                                                                                         05/19/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 4, 2020 Session

 SHAWN GRAY, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE
 ESTATE OF ANGELA G. GRAY, DECEASED v. JEREMY G. BAIRD ET
                           AL.

                Appeal from the Circuit Court for Rutherford County
                        No. 70471 Barry R. Tidwell, Judge
                     ___________________________________

                           No. M2019-01056-COA-R3-CV
                       ___________________________________

        This is an appeal of the trial court’s decision to summarily dismiss a claim of
vicarious liability against the owner of the vehicle that was involved in a fatal vehicular
accident. The driver of the vehicle was the son and employee of the vehicle owner, and it
is alleged that the driver was acting in the course and scope of his employment with the
vehicle owner at the time of the collision. The owner of the vehicle filed for summary
judgment, and the trial court found the affidavits and deposition testimony of the owner
and his son refuted the prima facie evidence of vicarious liability created by Tenn. Code.
Ann. §§ 50-10-311 and -312 that the son was acting in the course and scope of his
employment at the time of the collision. The plaintiff appeals contending that summary
judgment was not proper because the owner and his son were interested witnesses and
their credibility was at issue. We agree. It is undisputed that the son’s employment
necessitated his travel on the road where the collision occurred, and whether the son had
deviated from the defendant’s business prior to the collision is a material fact that is in
dispute. For this reason, we reverse the trial court’s grant of summary judgment and
remand for further proceedings.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                            Reversed and Remanded

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which RICHARD
H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

Donald N. Capparella, Mathieu R. Berman, Sean James Martin, Kimberly Macdonald,
and Lindsay Paige Norfleet, Nashville, Tennessee, for the appellant, Shawn Gray.

Jamie Morrell, Brentwood, Tennessee; Bradford Box and Brandon Wayne Reedy,
Jackson, Tennessee; and John Richardson Rucker, Jr., Murfreesboro, Tennessee, for the
appellee, Jeremy G. Baird

Bradford Box and Brandon Wayne Reedy, Jackson, Tennessee; and John Richardson
Rucker, Jr., Murfreesboro, Tennessee, for the appellee Terry Baird.

                                             OPINION

        This case arose out of a motor vehicle collision that occurred on March 4, 2015,
when a vehicle operated by Jeremy Baird (“Jeremy”) struck and killed Angela Gray
while driving on Highway 109 in Wilson County. The vehicle Jeremy was driving was
owned by his father Terry Baird (“Mr. Baird”), and it was utilized by Mr. Baird and
others for both personal and business uses. At the time of the collision, Jeremy worked
for his father’s business, Exposure Advertising (“Exposure”).

       Shawn Gray (“Plaintiff”), who was Angela Gray’s husband, commenced this
action by filing a complaint for wrongful death and loss of consortium against Jeremy
and Mr. Baird.1 The complaint, inter alia, alleged that the accident and Angela Gray’s
injuries and death were the result of the negligent acts and omissions of Jeremy and that
Mr. Baird was vicariously liable for the death of Angela Gray because she died in a
vehicular collision with Jeremy while he was acting in the course and scope of his
employment working for Mr. Baird. 2

      The only issue on appeal is whether the trial court erred by granting summary
judgment for Mr. Baird on Plaintiff’s assertion of vicarious liability under the doctrine of
respondeat superior.

       In support of his Motion for Summary Judgment, Mr. Baird claimed that the
undisputed evidence showed Jeremy completed his work for the day before the collision
occurred. Plaintiff filed a proper response in opposition to the motion noting that the
evidence Mr. Baird relied on—which consisted solely of the testimony of Mr. Baird and
Jeremy—was insufficient to refute the prima facie evidence of vicarious liability created
by Tenn. Code. Ann. §§ 50-10-311 and -312 because Mr. Baird and Jeremy were
interested witnesses. Furthermore, Plaintiff filed a Statement of Facts and Disputed Facts


        1
          Candis Lindsay and Sonya Baird were also named as defendants. Cadis Lindsay was driving a
third vehicle that was incidentally involved in the accident. Sonya Baird is the wife of Terry Baird and
mother of Jeremy Baird. All claims against these two defendants were summarily dismissed and Plaintiff
does not appeal the dismissal of his claims against Candis Lindsay or Sonya Baird.
        2
         The complaint also asserted a claim based on the Family Purpose Doctrine but that claim was
dismissed and Plaintiff does not appeal the trial court’s grant of summary judgment on his claim.




