### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON November 27,

2000 Session JASON KIM, ET AL 

### . v. NANCY BOUCHER
A Direct Appeal from the Circuit Court for Shelby County No. 75521 T.D. The Honorable George Brown, Judge

No. W2000-00427-COA-R3-CV - Filed January 24, 2001

A minor pedestrian and his father sued auto mobile driver for personal injury damages sustained by minor when struck by driver's v ehicle. The trial court directed a verdict for the automobile driver at the close of plaintiff's proof. Plaintiff has appealed. Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Circuit C

ourt is Vacated and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY K IRBY L ILLARD , J., joined.
James M. Allen, Ronal

d D. Tuech, Memphi

s, For Appellants , Jason Kim and Ki Soo Ki m Kenneth R. Shuttleworth, William C. Sessions, Memphis, For Appellee, Nancy Boucher
OPINION

On January 23, 19 96, plaintiffs/appel lants, (herein “ the Kims”), Jason Kim, (herein “Jason”or “plaintiff”), a minor, by Father and Next Friend, Ki Soo Kim, and Ki Soo Kim, individually, filed
a complaint in circuit court against defendant Nancy Bouc her (herein “defendant” or “M s. B oucher”) seeking compensatory and punitive damages for personal inju

ries. The complai

nt alleges that on September8, 1995, at approximately 9:45 p.m., Jason Kim was attempting to cross Kirby approximately 25 to 30 feet north of Quince proceeding from the west to the east when he

was hit by a vehicle driven by the defendant. Ms. Boucher was traveling north on Ki rby. The Kims al lege that Ms. Boucher was driving at an excessive speed; did not keep a proper lookout; did

not do all that she could toavoid hitting Jason; drove with reckless, willful, and wantondisregard of the safety of others; failed to keep her

vehicle under controland be aware of all circumstance

s; and failed to use the degree of care required. The plaintiffs further alleg e that Ms. Boucher w as in violati on of Tennessee statutes and City of Memphis ordinances, and that such violations were negligence per
se and were theproximate cause of Jason Kim’s injuries. The complaint avers that as a direct and proximate

result of Ms. Bouc

her’s neglig

ence, the plaintiffs sust

ained injuries an

d damages,-2-

including loss of earning capacity while caring f or Jason, present a

nd future medica

l expenses, impaired ability to enjoy the normal pleasures of life, pa in and suffering.

Ms. Bouc her file d an answer on March 13, 1996, admitting that the alleged accident
oc curred, but ave rring that Jason Kim was riding a skate board and struck her vehicle in the right front. Ms. Boucher denies the allegations of negligence and denies that

she violated the Tennessee statutes or City of Memphis ordinances ci ted in plai ntiffs’ complaint. She further denies having been the proximate ca use of Jason’s injuries. As an affirmative defense, Ms. Boucher avers that plaintiffs’ injuries were pr oximately caused by Jason’s neglige

nce in riding a sk

ate board on a pub

lic roadway, that Ja

son violated Tennessee statutes and City of Memphis ordinances, and that such violations constitute negligence per se. A jury trial was held on November 15,1999. Plaintiff testified that he is eighteen years of age, attending Germantown High School and will be graduating at the end of the 2000 school year. He previously attended Ridgeway High School. He was born in South Korea and came to the United States in November of 1991. Although he didn’t speak En g lish at that time, he has learned the language. On September 8, 1995, he was fourteen years of age a nd was attending a birthday p arty for a girl who lived across Kirby from the Wa lgreen’s Dru g Store. Som e friends de cided to go over to the drug store to get some snacks and drinks. Th e accident occu rred on the way back from Walgreen’s.Three or

four persons went to the store. Jason was primarily with a Brian McNabb. He rec alls that as they started back across Kirby , Brian McNabb was in front of him about two or three steps. He described Kirby as running north and south, and he was going from the west to the east and was probably about 75 to 100 yards north of wher e Kirby intersects with Quince. He said the area is well lig

hted, because th

ere is a gas station on the corner, and the street lights were on. He described the accident stating that he was using his skateboard to cross, that he took a quick glance from left to right to

see if any cars wer e coming and d idn’t see an ything. Brian McNabb was in front of him and Beau Browning was right behind him. Brian McNabb was on foot and he saw hi m go across, so he followed him acro ss the street and h

e heard Beau B

rowning talking

right behind him. He heard someone c

all his name, and he

turned around to s

ee who it was when

he saw two headlig

hts coming at him. He sort of blacked-out after that. He then described his injuries and suffering, which is not material to the issues before us.

