       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Kellner, et al. v. Budget Car              No. 02-5314
   ELECTRONIC CITATION: 2004 FED App. 0059P (6th Cir.)        and Truck Rental, et al.
               File Name: 04a0059p.06
                                                              No. 00-00336—Curtis L. Collier, District Judge.
UNITED STATES COURT OF APPEALS                                          Argued: September 17, 2003
              FOR THE SIXTH CIRCUIT
                _________________                                  Decided and Filed: February 26, 2004

                                                         Before: BOGGS, Chief Judge; KRUPANSKY and CLAY,
JAMES KELLNER and LAURI         X                                          Circuit Judges.
KELLNER, individually and as -
next kin of Michael W.           -                                          _________________
                                 -    No. 02-5314
Kellner, deceased; LAURI         -                                               COUNSEL
KELLNER, individually and as      >
                                 ,
natural parent and next of kin                           ARGUED: Paul T. Gillenwater, GILLENWATER, NICHOL
                                 -
of Shawn June, a minor,                                  & AMES, Knoxville, Tennessee, H. Forrest Horne, Jr.,
                                 -
         Plaintiffs-Appellants, -                        JONES, MARTIN, PARRIS & TESSENER, PLLC, Raleigh,
                                                         North Carolina, for Plaintiffs. Michael J. King, WOOLF,
                                 -                       McCLANE, BRIGHT, ALLEN & CARPENTER, Knoxville,
           v.                    -                       Tennessee, for Defendants.        ON BRIEF:        Paul T.
                                 -                       Gillenwater, GILLENWATER, NICHOL & AMES,
                                 -
BUDGET CAR AND TRUCK                                     Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony
                                 -
RENTAL, INC., et al.; COMCAR -                           R. Dalton, WOOLF, McCLANE, BRIGHT, ALLEN &
                                                         CARPENTER, Knoxville, Tennessee, for Defendants.
INDUSTRIES, INC., a/k/a M.D.     -
Transport Systems, Inc.,         -                                          _________________
                   Defendants, -
                                 -                                              OPINION
                                 -                                          _________________
CLAY HYDER TRUCKING              -
LINES, INC.; M.D. TRANSPORT -                              KRUPANSKY, Circuit Judge. James and Lauri Kellner,
SYSTEMS, INC.; JOHN ZAFFER, -                            appearing individually and as next of kin, have appealed the
Administrator of the Estate of -                         district court’s summary dismissal of their negligence suit
Christopher N. Zaffer,           -                       against three party-defendants – John Zaffer, administrator of
                                 -                       the estate of Christopher Zaffer (“Zaffer”), M.D. Transport
        Defendants-Appellees. N
                                                         Systems, Inc. (“MDTS”) and Clay Hyder Trucking Lines, Inc.
                                                         (“CHTL”) – arising from a motor vehicle accident on the
      Appeal from the United States District Court       Tennessee interstate. The Kellners have contended that
   for the Eastern District of Tennessee at Knoxville.   defendants negligently and proximately caused the accident

                            1
No. 02-5314                      Kellner, et al. v. Budget Car             3    4    Kellner, et al. v. Budget Car               No. 02-5314
                                     and Truck Rental, et al.                        and Truck Rental, et al.

by leaving a tractor-trailer parked in the emergency                               Zaffer was under or near the tractor-trailer, shortly before
“breakdown” lane along the shoulder of the interstate. For the                  3:30 p.m., when Diane Rupe was driving westbound on I-40
reasons discussed below, this Court affirms the order of                        in a Ford truck with a 24-foot cargo box, rented from Budget
summary judgment.                                                               Car & Truck Rental, Inc. (“Budget”). Behind the Ford truck,
                                                                                Rupe towed a minivan. In the passenger cab, along with
  On the morning of October 23, 1999, Christopher Zaffer                        Rupe, were her grandsons Michael Kellner and Shawn June,
was driving his tractor-trailer westbound on Interstate 40 in                   ages 1 and 10 respectively.
