                                                                                                   04/29/2020
                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                            Assigned on Briefs February 3, 2020

                SHELBY K. MARSH v. ANGELA D. LOWE ET AL.

                  Appeal from the Circuit Court for Anderson County
                     No. B6LA0143       Donald R. Elledge, Judge
                      ___________________________________

                             No. E2019-00697-COA-R3-CV
                         ___________________________________


This is an appeal from the judgment in a personal injury action in which the plaintiff
sought to recover damages incurred in a car accident. The trial court granted summary
judgment on the issue of liability. Following a hearing on the measure of damages at
which the only proof was the plaintiff’s testimony, the trial court entered a $5,000
judgment against the defendants. This appeal followed. Discerning no error, we affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and KENNY W. ARMSTRONG, JJ., joined.

James W. Friauf, Knoxville, Tennessee, for the appellant, Shelby K. Marsh.

Kristie N. Anderson, Jacksboro, Tennessee, for the appellees, Angela D. Lowe and Patsy
Lowe.


                                            OPINION

                                    I.      BACKGROUND

       On March, 27, 2016, appellee Angela Lowe rear-ended appellant Shelby Marsh’s
Fiat 500 on Interstate 75 while operating a car owned by appellee Patsy Lowe. In the
operative amended complaint,1 Ms. Marsh alleged that Angela Lowe was negligent by

1
  Plaintiff improperly named her uninsured motorist carrier as a defendant in the original complaint.
Consequently, Plaintiff took a voluntary nonsuit and the uninsured motorist carrier was dismissed by
order entered November 21, 2016.
failing to sufficiently slow down for traffic. She further alleged that Angela Lowe “was
cited by law enforcement for DUI 1st; Reckless/Careless/Erratic Driving; Following
Improperly; and Driver Distraction (Cellular In Use In Vehicle).” Ms. Marsh also
alleged that Patsy Lowe was negligent in entrusting Angela Lowe to operate the vehicle.
Ms. Marsh sought damages for her “reasonable and necessary medical expenses” and
“pain and suffering and loss of enjoyment of life” that “is residual and ongoing.” On
February 22, 2017, Angela and Patsy Lowe each filed an answer denying Plaintiff’s
allegations.

       Angela and Patsy Lowe did not engage in Ms. Marsh’s discovery requests. Ms.
Marsh moved for summary judgment against each defendant. Ms. Marsh also filed a
Rule 36 request for admission against each defendant. Neither Angela Lowe nor Patsy
Lowe responded to the motion for summary judgment or request for admission, and
neither attended the trial court’s hearing on the motion for summary judgment.

       By order entered November 28, 2017, the trial court deemed admitted the request
for admission served on Angela Lowe, pursuant to Tennessee Rules of Civil Procedure
36.01 and 36.02. In granting Ms. Marsh’s motion for summary judgment against Angela
Lowe, the trial court concluded as follows:

      On March 27, 2016, Defendant Angela Lowe negligently collided with the
      rear end of Plaintiff’s vehicle, thereby directly and proximately causing
      Plaintiff to suffer injuries and damages . . . . Defendant Angela Lowe owed
      Plaintiff a duty of care to operate her vehicle in a prudent fashion and
      follow the rules of the road. By: (i) operating her vehicle while under the
      influence of alcohol and narcotics; (ii) using her cell phone while driving;
      (iii) following too closely; and (iv) striking the rear end of Plaintiff’s
      vehicle, Defendant’s conduct fell below the standard of care Defendant
      owed to Plaintiff. As a direct and proximate result of Defendant’s breach
      of her duty of care, Plaintiff suffered injuries and damages and was
      ultimately forced to undergo surgical treatment for the injuries she suffered.
      Accordingly, the Court finds Defendant Angela Lowe was negligent and
      her negligent conduct directly and proximately resulted in Plaintiff’s
      injuries averred in the complaint.