On cross examination,

Jason testified that

he did not see any traff

ic coming when he was starting across the street. He tho ught it was safe

to get across the

street with the ska

te board. He was
on the skate board a

t the time he starte

d across the stre

et. His mother had p

reviously to

ld him not to ride the skate board in the street, but he thou

ght on this

occasion, because the others were crossing the re, t hat he co uld do s o sa fel y. Memphis Police Officer Donald Crow testified that he was called to investigate the accident andarrived on the scene after the ambulance had arrived. He described Kirby Road at this location
as two southbound lane

s and one northboun

d lane. The vehic

le involved in

the accident was in the northbound lane facing north. A skate board and a tennis shoe were under the right front wheel of the car. He found

gouge marks in

the pavement whic

h he estimated to be

ninety feet long extending-3-

from a point in the northbound lane to the poi nt where the sk ate board was found under the right front wheel of the car, which he attributed to the skateboard.

Beau Bro w ning testified tha t he was with Jason an

d six or seven others

who went to Walgreen’s and hadstarted back to the house where the party was taking pla ce. He stated they were walking back across Kir

by. Brian c

rossed the stree

t first, Jason was right af

ter him, skateboarding across the stree

t, and Beau was a

fter him, being third in line. He states that the car “hit him out of nowhere,” and that he flew up in the air on the hood of the car. The car was sliding to a stop and when it came to a stop, he flew off. He sta

tes that before h

e started to

cross the street,

he looked to his left first and then he l ooked to hi s right and d idn’t see an ything. After the accident, he saw the shoe and the skate board under Ms. Boucher’s car.

Because of a previous grant of a motion in limine, plaintiffs made an offer of proof for this witness as follows: He testified that he was about five feet behind Jason when he wa s hit . In his opinion, the car was going about 40 or 45 m.p.h . at that ti me, that he is now eight een years of age and has a driver’s license. He described the car’s rate of travel a s “quickly.”

Plaintiffs also introduc ed a portion of the defendant’s pretrial discovery deposition. She testified that

she was familiar with the area where the accident happened and understood it to be a dangerous location. As she was proceed ing north on Kirby

, she came across Quince, she saw traffic coming toward her in a so uth erly direction, g oing fast, and she saw a group of children out in the street right past the cars, “just barely clearing whe re the cars have to be.” She stated that the children
were close to

the cars which were proceeding in a southerly direction. She stated that there were a lotof c ars right

behind her, and that the cars going south were going very fast. She estimated the number of the children in the southbound lane as 20 to 30. She stated she s lowed down an d something hit her hood, “the thing that hit my hood, hit my windshield, and fellback down in the street and fell down on the street.” She stated that the impa

ct was directly

in front of her car. She later learned that it was Jason Kim that she had hit. She did n

ot see him before

the accident, she

did not swerve or skid.

At the conclusion of plaintiffs’ proof, defendant moved for a d ir ected verdict, which was granted by the trial c

ourt. The trial co urt' s order gr anting a dir ected verdi ct incorpor ates the fin dings stated from the bench that it was clear that plaintiff was in violation of T.C.A. § 55-8-173 ( c) and City of Memphis ordinance 21-14, constituting neg ligence per se

. The court further found that there was no evidence

in the record to pl

ace any f ault on the defend

ant. The plaintiffs ha

ve appealed, ra

ising two issues fo

r review by

this Court:

I. Whether the trial court

erred in ruling

inadmissible the ey

ewitness testimonyof a minor child, fourteen yea rs of age at the time of the accident and eighteen years of age as of the trial date, regarding the speed of the defendant’s vehicle?1 “‘Relevant evidence’ means ev idence having any

tendency to make the ex istence of any fac t that is of consequence to the det ermination of

the action more pr

obable or less probable than it would be without the evidence.” Tenn. R . Evid. 401

. -4-

II. Whether the trial court erred in granting the defendant’s motion for a directed verdict on the basis that the plaintiff was more than 50% percent at f

ault?

