                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                        Assigned on Briefs September 20, 2010

           SANDRA NEWMAN ET AL. v. RUBYE J. JARRELL ET AL.

                 Appeal from the Circuit Court for Rutherford County
                          No. 57145     Royce Taylor, Judge


               No. M2010-00586-COA-R3-CV - Filed December 7, 2010


The plaintiffs were injured in a car accident in which their car collided with a stolen car.
They sued the City of Murfreesboro and its police department, arguing that the stolen car was
being pursued by the police immediately prior to the accident. The plaintiffs also sued the
person who was using the car with its owner’s permission prior to the theft, arguing that he
had acted negligently in leaving the keys in the car. The trial court granted summary
judgment in favor of all of the defendants. With respect to the city and its police department,
we affirm. With respect to the user of the offending car prior to its theft, we reverse and
remand.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Kerry Knox and Thomas H. Castelli, Murfreesboro, Tennessee, for the appellants, Sandra
Newman, Tim Newman, and Alyssa Christy-Millet, a minor b/n/f Laura Millet.

Steven A. Dix, Murfreesboro, Tennessee, for the appellees, Rubye J. Jarrell and Joseph D.
Ash, Jr.

Richard W. Rucker, Adam Ford Tucker, and Susan Emery McGannon, Murfreesboro,
Tennessee, for the appellees, Murfreesboro, Tennessee, Police Department and the City of
Murfreeboro, Tennessee.
                                          OPINION

                         F ACTUAL AND P ROCEDURAL B ACKGROUND

        On May 18, 2007, Sandra Newman was driving her car along a street in
Murfreesboro; her granddaughter Brianna Gortney and Brianna’s friend Alyssa Christy-
Millett were passengers. Ms. Newman’s car, a 1994 Dodge Spirit, was struck by a 1995
Mercury Grand Marquis registered to Rubye Jarrell. The Grand Marquis had been stolen
earlier that day and at the time of the collision was driven by an unknown driver. Shortly
before the accident, Murfreesboro police officers had attempted to stop the Grand Marquis
due to its excessive speed, but the Grand Marquis failed to stop.

        This lawsuit was filed on May 14, 2008 by Ms. Newman, her husband, and Laura
Millett on behalf of her daughter Alyssa Christy-Millett. The defendants included Ms.
Jarrell, John Doe (the unknown driver), the Murfreesboro Police Department, and the City
of Murfreesboro. The original complaint states causes of action for negligence and
negligence per se, negligent entrustment, joint and several liability under respondeat superior,
and loss of society and consortium. In an amended complaint filed in November 2008, the
plaintiffs added as a defendant Joseph D. Ash, Jr., Ms. Jarrell’s grandson. The plaintiffs
asserted that Mr. Ash was liable under theories of respondeat superior and negligent
entrustment because immediately prior to the time of the accident, he was operating Ms.
Jarrell’s car with her consent and knowledge and left the car unattended and unlocked with
the keys in the ignition. The parties proceeded to engage in discovery.

       In September 2009, the City of Murfreesboro and the police department filed a motion
for summary judgment on all claims against them for negligence and negligence per se. In
support of this motion, they filed the affidavits of Officers Tracy Renee Womack and
Christopher Shawn Haney. Prior to the accident, these officers were patrolling in an
unmarked car and encountered the Grand Marquis travelling at an excessive speed. They
gave the same account of the events leading up to the accident. In his affidavit, Officer
Haney stated:

       At approximately [4:45 p.m. Officer Womack and I] observed a 1995 white
       Mercury Grand Marquis pass by us at a high rate of speed. Officer Womack
       and I pulled out behind the Grand Marquis, which stopped at the stop sign on
       Azure Way where it intersects with Cason Trail. While stopped behind the
       vehicle, I observed the passengers in the vehicle, which appeared to be four to
       five African-American young boys, throw personal effects such as
       computerized discs and small personal objects out of the vehicle onto the



                                              -2-
      ground. At that time, Officer Womack and I activated the emergency lights
      and siren in our car.

