                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 23, 2004 Session

             LEROY MOSBY, ET AL. v. MEMPHIS AREA TRANSIT
                         AUTHORITY, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                         No. 305930-8 T.D.    D’Army Bailey, Judge



                     No. W2003-00451-COA-R3-CV - Filed May 19, 2004


This case arises out of a motor vehicle accident, which resulted in the death of Deceased, a fare-
paying passenger of a bus. Plaintiffs, Deceased’s heirs, brought a wrongful death action against the
driver of the Cadillac in the bus/car collision and Defendants, the driver of the bus and the Memphis
Area Transit Authority. At the close of Plaintiffs’ proof, the trial court granted Defendants’ motion
for involuntary dismissal pursuant to Rule 41.02(2) of the Tennessee Rules of Civil Procedure. For
the reasons stated below, we affirm the decision of the trial court.


     Tenn. R. App. P. 3.; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Irwin I. Cantor, Memphis, TN, for Appellants

John M. Moore, Memphis, TN, for Appellees

                                            OPINION

                                  Facts and Procedural History

        On the morning of October 22, 1999, Katie Lee Mosby (“Deceased” or “Mosby”) paid the
fare and boarded a bus operated by the Memphis Area Transit Authority (“MATA”) and driven by
Emmett E. Miller (“Miller” or collectively with MATA, “Defendants”), who held a commercial
driver’s license at the time. On that day, the weather was clear and the roads were dry. The bus
traveled southbound on Millbranch Road, a five lane street, in the curb lane and headed downhill
after a hill crest, where it approached a “T” intersection with Finley Road, a two lane street.
Millbranch Road has a speed limit of 40 miles per hour and Finley Road has a speed limit of 35
miles per hour.
        As the bus approached the intersection, Deon Matthews (“Matthews”), who did not have a
driver’s license at the time, was driving a Cadillac eastbound on Finley Road towards Millbranch
Road. Matthews had borrowed the car from a family friend, Velbsy Campbell, and began to have
difficulty with the brakes. When Matthews attempted to brake at the intersection of Finley and
Millbranch, the brakes ceased to function and Matthews drove onto Millbranch Road, disregarding
the stop sign on Finley Road. Matthews attempted to veer right on Millbranch Road to avoid the
bus, but the bus collided with the Cadillac, hitting the car on the driver’s side door. The Cadillac
veered away from the bus after the impact and ran into a utility pole. Miller testified that when he
saw the Cadillac, it was approximately forty-five feet away and that he was very close to the impact
point when he realized a collision was imminent. The bus changed directions from south to
southeast because, after checking his rear view mirror, Miller turned left just before the impact in
an attempt to avoid a collision. In addition, Miller testified that he pressed on the bus’s brakes.
After the impact, the bus crossed over the other side of Millbranch Road, knocked over a utility pole,
went through a wrought iron fence, and collided with a day care center where it came to rest.

        During the accident, Mosby, who was seated behind Miller in the driver’s seat, was thrown
to the floor right next to Miller. Though the radio on the bus was inoperative, Miller was able to
contact emergency services using his mobile phone. Mosby was taken for medical treatment to The
Med, and was later found by her daughter, Bettie Jean Faulkner. Mosby, who exhibited facial
expressions of pain though never regaining consciousness, was visited by her four children and
remained at The Med until she died on October 31, 1999, from the injuries she sustained in the
bus/car collision.

        On December 14, 1999, Mosby’s four children, Leroy Mosby, Joann Mosby Diffay, Clarence
Mosby, and Bettie Jean Faulkner (collectively the “Plaintiffs”), filed a complaint against MATA,
Miller, Matthews, and Velbsy Campbell, for the wrongful death of Mosby. Defendants answered,
denying the allegations of negligence in Plaintiffs’ complaint and praying the complaint be
dismissed. Matthews, though served with Plaintiffs’ complaint, never answered or appeared, and
the trial court granted Plaintiffs’ motion for default judgment against Matthews. Plaintiffs
subsequently took a voluntary nonsuit for Matthews and Campbell and proceeded to trial against
Defendants.1 After hearing the Plaintiffs’ proof, Defendants moved for directed verdict, which the
trial court treated as a motion for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2),
because the hearing was not before a jury. The trial court concluded the Plaintiffs failed to establish
that the Defendants were guilty of any “proximate fault causing or contributing to the injuries and
damages” of Deceased and entered a judgment in favor of Defendants. Plaintiffs appealed to this
Court and present the following issues for our review:

         I.       Whether the trial court erred when it excluded a portion of the MATA safety
                  manager’s accident report and discovery deposition wherein he concluded that Miller
                  did not apply the bus’s brakes; and


        1
                  It is not clear why plaintiffs took a default judgment against Matthews on June 21, 2002, and later
entered a voluntary non-suit on December 26, 2002.

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        II.    Whether the trial court erred when it granted Defendants’ motion for dismissal based
               upon Plaintiffs’ failure to establish a prima facie case of negligence on the part of the
               Defendants.
For the following reasons, we affirm the decision of the trial court.