Plaintiffs’ first issue addresses the trial court’s rejection of the testimony of Beau B rowning regarding the speed of Ms. Boucher’s vehicle. The trial court is afforded wide disc retion in the admission or rejection of evidence, and the trial cour t's action will

be reversed on appeal only when there is a showing of an abuse of discretion. Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992); Davis v. Hall , 920 S.W.2d 213, 217 (Tenn. App. 1995 ).

Prior to trial, Ms. Bouc her made a motion in limine to exclude the testimony of minor children r egarding the s peed of her vehicle. She objected to the admission of such testimony pursuant to Rule 701 of the Te

nnessee Rules of E

vidence, argu

ing that children ages thirteen t o fourteenyears of a

ge cannot demonstrate

the requisite knowledge and capacity to formulate and express an opinion with res pect to the speed o

f defendant’s v

ehicle. Th e trial court stat ed that if testimonyregarding the speed of Ms. Boucher’s vehicle was offe red, and an ob

jection w as made, the court would sus

tain the objection . The court furth er stated:

...even if t he t est imo ny – assuming for the sake of argument that the testimonyis pro bativ e, I m ean, is relevant, then I think that its prejudicial effect of that testimony outweighs its probative value. If
a car is going f

ast, th at’s – that i s a statement of imp recision, and it does n ot c onvey to anyone any thing with exactitude because, you know, fast and slow is relative,...

Acco rdi ngly, the plaintiff made an offer of proo

f in which Beau B

rowning testif

ied that Ms. Boucher was traveling 40 to 45 miles per hour and described her speed as “quickly .”

Rule 601 of the Tennessee Rules of Evidence, General Rule of Competency, states: “[e]very person is presumed competent to be a witness except as otherwise provided in these rules or by statute.” Acco rdi ng to the com men t to the rul e, ch ild ren a re pr esu med com pet ent to t est ify, however the presumption is rebuttable. See State Dept. of Human Services v. Norton, 928 S.W.2d 445, 447 (Tenn. Ct. App 1996). The record before us does not contain evidence rebutting this presumption. Under Tenn. R. Evid. 4 03, once evidence satisfies the definition of relevant 1 , it is generally admissible, unless excluded by another rule. Relevant evidence may be excluded w her e the probative value is substantially outweighed by “the da nger of unfair preju dice, confusion of the issues, or delay, waste of time, or needless presentation of cumulative e vidence.” Tenn. R. Evid. 403.-5-

Tenn. R. Evid. 701 permits the use of opinion testimony by a lay witness, h owever, la

y witness opinions and infer ences are “limit

ed to those opinions o

r inferences w

hich are (1) ra

tionally based on the perception of the witness and (2

) helpful to a cle

ar understanding

of the wit

ness’ s testimonyor the determination of a fact in issue. ” “Thus the admissibility of a lay witness’s te st imony rests on whether the facts in issue are within the range of knowledge or understa ting of ordinary laymen.” State v. Boggs, 932 S.W.2d 467, 474 (Tenn. Crim. App. 1996). (“C ons equ ent ly,
a lay witness may

testify that a person

was ‘drunk’ or that a car was traveling ‘fast.’” Rule 701, Tenn. R. Evid., comment.)