      The 1995 white Mercury Grand Marquis pulled across the intersection of
      Cason Trail and traveled a short distance further on Azure Way. Officer
      Womack and I followed the vehicle across Cason Trail on Azure Way. The
      vehicle turned left off of Azure Way into a small parking area used by Cason
      Lane Academy for student drop-off and pick-up. Officer Womack and I
      followed the vehicle into the parking area. The vehicle did not stop as
      expected; rather, once in the parking area it accelerated and pulled onto Cason
      Trail going east. The 1995 white Mercury Grand Marquis drove off east down
      Cason Trail at an accelerating rate of speed. Officer Womack and I stopped
      our vehicle and powered off the emergency lights and siren. We sat stationary
      as we watched the 1995 white Mercury Grand Marquis flee from our attempt
      to pull it over. . . . After we had lost sight of the vehicle, Officer Womack and
      I drove in the unmarked Nissan Maxima at a normal rate of speed east along
      Cason Trail and turned right onto Cason Lane heading south towards New
      Salem Highway.

       Also submitted with the City’s motion for summary judgment were the following
affidavits and deposition excerpts:

      -Affidavit of Cary Gensemer, supervising officer for Officers Womack and
      Haney in the crime suppression unit. Officer Womack contacted Sergeant
      Gensemer to tell him that she believed a car she and her partner had
      “attempted to stop had later been involved in an accident.” Based upon the
      information provided by these two officers, Sergeant Gensemer determined
      that “no pursuit occurred in this case.”

      -Affidavit of James H. Wyatt, the supervising officer for the west side of
      Murfreesboro at the time of the accident. From discussions with Sergeant
      Gensemer and Officer Womack, Officer Wyatt determined that “no pursuit
      occurred in this case.”

      -Affidavit of Justin John Lemanski, the first police officer at the scene of the
      accident; he prepared the accident report.

      -Excerpt of deposition of Georgia Meshotto, a witness to the accident.

      -Excerpt of deposition of Joseph Vernon Mandeville, a witness to the accident.

                                             -3-
        In October 2009, Ms. Jarrell and Mr. Ash filed a motion for summary judgment
asserting that “the intervening, unforeseen criminal acts of four (4) John Doe perpetrators
constitute the sole and proximate cause of the accident and injuries to the Plaintiffs in this
case.” Ms. Jarrell and Mr. Ash submitted their affidavits. In his affidavit, Mr. Ash stated:
“I know I did not leave the keys I was using in the ignition because I had them with me at the
time and after the wreck.” In responding to the plaintiffs’ statement of undisputed facts, Mr.
Ash admitted for purposes of the motion for summary judgment that he “left a set of keys in
the car.” Mr. Ash further admitted that he had acknowledged to Officer Price and to Ms.
Jarrell that he had left the keys in the vehicle.

       The plaintiffs filed responses in opposition to the defendants’ motions for summary
judgment. They submitted an affidavit from Brad Corcoran, a professional investigator and
a teacher of police procedure, who opined that “Officers Womack and Haney entered into
a pursuit of the suspect vehicle.” Based upon his review of the transcripts of the depositions
of Officers Womack and Haney and his investigation of the area, Mr. Corcoran stated that
“it appears that Officer Haney [the driver] attempted to ‘parallel’ the suspect vehicle by
turning onto Cason Lane . . . [a] police pursuit tactic to intercept a fleeing vehicle at the next
intersection.” The parties responded to one another’s statements of undisputed material facts.

