                   IN THE COURT OF APPEALS OF TENNESSEE
                             AT MORRISTOWN1
                                      October 14, 2003 Session

               EDDIE W. BELCHER, ET AL. v. STATE OF TENNESSEE

                 Appeal from the Tennessee Claims Commission, Eastern Division
                  No. 101040    Robert A. Fellman, Administrative Law Judge

                                     FILED NOVEMBER 25, 2003

                                    No. E2003-00642-COA-R3-CV


This claim against the State of Tennessee arises out of a two-vehicle accident. Eddie W. Belcher
was driving to church with his wife, Sara O. Belcher, when their vehicle struck the rear of a vehicle
driven by Eric Wilson . The Belchers, who sustained severe injuries as a result of this accident, filed
a claim against the State, alleging that a dangerous condition existed on the portion of the interstate
where the accident occurred and that the section of the interstate was negligently designed and
maintained. The Claims Commission determined that the State was negligent in its design of that
stretch of interstate, but held that its negligence was not the proximate cause of the Belchers’
injuries. The Belchers appeal, arguing that the Claims Commission erred in the second of these two
determinations. By way of a separate issue, the State contends that the Belchers’ claim is barred by
the four-year statute of repose. We affirm.

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY , J.,
and WILLIAM H. INMAN , SR. J., joined.

Wade V. Davies and Tasha C. Blakney, Knoxville, Tennessee, for the appellants, Eddie W. Belcher,
deceased, and Sara O. Belcher, deceased, through their executrix and daughter, Beverly J. Ritchie.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and George
H. Coffin, Jr., Assistant Attorney General, for the appellee, State of Tennessee.

                                                 OPINION




        1
         This case was heard in Morristown before students from Morristown East High School and Morristown W est
High School as a part of the Court’s C.A.S.E. (Court of Appeals Affecting Student Education) Project.
                                                   I.

       On Sunday morning, August 12, 1990, Mr. Belcher was driving to church with his wife. The
Belchers were traveling eastbound in the center lane of Interstate 40 through Knoxville. The road
conditions were described as good.

        Two 18-wheeler trucks slowly passed the Belchers on either side as the three vehicles
approached the 17th Street overpass. Meanwhile, Mr. Wilson and the occupants of his vehicle were
traveling ahead of the Belchers in the far left-hand lane. Mr. Wilson was lost; on the instructions
of one of his passengers, Mr. Wilson slowed his vehicle and attempted to switch lanes in order to
exit the interstate. Mr. Wilson then moved into the center lane of the interstate.

       The Belchers crested a hill over the 17th Street overpass. Approximately 475 feet from the
apex of the hill, the Belchers’ vehicle struck the rear of Mr. Wilson’s vehicle.

       All that Mr. Belcher could recall of the accident was hearing a noise and waking up leaning
over the steering wheel with his vehicle in the median of the interstate. Mr. Belcher did not
remember ever seeing the Wilson vehicle. In her deposition, Mrs. Belcher recalled the following:

               [A]s we were going along all at once this light-colored car appeared
               right in front of us and there was not enough time between the time
               that I saw the car in front of us that I had any time to say anything or
               do anything before we hit it. . . . The way was open in front of us and
               we were driving along and then all at once this light-colored car was
               right in front of us.

The Belchers stated that they were driving the speed limit of 55 mph at the time of the accident.

        Mr. Wilson and one of his passengers stated that Mr. Wilson had been driving 55 mph, then
slowed to 50 mph to allow a truck to pass him. He then saw a car behind him, but could not get out
of its way because it was going approximately 75 or 80 mph. Another passenger in Mr. Wilson’s
vehicle stated that, as he was looking out the rear window to assist Mr. Wilson in changing lanes,
he saw the Belcher vehicle “going real fast” just before the accident occurred.

        The parties later stipulated that the difference in speed of the two vehicles at the time of the
collision was 45 mph and that the brake light filaments of Mr. Wilson’s vehicle indicated that his
brake lights “were on at or very near the time of impact.”

