and
crossed the gore area of the intersection. [Mr. Hamby] admitted that he -- that
the vehicle could have been going as fast as 70 to 75 miles an hour. I agree
with Mr. Farmer that in the course of delivering his testimony Mr. Hamby used
the term guess. But in reviewing again his testimony in its totality, the Court
has to conclude that he was paying careful attention. He was making a studied
effort here in this courtroom to give an accurate account of what he saw and
heard. And taking into account that lay people talk that way when they’re
asked to give estimates, the Court does not believe that [Mr. Hamby’s]
estimate of the speed of the Robinson Honda should be impugned or
discredited in any way.

       The Robinson car left approximately 50 feet of skid marks that ran
straight into the side of the tractor trailer truck. There were some additional
marks made by the collision of the vehicle, which, as I recall, some of the
witnesses estimated to be approximately ten feet in length. And some of the
witnesses actually characterized the skid marks as being 60 feet in total length.
But in any event, the skid marks and the proof, physical proof recorded by
photographic evidence that shows the nature of the collision, strongly suggest
that Mr. Robinson’s car was traveling at a high rate of speed, as related by Mr.
Hamby.

        The ramp on which Mr. -- Pardon me. The ramp on which the plaintiffs
were traveling just prior to this accident joined Lovell Road with the eastbound
lanes of Pellissippi Parkway. That ramp is approximately two tenths of a mile
long. At its beginning, where it joins Lovell Road for vehicles traveling the
way the Robinson car was traveling, the ramp makes a long gentle curve to the
right. This part of the curve has a 230 degree radius. As that ramp nears
Pellissippi Parkway, it makes a sharper turn to the right that so it’s an able
joinder of the ramp with the acceleration lane for eastbound traffic on
Pellissippi Parkway. This part of the ramp’s curvature, according to the expert
testimony, has a 65 degree radius. This kind of ramp is commonly referred to
by engineers and designers as a compound curve.

        The Lovell Road ramp accommodates two-way traffic. Thus cars may
exit or leave Lovell Road and enter Pellissippi Parkway eastbound. Or cars
which are eastbound on Pellissippi Parkway, as they approach this ramp going
east, may exit Pellissippi Parkway to get onto Lovell Road. And so a good part

                                      -16-
of the ramp is a ramp or a roadway providing for two-way traffic. A double
yellow line separates the two-way traffic on that portion of the ramp that
accommodates two-way traffic. And white reflective paint delineates the sides
of the rampway from beginning to end.

        At the point where the ramp begins to make a sharper turn to the right,
two chevrons are located on the left side of the rampway to indicate a coming
change in direction. At this point, the ramp for two-way traffic entering
Pellissippi Parkway to go east becomes a one-way lane for vehicles entering
Pellissippi Parkway. And the area immediately preceding the beginning of the
acceleration lane is marked with white reflective paint along the sides of the
rampway, and also delineated or outlined by embedded reflectors along both
sides of the ramp. A reflective yield sign and a one-way marker atop the post
bearing that yield sign is posted on the right side of the ramp, and that one-way
sign and yield marker is approximately 50 feet from Pellissippi Parkway,
according to the estimates of the experts. These signs, as well as the two
chevrons on the left side of the ramp, are visible, during daylight hours at least,
to approaching drivers from 400 feet away.

        Although there is no dispute about how the accident occurred, there is
considerable dispute about why it occurred. I agree with Mr. Farmer, the key
question in this case is: What caused this accident? The plaintiff contends - -
The plaintiffs contend that the accident occurred and that the state is at fault
in this case because the roadway was negligently designed, constructed and
maintained, and that the intersection constituted a dangerous condition, all
within the meaning of Tennessee Code Annotated Section 9-8-307(a)(1)(I) (J).
Stated another way, the plaintiff’s theory is that the curvature and
configuration of the ramp and the lack of certain signage on that ramp was
such that Zachary Robinson was caused to believe that he could travel on the
ramp and into the intersection of Pellissippi Parkway at a speed that was
unsafe.

        More specifically, plaintiffs argue that the configuration of the ramp
violated what plaintiffs’ expert characterized as certain standards published by
the American Association of State Highway Officials, commonly referred to
in this case as AASHO, all capital letters. And plaintiffs argue that the lack of
certain kinds of signage on the ramp violates the Manual of [sic] Uniform
Traffic Control Devices, frequently referred to in this record as MUTCD.

       After very careful consideration, the Court is constrained to conclude

                                       -17-
that the plaintiffs have not established that the configuration of the Lovell
Road ramp violates the policies of the American Association of State Highway
Officials.