        After a hearing, the trial court granted the defendants’ motions for summary judgment
and, since the defendant John Doe had not been identified, dismissed the plaintiffs’ case in
its entirety. In its order, the court included the following pertinent conclusions:

       The Defendant, Murfreesboro, Tennessee Police Department, has successfully
       negated essential elements of Plaintiffs’ negligence claim, in that Defendant,
       Murfreesboro, Tennessee Police Department, did not breach its duty owed to
       the Plaintiffs nor was it the direct and proximate cause of Plaintiffs’ injuries;

       The Defendant, Murfreesboro, Tennessee Police Department, has successfully
       negated essential elements of Plaintiffs’ negligence per se claim, in that
       Defendant, Murfreesboro, Tennessee Police Department, did not violate any
       statute or ordinance;

       The Defendants, Rubye J. Jarrell and Joseph D. Ash, Jr., have successfully
       negated Plaintiffs’ negligence and negligence per se claim, in that Defendant
       John Doe’s negligence and negligence per se is not imputed to Defendants
       Rubye J. Jarrell and Joseph D. Ash, Jr. by the doctrine of respondeat superior;

       The Defendant, Joseph D. Ash, Jr., has successfully negated Plaintiffs’



                                               -4-
       negligence claim, in that there are no facts in the record to show that
       Defendant, Joseph D. Ash, Jr., was the proximate cause of Plaintiffs’ injuries.

        The plaintiffs have appealed the trial court’s grant of summary judgment with respect
to the City of Murfreesboro, the police department, and Mr. Ash.1 With respect to the claims
against the City and the police department, the plaintiffs argue that the trial court erred in
granting summary judgment on the issues of whether the defendants breached their duty of
care and whether the defendants’ negligence was the proximate cause of the plaintiffs’
injuries. With respect to the claims against Mr. Ash, the plaintiffs argue that summary
judgment was not properly granted on the issues of whether Mr. Ash was negligent in leaving
the car unattended with the keys in the vehicle and whether his negligence was the proximate
cause of the plaintiffs’ injuries.

                                     S TANDARD OF R EVIEW

       Summary judgment is appropriate when there is no genuine issue of material fact and
the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04.
Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth Adver.
& Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). We consider the evidence in
the light most favorable to the non-moving party and resolve all inferences in that party’s
favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). When reviewing the evidence,
we must determine whether factual disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.
1993). If a factual dispute exists, we must determine whether the fact is material to the claim
or defense upon which the summary judgment is predicated and whether the disputed fact
creates a genuine issue for trial. Id.; Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102,
104 (Tenn. Ct. App. 1998). To shift the burden of production to the nonmoving party who
bears the burden of proof at trial, the moving party must negate an element of the opposing
party’s claim or “show that the nonmoving party cannot prove an essential element of the
claim at trial.” Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).

                                           A NALYSIS

                        City of Murfreesboro and Police Department

       The plaintiffs assert on appeal that the trial court erred in granting summary judgment
in favor of the defendants and argue that “the City and its agents were negligent in pursuit.”



       1
       The appellants have not raised any issues on appeal as to the trial court’s grant of summary
judgment on the claims against Ms. Jarrell.

                                                -5-
       While governmental entities are generally immune from suit for personal injuries and
property damage, certain statutory provisions create exceptions to this immunity. Smith v.
Cherry, No. M2005-01168-COA-R3-CV, 2006 WL 1724629, at *3 (Tenn. Ct. App. June 22,
2006). For purposes of this case, Tenn. Code Ann. § 55-8-108 is the operative statute. Tenn.
Code Ann. § 55-8-108(e) provides:

        Notwithstanding the requirement of this section that drivers of authorized
        emergency vehicles exercise due regard for the safety of all persons, no
        municipality or county nor the state or any of its political subdivisions, nor
        their officers or employees, shall be liable for any injury proximately or
        indirectly caused to an actual or suspected violator of a law or ordinance who
        is fleeing pursuit by law enforcement personnel. The fact that law
        enforcement personnel pursue an actual or suspected violator of a law or
        ordinance who flees from pursuit shall not render the law enforcement
        personnel, or the employers of the law enforcement personnel, liable for
        injuries to a third party proximately caused by the fleeing party unless the
        conduct of the law enforcement personnel was negligent and that negligence
        was a proximate cause of the injuries to the third party.

