Reginald Denard Usher, son of deceased Reginald Smith, filed a lawsuit against Charles Blalock, Sons, Inc. and the State of Tennessee following Smith's fatal accident involving a crash cushion on Interstate 140. The claims centered on negligence for the improper placement of the crash cushion, particularly the absence of a transition panel that could have prevented vehicles from snagging its exposed edge.
During the trial, a jury awarded Usher $2,000,000 in damages, attributing fault as follows: 25% to the Decedent, 37.5% to the State, and 37.5% to Blalock. However, the trial court, acting as the Claims Commissioner, dismissed the claim against the State, citing Usher's failure to demonstrate the standard of care and breach of duty, as well as the Decedent's significant fault for speeding in poor conditions.
Subsequently, the trial court granted Blalock's motion for judgment notwithstanding the verdict, ruling that Blalock was not liable for omitting the transition panel as instructed by a State inspector. The court also found Usher lacked sufficient expert testimony to establish what a prudent contractor would have done. The trial court conditionally granted Blalock a new trial if its judgment was overturned.
On appeal, the court affirmed the dismissal against the State but vacated the judgment in favor of Blalock, remanding the case for a new trial against that defendant.
A single-vehicle accident occurred on May 2, 2003, in a highway construction zone involving a project by Blalock to extend I-140 in Blount County. At the time of the accident, traffic entering and exiting I-140 shared a connecting roadway near Cusick Road. On May 1, 2003, concrete median barriers divided traffic, and a crash cushion was installed at the end of these barriers. The crash cushion, manufactured by Energy Absorption, Inc., lacked a transition panel, which is crucial for safety as it bridges the gap between the barrier and the cushion. The crash cushion is designed to absorb impact and redirect vehicles to prevent secondary accidents. Manufacturer guidelines state that, for bi-directional sites, the rear of the crash cushion must either be offset from traffic or equipped with a transition panel to avoid vehicle snagging. Blalock was tasked with removing 800 feet of concrete barrier closest to Cusick Road before the accident, which was completed by approximately 2:00 p.m. on May 1, leaving part of the barrier intact.
The crash cushion at the end of the barrier near Cusick Road was relocated 800 feet west, and the wing or transition panel was omitted, leaving part of the crash cushion exposed and protruding into eastbound traffic by 12 to 18 inches. The accident resulted in the death of the Decedent, who was traveling eastbound on I-140 with a load of 40,000 pounds of butter. He was discovered deceased in his overturned tractor-trailer early on May 2, 2003, with an exposed metal rail from the crash cushion having penetrated the cab and fatally injured him.
Sergeant Bud Cooper of the Alcoa Police Department, who had previously noted the missing transition panel, responded to the accident after it was reported at 3:33 a.m. He testified that the exposed rail could cause severe injuries and had made mental notes about the potential dangers. Cooper experienced patchy fog while driving home and later encountered thick fog en route to the scene, where visibility was poor. His reconstruction indicated the Decedent lost control of the vehicle 765 feet from where it came to rest, traveling 261 feet out of control before striking the barrier and ultimately colliding with the crash cushion, which was displaced 114 feet upon impact.
Cooper estimated the Decedent's speed at 81 to 86 mph when control was lost, while the plaintiff’s expert, David Brill, estimated a lower speed of 63 to 71 mph, based on differing interpretations of the collision points. Brill acknowledged that his conclusions depended on Cooper's analysis and admitted that a vehicle traveling at 55 mph would have stopped before reaching the crash cushion.
Brill's testimony revealed that the truck involved in the incident was governed to a maximum speed of 70 mph, which aligned with his opinions. In contrast, defense expert Jack Humphries estimated the truck's speed at 75 to 80 mph. Brill acknowledged the complaint's assertion of foggy weather at the time of the incident and recognized the requirement under 49 CFR 392.14 for commercial vehicle drivers to exercise extreme caution in hazardous conditions like fog. He conceded that the prudent action for a driver encountering such conditions was to reduce speed, despite noting that the critical speed for safely navigating the road was approximately 100 mph.
