# FILED
June 18, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE

GRAHAM SCHINDEL a nd ASPEN ) SCHINDEL, minors, b

y next friend ) and natural guardians, GEARY ) SCHINDEL and SUSAN SCHIN DEL ) and GEARY SCHINDEL and SUSAN ) SCHINDEL, individually, ) ) Plaintiffs/Appella

nts, ) Davidson Circuit No.97C-915

) v. ) ) Appeal No. 01A01-9711-CV-00655 RICHARD H. BASS and COM DATA ) NETWORK, INC., ) ) Defendants/App

ellees. )

APPEAL FROM THE CIRCUIT COURT OF DAVI DSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE BARBARA N. HAYNES, JUDGE

For the Plaintiff

s/Appellants : For the Defend ants/Appellees: Thomas F. Bloom E. Todd Presnell Nashville, Tennessee Dana D. Ballinger Nashville, Tennessee

REVERSED AND REMAN DED

HOLL Y KIR BY LI LLA RD, J.

CONCURS: ALAN E. HI GHERS, J. DAVID R. FARMER, J.OPINION

This is a personal injur

y case arising fr

om an automobile co

ll ision. Gear y Schindel and Susan Schindel, on their behalf and on behalf of their two m inor chil dren, Graham and Aspen Schindel, (“Plaintiffs”) fi led suit against Richard Bass and his employer Comdata Network, Inc. (“Defendants”) for personal injuries sustained in an automobile accident. The trial court gra nte d summary judgment in favor of the Defendants, and the Plaintiffs appeal. We reverse. On December 20, 1993, at approximately 6:00 p.m., Susan S chindel (“Schindel”) was drivin g her car southbound on Franklin Pike toward the intersection of Franklin Pike and Harding Place in Nashville, Tennessee. Schindel’s two children, Graham and Aspen, were passengers in the car. It

was a dark and rainy night. At the intersection, the tr affic light indicated a green light. Schindel yielded to oncoming traff ic and allowed several cars to pass through the intersection before turning left. Schindel saw no more cars and began to make the left turn. Her vehicle was struck by a van driven by Richard Bass (“Bass”), who was traveling northbound on Franklin Pike. Schindel

ac knowledges that she did not see Bass but alleges tha

t it was because Ba

ss was driv

ing withou t headlights. The t rial court granted summary judgment in favor of Richard Bass on the grou nds tha t Plaintiffs had failed

to establish the essential elements of their negligence claim through competent evidence. Plaintiffs appeal. A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving pa

rty is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment be ars the burden o f demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d 618 , 62 2 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view of the eviden ce in fa vor of the nonmoving party, allow all reasonable inference s in favor of that part y, an d discard all countervailing evidence. Bain , 936 S.W.2d at 622. In Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), our Supreme Court stated: Once it is shown by th

e moving party

that there is

no genuine issue

of material fac

t, the nonmoving party

must then dem onstrate, by affidavits or discovery materials, that there is a ge nuine , mate rial f act di spute to war rant a trial . In this regard, Rul e 56.052

provides that the nonmoving party cannot simply

rely upon his pleadings but must set forth specific

factsshowing that

there is a genu

ine issue of mater

ial fact for tria

l. Id. at 211 (citations omitted) (emphasis in original). Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one c onclusion. Ca rvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law are involved, there is no presumption of correctness regarding

a trial court's g

rant of summary

judgment. Bain , 936 S.W.2d at 622. Therefore, our review of the trial court’s grant

of summary ju

dgment is de novo on the record before this Court. Warren v. Estate of Kirk , 954 S.W.2d 722, 723 (Tenn. 1997). On appeal,Schindel contends that she submitted su

fficient eviden

ce to establish

a genuine issue of material fact concerning whether Bass was driving without headlights at the time of the accident. Schindel argues that a reasonable inference of fact may be drawn from her testimonythat she failed to observe Bass, and that her failure to see Bass must have been because Bass was driving without headlights a

t the time of the ac

cident. In support of her argument, Schindelcites Rogers v. Bouchard , 449 S.W.2d 431 (Tenn. App. 1969). In Rogers , the plaintiffs, husband (driver) and wife (passenger) left a restaurant located on U.S. Highway 41A. Rogers , 449 S.W.2d at 434. Highway 41A was a four-lane highway with two lanes running north and south. Id. The p laintiffs intended to cross the two southbound lanes of traffic and proceed north. Id. The plaintiffs’ te stimony included: [T]hat [plaintiff-husband] stopped just a few feet before entering the highway, where he co uld see both to his left (which would be northwardly) and to his ri ght (whic h would be southwardly) f

or approximately

300 yards in

each direction and looked for approaching traffic from both directions; that he did not see any t raffic o r lights approaching from either direction and when he asked plaintiff [wife] if she saw any, she replied in

the negative, whe

reupon he proce

eded to drive ac

ross the southbound lanes and was there struck by th e automobile of de

fendant . . . just

as he was about to enter the crossover opening in the median strip . . . . Id. at 434. In addition t

o the testimony of the plaintiffs in Rogers , a third witness testified that he looked at the southbound lanes of the highway and observed no traffic or headlights