        As a result of the accident, the Belchers sustained serious injuries. Mrs. Belcher’s injuries
were particularly severe; she suffered a broken neck and pinched spinal column, resulting in
paralysis. The police officer who investigated the accident determined that Mr. Wilson did slow his
vehicle for traffic, but that his driving did not contribute to the accident. Instead, the officer
determined that Mr. Belcher’s action in following too closely contributed to the accident.


                                                  -2-
        On August 8, 1991, the Belchers filed a claim for damages against the State with the
Tennessee Claims Commission. In their claim, the Belchers alleged that the State negligenly
designed, approved, and maintained a dangerous and defective roadway and that this condition
caused the accident in which the Belchers were injured. Before the claim was heard before the
Claims Commission, the Belchers passed away.2 Their daughter and executrix, Beverly Ritchie, was
substituted in their place.

        The case was heard on March 28, 2001. At the hearing, the Belchers’ expert witness, Don
Moore – a civil engineer specializing in traffic operations and transportation and a certified accident
reconstructionist – testified that the design of the highway leading up to the accident scene violated
two standards of the American Association of State Highway and Transportation Officials
(“AASHTO”). First, Moore claimed that the highway did not comply with the minimum stopping
sight distance (the distance required for drivers to be able to see what is in front of them, based on
the speed limit). Second, Moore testified that the highway was deficient in decision sight distance,
which refers to the time a motorist needs to respond to a hazard in the road. Under the AASHTO
standards, the minimum stopping sight distance should have been 538 feet and the minimum
decision sight distance should have been 673 feet.

       On February 4, 2003, the Claims Commission issued its judgment, finding that the Belchers
were not entitled to relief. In rendering this judgment, the Claims Commission made the following
statements:

                  In order for [there] to be a cause of action for negligence, it must be
                  established that the defendant’s conduct was the proximate or legal
                  cause. Proximate causation is the ultimate issue in negligence cases.
                  See McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991).

                  “There is no requirement that a cause, to be regarded as the proximate
                  cause of an injury, be the sole cause, the last act, or the one nearest to
                  the injury, provided it is a substantial factor in producing the end
                  result.” Id. at 775.

                  While [the Belchers] proved that the general area in which the
                  accident took place was not in compliance with AASHTO standards,
                  the proof did not establish that the State’s failure to be in
                  conformance with those guidelines was the proximate cause of the
                  accident here.

                  First, the main fault with the road area at issue is that cars going up
                  the hill preceding the accident site have a limited view of cars on the
                  other side of the hill who have already begun their descent.


       2
           Mr. Belcher died on April 20, 1998, and Mrs. Belcher died on May 26, 1998.

                                                       -3-
But the accident here did not happen just over the crest of the hill.
This accident happened 475 feet, [or] 158 yards, after [Mr. Belcher]
had crossed the apex of the hill.

There was conflicting evidence . . . as to the speed of the two cars and
lanes in which they were traveling. But it is clear that the accident
was caused, not because of a deficiency in sight distance or minimum
stopping sight distance, but because Mr. Wilson’s car veered
suddenly into [the Belchers’] lane while [the Belchers’] car was going
too fast and/or the Wilson car had slowed dangerously. The parties
stipulated that there was a 45 mph difference in speed between the
two cars involved in the accident. If Mr. Belcher was going only the
speed limit, then Mr. Wilson had to be going 10 mph on a crowded
highway at the time of the accident.

Even if [the Belchers’] car was not speeding (and it appears likely
that it was), [Mr. Belcher’s] vision of the Wilson car was restricted
mostly by trucks, not any road deficiency.

[Mrs.] Belcher’s testimony, of the Wilson car darting in front of
theirs, describes a collision caused by cars shifting lanes at
inappropriate speeds.

There was no testimony by either [of the Belchers] that they could not
see the Wilson car in front of them because the hill had obstructed
their view.

More importantly, even [the Belchers’] own expert witness, a
certified accident reconstructionist, did not testify that the road
conditions caused this particular accident. He testified that the road
design was inherently deficient, and [the Belchers] argued that it
should be deduced from this fact alone that the defect caused the
accident. But no such cause was proven.