The plaintiff admitted fault for speeding, estimating the truck's speed between 63 and 71 mph in a 55 mph zone. They acknowledged the potential influence of fog on the driver's loss of control during the crash, although no eyewitness accounts were available to confirm the fog's conditions at the time.
Michael Hutchins, a transportation technician from the Tennessee Department of Transportation (TDOT), testified about the placement of a crash cushion at the end of a concrete median barrier. He confirmed that Blalock and the State were subject to the same safety regulations concerning crash cushions and that Blalock had the necessary expertise on site. Hutchins recounted discussions about moving the crash cushion to mitigate risk for motorists, despite acknowledging the danger posed by the exposed end of the barrier. He emphasized that he provided suggestions rather than orders to contractors, as he lacked the authority to direct their actions.
Hutchins presented TDOT's standard specifications for road and bridge construction, which restrict the authority of inspectors from altering project specifications or approving project components. He testified that the plans did not specifically address whether to move the crash cushion and denied instructing Blalock to do so. Hutchins characterized his input as a suggestion rather than an order. He asserted that the construction zone was adequately marked for safe navigation and deemed the crash cushion safe without the transition panel, noting it was to be relocated the following day. Despite acknowledging Blalock's contractual language, he believed Blalock followed his guidance and could have acted differently if he desired.
Dale Dockery, a witness and concrete superintendent for Blalock, testified that installing a crash cushion typically follows the manufacturer's manual and that he would never allow such an installation without the transition panel, regardless of state directives. He emphasized that he would voice concerns if instructed to install improperly and noted he had never installed a crash cushion for temporary use. Dockery opined that if a state inspector advised against using the transition piece, Blalock would reasonably comply.
Subsequently, after the jury's verdict against Blalock, the court held a hearing on the State's liability. The court found it foreseeable that leaving the crash cushion unguarded by a transition panel posed a risk to motorists, including the decedent. However, the court concluded that the plaintiff failed to prove what a reasonable person would have done in a similar situation. Ultimately, the court determined that the risks the State accepted were not unreasonable in comparison to those it avoided.
The court determined that the State's decisions inherently carried risks for both motorists and workers. For instance, while omitting the crash cushion could have reduced risk to the Decedent, it would have posed a new risk to westbound motorists. The court noted that the installation manual required the crash cushion to be anchored alongside bolting the transition wing, signifying that a proper installation would necessitate more work, potentially increasing risk. Consequently, the court ruled that the State was not negligent.
In assessing comparative fault, the court examined whether Blalock bore any responsibility. It noted that Blalock's agent had consulted the State about installing a guardrail extension and was explicitly instructed not to do so. This established that Blalock adhered to the State's directives and acted within the project plans, absolving it of negligence.
The court then considered the driver's potential comparative fault, assuming the State was negligent regarding the missing deflector panel. It acknowledged that both the State's actions and the driver's conduct were foreseeable factors that contributed to the injury. The court evaluated several elements in its comparative fault analysis: the existence of fog conditions at the time of the incident, the unusual nature of the injury as a rare occurrence, the foreman's negligent act while attempting to mitigate risk, the foreman's understanding of the risks involved, and the deceased's failure to slow down in adverse conditions.
The court determined that if the deceased had been driving at a speed of 55 or 60 miles per hour, he would have stopped before colliding with the guardrail, implying that the deceased's actions were a significant factor (at least 50% responsible) for the incident. Consequently, the court dismissed the case against the State of Tennessee and granted judgment in its favor. During a subsequent hearing regarding Blalock’s renewed motion for a directed verdict or new trial, the court clarified that the plaintiff failed to present expert testimony on construction methods and risks that a reasonable person would consider in avoiding negligence. The court concluded that the contractor's liability could not be established because they acted according to the state’s directive, which was not negligent. The court emphasized that contractors cannot override the property owner's decisions. As a result, the court directed a verdict dismissing the case against the contractor, stating that the contractor only followed the state’s instructions. Additionally, the court noted that it would not approve the verdict against the contractor as a "13th juror." The trial court's opinions about both the State's and Blalock's liability were incorporated into the final judgment.