(Emphasis added). In Haynes v. Hamilton County, 883 S.W.2d 606, 610 (Tenn. 1994), our
Supreme Court overruled prior caselaw to hold that negligent “conduct” within the meaning
of Tenn. Code Ann. § 55-8-108(e) “includes the decision to commence or continue a high
speed chase when a reasonable police officer would not do so.”

       The plaintiffs’ theory of negligence against the City and its employees is based upon
the premise that the police officers engaged in pursuit of the Grand Marquis.2 If there was
no pursuit, then the defendants could not have been negligent in initiating or continuing the
pursuit. In support of their motion for summary judgment, the City and the police department
presented affidavits from the two officers in the car behind the Grand Marquis to the effect
that, once the Grand Marquis accelerated and turned onto Cason Trail, the officers
deactivated their emergency sirens and lights and stopped their car in the access road. The
officers also testified that, from the time they first saw the Grand Marquis on Azure Way,
they did not drive at a high rate of speed. Sergeant Gensemer and Sergeant Wyatt testified
by affidavit that no pursuit had occurred.

       To shift the burden of production to the plaintiffs, the City and the police department
had to negate an element of the plaintiffs’ claim or “show that the nonmoving party cannot


        2
         Although the plaintiffs’ complaint also includes allegations with respect to the manner in which the
police officers operated their vehicle, those allegations are not addressed on appeal.

                                                    -6-
prove an essential element of the claim at trial.” Hannan, 270 S.W.3d at 8-9. We conclude
that the affidavits submitted by the defendants successfully negated the element of breach of
duty by tending to disprove that the police officers engaged in a pursuit.

        Once the moving party has shifted the burden of production, the nonmoving party
must “produce evidence of specific facts establishing that genuine issues of material fact
exist.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008). To meet this burden,
the plaintiffs rely on several pieces of evidence. They argue that, under the City’s pursuit
policy, Officers Womack and Haney engaged in a pursuit. The police department policy
defined “pursuit” as:

       the act of following a motor vehicle in a Departmental vehicle after the officer
       has directed the vehicle to pull over and stop by audible and visible commands
       (emergency lights and siren) and it is obvious that the driver is aware of the
       command, has had an opportunity to safely stop, and does not intend to do so.
       Because road and traffic conditions vary, there is no specific distance or
       standard period of time when an attempt to stop a vehicle becomes a pursuit.
       A pursuit exists when the conditions have been met, whether or not the vehicle
       being pursued or the Departmental vehicle is exceeding the applicable speed
       limit.3

Under the undisputed facts, however, Officers Womack and Haney did not have reason to
realize that the Grand Marquis was not going to pull over until the car sped out of the access
road onto Cason Trail.

       The plaintiffs point to the following deposition testimony by Sergeant Gensemer:
       A. [Officer Lemanski, the officer preparing the accident report] said, How
       should I mark that? I said, Well, you should mark, no, there was no police
       pursuit involved. Because after questioning Officer Womack and Officer
       Haney, I determined that they did, indeed, not pursue the vehicle.

       Q. Okay. Specifically, tell me, what questions did you ask Officers Haney and
       Womack to determine that there was not a pursuit?

       3
           The policy went on to set out the only conditions under which pursuit is appropriate:

       Pursuit is appropriate when the officer has probable cause to believe that the person being
       pursued has or will commit a violent felony, or the person has seriously injured another
       person, or the person poses a great risk of serious bodily injury or death to innocent parties,
       and other opportunities to apprehend the person are not believed to exist.


                                                     -7-
       A. I don’t remember, specifically. But I can tell you generally what I ask in
       the situation.

       Q. Okay, that’s fine.

       A. At the time that you realize that that vehicle was abating [sic] you, did you
       discontinue? And they said, yes, they discontinued as soon as they realized
       that the vehicle was not intentionally fleeing them.