In fact, it was the State which broached this area of causation during
the hearing on cross examination but Mr. Moore still did not testify
as to his opinion on the ultimate issue of proximate cause – whether
the road conditions caused the accident or the drivers involved.

“The decision of whether a condition of a highway [. . .] is . . .
dangerous and hazardous . . . is a factual one, and the court should
consider the physical aspects of the roadway, the frequency of
accidents at that place in the highway and the testimony of expert


                                  -4-
               witnesses in arriving at this factual determination.” Sweeney v. State,
               768 S.W.2d 253, [] 255 (Tenn. 1989).

               As already pointed out here, there was no expert testimony that the
               road conditions caused this particular accident. Nor was there
               testimony as to the frequency of accidents at this particular accident
               site. There was proof as to two other accidents in the area but these
               were weather-related.

               There was also testimony by a police officer that he went to an
               accident in the same area and had to call for help because oncoming
               traffic coming over the hill had little time to react. But [the
               Belchers’] accident was not caused by the hill blocking their view; it
               was caused by the negligence of the drivers involved. In any case,
               even on a flat road, an accident can result in a dangerous situation
               simply because some drivers are not paying attention to what is in
               front of them.

               If the road was as dangerous as [the Belchers] asked this Judge to
               deduce, then accidents during good driving conditions, as here,
               should occur with some frequency. But [the Belchers] presented no
               proof of other similar accidents under similar conditions.

               Even proof that the area had experienced many accidents would only
               tend to prove that the area was inherently dangerous. But the mere
               fact that an area is inherently dangerous does not automatically prove
               that every accident in the area is caused by the conditions of the road.
               Accidents happen on perfectly safe roads when a driver drives
               negligently. The odds of an accident increase when there is more
               than one negligent driver, as appears to be the case here.

               Because [the Belchers] did not prove that their injuries were the result
               of the State’s negligence, their claim for damages is denied.

(Numbering in original omitted). From this judgment, the Belchers appeal.

                                                 II.

        In this non-jury case, our review is de novo upon the record of the proceedings below; but
the record comes to us with a presumption of correctness as to the Claims Commission’s factual
determinations that we must honor unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Our review of questions of law is de novo with no


                                                 -5-
such presumption of correctness attaching to the Claims Commission’s conclusions of law.
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d
857, 859 (Tenn. 1993).

                                                   III.

         The Belchers’ claim is premised upon Tenn. Code Ann. § 9-8-307 (Supp. 2003), which
states, in pertinent part, as follows:

                (a)(1) The commission or each commissioner sitting individually has
                exclusive jurisdiction to determine all monetary claims against the
                state based on the acts or omissions of “state employees,” . . ., falling
                within one (1) or more of the following categories:

                                                  ***

                (I) Negligence in planning and programming for, inspection of,
                design of, preparation of plans for, approval of plans for, and
                construction of, . . . , highways, . . . , and negligence in maintenance
                of highways, . . . , designated by the department of transportation as
                being on the state system of highways or the state system of interstate
                highways;

                (J) Dangerous conditions on state maintained highways. The
                claimant under this subsection must establish the foreseeability of the
                risk and notice given to the proper state officials at a time sufficiently
                prior to the injury for the state to have taken appropriate measures;

                                                  ***

                                                   IV.

        Before reaching the Belchers’ issue, we must first address our attention to the State’s position
that the Belchers’ claim is barred by the four-year statute of repose, codified at Tenn. Code Ann. §
28-3-202 (2000). That statute provides as follows:

                All actions to recover damages for any deficiency in the design,
                planning, supervision, observation of construction, or construction of
                an improvement to real property, for injury to property, real or
                personal, arising out of any such deficiency, or for injury to the
                person or for wrongful death arising out of any such deficiency, shall
                be brought against any person performing or furnishing the design,
                planning, supervision, observation of construction, construction of,


                                                   -6-
               or land surveying in connection with, such an improvement within
               four (4) years after substantial completion of such an improvement.