The plaintiff's appeal raises several key issues: whether the trial court erred in relieving Blalock of liability based on the State's decision not to install a deflector wing on the crash cushion; whether expert proof of the standard of care was necessary; whether the trial court correctly determined that the Decedent was at least 50% at fault; whether the appellate court should disregard the trial court's grant of a new trial and reinstate the original verdict; and whether the evidence supports the dismissal of the claim against the State.
The appellate court will review the trial court's legal conclusions de novo, without presuming correctness for the trial court's legal judgments. For directed verdicts, both courts must view evidence favorably to the opposing party, allowing reasonable inferences and discarding countervailing evidence, directing a verdict only when a single conclusion is evident. If the appellate court reverses a directed verdict, it typically remands for a new trial. The "thirteenth juror" rule requires the trial court to weigh evidence and decide if the verdict is supported, but the appellate court does not assess the trial court's judgment as a thirteenth juror.
When the trial judge acts as a trier of fact, factual findings are reviewed de novo with a presumption of correctness unless the evidence preponderates against those findings. The appellate court has the authority to reallocate fault if necessary based on the evidence. The appeal also highlights that claims against the State and Blalock were tried by different fact-finders, emphasizing the need to consider who made each finding and the level of deference owed to a jury's determinations compared to a trial court's conclusions regarding Blalock's liability based on State directives.
Two key aspects of the holding are identified: a factual inquiry regarding whether the State directed or merely suggested that the transition panel be omitted, and a legal inquiry about the implications of that determination. The jury should resolve the factual question unless it is clear that the State directed the omission, eliminating Blalock's discretion. Evidence indicated that Hudgins' input to Blalock was suggestive rather than directive, as testimony revealed that Blalock was encouraged to discuss the crash cushion decisions, and Hudgins himself denied issuing orders. The contract retained certain rights for the contractor, and Dockery testified that he had never installed a crash cushion without deflector shields, indicating skepticism about any contrary order. Thus, reasonable jurors could conclude that Blalock retained decision-making power, making it a jury issue whether he could be held liable. The trial court's legal conclusion dismissing the case against Blalock rested on its factual finding and a personal interpretation of the law without supporting case law. The court referenced Wood v. Foster, Creighton Co., which held that a contractor is not liable for property damage if acting per a public authority’s orders without negligence. However, the current case differs as it involves personal injury rather than property damage, and Blalock could not cite any precedent applying Wood’s ruling to personal injury in highway construction.
A contractor may not avoid liability to adjoining landowners by simply following a public authority's orders, especially if they create or permit a hazardous situation on a highway. In this case, unlike Wood, where the contractor was found not negligent, the jury found Blalock negligent, indicating Blalock retained some discretion. The plaintiff cites Johnson v. Oman Const. Co., a wrongful death case where the contractor was held liable for failing to warn motorists about a guardrail, despite having followed contract specifications. The Tennessee Supreme Court ruled that an independent contractor could still be liable for negligence if their actions foreseeably endangered others, rejecting the notion that acceptance of work automatically discharges them from liability. This ruling reinforces the plaintiff's argument that Johnson's principles are applicable to the current case.
Acceptance of work by a sovereign owner does not automatically absolve a contractor of liability, especially if the contractor creates a dangerous condition that they should have recognized. The sovereign's acceptance is a relevant factor that can influence the assessment of a contractor's conduct. In this case, Blalock successfully argued to the jury that 37.5% of the fault lay with the State. The trial court made an error by ruling in favor of Blalock based on the State’s decision not to install a safety panel, suggesting that this decision relieved Blalock of liability.