of oncoming

cars. Id. at 435. The defendant testified that his lights were on at the time of the accident. I d. at 436. At trial, the jury returned a verdict in favor of the defendant and against the plaintiff-husband butfound in favor of the plaintiff-wife in her action against the defendant. Id. at 432. The defendant appealed the decision on the grounds that the trial court erred in failing to grant the defendant’s motion for directed verdict and motion for a new trial. Id. at 432-33. This Court sustained the jury’s3

verdict on the grounds that the jury could have reasonably f ound as fact that the defendant was driving without headlights, based upon the testimony of the three witnesses. Id. at 437. In the present case, the evidence submitted regarding the issue of whether Bass operated the vehicle without headlights consisted of Schindel’s deposition and affidavit. In her de position, Schindel stated: Q: Had you, in fact, yielded to some oncoming traffic? A: Yes, I had. * * * Q: Were there cars in the lane--in the turn lane of the northbound-- A: Yes. Q: --traffic lane? A: Yes. Q: You specifica

lly recall carsA: Uh-huh. Q: --being in that lane? A: Two. Q: Two cars? A: Uh-huh. Q: Were their headlights on? A: Yes, and their b

linkers. * * * Q: When did you first see Mr. Bass’ vehicle? A: I didn’t see Mr.

Bass’ vehicle unti

l after he hit us. Q: Why did you not see his vehicle? A: I don’t know why I d idn’t see his vehic

le. I didn’t s ee it. It wasn’t because I wasn’t looking. Schindel testified later in her deposition: Q: Do you know whether or not the driver of the van had his lights on at thetime of impact? A: I didn’t see the vehicle. I can only assume that if

the lights were on I would have seen the vehicle. I didn’t see the vehicle. Q: So you can’t really say? A: That’s right. I certainly saw other vehicles in the intersection that had their lights on. Subsequently, Schindel filed an aff idavit stating in part: “I did not see the automobile driven by Richard H. Bass be

cause he did not ha

ve his lights on. I am

certain that he d

id nothave his lights

on as I saw other vehicles prior to making m y tu rn.” Bass asserts that he had his headlights on at the time of the acc

ident. Additio nal con flicting circumstantial evidence was presented on the issue. Bass, in a deposition, testified that the headlights were

on at the time of the accident. After the accid

ent, according to Bass, he turned the headli ghts off because

the lights were shining into oncoming traffic. A witness, John Butterfield, had a conversation with Bass after the accident in w

hich Bass alleged

ly4

stated, “I should have le

ft my lig hts on.” Ba ss contends that he stated, “I should have left the headlights on after the accident had occurred.” We have recognized that “[t]he range of reasonable inference s to be drawn from

the evidence depends upon the unique fa cts of each case. An inference is reasonable and legitimate only when the evidence makes the existence of the fact to be inferred more probable than the nonexistence of the fact.” Underwood v. HCA Health Services, Inc. , 892 S.W.2d 4 23, 426 (Tenn. App. 1994) (citing Hollingsworth v. Queen Carpet, Inc., 827 S.W.2d 306, 309 (Tenn. App. 1991); Benson v. H.G . Hill Stores, Inc. , 699 S.W.2d 560, 563 (Tenn. App. 1985) ; Franklin v. Collins Ch ape l Connectional Hosp. , 696 S.W.2d 16, 19 (Tenn. App. 1985)). This cas e pres ents a very close question. Bass distin

guishes Rogers by noting that, in Rogers , three witnesses testified that they looked in the direction of the defendant’s vehicle and saw

no cars coming; whereas, in this case, there is no evidence to corroborate Schindel’s testimony. Bass also argues that, in Rogers , all three witnesses testified that they looked specifically in the direction of the defendant’s vehicle and saw no cars approaching, while Schindel states only that she had seen and let by two cars from the turn lane from which Bass’ vehicle approached, and that she did not see Bass’ vehicle. The fact that Schindel’s testimony is not corroborated by the testimony of other witnesses is not fatal to

her case, provided Schindel’s testimony is sufficient to support a finding

that Bass did nothave his headlights on. See Rupe v. Sims , No. 22 3, 1990 WL 198902 (Tenn. App. Dec. 12, 1990). In Rogers , the witnesses testified specifically that they looked in t he d irection of the defendant’s vehicle and saw n o cars coming. In t

his case, Schinde

l testified that sh

e had be en looking in the direction of Bass’ vehicle, sa

w two other cars w

ith their lights on, let them turn and proceeded

forward, not

seeing Bass’ vehicle. These facts are simply too similar to find that Rogers is distinguishable. We find that the evidence pr

esented by the pla

intiff is barely

sufficient to support

a factual finding that Bass was operating his vehicle without the headlights

on. Consequently, we must conclude that the trial court erred in granting summary judgm ent in favor of the defendants.

The decision of the trial court is reversed, and the cause is remanded

for further proceedings consistent with this Opinion. Costs are assessed against the Appellees , for which execution may issue if necessary.5 HOLLY KIRBY LILLARD, J. CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.