                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

BILLY J. JOHNSON, ET AL.,                        Claims Commission No. 101-959
                                                 C.A. No. 02A01-9609-BC-00224
       Plaintiff,
                                                 Hon. Martha Brasfield,

v.
                                                                      FILED
                                                 Commissioner of Claims

                                                                     September 24, 1997
STATE OF TENNESSEE,
                                                                      Cecil Crowson, Jr.
       Defendant.                                                     Appellate C ourt Clerk

MIKE MOSIER and J. COLIN MORRIS, Mosier & Morris, Jackson, Attorneys for
Plaintiff.

JOHN KNOX WALKUP, Attorney General and MARY G. MOODY, Assistant
Attorney General, Nashville, Attorneys for Defendant.

REVERSED AND REMANDED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

       Joshua David Johnson (hereinafter “Josh”), age 4, was struck and injured by a

van driven by Leeann Waldrop on a Jackson city street. At the time of the accident Ms.

Waldrop was an employee of the Tennessee Department of Human Services and was

acting within the scope of her employment. Josh’s father, Billy J. Johnson, (hereinafter

“Plaintiff”) filed a notice of claim on his behalf against the State of Tennessee, alleging

negligence on the part of Ms. Waldrop. This claim was transferred to the Claims

Commission, who after a hearing found that Plaintiff had failed to carry the burden of

proof that Ms. Waldrop was driving her van at an excessive rate of speed or that she

failed to keep a proper lookout ahead. The Commissioner found from all the proof that

the proximate cause of the accident was Josh suddenly darting from behind a dumpster

into the path of Ms. Waldrop’s van. While Plaintiff has appealed, we are of the opinion

that Defendant has more clearly stated the issues. They are: whether the Commissioner

erred in finding that: (1) Ms. Waldrop was not driving the van at an excessive rate of

speed at the time of the accident; (2) Ms. W aldrop was maintaining a proper lookout

ahead; (3) the proximate cause of the accident w as the act of Josh in riding his bicycle

into the path of the state van. For the reasons hereinafter stated, we reverse the decision
of the Commissioner.

      We adopt as our statement of facts a portion of the final order of the

Commissioner, wherein the facts were set forth as she found them:


      The accident occurred at approximately 11 a.m. on June 4, 1991, on
      Westwood Gardens Drive in Jackson, M adison C ounty, Tennessee.
      Westwood Gardens Drive is depicted in Exhibit 8, which was not drawn
      to scale. It is a two-lane street running north and south with angled
      parking on each side of the street. There are many residential units
      located on the street in w hich many children who play in this area live.
      There is a sidewalk which runs north and south between the angled
      parking spaces and the yards and the residential units. Because of the
      large number of children who live in the area, the posted speed lim it is
      fifteen miles per hour.

      The southernmost end of Westwood Gardens Drive is a dead-end. The
      northernm ost part of the street trisects into W estwood Avenue. A fire
      station is located at the southwest corner of this trisection. Directly south
      of the fire station, facing Westwood Gardens Drive is the Boys Club
      where boys and girls who live in the area go for activities during the
      summ er. Snake Hill road trisects Westwood Gardens D rive on the east
      side of the street approximately mid-way between the dead-end section
      and Westwood Avenue. A corner market is located at the northeast corner
      of the trisection of W estwood Gardens Drive and Snake Hill Road. A
      Dempsey dumpster is located on the east side of the street in the angled
      parking spaces north of the corner m arket.

      On June 4, 1991, Josh lived w ith his parents, Billy J. Johnson and Phyllis
      Johnson, and two older brothers, ages six and eight, in Unit 29B which is
      a duplex unit located on the west side of the street to the south and west of
      the corner m arket. On this day, Josh’s two brothers had gone to the Boy’s
      Club. Josh, who was four, was too young to attend the club. He was
      outside playing with a neighbor’s child. Once during the morning, he had
      come inside to get a drink of water and had returned outside. At some
      point, he left his friend and began riding a bicycle.