Jefferson County, Tennessee, when his rig began
experiencing mechanical problems and became disabled.1                             Tragically, the Budget truck driven by Rupe left the far
Zaffer drove the vehicle into the emergency lane of the                         right travel lane of traffic, moved into the emergency lane,
interstate and there is no dispute between the parties that both                and collided with Zaffer’s parked tractor-trailer. As a result
Zaffer’s tractor and trailer were completely within the                         of the collision, Michael Kellner, Rupe and Zaffer were
“breakdown” lane with no portion of the rig protruding into                     killed, while Shawn June sustained injuries requiring
or overlapping onto the travel lanes of the interstate.2                        hospitalization.
   Zaffer placed the orange-triangle warning devices required                      On June 6, 2000, plaintiffs-appellants James and Lauri
by Tennessee statute and federal regulation behind the tractor-                 Kellner, the parents of Michael Kellner and Shawn June, filed
trailer to signal to approaching traffic that his rig was                       a negligence complaint in the district court against MDTS and
disabled. The weather conditions were clear and the roadway                     Comcar Industries (“Comcar”). Appellants later amended
was dry. The section of I-40 on which Zaffer’s rig became                       their complaint to add as defendants: Zaffer’s estate, CHTL,
disabled provided three lanes for motorists traveling either                    Jeannie Denniston – the administrator of the estate of Diane
east or west. According to record testimony the tractor-                        Rupe – and State Farm Insurance Company (“State Farm”),
trailer could be seen by approaching westbound motorists                        Rupe’s uninsured/underinsured motorist insurance carrier.
from a distance of at least 1,000 feet.                                         On September 20, 2000, the parties agreed by stipulation to
                                                                                dismiss Comcar from the action.
                                                                                  On November 29, 2001, Zaffer, MDTS and CHTL filed a
    1
                                                                                motion for summary judgment; State Farm filed a motion for
      Zaffer owned the parked and disabled 1991 Freightliner commercial         summary judgment on December 14, 2001. On February 11,
truck-tractor struck by Rup e. In 19 99 Z affer had leased his tractor to       2002 in a memorandum and order, the district court granted
appellee M.D. Transport Systems and had begun hauling freight for
MD TS; however, at the time of the accident Zaffer was hauling a load for
                                                                                defendants’ motions, concluding that, as a matter of law, the
defendant-appellee Clay Hyder Trucking Lines, Inc.                              defendants’ actions were not the proximate cause of the
    2
      Appellants contend that Zaffer’s tractor-trailer was stopped one foot
from the fog line which separates the travel lanes of the interstate from the
emergency breakdown lane. The evidence indicates that the rig was at
least one foot from the line and may, perhaps, have been further, but the
impact of the accident moved the truck several feet making estimations
difficult.
No. 02-5314                        Kellner, et al. v. Budget Car               5    6     Kellner, et al. v. Budget Car                No. 02-5314
                                       and Truck Rental, et al.                           and Truck Rental, et al.

appellants injuries and damages.3 On February 25, 2002,                             McClenhan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991)).
appellants filed a timely notice of appeal to this Court.4                          See also McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
                                                                                    1995); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
  This Court reviews de novo the order granting summary                             1993). Recovery in a negligence action may occur only if the
judgment to appellees Zaffer, MDTS and CHTL. See Virts v.                           plaintiff can prove that the defendants’ conduct was negligent
Consolidated Freightways Corp. of Delaware, 285 F.3d 508,                           and was the proximate cause of plaintiffs’ injury. Tennessee
516 (6th Cir. 2002).                                                                Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 1969);
                                                                                    Lancaster v. Montesi, 390 S.W.2d 217, 220 (Tenn. 1965).