        By order entered March 14, 2018, the trial court deemed admitted the request for
admission served on Patsy Lowe, pursuant to Tennessee Rules of Civil Procedure 36.01
and 36.02. In granting Ms. Marsh’s motion for summary judgment against Patsy Lowe,
the trial court concluded as follows:

      Defendant Patsy Lowe negligently entrusted her vehicle to Defendant
      Angela Lowe, an individual with a history of alcohol and drug use. In the
      instant action, Defendant owed Plaintiff a duty to entrust her vehicle only to
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      an individual who would operate the vehicle in a safe and prudent manner.
      Defendant breached this duty by entrusting her vehicle to an individual
      whom Defendant knew or reasonably should have known was an
      incompetent driver. As a direct and proximate result of Defendant’s breach
      of her duty of care, Plaintiff suffered injuries and damages and was
      ultimately forced to undergo surgical treatment for the injuries she suffered.
      Accordingly, the Court finds Defendant Patsy Lowe was negligent and her
      negligent conduct directly and proximately resulted in Plaintiff’s injuries
      averred in the complaint.

        On April 19, 2018, Angela and Patsy Lowe moved the court to set aside its orders
granting summary judgment. Following a hearing, the trial court denied the motion to set
aside by order entered December 27, 2018. The case proceeded to a hearing on March 8,
2019 “to determine the amount of damages, if any, to which [Ms. Marsh was] entitled for
the negligent conduct of [Angela and Patsy Lowe].” Ms. Marsh’s testimony was the only
proof presented at the hearing on damages. By final order entered April 11, 2019, the
trial court found that Ms. Marsh “should be awarded the sum of Five Thousand Dollars
($5,000) for the pain and suffering she had immediately after the accident.” The trial
court’s finding and award of damages was “based on the lack of expert testimony that
this was a permanent disability, or expert testimony that [Ms. Marsh’s] pain would last
for a lifetime, as well as the fact that there was no damage done to [Ms. Marsh’s]
vehicle.” This appeal followed. Ms. Marsh filed a notice, pursuant to Tennessee Rule of
Appellate Procedure 24(d), that she would not be filing a transcript or statement of the
evidence.

                                       II.    ISSUE

       Ms. Marsh raises one issue on appeal: Whether the trial court “improperly
disregarded its previous summary judgment orders when determining causation and
damages at trial.”

                          III.   STANDARD OF REVIEW

       We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). This presumption of correctness applies only to findings of fact and not to
conclusions of law. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996).
The trial court’s conclusions of law are subject to a de novo review with no presumption
of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Morrison v. Allen,
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338 S.W.3d 417, 426 (Tenn. 2011).

       The issue of “‘[w]hether the trial court has utilized the proper measure of damages
is a question of law’” subject to de novo review. Memphis Light, Gas & Water Div. v.
Starkey, 244 S.W.3d 344, 352 (Tenn. Ct. App. 2007) (quoting Beaty v. McGraw, 15
S.W.3d 819, 829 (Tenn. Ct. App. 1998)). The amount of damages awarded is a question
of fact and is, therefore, subject to review under the preponderance of the evidence
standard. Id.

                                       IV.     DISCUSSION

       Regarding negligence, our Supreme Court has explained: “[A] negligence claim
requires a plaintiff to prove the following elements: (1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5)
proximate (legal) causation.” See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.
1993). Duty is the legal obligation a defendant owes to a plaintiff to conform to the
reasonable person standard of care to protect against unreasonable risks of harm. Cullum
v. McCool, 432 S.W.3d 829, 833 (Tenn. 2013). The analysis of duty is specific to the
particular plaintiff and defendant involved. Nichols v. Atnip, 844 S.W.2d 655, 662 (Tenn.
Ct. App. 1992). The existence of a duty is a question of law, but the elements of
causation in fact and proximate cause are matters to be resolved by the trier of fact. Hale
v. Ostrow, 166 S.W.3d 713, 716-19 (Tenn. 2005). Likewise, the determination of
damages in a personal injury case is within the province of the finder of fact. See
Grandstaff v. Hawks, 36 S.W.3d 482, 499 (Tenn. Ct. App. 2000).