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by which he disputed many of the material facts Mr. Baird relied on in his Statement of
Undisputed Facts. Plaintiff also cited evidence from the depositions of Jeremy, Mr. Baird,
Sonia Baird, Jeremy’s mother and the wife of Mr. Baird. In particular, Plaintiff disputed
whether Jeremy had completed his work duties and changed his route to pick up a pizza
for his family dinner later in the day. Plaintiff contended this disputed fact is material to
the issue and there exists a genuine issue concerning whether Jeremy was or was not
acting in the course and scope of Mr. Baird’s employment at the time of the fatal
collision.

      In its Order of October 29, 2018, the trial court granted Mr. Baird’s Motion for
Summary Judgment. The court reasoned that Jeremy was engaged in personal matters
when the collision occurred:

       . . . Defendant Jeremy Baird was picking up a pizza to bring to his . . . wife
       and children when the collision occurred. The Court finds that this activity
       is not within the course and scope of his employment with Exposure
       Advertising. In fact, the Court finds that the Defendant Jeremy Baird had
       just completed the one task he was asked to perform under his employment
       duties that day: to drop off a check in Gallatin, Tennessee. The Court finds
       that although the Defendant Jeremy Baird obtained permission from [Mr.]
       Baird to pick up [a] pizza, this activity was unrelated to the business of
       Exposure Advertising and the employment of Defendant Jeremy Baird. The
       fact that the Defendant Jeremy Baird picked up a pizza on his way home
       from performing the work-related task is not within the course and scope of
       his employment; therefore, the doctrine of Respondeat superior as to [Mr.]
       Baird does not apply.

       This appeal followed.

                                          ISSUES

       Plaintiff raises two issues on appeal:

       1. Whether the trial court failed to appropriately apply Tenn. Code Ann.
          §55-10-311 and §55-10-312 as prima facie evidence of the vicarious
          liability of the defendant under the doctrine of respondeat superior,
          when (1) Terry Baird admitted he bought, registered, and titled in his
          name for personal and business use the vehicle that Jeremy Baird drove
          during the collision; and (2) no disinterested witnesses testified to
          support Terry Baird’s motion for summary judgment that Jeremy Baird
          was no longer on company business at the time of the collision, as
          required by law?



                                            -3-
       2. Whether trial court erred in granting Terry Baird’s motion for summary
          judgment when (1) genuine issues of material fact remained regarding
          whether Jeremy Baird planned to return the check to Terry Baird after
          picking up the pizza, and (2) whether the trip to pick up pizza was a
          minor deviation when (a) it was disputed whether he was on his way
          back to deliver the check, and (b) his father/employer, Terry Baird, had
          given Jeremy Baird permission to pick up the pizza?

                                 STANDARD OF REVIEW

       This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.
In so doing, we consider the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692,
695 (Tenn. 2002).

        Summary judgment should be granted when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for
summary judgment does not bear the burden of proof at trial, it “may satisfy its burden of
production either (1) by affirmatively negating an essential element of the nonmoving
party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the
summary judgment stage is insufficient to establish the nonmoving party’s claim or
defense.” Rye, 477 S.W.3d at 264 (emphasis in original).

       When a motion for summary judgment is made and supported as provided in
Tenn. R. Civ. P. 56, the nonmoving party may not rest on the allegations or denials in its
pleadings. Id. at 265. Instead, the nonmoving party must respond with specific facts
showing there is a genuine issue for trial. Id. A fact is material “if it must be decided in
order to resolve the substantive claim or defense at which the motion is directed.” Byrd v.
Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a reasonable jury
could legitimately resolve that fact in favor of one side or the other.” Id.

                                        ANALYSIS

       Plaintiff contends that summary judgment was inappropriate because Tenn. Code.
Ann. §§ 55-10-311 and -312 establish prima facie evidence that an employee is acting
within the scope of employment when the employee is driving a vehicle owned by the
employer, and this evidence cannot be overcome on summary judgment with nothing
more than the testimony of interested witnesses.


                                           -4-
       Plaintiff also contends that inconsistencies and ambiguities in the testimony of Mr.
Baird, his wife Sonya Baird, and Jeremy create a genuine issue of material fact regarding
whether Jeremy had completed his work duties when the collision occurred. We agree
with Plaintiff on both matters.