  As the forum state, Tennessee precedent provides that a                           Tennessee courts have repeatedly stated that negligence is not
plaintiff bringing a negligence action must prove: “(1) a duty                      presumed from the mere fact of an accident or injury.
of care owed by the defendant to the plaintiff; (2) conduct                         Williams v. Jordan, 346 S.W.2d 583, 586 (Tenn. 1961); De
falling below the applicable standard of care amounting to a                        Glopper v. Nashville Ry. & Light Co., 134 S.W. 609, 611
breach of that duty; (3) an injury or loss; (4) causation in fact;                  (Tenn. 1911); Armes v. Hulett, 843 S.W.2d 427, 432
and (5) proximate, or legal cause.” Bennett v. Putnam                               (Tenn.Ct.App.1992).
County, 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000) (quoting
                                                                                      In the instant case, the district court determined that as a
                                                                                    matter of Tennessee law a reasonable jury could conclude that
     3                                                                              Zaffer had breached his duty by not moving the rig to a safer
       The plaintiffs did not respo nd to State Farm’s motion for summary
judgment. State Farm’s p otential for liability rested solely on the
                                                                                    location in the five hours prior to the accident. However, in
testimony of a witness who speculated that Rupe had to take eva sive                granting the motion for summary judgment the court
action to avo id a vehicle swe rving toward Rup e on her left and causing           concluded that, as a matter of law, none of the movants –
her to strike the tractor-trailer. This testimony was later recanted by the         Zaffer, MDTS, or CHTL – provided the proximate cause of
witness as pure speculation and no corro borating testimony em erged to             the accident.
support the witness’s earlier statement. Because the plaintiffs did not
contest State Farm’s position the court granted the State Farm motion and
dismissed State Farm from the lawsuit. See E.D. TN. LR 7.2 (“Failure to
                                                                                      Based upon the undisputed facts that Zaffer’s rig rested
respond to a motion may be dee med a waive r of any opposition to the               completely off the active traffic lanes of the interstate and was
relief sought.”).                                                                   plainly visible for a distance of over 1,000 feet, the district
                                                                                    court reasoned that “a reasonable jury would have to conclude
     4
      On March 22, 2002, because there were other claims and cross-                 Rupe could see the rig prior to the accident.” Consequently,
claims remaining for a djud ication in the instant case, the Clerk of the           the court concluded that Rupe’s actions in leaving the travel
Sixth Circuit entered an O rder for the plaintiffs to show cause why the ir         lanes and crashing into Zaffer’s rig were the proximate cause
appeal should not be dismissed for lack of a final appealable order. The
show cause order was withdrawn on May 6, 2002 after the district court
                                                                                    of plaintiffs’ losses. In so deciding, the court relied upon
approved a settlement of all remaining claims in the action, leaving the            Carney v. Goodman, 270 S.W.2d 572, 576 (Tenn. Ct. App.
only remaining issues in the case as those between appellees and                    1954), which concluded that “the negligence of one in
appellants. Gillis v. United S tates Dep ’t of Health and H uman Serv., 759         obstructing the highway by a standing vehicle was superseded
F.2d 565 , 568 -69 (6 th Cir. 1985 ) (an ap peal from an ord er disp osing of       by another's negligence in running into such vehicle, and that
fewer than all claims in a civil action invo kes ap pellate jurisdiction if final
judgment is entered in the underlying action during the pendency of the
                                                                                    the latter's negligence was the proximate cause of the
appeal).                                                                            accident.” See also Dunnivant v. Nafe, 334 S.W.2d 717, 719
No. 02-5314                 Kellner, et al. v. Budget Car      7    8        Kellner, et al. v. Budget Car                      No. 02-5314
                                and Truck Rental, et al.                     and Truck Rental, et al.