(Emphasis added). The italicized phrase, relied upon by the plaintiffs, appears to be a
misstatement or a mistranscription since Sergeant Gensemer’s conclusion, that there was no
pursuit, would be premised on evidence that the officers had discontinued following the car
as soon as they realized that it was intentionally fleeing from them. Earlier in his deposition
testimony, in describing the chain of events related to him by Officers Womack and Haney,
Sergeant Gensemer stated: “And the vehicle fled from them.” Contrary to the plaintiffs’
position, Sergeant Gensemer’s testimony contains no real ambiguity as to the officers’
actions and the conclusion to be drawn therefrom: that there was no pursuit.

       The plaintiffs also cite deposition testimony from Officer Price that she had seen the
Grand Marquis approximately 30 to 45 minutes prior to the accident and had been playing
“cat and mouse” with the car. Officer Price stated that she would pull in behind the car and
it would go in another direction, suggesting to the officer that the car was intentionally trying
to elude her. In her testimony, Officer Price stated that she had relayed this information to
Officers Womack and Haney and suggested that they try to get a license number if they saw
the car. According to the plaintiffs’ argument, this testimony demonstrates that “law
enforcement knew that the suspect vehicle did not want to be apprehended by law
enforcement” and “by pursuing it for the stated purpose of speeding or reckless
endangerment, Officers Womack and Haney breached a duty of care to Mrs. Newman.” This
reasoning assumes, however, that Officers Womack and Haney pursued the Grand Marquis,
an assumption not supported by the evidence. When the Grand Marquis sped away, Officers
Womack and Haney stopped following it.

        In arguing that Officers Womack and Haney did engage in a pursuit, the plaintiffs
point to the testimony of two witnesses. Ms. Meshotto, who was driving behind the plaintiffs
and witnessed the collision, testified that either a 911 operator or a police officer at the scene,
she could not remember which, told her that the police “had been in pursuit of [the Grand
Marquis] but they had stopped the pursuit.” Under Tenn. R. Civ. P. 56.06, affidavits are to
be “made on personal knowledge” and “set forth such facts as would be admissible in
evidence.” Hearsay statements, such as those relied upon by the plaintiffs in Ms. Meshotto’s
deposition testimony, do not satisfy Tenn. R. Civ. P. 56.06 for purposes of establishing the

                                                -8-
presence of genuine issues of material fact for trial.4 Byrd v. Hall, 847 S.W.2d 208, 215-16
(Tenn. 1993); Sewell v. Par Cable, Inc., No. 87-266-II, 1988 WL 112915, at *5 (Tenn. Ct.
App. Oct. 26, 1988).

        The second witness cited by the plaintiffs is Mr. Mandeville, who was present at the
intersection when the collision occurred. The plaintiffs rely upon testimony by Mr.
Mandeville that, a few minutes after the collision, two uniformed officers who were
travelling “pretty fast” stopped and asked him which way the suspects, the four unknown
persons in the Grand Marquis who fled on foot after the accident, had gone. Mr. Mandeville
also testified, however, that these officers were driving a black or dark blue Grand Am with
its lights and sirens activated. It is undisputed that Officers Womack and Haney were driving
in an unmarked beige Nissan Maxima. Thus, the officers who asked Mr. Mandeville to tell
them which way the suspects had run were not Officers Womack and Haney, and Mr.
Mandeville’s testimony does not support the plaintiffs’ theory that Officers Womack and
Haney were pursuing the Grand Marquis prior to the accident.

       In opposing the City’s motion for summary judgment, the plaintiffs submitted an
expert affidavit from Brad Corcoran, an investigator and teacher of police procedure. Mr.
Corcoran stated that he reviewed the police department’s pursuit policy, various depositions,
accident reports and evidence from the police department, and conducted his own
investigation of the accident site. Mr. Corcoran then opined as follows:

       Using the Murfreesboro Police Department’s definition of pursuit, it is my
       opinion that Officers Womack and Haney entered into a pursuit of the suspect
       vehicle.

