RICHARD C. KING, and Wife,         )
KIMBERLY KING,                     )
                                   )    Appeal No.
     Plaintiffs/Appellants,        )    01A01-9505-CV-00210
                                   )
v.                                 )
                                   )
W.D. SCHOCK, INC., SOUTH CENTRAL   )    Davidson Circuit
BELL TELEPHONE COMPANY a/k/a       )    No. 93C-1649
BELLSOUTH TELECOMMUNICATIONS,      )
INC., and CHARLES LARUE,           )
                                   )
     Defendants/Appellees,         )
                                   )
NASHVILLE ELECTRIC SERVICE, VIACOM )
                                                  FILED
CABLEVISION a/k/a VIACOM           )               December 18,
INTERNATIONAL, INC., RICHARD LARUE,)                   2001
CARLOS LEWIS d/b/a CARLOS LEWIS & )
SON HOME MOVERS, METROPOLITAN      )              Cecil Crowson, Jr.
NASHVILLE AIRPORT AUTHORITY and    )               Appellate Court Clerk
THE METROPOLITAN GOVERNMENT OF     )
NASHVILLE AND DAVIDSON COUNTY,     )
ACTING BY AN THROUGH THE ELECTRIC )
POWER BOARD AND OPERATING UNDER    )
THE NAME "NASHVILLE ELECTRIC       )
SERVICE,"                          )
                                   )
     Defendants.                   )

                  COURT OF APPEALS OF TENNESSEE

                   MIDDLE SECTION AT NASHVILLE

     APPEAL FROM THE FIFTH CIRCUIT COURT OF DAVIDSON COUNTY

              THE HONORABLE WALTER C. KURTZ, JUDGE


DAVID I. KOMISAR              SANDRA L. RANDLEMAN
211 Printer's Alley Bldg.     333 Commerce Street, #2101
Suite 400                     Nashville, TN 37201-3300
Nashville, TN 37201           ATTORNEY FOR DEFENDANT/APPELLEE
                              BELLSOUTH TELECOMMUNICATIONS, INC.
CASEY E. MORELAND
Metropolitan Courthouse       ROBERT L. ESTES
3rd Floor                     Stewart, Estes & Donnell
Nashville, TN 37201           Third National Financial Center
     ATTORNEYS FOR            424 Church Street, 14th Floor
     PLAINTIFFS/APPELLANTS    Nashville, TN 37219-2392
                              ATTORNEY FOR DEFENDANT/APPELLEE
                              W.D. SCHOCK COMPANY, INC.
C. BENTON PATTON
Manier, Herod, Hollabaugh & Smith
2200 One Nashville Place
150 Fourth Avenue North
Nashville, TN 37219

CHRISTINA K. BOYER
4016 Farnam St.
Omaha, NE 68127
     ATTORNEYS FOR DEFENDANT/APPELLEE
     CHARLES LARUE


                      AFFIRMED AND REMANDED

                                        SAMUEL L. LEWIS, JUDGE
                             OPINION
       This is an appeal by plaintiffs/appellants, Richard and

Kimberly King, from the trial court's order granting summary

judgment to defendants/appellees, W. D. Schock, Co. ("Schock"),

South Central Bell Telephone Co. a/k/a Bell South

Telecommunications, Inc. ("Bell South"), and Charles LaRue.



       The underlying facts of this case developed around 1989.    In

or near that year, Metropolitan Nashville Airport Authority

("MNAA") purchased some land along Allen Road as part of a noise

abatement program.    It then began to sell the houses on the land.

Later, the new owners moved the houses to a different location.

Pursuant to a contract with MNAA, Schock maintained the land and

managed the land sales.    Brian Dillingham purchased the house

located at 842 Allen Road.    Mr. Dillingham hired Charles LaRue to

move the house.    Mr. LaRue and his employees moved the house

around 12 August 1992.    Bell South provided telephone services to

this area.



       On the night of 6 September 1992, Mr. King was riding his

motorcycle.    At some point in time, he stopped at the Majik

Market.    Marty Barnes, a Majik Market employee, asked Mr. King to

chase down a car because the driver had not paid for his or her

gas.    Mr. King proceeded east on Allen Road.   As he entered the

curve near 837 Allen Road, he claims to have seen a jumble of

cables in the middle of the right hand lane.     Mr. King lost

control of his motorcycle and crashed.