(Tenn. 1960). Thus, in the instant case, while the district         Tennessee negligence law and, consequently, fails to prove
court concluded that a reasonable jury could find Zaffer            that the district court erred in granting summary judgment to
negligent in not removing his rig from the shoulder of the          appellees.
interstate before the accident occurred, the court nevertheless
held that plaintiff Rupe had provided the proximate cause              Pursuant to Tennessee negligence law, once it is
pursuant to the standard determined in Carney: “Did the             determined that the defendant owed the plaintiff a legal
driver running into the standing vehicle see it in time to          obligation to conform to a reasonable person standard of
enable him, by use of due care, to avoid the collision? If he       conduct, i.e., a duty--the question becomes whether defendant
did not, his negligence is merely a contributory cause; if he       failed to exercise reasonable care under the circumstances,
did, his negligence is the proximate cause.” Carney v.              i.e., whether defendant breached the duty. In a negligence
Goodman, 270 S.W.2d at 576.                                         action, the standard of conduct is always the same. It is a
                                                                    standard of reasonable care in light of the apparent risk. See
  Further, the district court stated that through Carney            Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994)
“Tennessee [has] adopted a special rule about proximate             (“As in all cases, there is a duty to exercise reasonable care
causation in standing vehicle cases such as the present one.”       under the circumstances.”); Bradshaw v. Daniel, 854 S.W.2d
While the general rule in Tennessee, that the foreseeability of     at 870 (“All persons have a duty to use reasonable care to
an intervening, superseding act presents a jury question, the       refrain from conduct that will foreseeably cause injury to
Carney court adopted a special rule in standing vehicle cases,      others.”). If defendant does not exercise reasonable care,
which the district court applied in the present case, noting that   defendant has breached the duty. Doe v. Linder Const. Co.,
“[u]nder this rule it is unforeseeable as a matter of law           Inc., 845 S.W.2d 173, 178 (Tenn. 1992).
someone would drive into a plainly visible standing vehicle.”
The Carney opinion noted that “[t]he operator of a vehicle            Upon this court’s review, the record evidence indicates that,
that crashes into a vehicle negligently left standing in an         contrary to the district court’s determination, Zaffer did not
unsuitable stopping place provides the proximate cause of any       breach any duty of care. Tennessee has codified the standard
resulting injuries if she could see the standing vehicle in time    of care for parking a disabled vehicle by making certain
to avoid a collision.” Id.                                          conduct illegal and by requiring drivers of commercial
                                                                    vehicles to take certain safety precautions when their vehicles
  On appeal, the plaintiffs aver that summary judgment is           break down. Vehicles left standing on “any highway outside
inappropriate in the instant case where facts regarding the         of a business or residential district” must be parked off of the
foreseeability requirement of proximate causation are in            “paved or main-traveled part of the highway” and must be
dispute. Specifically, the appellants maintain that Zaffer’s        positioned to allow “a clear view of [the vehicle] from a
negligence was the proximate cause of the tragic accident           distance of 200 feet. Tenn. Code Ann. § 55-8-158 (1998)5;
because, by parking his disabled vehicle on the shoulder of
the interstate and not moving it during the five hours
preceding the accident, Zaffer could foresee through the                5
exercise of reasonable diligence that injury or loss could or               § 55 -8-15 8. Stopping or p arking on ro adways
would occur. However, appellants’ reliance upon such a                  (a) Upon any highway outside of a business or residential
broad definition of foreseeability fails to comport with                district, no person shall stop, park, or leave standing any vehicle,
No. 02-5314                     Kellner, et al. v. Budget Car            9   10       Kellner, et al. v. Budget Car                      No. 02-5314
                                    and Truck Rental, et al.                          and Truck Rental, et al.