The State contends that, since the Belchers brought their claim under, inter alia, Tenn. Code Ann.
§ 9-8-307(a)(1)(I), which addresses the negligent planning of highways, their claim is subject to this
statute of repose. The stretch of highway at issue in the instant case was first constructed in 1954
and improved in 1980. Because, so the argument goes, the Belchers filed their claim on August 8,
1991, it is outside the four-year statute of repose and should be barred. We disagree with this
position.

        Tenn. Code Ann. § 28-3-205(a) (2000) provides that the statute of repose may not be used
as a defense by anyone who possesses or controls “as owner, tenant, or otherwise” the deficient
property that allegedly caused the injury or death that formed the basis for the legal action. Our
Supreme Court has addressed this statute as follows:

               It seems to us that there is a substantial difference between
               landowners and tenants, who are excepted from the provisions of the
               Tennessee statutes, [Tenn. Code Ann.] § 28-3-205(a), and those
               engaged in the designing and erection of a building. The duty of the
               landowner or tenant in possession to keep premises reasonably safe
               for third persons is a continuing one, whereas the work of the
               architect, design engineer and contractor ordinarily ceases with the
               completion of the building. Yet without limitations such as those
               provided in the subject statutes their exposure to tort claims could
               extend into the very distant future.

Harmon v. Angus R. Jessup Assocs., Inc., 619 S.W.2d 522, 524 (Tenn. 1981). The intent of the
legislature in enacting Tenn. Code Ann. § 28-3-202 was to “insulate contractors, architects,
engineers, and others from liability for defective construction or design of improvements to realty”
when the injury or death occurs more than four years after the improvement is substantially
completed. Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 540 (Tenn. 1998) (citing Watts
v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975)).

        It is clear that the four-year statute of repose was not intended to be applicable to the owner
of the subject property, but rather to the designer of the property. As the State has “actual possession
or the control” of the highway at issue, see Tenn. Code Ann. § 28-3-205(a), it cannot assert the
statute of repose as a defense to the Belchers’ claim. Therefore, we find this issue to be without
merit.

                                                  V.

        The Belchers argue that the Claims Commission erred in determining that they failed to prove
that the negligence of the State was the proximate cause of their injuries. We disagree.


                                                  -7-
        In order to prevail on a negligence claim, a claimant must prove five essential elements: (1)
that the defendant owed a duty of care to the claimant; (2) that the defendant breached that duty of
care; (3) that the breach of care resulted in an injury to the claimant; (4) that the breach of care was
the cause in fact of the claimant’s injury; and (5) that the breach of care was the proximate or legal
cause of the claimant’s injury. McClenahan, 806 S.W.2d at 774 (emphasis added). Therefore, it
is not enough to prove the existence of a dangerous condition on the highway, pursuant to Tenn.
Code Ann. § 9-8-307(a)(1)(J), or to prove that the State negligently approved, constructed, and
maintained the highway, pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I). The Belchers were also
required to prove that those conditions were the cause in fact and the proximate cause of the
accident.

        After reviewing the record, we cannot say that the evidence preponderates against the Claims
Commission’s determination that the Belchers did not prove that the deficiency in the design of the
highway caused their injuries. While the Belchers take issue with the Claims Commission’s findings
with respect to the speed of the Belchers’ vehicle and the exact location of the accident, we find that
the evidence does not preponderate against those findings. The Claims Commission chose between
competing and conflicting testimony. The trier of fact is in the best position to make these choices.
See Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); Bowman v. Bowman,
836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Such determinations are entitled to great weight on
appeal. Bowman, 836 S.W.2d at 566.

         In short, there is a dearth of evidence in the record to support the Belchers’ contention that
the defective highway caused the accident and, consequently, their injuries. Indeed, the Belchers’
own expert witness failed to testify that the design of the highway caused the accident. Because of
this lack of evidence, we are loath to find that the evidence preponderates against the trial court’s
critical determination that this negligently-designed stretch of Interstate 40 was not the cause of the
Belchers’ accident.

                                                  VI.

        The judgment of the Claims Commission is affirmed. This case is remanded for the
collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the
appellants, Eddie W. Belcher, deceased, and Sara O. Belcher, deceased, through their executrix and
daughter, Beverly J. Ritchie.


                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                  -8-