       From my review of the deposition transcripts of Officers Womack and Haney
       and area [sic], it appears that Officer Haney attempted to “parallel” the suspect
       vehicle by turning onto Cason Lane, headed toward New Salem Road. A
       police pursuit tactic to intercept a fleeing vehicle at the next intersection.

The plaintiffs argue that Mr. Corcoran’s affidavit explains the action of Officers Womack
and Haney in turning onto Cason Lane instead of going straight on Cason Trail behind the
Grand Marquis. Cason Lane runs perpendicular to Cason Trail. New Salem Road runs
parallel to Cason Trail.

       The plaintiffs point out that the trial court made no mention of Mr. Corcoran’s
affidavit in its order. We do not consider the trial court’s omission to be an error, however,

       4
           Even if admissible, we would not consider the statement sufficient to create a factual dispute.

                                                      -9-
because Mr. Corcoran’s affidavit does not “set forth specific facts showing that there is a
genuine issue for trial,” as required by Tenn. R. Civ. P. 56.06. Mr. Corcoran fails to cite any
facts to support his theory that the officers “appear” to have been paralleling the Grand
Marquis. The affidavit contains only Mr. Corcoran’s conclusory opinions and speculation
and, therefore, is not sufficient to show that there are genuine issues of fact for trial. See
Barna v. Preston Law Group, P.C., No. M2008-02560-COA-R3-CV, 2009 WL 2616038, at
*6 (Tenn. Ct. App. Aug. 25, 2009); Mechs. Laundry Serv. v. Auto Glass Co. of Memphis,
Inc., 98 S.W.3d 151, 158 (Tenn. Ct. App. 2002).

       In the absence of evidence to show a genuine issue for trial, the trial court properly
granted summary judgment in favor of the City and its police department.

                                         Joseph Ash

       The plaintiffs assert that the trial court erred in granting summary judgment on their
negligence claim against Joseph Ash. The trial court ruled that Mr. Ash “successfully
negated Plaintiffs’ negligence claim, in that there are no facts in the record to show that
Defendant, Joseph D. Ash, Jr., was the proximate cause of Plaintiffs’ injuries.”

       For purposes of Mr. Ash’s motion for summary judgment, we view the facts in the
light most favorable to the plaintiffs. We will therefore assume that Mr. Ash left a key to the
Grand Marquis in the car, but not in the ignition, when he parked the car at his mother’s
house. This factual assumption is consistent with Mr. Ash’s response to the plaintiffs’
additional statement of undisputed material facts, his deposition testimony, and his affidavit.
At the accident scene, Mr. Ash retrieved his keys from the floor board of the car.

        The trial court based its decision to grant Mr. Ash’s motion for summary judgment
on the Supreme Court’s decision in McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991).
We agree with the trial court’s focus on McClenahan but disagree that the factual distinction
between the two cases is necessarily dispositive here. In McClenahan, the defendant drove
his car to a bank located in the parking lot of a shopping center. Id. at 769. He left the keys
in the ignition of the car while he went into the bank. Id. While the defendant was in the
bank, a thief took his car and drove it away. Id. The police chased the thief at high speed.
Id. After running a red light at high speed, the thief crashed into another car, killing the
plaintiff’s wife and two children and injuring another child. Id. The trial court granted the
defendant car owner’s motion for judgment on the pleadings. Id. at 770. The issue before
the Court was whether the jury should be allowed to determine the issues of proximate cause
and intervening cause. Id.




                                             -10-
       The Supreme Court reviewed prior key-in-ignition caselaw and found that the results
turned upon the applicability of Tenn. Code Ann. § 55-8-162(a), which states:

       No person driving or in charge of a motor vehicle shall permit it to stand
       unattended without first stopping the engine, locking the ignition, and
       effectively setting the brake thereon and, when standing upon any grade,
       turning the front wheels to the curb or side of the highway.