                                         Standard of Review

         When a trial court sits without a jury, we review its findings of fact de novo upon the record
accompanied by a presumption of correctness for the finding, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d). We are mindful that a trial court has wide discretion
in the matter of the qualifications of an expert witness and will not be reversed unless it abuses that
discretion. Blalock v. Claiborne, 775 S.W.2d 363, 366 (Tenn. Ct. App. 1989) (quoting Stokes v.
Leung, 651 S.W.2d 704, 706 (Tenn. Ct. App. 1982)); see also Otis v. Cambridge Mut. Fire Ins. Co.,
850 S.W.2d 439, 443-44 (Tenn. 1992). For questions of whether or not a trial court should have
allowed or excluded evidence pursuant to the rules of evidence concerning hearsay, we review such
questions de novo with no presumption of correctness. Russell v. Crutchfield, 988 S.W.2d 168, 170
(Tenn. Ct. App. 1998) (citing City of Tullahoma v. Bedford County, 938 S.W.2d 408 (Tenn. 1997)).
In addition, “in the case of a motion for involuntary dismissal pursuant to Tenn. R. Civ. P. 41.02(2),
the trial court must impartially weigh and evaluate the evidence as it would after the presentation of
all the evidence and must deny the motion if the plaintiff has made out a prima facie case.” Smith
v. Inman Realty Co., 846 S.W.2d 819, 822 (Tenn. Ct. App. 1992) (citing City of Columbia v. C.F.W.
Constr. Co., 557 S.W.2d 734, 740 (Tenn. 1977)). Therefore, when we review the trial court’s ruling
on Defendants’ motion for involuntary dismissal, “we need only determine whether the evidence
makes out a prima facie case of liability on [the Plaintiffs’] part.” Id.

                                   Expert Witness Qualifications

        Plaintiffs argue that the trial court erred when it refused to allow into evidence the conclusion
of MATA’s safety manager, Judd Killebrew (“Killebrew”), either in his accident report or
deposition, that Miller never applied the brakes of the bus. Specifically, Plaintiffs argue that such
statements constitute an exception to the hearsay rule pursuant to Tenn. R. Evid. 803 (1.2) as an
admission by a party opponent. Such rule allows the admission of statements offered against the
party that is “a statement by a person authorized by the party to make a statement concerning the
subject.” Tenn. R. Evid. 803 (1.2). In addition, the rule provides that “[a]n admission is not
excluded merely because the statement is in the form of an opinion.” Tenn. R. Evid. 803 (1.2).
Plaintiffs argue that, because Killebrew is an agent for MATA, his statement that Miller never
applied his brakes should have been admitted into evidence. Plaintiffs have incorrectly argued this
issue.

        The trial court determined that Killebrew’s conclusion about Miller’s failure to apply his
brakes was inadmissible, not because it did not fall within an exception to the hearsay rule, but
because Killebrew was not qualified to make such a conclusion as there was no foundation to
establish Killebrew’s expertise in the field of accident reconstruction. As this Court has noted


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before, “[n]o assertion of a party, if offered in evidence by a party-opponent, may be excluded as
hearsay. It may be excluded on the ground that it is irrelevant, or privileged, or for many other
reasons, but never because it is hearsay.” Curtis v. Van Dusen, 723 S.W.2d 648, 650 (Tenn. Ct.
App. 1986) (quoting David F. Binder, Hearsay Handbook (2nd ed. 1983)) (emphasis added). In
addition, Rule 803 states, before enumerating numerous exceptions, that “[t]he following are not
excluded by the hearsay rule. . . .” Tenn. R. Evid. 803 (emphasis added). Though Killebrew’s
conclusion may not be excluded on the basis that it is hearsay, it may still be excluded on the basis
that Killebrew was not qualified in the field of accident reconstruction to make such a conclusion.
Therefore, we must determine whether the trial court abused its discretion when it determined that
Killebrew was not qualified as an expert in the area of accident reconstruction to make such a
conclusion.

         In this case, at the time of trial, Killebrew had been an employee with MATA for over
twenty-seven years, he held his commercial driver’s license, and he had been the safety manager for
MATA for over three years, beginning in July 1999. However, he had completed only one training
course before the accident on October 22, 1999, and had taken a total of only three, forty-hour
training courses by the time of trial. Though Killebrew admitted that he had little training in accident
reconstruction, he concluded that the tire marks made by the bus were not skid marks and indicated
that Miller never applied the bus’s brakes. We cannot say that the trial court abused its discretion
when it refused to admit Killebrew’s conclusions and opinions about the accident on the basis that
Killebrew was not a qualified expert in the field of accident reconstruction. Therefore, we affirm
the trial court’s ruling on this issue.

                                       Involuntary Dismissal

        Though Defendants moved for a directed verdict after the Plaintiffs’ proof, the trial court
correctly treated Defendants’ motion as a motion for involuntary dismissal under Tenn. R. Civ. P.
41.02(2). As stated above, when such motion is made, the trial court must weigh and evaluate the
Plaintiffs’ evidence and determine if the Plaintiffs established a prima facie case. Inman Realty Co.,
846 S.W.2d at 822 (citing C.F.W. Constr. Co., 557 S.W.2d at 740). After hearing the parties’
arguments on the motion, it appears the trial court dismissed Plaintiffs’ action against Defendants
for a lack of evidence that Defendants were the proximate cause of Deceased’s death. After our
review of the record, we agree that the Plaintiffs failed to establish a prima facie case of negligence
on the part of the Defendants.