                                     ***

       After careful consideration, the Court must also conclude that the state
has not violated any provision of the Manual of [sic] Uniform Traffic Control
Devices. The testimony in this case shows that the signs and highway
markings that were located on the Lovell Road ramp on March 3, 2006 comply
with the requirements of the MUTCD. The plaintiffs’ expert argues, however,
that additional signage and rumble strips should be placed on the ramp.

                                     ***

        The Manual of [sic] Uniform Traffic Control Devices, however, does
not require the installation of the signs and markings recommended by
plaintiffs’ expert. The MUTCD says in Section 1A.09, and I quote: “This
manual describes the application of traffic control devices, but shall not be a
legal requirement for their installation.” Further, in elaborating upon that
statement, the manual, which is filed as Exhibit 20 in the record, says, and I
quote: “The decision to use a particular device at a particular location should
be made on the basis of either an engineering study or the application of
engineering judgment. Thus while this manual provides standards, guidance
and options for design and application of traffic control devices, this manual
should not be considered a substitute for engineering judgment.” The Court,
therefore, respectfully concludes that the plaintiffs have not shown that the
state has violated any part of the MUTCD.

                                     ***

The plaintiffs are not entitled to rely upon a presumption of due care in this
case because there is an abundance of evidence that establishes that Mr.
Robinson was not exercising due care. The proof shows that at the time of the
accident Mr. Robinson was operating his car at an excessive and unreasonable
rate of speed, that he was not keeping a proper lookout, that he did not have
the car under reasonable and proper control, and that he did not yield the right
of way to the traffic on Pellissippi Parkway. Further, Mr. Robinson violated
the following rules of the road enacted by the legislature: TCA 55-8-109,
obedience to traffic control devices; TCA 55-8-123, driving on roads laned for

                                      -18-
       traffic; and as previously cited, TCA 55-8-130(c)(1) yielding at an intersection.
       In the opinion of the Court, this evidence establishes that Mr. Robinson was
       negligent and that his negligence was the proximate cause of the accident in
       the plaintiffs’ very unfortunate injury.


               And so to conclude, the Court must respectfully submit that it does not
       believe that the plaintiffs have established by a preponderance of the evidence
       in this case that the State of Tennessee had a duty to make those changes on
       the ramp at Lovell Road as urged by plaintiffs’ expert, and the Court does not
       believe the plaintiff has established by a preponderance of the evidence that
       the State of Tennessee was negligent or that any negligence on the part of the
       state was a proximate cause of the accident that’s the subject matter of this
       litigation and plaintiffs’ unfortunate death.

Plaintiffs appeal to this Court.

                                         Discussion

               Although not stated exactly as such, Plaintiffs raise three issues on appeal: 1)
whether the evidence preponderates against the Trial Court’s finding that the proof failed to
establish actionable conduct by the State under Tenn. Code Ann. § 9-8-307(a)(1)(I); 2)
whether the evidence preponderates against the Trial Court’s finding that the proof failed to
establish actionable conduct by the State under Tenn. Code Ann. § 9-8-307(a)(1)(J); and, 3)
whether the evidence preponderates against the Trial Court’s finding that Zachary L.
Robinson was the sole proximate cause of the accident.

             Our standard of review for cases such as the one now before us was articulated
in Usher v. Charles Blalock & Sons, Inc. wherein we stated:

              When the trial judge acts as a trier of fact, as he does when acting as
       Claims Commissioner, our review of factual findings is de novo, upon the
       record with a presumption of correctness unless the evidence preponderates
       against the Commissioner’s findings. Tenn. R. App. P. 13(d); Cross v. City of
       Memphis, 20 S.W.3d 642, 644-45 (Tenn. 2000). If the evidence preponderates
       against the trial court’s findings, we are empowered to weigh the evidence and
       determine the appropriate outcome according to the preponderance of the
       evidence. This extends to allocating fault if necessary. Keaton v. Hancock
       County Bd. of Educ., 119 S.W.3d 218, 225-26 (Tenn. Ct. App. 2003). Still, we
       review the trial court’s legal conclusions de novo, with no presumption in

                                             -19-
       favor of the court’s legal conclusions. Campbell v. Florida Steel Corp., 919
       SW. 2d 26, 35 (Tenn. 1996).

Usher v. Charles Blalock & Sons, Inc., 339 S.W.3d 45, 58 (Tenn. Ct. App. 2010).