       Ms. Marsh contends that because Angela Lowe’s and Patsy Lowe’s negligence
was established through summary judgment, “the trial court should have awarded [Ms.
Marsh] not less than One Hundred Twenty-Five Thousand Dollars and 00/100
($125,000.00),” the exact amount of compensatory damages she claimed in her amended
complaint. Implicit in her argument is that the $5,000 damages award does not cover the
medical expenses she incurred after the accident with Angela Lowe.2 We find these
arguments to be without merit. Ms. Marsh’s arguments ignore the fundamental tenet that
she, as the plaintiff, must prove by a preponderance of the evidence the amount of her
damages. Littlejohn v. Bd. of Pub. Utilities of Paris, No. W2001-00011-COA-R3-CV,
2002 WL 54404, at *3 (Tenn. Ct. App. Jan. 2, 2002). In the context of a personal injury
action, we have previously instructed that:


2
  Ms. Marsh states, without any citation to the record, that the trial court “refused to permit [her] to
introduce evidence of her reasonable and necessary medical expenses incurred as a direct and proximate
result of [Angela Lowe’s and Patsy Lowe’s] negligence.” We see no such evidentiary exclusion in the
limited record before us.
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       The proof of damages need not be exact or mathematically precise. See
       Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 274 (Tenn. Ct. App. 1990)
       (citing Provident Life and Accident Ins. Co. v. Global Indem. Co., 3 S.W.2d
       1057, 1058 (Tenn. 1928); Cummins v. Brodie, 667 S.W.2d 759, 765 (Tenn.
       Ct. App. 1983)). Rather, the plaintiff must prove damages with a
       reasonable degree of certainty which enables the trier of fact to make a
       reasonable assessment of the damages. See Overstreet v. Shoney’s, Inc., 4
       S.W.3d 694, 703 (Tenn. Ct. App. 1999); Airline Constr., Inc., 807 S.W.2d
       at 273.

Littlejohn, 2002 WL 54404, at *3-4. In addition, “[d]amages may never be based on
mere conjecture or speculation.” Overstreet, 4 S.W.3d at 703 (citing Western Sizzlin, Inc.
v. Harris, 741 S.W.2d 334, 335-36 (Tenn. Ct. App. 1987)). In personal injury cases,
damages “are not measured by fixed rules of law, but rest largely in the discretion of the
trier of fact and [are] entitled to great weight in the appellate courts in the absence of a
showing of fraud or corruption.” Coakley v. Daniels, 840 S.W.2d 367, 372 (Tenn. Ct.
App. 1992) (citing Blalock v. Temple, 276 S.W.2d 493, 494 (Tenn. Ct. App. 1954)). We
will not reverse the trial court absent a finding that the award of damages shows prejudice
or is so grossly inadequate as to shock the conscience of the court. See Karas v. Thorne,
531 S.W.2d 315, 317 (Tenn. Ct. App. 1975) (citations omitted).

        Furthermore, when a plaintiff seeks economic damages for past medical expenses,
she “must prove that the medical bills paid or accrued because of the defendant’s
negligence were both ‘necessary and reasonable.’” Dedmon v. Steelman, 535 S.W.3d
431, 438 (Tenn. 2017) (quoting Borner v. Autry, 284 S.W.3d 216, 218 (Tenn. 2009)). “In
all but the most obvious and routine cases, plaintiffs must present competent expert
testimony to meet this burden of proof.” Borner, 284 S.W.3d at 218. “In Tennessee, the
focus has always been on the ‘reasonable’ value of ‘necessary’ services rendered. A
plaintiff must prove that the services rendered were ‘necessary’ to treat the injury or
condition in question.” Fye v. Kennedy, 991 S.W.2d 754, 764 (Tenn. Ct. App. 1998). “In
other words, even if it is undisputed that the medical services were necessary, the plaintiff
must prove ‘that the charges in question were ‘reasonable.’” Dedmon, 535 S.W.3d at 438
(quoting Fye, 991 S.W.2d at 764).

       In this case, without a transcript or a statement of the evidence, our only means of
evaluating Ms. Marsh’s argument is by reviewing what was included in the appellate
record—the trial court’s orders. Here, the court’s final order makes clear that Ms. Marsh
did not try to prove her damages, particularly past medical expenses, by any means other
than her own word. After hearing Ms. Marsh’s testimony, the trial court found as
follows:

       [Ms. Marsh] testified that she did not suffer any property damage
       whatsoever to her Fiat as a result of the rear end collision.
                                             -5-
[Ms. Marsh] offered no doctor deposition or testimony concerning the issue
of the cause of the alleged injuries . . . nor was there any expert testimony
as to what injuries were in fact allegedly incurred in this automobile
collision, nor was there any doctor’s or medical expert testimony
concerning any permanent injuries suffered by [Ms. Marsh], nor was there
any expert opinion concerning the reasonable and necessary medical
expenses allegedly [in]curred by [Ms. Marsh] in this cause of action as a
result of this collision.