                 I.        PRIMA FACIE EVIDENCE UNDER §§ 55-10-311

       To impose liability in cases involving injuries caused by the operation of an
automobile under the theory of respondeat superior, “it is necessary to show that the
operator of a vehicle was acting as a servant or employee of the owner and in the course
and scope of the employment at the time of the accident.” Hamrick v. Spring City Motor
Co., 708 S.W.2d 383, 386 (Tenn. 1986). The purpose of Tenn. Code. Ann. § 55-10-311 is
“to create one or more new rules of evidence . . . under which mere proof of ownership of
an automobile effecting an injury, being negligently operated, should establish a prima-
facie case of liability . . . against the owner.” Id. at 387. The statute provides, in relevant
part:

       In all actions for injury to persons and/or to property caused by the
       negligent operation or use of any automobile, . . . proof of ownership of
       the vehicle shall be prima facie evidence that the vehicle at the time of the
       cause of action sued on was being operated and used with authority,
       consent and knowledge of the owner [and] that the vehicle was then and
       there being operated by the owner, or by the owner’s servant, for the
       owner’s use and benefit and within the course and scope of the
       servant’s employment. . . .

Id. § 311(a). “Prima facie evidence is that which, standing alone, unexplained or
uncontradicted, is sufficient to maintain the proposition affirmed.” Macon Cnty. v. Dixon,
100 S.W.2d 5, 9 (Tenn. Ct. App. 1936) (emphasis added). Because Tenn. Code. Ann. §
55-10-312(a) has the same effect, we need only consider § 311 for the purposes of this
appeal. Ferguson v. Tomlin, 656 S.W.2d 378, 379 n.3 (Tenn. Ct. App. 1983).

       Mr. Baird does not dispute that Jeremy was his employee or that Jeremy was
driving Mr. Baird’s vehicle with Mr. Baird’s authority, knowledge, and consent. But Mr.
Baird disputes that Jeremy was acting within the course and scope of his employment at
the time of the crash.

        Because Tenn. Code. Ann. § 55-10-312(a) establishes a prima facie case of
liability, the statute “has the effect of placing the burden of proof upon the owner to
overcome that case by evidence.” Hamrick, 708 S.W.2d at 387; see Stone v. City of
McMinnville, 896 S.W.2d 548, 550 (Tenn. 1995) (recognizing that when a party produces
evidence to support a prima facie case, “the burden shifts to the opposing party to present
countervailing evidence.”). Summary judgment on a claim falling under § 55-10-312 is
appropriate only if the countervailing evidence is “so strong that reasonable minds could

                                             -5-
not differ.” Hamrick, 708 S.W.2d at 387. In other words, “[f]or a question of fact to exist,
reasonable minds must be able to differ over whether some alleged occurrence or event
did or did not happen or whether a particular condition did or did not exist.” Wilson v.
Rubin, 104 S.W.3d 39, 48 (Tenn. Ct. App. 2002) (citations omitted). Accordingly,
“[w]hen a material fact is in dispute creating a genuine issue, when the credibility of
witnesses is an integral part of the factual proof, or when evidence must be weighed, a
trial is necessary because such issues are not appropriately resolved on the basis of
affidavits.” Byrd, 847 S.W.2d at 216. As Plaintiff correctly states in his brief:

       Tennessee Code Annotated sections 55-10-311 and 55-10-312 establish a
       prima facie case that a business vehicle is being operated within the course
       and scope of employment and for the registered owner’s use and benefit.
       Thurmon v. Sellers, 62 S.W.3d 145, 152 (Tenn. Ct. App. 2001). To
       overcome this strong presumption, the owner must present “uncontradicted
       evidence to the contrary coming from witnesses whose credibility is not in
       issue.” Russell v. City of Memphis, 106 S.W.3d 655, 657 (Tenn. Ct. App.
       2002); see also Thurmon, 62 S.W.3d at 152. Tennessee law is clear that
       witnesses who are interested in the outcome of a case place their credibility
       in issue. Godfrey v. Ruiz, 90 S.W.3d 692, 696 (Tenn. 2002). Accordingly,
       testimony from interested witnesses is insufficient to overcome the strong
       presumption of the prima facie case of the owner-driver agency relationship
       created under Tennessee statute. Id.