see also Fergus v. Action Cartage & Distrib., 1990 WL                        forty-eight hours after the vehicles were first observed. Zaffer
43463, *6 (Tenn. Ct. App. April 17, 1990) (unpublished)                      had been on the shoulder of the interstate no longer than five
(explaining the “main-traveled part of the highway” does not                 and a half hours according to the appellants’ own expert and
include the shoulder). Drivers of disabled commercial                        he had not abandoned the tractor-trailer.
vehicles must place warning devices specified distances
behind their vehicles. See Tenn. Code § 55-9-103. While                        However, the district court concluded that Zaffer had
neither Tennessee law nor federal regulations limit the                      breached his common-law duty of care, predicated on its
amount of time a disabled commercial vehicle may remain on                   reading of Maddux v. Bush, No. 86-183-II, 1987 WL 4845
the side of a roadway, Tennessee statute permits vehicles to                 (Tenn. Ct. App. May 27, 1987) (unpublished). In Maddux,
be towed only after they have been immobile or unattended                    the court discussed the common law standard of care for a
for at least twelve hours. See Tenn. Code § 55-16-111 (“[A]                  motorist who stops a vehicle in the road. Maddux opined
vehicle may not be towed without authorization by the owner                  that it was not necessarily negligent to temporarily stop a
of the vehicle until twelve (12) hours have passed since it was              vehicle on a road for a legitimate purpose, but the driver had
first observed to be immobile or unattended unless such                      the duty to select a suitable stopping place and to give
vehicle is creating a hazard.”).                                             adequate warning to other motorists when necessary.
                                                                             According to Maddux, the suitability of a stopping place
  The district court found that none of the defendants                       depended on a number of factors, including whether the
breached a statutory or regulatory duty of care owed to the                  vehicle was reasonably capable of being moved to a safer
plaintiffs. The evidence disclosed that Zaffer did not violate               location.
any of Tennessee’s traffic provisions relating to disabled
vehicles. Additional testimony by the Tennessee Highway                         In the instant case, the district court found a genuine issue
Patrol also indicated that, as a practice, they do not remove                existed with regard to whether Zaffer could have moved his
abandoned vehicles from the shoulder of the interstate until                 rig to a safer location. However, this Court is persuaded
                                                                             otherwise and concludes that defendants’ actions did not
                                                                             result in the breach of a duty of care. The question of whether
                                                                             a vehicle can reasonably be moved to a safer location should
    whether attended or unattended, upon the paved or main-traveled
    part of the highway when it is practicable to stop, park or so
                                                                             be asked when, as was the case in Maddux, the vehicle has
    leave such vehicle off such part of the highway, but in every            been parked in a dangerous location such as in the roadway.
    event an unobstructed width o f the highway opposite a standing           The rule that gives rise to this question states that “a driver
    vehicle of not less than eighteen feet (18') shall be left for the       should not stop his vehicle in a dangerous place when it can
    free passage of other vehicles, and a clear view of such stopped         be moved to safer one.” Id. at *3 (citing Barr v. Charley, 387
    vehicles shall be available from a distance of two hundred feet
    (200') in each direc tion up on suc h highway.
                                                                             S.W.2d 614, 616 (Tenn. 1954) (car with flat tire was left
                                                                             parked partially in roadway at night)).6 Consequently, Zaffer
   (b)(1) This section shall not apply to the driver of any vehicle
   which is disabled while on the paved or main-traveled portion of
   a highway in such manner and to such extent that it is impo ssible             6
   to avoid stopping and temporarily leaving such d isabled vehicle                See also Carr v . Ozburn-Hessey Storage Co., 1996 WL 383295
   in such position.                                                         (Tenn. Ct. Ap p. July 1 0, 19 96) (unpublished), in which the State appellate
Tenn. Code § 55-8-158.                                                       court dismissed a c ase similar to the o ne at bar, noting:
No. 02-5314                     Kellner, et al. v. Budget Car              11   12       Kellner, et al. v. Budget Car                       No. 02-5314
                                    and Truck Rental, et al.                             and Truck Rental, et al.

did not breach his common-law duty of care pursuant to                          which the negligence had resulted in harm; and (3) the harm
Maddux when he parked his rig completely off the travel                         giving rise to the action could have reasonably been foreseen
lanes, in a highly visible position, and placed warning devices                 or anticipated by a person of ordinary intelligence and
behind his tractor-trailer in compliance with state regulations.                prudence.” McClenhan v. Cooley, 806 S.W.2d at 775. See
                                                                                also Lowery v. Franks, 1997 WL 566114 (Tenn. Ct. App.