Furthermore, the court held that the plaintiff was required to provide expert testimony regarding the standard of care expected from a road contractor, which was part of its reasoning for finding that the plaintiff did not prove Blalock's negligence. The court referenced its earlier opinion, indicating that expert testimony was necessary to determine what risks a reasonable person would accept. However, the legal standard established in Miller v. Willbanks clarifies that expert testimony is not obligatory unless the matter at hand requires specialized knowledge beyond the understanding of ordinary jurors. In this case, the plaintiff presented evidence of prior knowledge by both the State and Blalock about the relocation of the crash cushion, but they argued it was an unusual situation that needed field judgment. Blalock contended that expert testimony on the standard of care is necessary in such cases, although the requirement is not exclusive to professionals.
M.S. filed on September 17, 1999, and Keebler v. Wilson (1994) lacks precedential value, as indicated by Supreme Court Rule 4(E). The Keebler opinion was challenged but not appealed by the Supreme Court. The only cases cited by Blalock were irrelevant or improperly cited, while the plaintiff referenced Lawrence County Bank v. Riddle and Cocke County Bd. of Commissioners v. Newport Utilities Bd. to argue that laypersons can assess negligence regarding exposed guardrails. The court agreed, noting that Lawrence County established that expert testimony is not always necessary for negligence determinations involving ordinary risks, such as leaving a ditch open during a rainstorm. In Cocke County, despite expert testimony, the trial court favored lay testimony regarding road conditions, reaffirming that such matters are within common understanding.
Blalock is held to the same standards as the State, which must exercise reasonable care in handling highway conditions. This duty extends to all lawful travelers on Tennessee highways. Negligence involves actions creating unreasonable danger to others, with the definition of reasonable care contingent on the specific circumstances and associated risks. If evidence demonstrates that the jury could understand the risk posed by omitting the transition panel from the crash cushion compared to the risk and burden of installation, the case aligns with the reasoning in Cocke County and Lawrence County, negating Blalock's claims.
Sufficient evidence was presented for the jury to assess the standard of care applicable to Blalock. Witnesses confirmed that transition panels are essential for crash cushions to protect motorists from severe injury when “snagged” by unshielded rails. Blalock agreed that installation must follow the manufacturer’s manual, which mandated the use of transition panels. The concrete foreman testified that he had always installed these panels with crash cushions. Despite the crash cushion's temporary installation, the State managed to have it set up with the transition panels on the accident day. The State inspector, Hudgins, noted that panel installation could be completed quickly. Additionally, the jury was informed of risks associated with incomplete crash cushions, including the potential for it to be displaced into traffic if not properly anchored. Consequently, the jury had ample evidence to define “reasonable care” in this context.
The trial court erred by requiring expert testimony on the standard of care and by directing a verdict for Blalock due to insufficient evidence of negligence. The court's finding that the Decedent was at least 50% at fault is also under review. This analysis will merge directed verdict considerations with factual findings regarding the Decedent’s comparative fault, assessing evidence from two different perspectives. The court emphasized that it does not act as a jury but reviews to confirm if credible evidence supports the jury's decision, regardless of personal belief in the verdict's correctness. There must be some evidence that reasonable individuals could find credible, even if it may appear implausible or contradictory.
Conflicting factual determinations were made by a jury and a trial court regarding the fault of the Decedent in a vehicular accident. The jury found the Decedent 25% at fault for his death, while the trial court, serving as Claims Commissioner, determined he was at least 50% at fault and concluded that no reasonable jury could find him less than 50% at fault. The reviewing court found material evidence supporting the jury's finding, did not disagree with the trial court's percentage of fault, but ruled that the trial court erred in its absolute conclusion regarding the jury's reasoning.
Evidence indicated the Decedent was speeding, with estimates of his speed between 63 to 71 mph, and expert testimony supported that he was driving at a high rate of speed in a heavy truck. The vehicle traveled over 700 feet after losing control, with parts digging into the road surface, suggesting that had the Decedent reduced his speed to 55 to 60 mph, he could have avoided hitting a crash cushion.