               We first address whether the evidence preponderates against the Trial Court’s
finding that the proof failed to establish actionable conduct by the State under Tenn. Code
Ann. § 9-8-307(a)(1)(I), which provides:

       (a)(1) The commission or each commissioner sitting individually has exclusive
       jurisdiction to determine all monetary claims against the state based on the acts
       or omissions of “state employees,” as defined in § 8-42-101(3), falling within
       one (1) or more of the following categories:

                                            ***

       (I) Negligence in planning and programming for, inspection of, design of,
       preparation of plans for, approval of plans for, and construction of, public
       roads, streets, highways, or bridges and similar structures, and negligence in
       maintenance of highways, and bridges and similar structures, designed by the
       department of transportation as being on the state system of highways or the
       state system of interstate highways;

Tenn. Code Ann. § 9-8-307(a)(1)(I) (Supp. 2011).

              As this Court stated in Goodermote v. State:

              Under general principles of the law of negligence, the plaintiff must
       establish that the defendant owed a duty of care to the plaintiff, injury, and
       conduct of the defendant falling below the applicable standard of care which
       amounted to a breach of the duty, causation in fact, and proximate, or legal,
       cause. McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991).

                                            ***

              The State has a duty to exercise reasonable care under all the attendant
       circumstances in planning, designing, constructing and maintaining the State
       system of highways. See, Tenn. Code Ann. Sec. 9-8-307(a)(1)(I). The State
       owes this duty to persons lawfully traveling upon the highways of Tennessee.



                                             -20-
                                             ***

       The State’s conduct of failing to follow their own plans and industry safety
       standards constituted a breach of duty.

Goodermote v. State, 856 S.W.2d 715, 720 (Tenn. Ct. App. 1993). “The term reasonable
care must be given meaning in relation to the circumstances. Reasonable care is to be
determined by the risk entailed through probable dangers attending the particular situation
and is to be commensurate with the risk of injury.” Usher, 339 S.W.3d at 62 (quoting West
v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005)).

              We need not again restate in detail all the evidence presented at trial. Certainly
the testimony of Mr. Hamby and Mr. Parham was both relevant and necessary to a resolution
of the issues at trial and now before us on appeal. We, however, also find that Ms.
Snowden’s testimony is as equally relevant and critical to a resolution of these issues.

               Ms. Snowden’s testimony established that a driver driving at a safe rate of
speed would need to reduce speed at least ten miles per hour in order to safely negotiate the
compound curve on the ramp. In fact, Ms. Snowden testified that the safe speed in the soft
portion of the curve was as much as 45 miles per hour and that the safe speed in the sharp
portion of the curve was only 10 to 15 miles per hour. So according to Ms. Snowden, the
reduction in safe speed from the soft portion of the curve to the sharp portion of the curve
was as much as 30 to 35 miles per hour. Ms. Snowden’s testimony also established that
although it was a Tennessee Department of Transportation rule and guideline to install a
speed advisory sign if a driver would need to reduce speed more than ten miles per hour in
order to safely negotiate a curve, the Accident site had no such speed advisory sign.

               The MUTCD states that engineering judgment should be used in making the
decision to implement traffic signs. Ms. Snowden is a licensed professional engineer who
was qualified at trial as a traffic engineering expert. Thus, Ms. Snowden’s testimony about
the necessity of installing a speed advisory sign is proof of her engineering judgment as the
Assistant Regional Director for the Tennessee Department of Transportation, Region 1, and
the State’s representative at the trial. Furthermore, the record is devoid of evidence that the
State exercised engineering judgment to make the decision to specifically not place a speed
advisory sign on the ramp.

               Ms. Snowden’s testimony showed that the State’s failure to follow its own
rules and guidelines in this situation was a breach of the State’s duty. The State had a duty
to exercise reasonable care, and Ms. Snowden’s testimony helped established that the State
breached its duty when it changed the signage from a stop sign to a yield sign but failed to

                                              -21-
install a speed advisory sign even though the safe rate of speed decreased suddenly on the
compound curve on the ramp. Thus, the State negligently failed to maintain the ramp at issue
leading from Lovell Road on to Pellissippi Parkway. Furthermore, Mr. Parham opined that
the primary cause of the Accident was the inappropriateness of the ramp and the failure to
warn drivers of the situation. He further opined that if the warnings had been in place, this
Accident would, more probably than not, not have occurred.

              Given the record before us on appeal, we find and hold that the evidence
preponderates in favor of a finding that Plaintiffs established actionable conduct by the State
under Tenn. Code Ann. § 9-8-307(a)(1)(I). We, therefore, reverse the Trial Court’s holding
with regard to this issue.

               Next, we consider whether the evidence preponderates against the Trial Court’s
finding that the proof failed to establish actionable conduct by the State under Tenn. Code
Ann. § 9-8-307(a)(1)(J), which provides the potential for liability based upon:

       (J) Dangerous conditions on state maintained highways. The claimant under
       this subdivision (a)(1)(J) must establish the foreseeability of the risk and notice
       given to the proper state officials at a time sufficiently prior to the injury for
       the state to have taken appropriate measures;

Tenn. Code Ann. § 9-8-307(a)(1)(J).