       After sending out Mr. King, Marty Barnes asked William

Pennington, Jr. and his wife, who were also on motorcycles,      if

they would go look for a man travelling down Allen Road.     The

couple agreed to help Mr. Barnes.     When they arrived at the


                                  2
scene, the accident had already occurred, but neither the police

nor an ambulance had arrived.    Mr. Pennington testified that as

he approached the scene he ran over a cable in the lying in the

road.   He also stated that his wife pulled the cable out of the

roadway.   Finally, Mr. Pennington testified that he noticed the

cable was hanging from a pole.



     Later, Marty Barnes arrived at the scene.   In his

deposition, he testified that he ran over a "tangle" of cable or

wire as he entered the curve.    He also testified that the cable

was lying on the right side of the right-hand lane and that he

noticed a wire hanging from a pole.    Finally, Mr Barnes testified

that he did not tell any of the investigating officers at the

scene about the cable.



     Appellants' theory is that someone or something disconnected

the drop wire which serviced 842 Allen Road, and this left the

wire hanging from the utility pole numbered 09832003. Somehow,

appellants contend, the wire got into the roadway.   The night of

the accident, Mr. King ran over the wire which became entangled

in the bike causing Mr. King to loose control and crash.

Interestingly, Mr. King testified that he did not know if the

bike made any contact with the wires.



     Appellees, however, argue that Mr. King's recklessness was

the proximate cause of the accident.    In support of this theory,

they point to Officer Taylor's deposition.   In his deposition,

Officer Taylor concluded that the cause of the accident was Mr.

King's inability to negotiate the curve.   Further, as to the

location of the wire, Officer Taylor testified as follows:



     Q.   Okay. Did you see any evidence out there at the
     scene, I'm talking about physical evidence now, of
     where the motorcycle left the highway or the roadway

                                 3
     and the path it took to wherever it stopped?

     A.   Yes, sir. There is a -- there was a distinct skid
     mark through the grass across a paved driveway.
     Actually, it was more metal marks that it was tire
     marks.

     . . . .

     Q.   All right.   Now, did you see some cable?

     A.   There is a pole marked there. I've got it marked
     by number, 09832003. That was probably about 15 -- I'd
     say 10 to 15 feet off the roadway.

     Q.   Okay.

     A.   There was a cable coming from that pole, and if
     I'm not mistaken, it was running east to the pole,
     laying on the ground.

     Q.   Okay. Was that cable in any way in the path of
     the motorcycle, whose path you saw, indicated by the
     gouge marks you talked about earlier?

     A.   When I got to the scene, the cable was away from
     the accident scene.

     . . . .

     Q.   Could you estimate how many feet it was away from
     the path of the motorcycle?

     . . . .

     A.   From the path of the motorcycle, where I've showed
     it laid down, I would say the cable was three or four
     feet from that laid down mark.


     As a result of the accident, Mr. King suffered serious

injuries and was permanently disabled.      He filed a complaint in

the Fifth Circuit Court of Davidson County on 3 September 1993.

Initially the only named defendant was Schock.      Later, Mr. and

Mrs. King filed an amended complaint naming numerous parties as

defendants including Bell South and Mr. LaRue.      Appellants'

amended complaint alleged that defendants were negligent with

respect to the dangling cable.    At various points in time, each

of the defendants filed motions for summary judgment.      Although

the court disposed of the motions individually, on 27 February

1995, the trial judge entered a final order dismissing all claims

against each of the defendants.       Subsequently, appellants filed

this appeal against Schock, Bell South, and Charles LaRue.

                                  4
     Appellants only issue on appeal is whether the trial court

erred in granting appellees' motions for summary judgment.     We

are of the opinion that the trial court did not err and that it

properly entered judgment in favor of appellees.    We discuss our

decision as to each appellee below.



I.   Bell South and W. D. Schock Company



     Bell South and Schock each filed a motion for summary

judgment. Bell South argued that it did not have notice of the

downed drop wire and that neither its acts nor its omissions

proximately caused appellants' injuries.   Schock claimed that

summary judgment was appropriate because it did not owe a duty to

appellants and, like Bell South, that it did not commit an act or

omission which proximately caused the accident.    In two separate

orders, the trial court granted the motions of each party.



     A.    Duty



     "No claim for negligence can succeed in the absence of any

one of the following elements:   (1) a duty of care owed by the

defendant to the plaintiff; (2) conduct 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) proximate,

or legal cause."    Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.