      Ms. W aldrop w as a case worker for the Department of Hum an Services.
      At approximately 11 a.m. she had completed a visit with a client who
      lived at the dead-end section of Westwood Gardens Drive. She was
      familiar with the area and was aware of the large number of children who
      played in the area. She was proceeding north on Westwood Gardens
      Drive toward Westwood Avenue in a 1986 Dodge Van. She approached
      the market and noticed a large number of children and slowed dow n. Mr.
      Gerald Thomas, the Program Director of the Boy’s Club, had
      accompanied this group of approximately fifty children from the Club to
      the m arket so that they could purchase their lunches. He was standing in
      the parking lot at the market when he observed Ms. W aldrop as she
      proceeded north on Westwood Gardens Drive. At approximately the
      same time, he also observed Josh who was riding his bicycle on the
      sidewalk on the east side of the street (same side as the market) and
      heading south toward the m arket. He realized that Josh was about to turn
      into the street but did not see the actual turn. Josh did turn into the street
      and was struck by Ms. W aldrop’s van. Ms. Waldrop never saw Josh. She
      heard a loud noise, looked in her rearview m irror, saw the child lying in
      the street, realized she had struck him with her van and stopped. The
      bicycle was dragged under the van from the point of impact to the point


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       where Ms. W aldrop stopped the van.


       In this case Plaintiff has the duty of proving the following elements of his claim:

(1) a duty of care owed by the Defendant to the Plaintiff; (2) conduct of the Plaintiff

falling below the applicable standard of care amounting to a breach of that duty; (3) an

injury or loss; (4) causation in fact; and (5) proxim ate, or legal cause. McClenahan v.

Cooley, 806 S.W .2d 767, 774 (Tenn. 1991).

       The scope of this court’s review of a decision of the Claims Commissioner is de

novo upon the record before the Comm issioner. All findings of fact made by the

Commissioner come to this court with a presumption of correctness, unless we find that

the evidence preponderates against these findings, requiring an affirm ance by this court.

T.C.A. § 50-6-225(e)(2).

                                    I. The Speed Issue.

       There w ere three witnesses who testified concerning the issue of M s. Waldrop’s

speed. One was M s. Waldrop herself. The other, also an eyew itness, was Gerald

Thomas, director of the Boys Club, located there in Westwood Gardens. The third was

the investigating officer of the Jackson Police Departm ent, who, in addition to

testifying as to the location of the state van and the slide marks made by the dragging of

the bicycle, also testified as to only what Ms. Waldrop told him in regard to her speed

at the time he made his investigation at the scene.

       Larry Freeman, a veteran of twenty-three years on the Jackson Police

Department, was the investigating officer. He testified that at the scene Ms. W aldrop

stated that she was driving north on Westwood Gardens when Josh came out from

behind a dum pster [located to her right] riding a bicycle and that he came out so fast

that she did not realize what had happened until she looked in the rearview mirror and

saw the child lying in the street. Officer Freeman further testified that Ms. W aldrop

stated that “she was not traveling any more than twenty miles per hour and probably not

that fast.” The posted speed limit is concededly fifteen miles per hour.

       Photographs taken by Officer Freeman w ere introduced at the hearing below.

One of the photographs was taken while the state van was still parked in the roadway



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where it had com e to a stop after the accident. W hile the photograph shows no skid

marks from tires, it does show scratch marks or “slide marks” as described by the

officer. These slide marks, continuous in nature, were described as having been made

by the bicycle of the lad that had been caught underneath the van. While the officer did

not measure the length of these marks, by observing them in the photograph from the

beginning point up to the rear of the van it would appear to be clearly at least fifty feet,

if not slightly m ore.

    The witness Thomas, program director for the Boys Club, was accompanying a

group of boys from the club, som e fifty in number, down to a neighborhood m arket in

the project to get lunch. Thomas was standing near the market, south of the dumpster

that Josh came out from behind when he observed the state van driven by Ms. Waldrop

pass by him at the market. Thomas was not exact in his testimony but, on one occasion

he stated that she was going at least twenty to twenty-five miles per hour and

subsequently that she was traveling between fifteen to twenty-five m iles per hour. In

response to a question as to whether the speed Ms. Waldrop was traveling was safe

under the circumstances, Thomas responded in the negative, stating that they had

problems in this housing project all the time with children crossing the street and that

one had to be very cautious in this area.