Regarding the fog conditions, the trial court's findings could be disputed, as a reasonable juror could conclude that fog played a minor role in the accident, with testimony indicating patchy fog at the time of the incident. The exact conditions and timing of the fog remain unclear in the record.
Cooper and responders arrived at the accident scene shortly after 3:33 PM, following a report of the wreck. The jury could infer that the accident might have occurred closer to 2:00 PM, considering the presence of high beam headlights, which suggested lighter fog conditions. However, evidence supported the trial court’s finding of heavy fog that impaired driving, necessitating extreme caution from the Decedent. Common sense indicated that an overturned vehicle would likely have been reported sooner, and it was reasonable to conclude that the fog had thickened over time. Cooper drove slowly due to the fog, which hindered the investigation upon arrival. Although the high beams could suggest less fog, other factors, like the collision's impact, could explain their use. The trial court found that sufficient fog contributed to the accident and that the Decedent failed to exercise the necessary caution.
The trial court noted the road's "critical speed" of around 100 mph might have led the jury to underestimate the risks of speeding early in the morning. The court asserted that the road provided enough safety measures for the Decedent to stop if reasonable care had been taken. The record shows no issues raised regarding jury instructions on fault apportionment, and it is presumed they followed the guidelines. The trial court considered factors from Eaton v. McLain regarding fault, including the causal relationship between the defendant's conduct and the injury, the reasonableness of actions in confronting risks, opportunities to avoid injury, sudden emergencies, the significance of the conduct, and the party's capacities. The plaintiff criticized the trial court's focus on fog and foreseeability, arguing it downplayed the risks associated with the exposed rail.
The trial court's handling of the fog issue is upheld, as its assessment of "reasonableness" regarding risk and injury is deemed appropriate. The court assumed the State was negligent in its comparative fault analysis but found the State acted reasonably, considering potential risks associated with alternative safety measures. Despite this, the conclusion that the State was not negligent is contested, as expert testimony's impact on the standard of care influenced this finding. However, this does not affect the apportionment of fault because the court acknowledged the State's fault for determining the Decedent's comparative fault. A key factor favoring the Decedent's significant fault is that he had the last clear chance to avoid the accident by adhering to traffic signs. The trial court erred in setting aside the jury verdict regarding Blalock, as numerous factual issues could lead the jury to assign less than 50% fault to the Decedent. While the evidence supports the finding that the Decedent was at least 50% at fault, the court's directive for a verdict in favor of Blalock is questioned. The plaintiff requests a reversal to reinstate the jury verdict, arguing exceptional circumstances due to legal errors by the trial judge, although it is noted that generally, remanding for a new trial is the standard procedure unless exceptional circumstances are clearly established. The only cited case where a verdict was reinstated is Huskey v. Crisp.
In the case of Huskey, the trial court initially set aside the verdict but denied a motion for a new trial. Upon appeal, the higher court reversed the decision and ordered a new trial. The High Court concurred that the verdict should not have been set aside as a matter of law but disagreed with the need for a retrial, instead reinstating the verdict. It clarified that the precedent in Holmes was not controlling in this instance, recognizing that Huskey fit the exceptional circumstances described in Holmes, where the trial court had erred on a critical legal conclusion while approving the jury's verdict. A key distinction was that the trial court in Huskey explicitly denied the motion for a new trial, unlike in the current case where the trial court stated it could not approve the verdict. The need for a new trial is supported by the precedent in Jones v. Idles, which mandates that when a trial court, acting as the thirteenth juror, finds the jury's fault allocation unsupported by evidence, a new trial is warranted. Consequently, the plaintiff's case against Blalock is remanded for a new trial, while the dismissal of the claim against the State is affirmed, and the judgment in favor of Blalock is vacated. Costs of the appeal are assessed to Blalock.