1993).    The issue of whether a person owes another a duty of care

is a question of law for the court to decide.     Id.   Further, the

purpose of a summary judgment proceeding "is to resolve

controlling issues of law, and that alone."     Bellamy v. Federal

Express Co., 749 S.W.2d 31, 33 (Tenn. 1988).    Because the

existence of a duty of care is a legal issue and is an essential

element of negligence, a court may grant summary judgment if it


                                 5
finds that the defendant did not owe a duty of care to the

plaintiff.   Doe v. Linder Constr. Co., 845 S.W.2d 173, 183 (Tenn.

1992); see Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859

(Tenn. 1985) (quoting W. Page Keeton et al., Prosser and Keeton

on the Law of Torts § 37, at 236 (5th ed. 1984)); Nichols v.

Atnip, 844 S.W.2d 655, 658 (Tenn. App. 1992).



     The determination of whether a person owes a duty to another

begins with the realization that "all persons have a duty to use

reasonable care to refrain from conduct that will foreseeability

cause injury to others."    Bradshaw, 854 S.W.2d at 870.   It

follows, therefore, that a duty of care does not arise unless the

injury is reasonably foreseeable based on all of the

circumstances at the time the negligent conduct occurred.        Doe,

845 S.W.2d at 178.   An injury is reasonably foreseeable when "a

reasonable person could foresee the probability of its occurrence

or if the person was on notice that the likelihood of danger to

the party to whom is owed a duty is probable."    Id.   Finally,

"the degree of foreseeability needed to establish a duty of care

decreases in proportion to the magnitude of the foreseeable

harm."   Pittman v. Upjohn Co., 890 S.W.2d 425, 433     (Tenn.

1994).



     In this case, appellants argued that Schock had a duty to

coordinate the removal of the drop wire from the utility pole and

to ensure that it was properly secured.   We can not agree with

appellants because Mr. King's injuries were not a reasonably

foreseeable consequence of Schock's failure to fulfill its duty

as defined by appellants.   Likewise, we cannot agree with

appellants' contention that Bell South had a duty to inspect the

Allen Road area for improperly cut drop wires hanging from

utility poles.


                                 6
       To begin with, it is necessary to determine when the

purported negligent act occurred.1                   On or about 23 July 1992, Mr.

Dillingham purchased the home at 842 Allen Road from MNAA.                               In

August of 1992, Mr. Dillingham entered into a house moving

agreement with Mr. LaRue.               Mr. Dillingham testified that he did

not request anyone to remove any wires from the house.                             In

addition, there was testimony that neither Richard LaRue, Ernest

LaRue, Charles LaRue, nor any of the other house movers

disconnected any wires from the house at 842 Allen Road.

Further, Ernest LaRue testified that there was not a Bell South

wire connected to the house when the house movers began to remove

the house.       Ms. McClain, who lived on Allen Road,                      testified that

she had seen the wire hanging from the pole approximately one

week prior to the accident.                She further stated that the wire was

rolled up like a water hose and placed beside the pole.                              Given

the above, it is difficult to determine when the wire was cut and

when the negligent act, leaving the wire dangling from the pole,

occurred.       Assuming that the wire was connected to the house when

MNAA sold it to Mr. Dillingham, the best point in time from which

to make the determination would be from the date of the sale and

thereafter.



       It is impossible to say that the injury was a reasonably

foreseeable probability on that day or any day thereafter because

a reasonable person could not foresee the probability of its

occurrence.        Doe, 845 S.W.2d at 178.              In order for this accident

to have occurred as appellants suggested, an unauthorized

individual had to cut the wire or something had to happen to pull

the wire down.         Next, someone would have had to roll the wire up

and place it next to the pole at least one week before the

accident.       Later, that same person or another unidentified


       1
          During oral argument, appellants stated that "the negligence was in the manner in which
that drop wire was left dangling along the pole."

                                               7
individual would have had to move the wire seventeen feet2 and

place it in the road.             Then a person, traveling on a motorcycle

at a high rate of speed in pursuit of a gas thief, would have had

to come down the road at night and run over the wire.                              Finally,

it would have to be reasonably foreseeable that the wire would

somehow get caught in the motorcycle causing the driver to lose

control and crash.             Even in a situation such as this where the

probability of injury was significant, the possibility of these

events occurring is simply too remote to impose a duty upon

either Bell South or Schock.