       Ms. W aldrop testified that she had been employed by the Tennessee Department

of Human Services for fourteen years and that she had been in and out of Westwood

Gardens for many years. She was fully aware that many children played unsupervised

in the streets. She stated that just before the accident she had realized that it was near

lunch time and she was indecisive as to whether to go to her home, in the

neighborhood, for lunch or to return to the office. She had made the decision to return

to the office and was proceeding north to Westwood Avenue when the accident

happened. She stated that while she did not see her speedometer, she was of the

opinion that she was going fifteen to twenty miles per hour.

       Most respectfully, in our opinion the evidence preponderates against the finding

of the commissioner that the speed of Ms. Waldrop was not a contributing cause or

approximate cause of the accident.


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                            II. Maintaining a Proper Lookout.

       A driver of a vehicle is required to exercise ordinary care in maintaining a proper

lookout, such as an ordinary person would do under the sam e or similar circumstances.

Coleman v. Byrnes, 242 S.W .2d 85 (Tenn. App. 1950).

       Gerald Thom as, an eyewitness to many of the events herein, testified that just

before the accident Josh was riding his bicycle in a southerly direction on the sidewalk

on the east side of the street. At that time M s. Waldrop was driving north on the same

street, with some distance between the two parties involved. Ms. Waldrop’s view of

young Josh to the right side of the street was blocked in part by the presence of a large

dum pster container, located in the parking area, along with some parked autom obiles.

Thomas testified that about two to three seconds elapsed between the time Josh turned

to his right to cross the street, placing him in the path of Ms. Waldrop’s van, and the

sound of the impact of the van striking Josh and his bike.

       Ms. W aldrop testified that she never saw Josh or his bike, and thus never applied

her brakes, until, after hearing a noise which w as apparently the scraping of the bicycle

under the van on the pavem ent. She looked in her rearview m irror, saw the lad lying in

the street behind the van and thereupon applied her brakes, bringing the van to a stop.

       In addition, a photograph of the van taken by Officer Freeman at the scene shows

that the damage from the collision was on the front of the van, to the left or on the

driver’s side of the front. The photograph showing the bicycle under the driver’s side

of the van and the location of the slide marks in the asphalt made by the bicycle placed

the van near the center of the road. Albeit a short distance, Josh and his bicycle could

have been seen by a motorist in the roadway as he traveled from the west side of the

dumpster to the point in the roadway where the collision occurred. We are of the

opinion that the evidence preponderates against the finding of the commissioner that at

the time of the accident Ms. W aldrop was maintaining a proper lookout ahead and

acting in a reasonable and prudent manner.

                                  III. Proximate Cause.

       In her final order, the Commissioner was of the opinion that proximate cause

was the determinative issue in this litigation. We agree. “What is meant by <proximate


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cause’ is not necessarily that which is next or last in time or place, but that which is a

procuring, efficient and predominate cause. Closeness in causal relation, rather, is the

meaning.” (Citations Omitted). Coleman v. Byrnes, 242 S.W.2d 85, 91 (Tenn. App.

1950), See also Nash v. Love, 447 S.W.2d 593, 598 (Tenn. App. 1968). Considering

our disposition of the prior two issues, we are of the opinion that the evidence

preponderates against the comm issioner’s finding that Josh’s act of darting in front of

Ms. Waldrop’s vehicle was the proximate cause of the accident and his injuries. In our

opinion, there is sufficient evidence to establish that excessive speed under the

circumstances and the failure of Ms. Waldrop to maintain a proper lookout ahead each

could serve as a proxim ate cause.

       Accordingly, the judgment of the com missioner is reversed. This cause is

remanded to the Tennessee Claims Commission for such further proceedings as are

necessary not inconsistent with this opinion. Costs in this cause on appeal are taxed to

Defendant, for w hich execution m ay issue if necessary.



                                           __________________________________________
                                           TOMLIN, SR. J.


                                           __________________________________________
                                           CRAWFORD, P. J. W.S.      (CONCURS)


                                           __________________________________________
                                           HIGHERS, J.             (CONCURS)




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