  A breach of defendants’ duty of care is an essential element                  Sept. 10, 1997) (unpublished) at *5. “[P]roximate causation
of the Kellners’ claim in this negligence action. Summary                       is a jury question unless the uncontroverted facts and
judgment is appropriate when an essential element of                            inferences to be drawn from them make it so clear that all
negligence is missing. Doe, 845 S.W.2d at 183. In this case,                    reasonable persons must agree on the proper outcome.” Id.
the Kellners presented no proof as to how the defendants                        See also Waste Mgmt. Inc. of Tennessee v. South Cent. Bell
breached their duty to maintain proper clearance on the travel                  Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)
lanes of the interstate when parking their disabled vehicle. In                 (discussing proximate cause as a policy decision by the
failing to do so, the Kellners have failed to prove an essential                judiciary to deny liability for otherwise actionable conduct by
element of their negligence claim and cannot demonstrate a                      requiring courts to define the boundary of legal liability using
prima facie case of negligence. Consequently, this court                        mixed considerations of logic, common sense, justice, policy,
concludes that, as a matter of law, defendants did not breach                   and precedent).
any statutory or common-law duty.
                                                                                  The appellants rely upon the discussion of proximate cause
   Moreover, consonant with the district court’s                                and foreseeability in Goodermote v. State of Tennessee, 856
determination, defendants’ actions were not the proximate                       S.W.2d 715 (Tenn. Ct. App. 1993) for support of the
cause of the plaintiffs’ injuries. To sustain proximate cause,                  proposition that the district court erred in applying the Carney
a plaintiff must prove “(1) the tortfeasor’s conduct must have                  test to the present case. Such reliance is, however, misplaced.
been a ‘substantial factor’ in bringing about the harm being                    Goodermote involved a single-car accident in which the
complained of; and (2) there is no rule or policy that should                   vehicle veered off the highway and rolled down an
relieve the wrongdoer from liability because of the manner in                   embankment, injuring the plaintiff. In that case, the court
                                                                                concluded that the State’s failure to install safety features
                                                                                along the highway was the proximate cause of plaintiff’s
   It is the op inion o f this court that the undisputed facts establish        injury because the State should have reasonably foreseen that
   that Ms. Carr's negligence was gre ater than that of M r. Guffy.             a driver could leave the roadway and sustain injuries as a
   No reasonable jury could find that Mr. Guffy, who drove a                    result of an omitted safety feature.7 The court concluded that:
   heavily loade d truck approxim ately twenty to twenty-five miles
   per hour on an uphill slope from an almost com plete stop, was
   more negligent than Ms. Carr, who failed to notice a fully lit
   tractor-trailer on a familiar, unobstructed stretch of highway in                 7
   clear weather until it was too late to avoid crashing into it. The                 The facts pro ving foreseeability included proof that industry
   evidence that Ms. Carr's negligence was equal to or greater than             standards had called for installation of the safety bars omitted by the State,
   that of Mr. Guffy is overwhelming. Reasonable minds could not                proof that the State’s own plans fo r construction of the highway in
   differ as to the legal conclusions that must be drawn. Therefore,            question called for the safety barriers, and proof that the State had notice
   the issue of apportionment of fault was properly withdrawn from              of six accidents at the same location during the three years preceding the
   the jury and determined by the court as a matter of law.                     specific incident in Go ode rmo te.
No. 02-5314                Kellner, et al. v. Budget Car     13   14   Kellner, et al. v. Budget Car                 No. 02-5314
                               and Truck Rental, et al.                and Truck Rental, et al.