       A second reason that the injury was not reasonably

foreseeable is that neither Bell South nor Schock "reasonably

knew or should have known of the probability of an occurrence

such as the one which caused the [appellants'] injuries."                                Doe,

845 S.W.2d at 178.            There is no evidence in the record

demonstrating that Schock knew that there was a probability of an

improperly cut drop wire getting into the road.                           In fact,

appellants did not even argue that Schock had the necessary

notice.



       As to Bell South, however, appellants argued that because

Bell South knew or should have known about the relocation project

the probability of someone improperly cutting a drop wire was

foreseeable.         We can not agree.              The fact that the house was in a

relocation project does not increase the probability that someone

would improperly cut the drop wire.                     While it is true that it

increases the need for cutting the wires, it does not increase

the likelihood of them being negligently cut and left dangling.

Thus, the issue of whether Bell South had notice of the

relocation project is irrelevant because knowledge of the project


       2
        In an affidavit, a Bell South employee testified in that he went to the accident scene and
measured the distance between the road and the pole. It was seventeen feet and three inches.

                                                8
would not have lead to notice that the likelihood of the danger

to appellants was probable.



     In further support of this position, there was no evidence

that Bell South had notice that the drop wire was improperly cut.

Bell South did receive requests to terminate telephone services

at 835, 836, 837, 840, and 842 Allen Road, but the requests did

not include the removal of the drop wires from the houses.         In

addition, there is no evidence that Bell South received all of

these requests at the same location.        Bell South has 523 service

representatives in five different Tennessee cities.        These

representatives service customers in Tennessee, Alabama, North

Carolina, Georgia, Kentucky, and Mississippi.        Finally, no one

called to report that a drop wire was dangling from a pole or

that someone was tampering with the wires.



     Because appellants' injuries were not reasonably

foreseeable, neither Schock's nor Bell South's duty of care

arose.    Doe, 845 S.W.2d at 178.       Summary judgment is appropriate

when an essential element of negligence is missing.         In this case

that element is the existence of a duty of care.         Therefore, the

trial court did not err in granting summary judgement as to

appellees Schock and Bell South.



     B.     Proximate Cause



     In order for a plaintiff to prevail in a case based on

negligence, the plaintiff must prove that the defendant's act or

failure to act breached a duty of care owed to plaintiff and

proximately caused plaintiff's injuries.          Bradshaw, 854 S.W.2d

at 869.    The Tennessee Supreme Court has explained the concept of

proximate cause as follows:



                                    9
     "An injury that is the natural and probable consequence
     of an act of negligence is actionable. But an injury
     which could not have been foreseen nor reasonably
     anticipated as the probable result of an act or
     omission is not actionable; and such act or omission is
     either the remote cause or no cause whatever of the
     injury."

Moody v. Gulf Refining Co., 142 Tenn 280, 290, 218 S.W. 817, 819

(1919) (quoting Kreigh v. Westinghouse, C. K. & Co., 152 Fed.120,

122 (1907)).   It is not necessary to establish that every aspect

of the injury was foreseeable.    Instead, the plaintiff only need

show that the accident in general was foreseeable.     McClenahan v.

Cooley, 806 S.W.2d 767, 775 (Tenn. 1991).     In addition, the

negligent conduct "must have been a 'substantial factor' in

bringing about the harm. . . ."    Id.   A party may break the chain

of proximate cause by establishing the existence of an

unforeseeable, intervening cause of the accident.     Id.   The issue

of proximate cause is one for the jury.      Nevertheless, a court

may rule on the issue when the facts and the inferences drawn

from them are such that "all reasonable persons must agree on the

proper outcome."   Id.



     The issues of whether the accident was foreseeable and

whether the omissions were substantial factors are irrelevant

because there were at least two intervening acts which relieved

Schock and Bell South of liability.      One of these acts was Mr.

King driving his motorcycle at a high rate of speed at night

while pursuing an alleged gas thief.      The other was perpetrated

when an unidentified individual moved the wire into the road.

Viewing this factual situation at the point in time when the wire

was cut, coiled up, and placed next to the pole, it is apparent

that the likelihood that someone would move it onto the road

seventeen feet away is unforeseeable.      It is also unforeseeable

that a person, other than a police officer, would come down the

road on a motorcycle in hot pursuit of another vehicle.