[Ms. Marsh] offered no proof by any expert opinion of any treatment
required or expenses incurred as a result of this collision that were
reasonable and necessary, even though [she] testified that immediately
following the collision, she was seen in the emergency room of Tennova
North hospital where she was seen by the emergency room doctor and
testing was performed on her, including x-rays, and then she followed that
up by seeing her family physician, Dr. Peters. [Ms. Marsh] also testified as
to procedures being performed on both hands/wrist, but there was no expert
testimony that these procedures were necessary because of this collision,
and in fact this Court finds that [Ms. Marsh] had issues with her neck and
wrist/hands prior to this collision.

[Ms. Marsh] did not offer any testimony [of] her age or life expectancy.

[Ms. Marsh] had offered testimony concerning three different surgeries that
she incurred, one related to her neck and two related to her wrist/hands, and
that she had to do exercises in moving different ways two times a week[.]
[H]owever, there was no medical expert opinion concerning the reason for
those surgeries, or the cause of the injuries that required those surgeries, nor
any medical opinion that those surgeries were necessary and reasonable and
thus the expenses incurred for those surgeries were necessary and
reasonable.

[Ms. Marsh] testified that she had suffered pain in her wrist and neck and
was afraid that she was going to be paralyzed[.] [H]owever, the Court
personally observed that she was not paralyzed, any disabilities that she
might have were not observed by the Court, nor were any shown to the
Court.

[Ms. Marsh] also acknowledged that she was involved in a serious accident
in 2005 and, as a result of that accident, she had surgery on her neck which
involved the use of a cadaver bone, and further as a result she had regular
and chronic pain in her neck since at least 2005, if not 2002, and further she
                                      -6-
        had wrist pain and trouble holding things since around 2005.[3]

        [Ms. Marsh] testified that she had trouble lifting five pounds[.] [H]owever,
        there was no subjective proof of this limitation, nor was there any expert
        proof concerning this alleged limitation.

        [T]his Court specifically found that based upon [Ms. Marsh’s] testimony, as
        well as her lack of expert testimony, that the severity of the collision was
        very minor, and in fact [Ms. Marsh] acknowledged that the[re was] no
        damage to her vehicle and that she had suffered for years from pain to her
        neck, wrists, and hands, and that she had been taking five different pain
        medications since 2005, [including] Oxycodone and Opana, and was now
        taking less pain medication than she was before this collision.

        [Ms. Marsh] testified that she suffered from pain, but the Court could not
        distinguish what the pain [was] because there was no expert testimony
        offered.

        [B]ased on the testimony of [Ms. Marsh] and base[d] upon the observations
        of [Ms. Marsh], which included how she responded to questions on both
        direct and cross examination, as well as the facts [that] this Court found as
        set out above, this Court questions the credibility of [Ms. Marsh].

        “When no transcript or statement of the evidence is included in the record on
appeal, we conclusively presume that the findings of fact made by the trial court are
supported by the evidence and are correct.” In re M.L.D., 182 S.W.3d 890, 894 (Tenn.
Ct. App. 2005) (citing J.C. Bradford & Co. v. Martin Constr. Co., 576 S.W.2d 586, 587
(Tenn. 1979)). We do not find the trial court’s award of damages in the amount of
$5,000 to be so grossly inadequate as to shock the conscience of this Court. The trial
court had the opportunity to weigh the evidence and the credibility of the sole witness,
Ms. Marsh, and made a sound determination. “When the trial court has seen the
witnesses and heard the testimony, especially where issues of credibility and the weight
of testimony are involved, the appellate court must extend considerable deference to the
trial court’s factual findings.” Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 732
(Tenn. 2002) (citations omitted).

       The limited evidence in this record does not preponderate against the amount of
the damages awarded to Ms. Marsh. Accordingly, we affirm the trial court’s decision.

                                        V.       CONCLUSION

3
 In contrast, the record contains Ms. Marsh’s sworn affidavit stating, “[a]fter the collision [with Angela
Lowe], I experienced pain in both of my wrists. I did not have this pain prior to the collision.”
                                                  -7-
       The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary and consistent with this Opinion. Costs of the appeal
are taxed to the appellant, Shelby K. Marsh, for which execution may issue if necessary.


                                                _________________________________
                                                JOHN W. MCCLARTY, JUDGE




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