  [T]he plaintiff is not required to show that the State could      The essence of the rule as to independent intervening
  foresee the specific facts of the accident before plaintiff       cause is whether the subsequent successive acts and
  can recover . . . . It was necessary only that the plaintiff      injuries were probable and therefore to be anticipated. . . .
  establish that the State could have foreseen the general          Our Supreme Court has explained that the test of liability
  manner in which the injury or loss occurred . . . There is        under the law of intervening cause requires a person to
  no requirement that a cause, to be regarded as the                anticipate or foresee what would normally happen; one
  proximate cause of an injury, be the sole cause, the last         is not required to anticipate and provide against what is
  act, or the nearest to the injury, provided it is a               unusual or unlikely to happen, or that which is only
  substantial factor in producing the end result . . . . We         remotely possible.
  think that the evidence clearly shows that the negligence
  of the State in failing to follow its own plans regarding       Id. at 180. Pursuant to this standard, the district court
  installing a safety barrier was a substantial factor in         correctly determined it was not foreseeable, within the
  producing the injuries which the plaintiff sustained.           meaning of Tennessee law, that Rupe, with an extended
                                                                  unobstructed view of Zaffer’s tractor-trailer, would leave
Goodermote, 865 S.W.2d at 72. While the Goodermote court          three travel lanes of interstate and strike the rig that was
correctly stated the general rule for determining proximate       parked completely within the emergency breakdown lane.
cause in Tennessee, pursuant to Carney, the State had adopted
a specific rule for determining proximate cause and                 The appellants have additionally argued that the district
foreseeability in claims involving standing vehicles, such as     court erred in applying the Carney test because the
the instant case. Carney, 270 S.W.2d at 63-64.                    subsequent decision in McIntyre v. Ballentine, 833 S.W.2d 52
                                                                  (Tenn. 1992), altered Tennessee negligence law by replacing
   Appellants have further contended that since Zaffer could      contributory negligence with a system of comparative fault.
foresee the possibility that a car would leave its lane and       Yet, as the Tennessee Supreme Court has emphasized, “the
strike his rig then his actions were the proximate cause of the   question is: assuming that both plaintiff and defendant have
accident.       Appellants’ broadly construed notion of           been found guilty of negligent conduct that proximately
foreseeability leads, however, to logical absurdities and fails   caused the injuries, was the fault attributable to plaintiff
to comport with Tennessee judicial precedent. Thus, under         equal to or greater than the fault attributable to the
the appellants’ scheme a driver legally traveling in her own      defendant.” Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.
lane, who is hit by another vehicle that crossed into that        1994). Because this court has determined that the defendants’
driver’s lane, could be held liable for negligence because it     actions were not negligent, the issue of comparative fault is
was foreseeable that vehicles leave their lanes of traffic.       inapplicable.
  Tennessee precedent construes foreseeability more                  Moreover, in light of Eaton’s directive, it is important to
narrowly than plaintiffs suggest.       In Underwood v.           note that while the district court failed to consider
Waterslides of Mid-America, 823 S.W.2d 171, 180 (Tenn. Ct.        comparative negligence in its determination, it did not need
App. 1991), the court discussed foreseeability in the context     to do so because the district court did not conclude that Zaffer
of a superseding, intervening cause:                              was “guilty of negligent conduct that proximately caused the
                                                                  injuries.” Id. Instead it only concluded that a fair-minded
No. 02-5314                Kellner, et al. v. Budget Car    15
                               and Truck Rental, et al.

jury could have found that Zaffer’s rig was reasonably
capable of being moved to a safer location. This was a
finding of a possible breach of duty and not a finding of
proximate cause. Consequently, under Eaton, a comparative
negligence analysis was not legally necessary to the district
court’s grant of summary judgment.
  In light of the aforementioned, this Court concludes that the
defendants’ actions did not give rise to a breach of a duty of
care and that as a matter of law Rupe’s actions provided the
proximate cause of plaintiffs’ losses and, therefore, affirms
the district court’s grant of summary judgment.