                                  10
     Even if one concludes that the intervening acts were

foreseeable, Schock's and Bell South's omissions were not the

proximate cause of appellants' injuries for a second reason.       In

order for appellants to establish that Schock's and Bell South's

omissions were the proximate causes of the accident, they must

prove that the motorcycle came into contact with the wire.        The

evidence in the record, however, failed to establish this fact.

In his deposition, Mr. King testified as follows:


     Q.   Do you know for sure that your tires, or any part
     of the motorcycle, came in contact with the cables?

     A.     Am I sure?

     Q.     Yes.

     A.     No, I couldn't say yes, that they did.



Appellants only other evidence is the affidavit of Mr. Pennington

and the deposition of Martin Barnes.    Mr. Pennington testified

that he and his wife arrived at the accident scene before the

police or the ambulance.    He claims that he ran over a cable as

he drove down Allen Road on his motorcycle.    Finally, he stated

that his wife pulled the cable out of the road so that no one

else would hit it.    Mr. Barnes, who was at the accident scene at

the same time as the police, also testified that he ran over some

wire laying in the main travel lane.    This evidence is

contradictory and fails to establish that Mr. King's motorcycle

touched the wire.



     The issue of whether the motorcycle hit the wire is material

because it is essential to the determination of proximate cause.

Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).      Appellants,

however, have failed to provide the court with evidence to

contradict the testimony of Mr. King that he did not hit the

wire.    Id.; Armes v. Hulett, 843 S.W.2d 427, 429 (Tenn. App.

1992).    Thus, there is no genuine issue for trial.    Because

                                 11
appellants can not prove contact with the wire, they can not

establish proximate cause.    Therefore, the trial court did not

err when it granted appellees' motions for summary judgment.



II.    Charles LaRue



       Appellants claim that the trial court erred when it granted

LaRue's motion for summary judgment.      This issue is without

merit.    As previously stated, summary judgment is appropriate

when it is shown that one of the essential elements of negligence

is missing.    Doe, 845 S.W.2d at 183; see Lindsey, 689 S.W.2d at

859 (quoting Prosser , Sec. 37 at 236); Nichols, 844 S.W.2d at

658.     A moving party will prevail if it provides the court with

uncontradicted evidence of the nonmoving parties' inability to

establish an element of negligence.      Armes, 843 S.W.2d at 429.

In other words, the moving party's evidence must be such that a

reasonable juror could not legitimately resolve that fact in

favor of one side or the other.        Byrd, 847 S.W.2d at 215.



       In this case, LaRue provided the trial court with a great

deal of evidence indicating that he did not disconnect the wire.

The house moving agreement between Dillingham and LaRue did not

authorize LaRue to remove any wires or cables from the house.

Charles LaRue and all of his employees testified that they did

not remove any wires or cables from the house at 842 Allen Road.

LaRue also testified that his standard procedure was to call the

appropriate utility company whenever he needed a wire or cable

removed from a house.     In fact, Ms. McClain testified that LaRue

asked her to call NES because he needed the electrical wire

disconnected from the house.     Further, Ms. McClain testified

that, although she had seen LaRue and his men preparing the house

at 842 Allen Road for removal, she had not seen any of the men or


                                  12
LaRue disconnect any wires from any of the houses they moved.

This evidence establishes that LaRue did not do anything which

could be considered a breach of his duty of care.



     Therefore, the next issue is whether appellants provided the

trial court with any evidence that LaRue did cut the wire and,

thus, breached his duty of care.         Appellants contend that the

fact that LaRue moved the house produces a reasonable inference

that he cut the wire.   When reviewing a trial court's ruling on a

motion for judgment, this court is to "view the evidence in a

light favorable to the nonmoving party and allow all reasonable

inferences in his favor."     Id.   Without additional evidence,

however, this court can not say that moving the house creates a

reasonable inference that LaRue cut the wire.         The connection is

simply too tenuous.   Because appellants failed to establish that

there is a genuine issue as to the material fact of breach of

duty, the trial court correctly determined that summary judgment

was appropriate.



     Therefore, it follows that the judgment of the trial court

is affirmed in all respects and is remanded for any further

necessary proceeding. All costs on appeal are taxed to

appellants.




                            ____________________________________
                            SAMUEL L. LEWIS, JUDGE


Concur:


____________________________________
HENRY F. TODD, P.J., M.S.



____________________________________
BEN H. CANTRELL, JUDGE


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