        To establish an action for negligence, a complainant must prove the following elements: (1)
a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of
care resulting in a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate
causation. McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991) (citing Lindsey v. Miami Dev.
Corp., 689 S.W.2d 856, 858 (Tenn. 1985); Shouse v. Otis, 448 S.W.2d 673 (Tenn. 1969); Ruth v.
Ruth, 372 S.W.2d 285 (Tenn. 1963)); Anthony v. Holland, No. W2001-00745-COA-R3-CV, 2001
Tenn. App. LEXIS 900, at *4-5 (Tenn. Ct. App. Nov. 29, 2001) (citing Waste Mgmt. Inc. of Tenn.



                                                  -4-
v. S. Cent. Bell Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App. 1997)). “In Tennessee, proximate
cause has been described as that act or omission which immediately causes or fails to prevent the
injury; an act or omission occurring or concurring with another which, if it had not happened, the
injury would not have been inflicted.” Tenn. Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn.
1969) (citing Deming & Co. v. Merchants’ Cotton-Press & Storage Co., 17 S.W. 89 (Tenn. 1891);
Southeastern Greyhound Lines, Inc. v. Groves, 136 S.W.2d 512 (Tenn. 1940)). We note that neither
the violation of a statute nor a breach of duty by a common carrier to a fare-paying passenger is of
any consequence unless a defendant’s acts are shown to be the proximate cause of the injury
sustained. Garrett v. McConkey, 466 S.W.2d 498, 501 (Tenn. Ct. App. 1970) (citing Tenn.
Trailways, Inc v. Ervin, 438 S.W.2d 733 (Tenn. 1969); Biggert v. Memphis Power & Light Co., 80
S.W.2d 90 (Tenn. 1935)).

        In this case, the Plaintiffs put on little proof of how fast the bus was traveling at the point of
collision. The only testimony in the record offered to show the speed of the bus was the testimony
of Matthews, who stated that the bus was traveling approximately fifty miles per hour. As the trial
court below noted, no scientific or expert testimony was presented to determine how fast the bus was
traveling. In addition, the trial court seemed to question Matthews’ credibility given that, in his
original statement to the police, Matthews stated he was not the driver of the Cadillac. We note that:

        Where the trial judge has seen and heard witnesses, especially where issues of
        credibility and weight of oral testimony are involved, on review considerable
        deference must still be accorded to those circumstances. Where the issue for decision
        depends on the determination of the credibility of witnesses, the trial court is the best
        judge of the credibility and its findings of credibility are entitled to great weight.
        This is true because the trial court alone has the opportunity to observe the
        appearance and demeanor of witnesses.

Payne v. City of Memphis, 1993 Tenn. App. LEXIS 755, at *7-8 (Tenn. Ct. App. Dec. 9, 1993)
(quoting Tenn-Tex Props. v. Brownell-Electro, Inc., 778 S.W.2d 423, 425 (Tenn. 1989)); see also
McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995).

        Next, Miller testified that, when he saw the Cadillac at the intersection and knew a collision
was imminent, he removed his foot from the accelerator and pressed on the brake pedal. He also
stated that he swerved to the left in order to avoid an impact. Given our disposition of the first issue
that the trial court was correct when it excluded the conclusions of Killebrew concerning whether
Miller pressed on the bus’ brakes, the only evidence that Plaintiffs offered that Miller did not press
on the brakes was Miller’s statement to the police that he swerved to the left. Plaintiffs argue that
the absence of any positive statement establishes that Miller did not press the brakes to avoid an
impact with the Cadillac. Even if the Plaintiffs had effectively established that Miller never pressed
the brakes, there was no expert testimony offered by Plaintiffs to suggest that pressing the brakes
would have prevented Deceased from sustaining any injuries. In addition, one of the passengers of
the bus testified that, prior to the collision with the Cadillac, there was no indication that Miller was
operating the bus in an unsafe manner.


                                                   -5-
        Finally, the testimony established that Matthews was driving the Cadillac on Finley Road and
that he lost control of his car when the brakes ceased to function. This resulted in the Cadillac
running through a stop sign and colliding with the MATA bus, sending the bus through a utility pole,
a wrought iron fence, and into the side of a day care center. Given the circumstances of this case,
we cannot say that the trial court erred when it weighed and evaluated the evidence and determined
that the Plaintiffs failed to establish a prima facie case for negligence based on a lack of proximate
cause. Therefore, we affirm the decision of the trial court granting Defendants’ motion for
involuntary dismissal.

                                            Conclusion

        For the foregoing reasons, we affirm the decision of the trial court. Costs of this appeal are
taxed to Appellants, Leroy Mosby, Joann Mosby Diffay, Clarence Mosby, and Bettie Jean Faulkner,
and their surety for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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