        Thus, as our Supreme Court has reasoned, summary judgment is not appropriate
when the countervailing evidence consisted solely of the defendants’ testimony because
“their status as interested witnesses places their credibility in question.” See Godfrey, 90
S.W.3d at 696. Similarly, summary judgment is not proper when it was “possible to draw
different inferences from” the countervailing testimony. See Hamrick, 708 S.W.2d at
388; cf. Collazo v. Haas, 2011 WL 6351865 (finding genuine issue of fact when owners
testified that no other employees had permission to drive truck, and the accident occurred
at night in location where employer had no ongoing jobs). Moreover, summary judgment
is improper when the countervailing evidence consisted of the affidavits of a defendant
and his son because they were interested witnesses. Strine v. Walton, 323 S.W.3d 480,
488 (Tenn. Ct. App. 2010); see also Lindsey v. Baker, No. E2009-02451-COA-R3-CV,
2011 WL 6288034, at *7 (Tenn. Ct. App. Feb. 10, 2011) (affidavits from a defendant
mother and her son insufficient to overcome evidence created by § 311).

        On the other hand, we acknowledge that this court found summary judgment was
appropriate when an employee was “on-call,” but it was “undisputed that [the employee]
was not scheduled to work on the day of the accident, that he was not responding to a
call, and that he was not otherwise engaged in City business.” Russell v. City of Memphis,
106 S.W.3d 655, 658 (Tenn. Ct. App. 2002). We also found summary judgment was
appropriate when the countervailing evidence consisted of a defendant’s interrogatory

                                           -6-
response, denying there was an agency relationship between him and his daughter’s
roommate. Ferguson, 656 S.W.2d at 383; see also Daniels v. Huffaker, No. E2014-
00869-COA-R3-CV, 2015 WL 2256788, at *6 (Tenn. Ct. App. May 12, 2015) (finding
no evidence “that the vehicle was being operated by the owner’s employee”); Yearby v.
Shannon, No. 03A01-9509-CV-00345, 1996 WL 87446, at *4–5 (Tenn. Ct. App. Feb. 29,
1996) (finding “[n]either from the unrefuted facts nor the inferences to be drawn
therefrom could reasonable minds differ” when the countervailing evidence consisted of
owner’s affidavit testimony); Redd v. Air-Conditioning Serv., Inc., No. 88-149-II, 1988
WL 97227, at *3 (Tenn. Ct. App. Sept. 23, 1988) (finding employer-owner “presented
[countervailing] proof upon which reasonable minds could not differ” when it was
undisputed that employee took employer’s truck home, drank five beers, and then left to
find his own car).

       As demonstrated, a myriad of circumstances may give rise to a prima facie case
under § 55-10-311 and, thus, these cases do not lend themselves to a bright-line rule on
what type of countervailing evidence is sufficient to prevail on a motion for summary
judgment. Rather than attempt to fashion such a rule, we need only return to a
fundamental precept of Rule 56: when considering a motion for summary judgment,
“[t]he court is simply to overrule the motion where a genuine dispute exists as to any
material fact.” Byrd, 847 S.W.2d at 211. A “genuine issue” exists if “a reasonable jury
could legitimately resolve that fact in favor of one side or the other.” Rye, 477 S.W.3d at
264. In this case, we find a reasonable jury could legitimately resolve the issue of
whether or not Jeremy was acting within the course and scope of his employment when
the collision occurred.

        Here, it is undisputed that Jeremy drove Mr. Baird’s vehicle on the afternoon of
the crash to pick up a check from one of Mr. Baird’s clients in Gallatin, Tennessee, and
that the car crash occurred after Jeremy picked up the check but before it was delivered to
his employer, Mr. Baird. Nevertheless, Mr. Baird and Jeremy testified in their depositions
that Jeremy’s workday was over after he picked up the check. According to Jeremy, he
usually worked from 8 a.m. to 3 p.m. He did not need to keep track of his hours because
he was paid a flat rate for every day he worked. Although Jeremy typically used his own
car, his car was being repaired on the day of the crash. Thus, Jeremy borrowed Mr.
Baird’s car. Jeremy knew that the trip to Gallatin would take him close to Lebanon,
Tennessee, where his favorite pizzeria was located, and he planned to pick up a pizza for
dinner. Jeremy also planned to keep his father’s car overnight because he “was getting
supper and taking that home.”