This provision was interpreted as applying only to highways. Id. at 772. In cases involving
keys in the ignition, the liability of the owner depended upon whether the vehicle was left
unattended on private property or on public property:

       If the vehicle is left on private property (i.e. public parking lots), T.C.A. §
       55-8-162 does not apply and the vehicle owner is entitled to judgment as a
       matter of law. If the vehicle is left on public property, such as alongside of
       a road, the case goes to the jury because the statute applies.

Id. The Court questioned the justification for this private/public property distinction
embedded in prior cases but determined that it need not decide this question in order to
decide the case before it. Id. at 772-73. The Court went on to analyze the case under
common law negligence rather than negligence per se (based upon a violation of Tenn. Code
Ann. § 55-8-162(a)).

      After reviewing caselaw from other jurisdictions, the Court adopted the following
approach:

       Leaving a key in the ignition of an unattended automobile in an area where the
       public has access, be it public or private property, could be found by a
       reasonable jury to be negligent, whether or not a prohibitory statute is
       involved.

Id. at 776. As to proximate cause, the Court set out a three-pronged test:

       (1) the tortfeasor’s conduct must have been a “substantial factor” in bringing
       about the harm being complained of; and (2) there is no rule or policy that
       should relieve the wrongdoer from liability because of the manner in which the
       negligence has resulted in the harm; and (3) the harm giving rise to the action
       could have reasonably been foreseen or anticipated by a person of ordinary
       intelligence and prudence.



                                             -11-
Id. at 775. Proximate cause and superseding intervening cause are both jury questions,
except in cases where, under the undisputed facts and inferences therefrom, “all reasonable
persons must agree on the proper outcome.” Id. Both proximate cause and superseding
intervening cause involve the issue of foreseeability. Id. at 775-76.

        Addressing the case before it, the Court in McClenahan concluded that reasonable
minds could differ as to the reasonableness of the car owner’s actions and the foreseeability
of the theft and the resulting harm. Id. at 776. In reversing the trial court’s decision, the
Court stated that determinations regarding the liability of the car owner depend upon “the
entire circumstantial spectrum.” Id. The Court listed the following as circumstances to be
considered:

       [T]he position of the vehicle and the nature of the locality in which the vehicle
       is left, the extent of access thereto, operational condition of the vehicle, its
       proximity to surveillance, the time of day or night the vehicle is left
       unattended, and the length of time (and distance) elapsing from the theft to the
       accident.

Id.

        How do the principles established in McClenahan apply to the case at hand? The trial
court reasoned that McClenahan did not apply because this case does not involve keys left
in the ignition. We must respectfully disagree. The rationale of McClenahan would seem
equally applicable in any case in which car keys are left in plain sight. We see no meaningful
distinction between a situation in which keys are left in the ignition and a situation in which
they are left on the front seat or on the dash board in plain view.

        In the present case, material facts are in dispute, including the location of the keys left
in the car by Mr. Ash and whether they were hidden from view. Likewise, we do not know
whether the car was parked in Mr. Ash’s mother’s driveway or on the street in front of her
house. The fact that the car was parked in a residential area seems to weigh against the
foreseeability of the theft, but there is evidence indicating that a neighbor’s car had been
stolen recently and that this was considered a high crime area. Furthermore, we do not know
whether Mr. Ash’s car was locked or whether he left the windows rolled down. The theft
occurred sometime between 3:00 p.m. and the time of the car accident; the police report
states that the accident was called in at 4:53 p.m.

     We conclude that the trial court erred in deciding the case against Mr. Ash at the
summary judgment stage.



                                               -12-
                                       C ONCLUSION

         We affirm the judgment of the trial court with respect to the City of Murfreesboro
and its police department. We reverse the trial court’s judgment with respect to Mr. Ash and
remand for further proceedings consistent with this opinion. Costs of appeal are assessed
one-half against the plaintiffs and one-half against Mr. Ash.

                                                     ______________________________
                                                          ANDY D. BENNETT, JUDGE




                                            -13-