              As this Court explained in Goodermote:

       Our Supreme Court discussed foreseeability in McClenahan v.Cooley, 806
       S.W.2d 767 (Tenn. 1991), as follows:

              The foreseeability requirement is not so strict as to require the
              tortfeasor to forsee the exact manner in which the injury takes
              place, provided it is determined that the tortfeasor could foresee,
              or through the exercise of reasonable diligence should have
              foreseen, the general manner in which the injury or loss
              occurred. “The fact that an accident may be freakish does not
              per se make it unpredictable or unforeseen.” It is sufficient that
              harm in the abstract could reasonably be foreseen.

       McClenahan, 806 S.W.2d at 775 (citations omitted).

              It was necessary only that the plaintiff establish that the State could

                                              -22-
       have foreseen the general manner in which the injury or loss occurred. Id.

Goodermote, 856 S.W.2d at 721-22.

                The proof in the record on appeal shows that the State could have, and should
have, foreseen that harm might occur in the absence of signage or traffic devices warning
about the compound curve and the need to reduce speed to safely negotiate the curve.
Additionally, along with the proof as discussed above, Mr. Parham opined that the
interchange as designed and maintained constituted a dangerous condition. Mr. Parham
testified that the design of the ramp violated the AASHO and driver expectations and,
further, that the failure to warn drivers of the compound curve violated driver expectancy.

               Ms. Snowden admitted, when asked, that the State had a file regarding this
intersection that contained two earlier accident reports. She explained that such a file would
be created after the State received a complaint or concern regarding an intersection. Thus,
the fact that this file exists shows, by Ms. Snowden’s own admission, that the State had
received one or more complaints or concerns with regard to the intersection. She further
admitted that although there is no record of when or why the chevrons were placed, the State
would have received some type of complaint or notification about a potentially dangerous
condition on the interchange, or the chevrons would not have been installed. Thus, Ms.
Snowden’s testimony establishes that the State had actual notice about a dangerous condition
on the interchange at issue.

              Given the record before us on appeal we find and hold that the evidence
preponderates in favor of a finding that Plaintiffs established actionable conduct by the State
under Tenn. Code Ann. 9-8-307(a)(1)(J). We, therefore, reverse the Trial Court’s holding
with regard to this issue.

               Finally, we consider whether the evidence preponderates against the Trial
Court’s finding that Zachary L. Robinson was the sole proximate cause of the Accident. In
light of our determination regarding Plaintiffs’ first two issues, we find and hold that the
evidence preponderates against a finding that Zachary L. Robinson was the sole proximate
cause of the Accident. As already discussed in this Opinion, a preponderance of the evidence
supports a finding that the actions of the State were a proximate cause of the Accident and
that the State bears some portion of the fault for the Accident.

              The preponderance of the evidence as already discussed, however, also
supports a finding that while Zachary L. Robinson was not the sole proximate cause of the
accident, he was at fault. Particularly relevant to the allocation of fault to Zachary L.
Robinson is the testimony of Mr. Hamby. We note that the Trial Court specifically found

                                             -23-
that Mr. Hamby “was a most credible witness,” and we certainly see nothing in the record
to call this credibility determination into question. Mr. Hamby estimated the speed of
Zachary L. Robinson’s car as being at least 55 to 60 miles per hour and possibly as fast as
70 or 75 miles per hour. Even in the absence of sufficient speed advisory or warning signs
or indicators, the speed clearly was excessive for this roadway. Given all this, we find that
the evidence preponderates in favor of a finding that the State was 50 % at fault for the
Accident, and that Zachary L. Robinson was 50% at fault for the Accident.

                                          Conclusion

                The judgment of the Trial Court is reversed, in part, and affirmed as modified,
in part, so that 50% of fault for the Accident is assigned to the State, and 50% of fault for the
Accident is assigned to Zachary L. Robinson. As we, however, have allocated 50% of fault
for the Accident to Zachary L. Robinson and 50% to the State, the judgment of the Trial
Court in favor of the State and dismissing the claims of Wade Robinson and Melanie
Robinson, individually and as next of kin of Zachary L. Robinson, is affirmed. See McIntyre




v. Balentine, 833 S.W.2d 52 (Tenn. 1992). This cause is remanded to the Trial Court for
collection of the costs below. The costs on appeal are assessed against the Appellants, and
their surety.




                                                     _________________________________
                                                     D. MICHAEL SWINEY, JUDGE




                                              -24-