      Mr. Baird’s wife, Sonya Baird, who handled Mr. Baird’s accounting, testified that
Jeremy did not always return checks to the office at the end of the day:

       I don’t know that he would have brought the check. He doesn’t always do
       that. He might have brought it the next morning, because he was going to
       get dinner, and he probably would have gone home to eat dinner. He was

                                           -7-
       our son. So we wouldn’t have been so strict to say he had to do that. The
       banks were closed. It wouldn’t have mattered to us.

       Similarly, in his deposition, Mr. Baird testified that he did not expect Jeremy to
return to the office after picking up the check, and Jeremy’s workday was over whenever
he got “his stuff done.” Mr. Baird stated that he knew Jeremy wanted to pick up a pizza
on the way home:

       The purpose for his drive was since he was going for me, that he wanted
       pizza. It was in Lebanon. Like he said, it’s just a place to go get pizza. He
       just said, “Hey, I’m going to—you know, is it all right? When I get
       through, can I got get a pizza?” I said, “Well, sure. Just let me know when
       you’re done.” Then he called and said, “I’m done,” and he was off.

       Likewise, in his affidavit, Mr. Baird asserted that he “gave Jeremy permission to
use the vehicle to pick up pizza for his dinner, but only after he completed all of his work,
and was headed toward Woodbury.”

        Mr. Baird stated that “[h]ad he not been going for pizza, Jeremy would have taken
his route back to Woodbury, which was not through Lebanon.” But Mr. Baird also
testified that Jeremy would have been traveling on the portion of Highway 109 where the
accident occurred whether or not he was returning home or going to the pizza shop:

       He had to be on the road he was going on whether he went home or
       whether he went to Lebanon. He had to be on that road at that location.
       Because when he got to Lebanon, he had to turn on 109 to go to Lebanon or
       go straight to get onto 840. So he was seven or eight miles back. So he
       wasn’t out of the way from going to get a pizza or out of the way from
       going home.

      The undisputed fact that Mr. Baird owned the vehicle and that Jeremy was his
employee is “prima facie evidence” that Jeremy was acting within the scope of
employment. Although Mr. Baird has presented countervailing evidence, reasonable
minds could differ.

       To begin with, Mr. Baird is undeniably an interested witness and, thus, his
credibility is at issue. See Godfrey, 90 S.W.3d at 696 (“[Defendants’] status as interested
witnesses places their credibility in question [and] simply fails to rebut the prima facie
evidence established by statute”). Although Jeremy’s testimony corroborates with that of
Mr. Baird, Jeremy is not only an employee and co-defendant, but he is also Mr. Baird’s
son and, thus, his credibility is at issue. See Strine, 323 S.W.3d at 488 (testimony of co-
defendant son that car was being driven without father’s “authority, knowledge, and
consent” failed to rebut the prima facie evidence established by statute because son was
an “interested witness”). Finally, Ms. Baird’s testimony was equivocal on whether

                                            -8-
Jeremy would have returned to the office or not, and she had no personal knowledge of
Jeremy’s schedule that day.

       Moreover, it was undisputed that Mr. Baird created the necessity for Jeremy’s trip,
and Mr. Baird testified that Jeremy was on a stretch of road he would have traveled
whether or not he was going to the pizza restaurant or back to the office. Generally, “[i]f
the employee’s duties created a necessity for travel, then the employee is within the scope
of employment while traveling, as long as the employee does not deviate from the
employer’s business and engage in conduct the employer had no reason to expect.”
Tennessee Farmers Mut. Ins. Co. v. Am. Mut. Liab. Ins. Co., 840 S.W.2d 933, 938 (Tenn.
Ct. App. 1992). Further, “[i]f a trip is authorized by an employer for business purposes,
then the return trip is also within the scope of employment as long as the employee has
not deviated from the employer’s business.” Id. In most cases, whether an employee has
deviated from the course and scope of his employment “will be regarded as involving
merely a question of fact to be left to the jury.” Caldwell v. Adams, 367 S.W.2d 804, 806
(Tenn. Ct. App. 1962).

       Based on the foregoing, we find a reasonable jury could resolve for either party
the issue of whether or not Jeremy was acting within the course and scope of employment
when the collision occurred. Therefore, a genuine issue of material fact exists, and
summary judgment was not appropriate.

                                    IN CONCLUSION

       The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the
appellee, Jeremy G. Baird.


                                                  ________________________________
                                                  FRANK G. CLEMENT JR., P.J., M.S.




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