It is not clear

upon what rule the

trial court relie

d in excludi ng the evidence , however, it appears that defendant’s objec tions go to the weight to be given the testimo

ny rather t

han its adm iss ibi lit y. The wei ght a nd c redi bil ity o f te stimony are issues for the jury. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) (a medical exper t’s inability

to exclude all other possi

ble sourc es of contamination of food affects weight, not admissibility of expert’s opinion). The weight, faith , and credit to be g

iven to any witness ’s test imony lies in the first instance with the trier of f

act, and the cre

dibility accorde

d will be given gre

at weight by the ap

pellate court. Id .; In re Estate of Walton v . Young , 950 S.W.2d 956, 959 (Tenn. 1997). That Mr. Browning
was a fourteen year old, without a drivers license at the time of the accident, along with other issues of credibility, is a factor to

be weighed by a finder of fact, in this instance, a jury , in considering his tes tim ony. From our review of the record, we conclude that the trial court erred in excluding Mr. Browning’s testimony. Appellants second issue addresses whether the trial court erred in granting the defendant’s motion for a directed verdict finding plaintiff was more than 50% percent at fault. When deciding a motion for a dire

cted verdict,

both the trial court and the reviewing court on appeal mu

st look to all the evidence, take the strongest legitimate view of the evidence in favor of the opponent of

the
m otion, and allow all rea sonable inferen

ces in favor of th

at party. Th

e court must disc

ard al l countervailing evidence, and if there isthen any dispute as to any material fa ct, or any doubt asto the co nclusions to be drawn from the whole evidence, the motion must be denied. Conatser v. C larksvill e Coca-Cola Bottling Co. , 920 S.W.2d 646, 647 (Tenn. 1995); Hurley v. Tennessee Farmers Mut. Ins. Co. , 922 S .W.2d 887, 891 (Tenn. App. 1995). A directed verdict cannot be sustained if there is

material evidenc

e in the record w

hich would

support a verdict for the plaintiff under any of the theories the plaintiff had advanced. Id. ; Conatser , 920 S.W.2d at 647.

The Kims contend that they presented ample evi dence to support th e claim that Ms. Boucher’s negligence was a direct and proximate cause of Jason’s injuries so that reasonable minds could differ as to the conclusions to be drawn therefrom. They claim that the evidence supports an inferencethat

Ms. Boucher was driving too fast, failed to maintain a safe lookout, and failed to use proper caution in light of the dangers known t o her immedi ately befo

re the accident

. The Kims assert that whether, and to what extent, Jason contributed to the accident is a question for

the jur y. Since reasonable minds could differ in the allocation of fault in the accident, a directed verdict was inappropriate.-6-

In support of her motion for a directed verdict, Ms. Boucher a rgued that Jason violated T.C.A. § 55-8-173( c) an

d Memphis City O

rdinance 21-14,

and was therefo

re guilty of negligence per se, making him responsible for more than 50% of the accident.

Since the decision of our Supreme Court in McIntyre v. Balentin

e , 833 S.W.2d 52 (Tenn. 1992), adopting a system of comparat i ve fault in negligence cases, Tennessee courts have consistently held:

In a jury case , th e issu es of neglige

nce and proximate c

ause are gene ral ly fo r th e ju ry. Such issues may be pre-empted by the Tr ial Judge only where

the evidence and reasonable inferences therefrom
are so free of conflict that all reasonable minds would agree with the decision of the Trial Judge. (Citations omitted.) Husted v. Echols, 919 S.W.2d 43, 45 (Tenn. Ct. App. 1995). In vacating the trial court’s directed verdict in a medical malpr

actice suit,

the Middle Section of the Tennessee Court of Appeals held that the trial court erre

d in making a comp

arison of fault of

the parties, arti

culating the que

stion of fault allocation as “[w]hose fault was more proximate?”, and stating that most often this is a question for the jury. Princ e v. St. Thomas Hospital, 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996). T h e Tennessee Supreme Court in Eaton v. Mclain, 891 S.W.2d 5 87 (Tenn. 1994), addressed the standards governing a trial court’s assessment of the evidence and whether to grant a motion for a directed verdic

t, stating:

The recitation of these standards of r eview does not, however, provide a satisfactory answer to the issue before us beca

use McIntyre has radically changed the question to be asked by the trial court on a motion for directed verdict/JNOV w hich a lleges negligence on the part of the plaintiff. T

he question now is

not wh ether the plaintiff
was guilty of any neg

ligence that proximately caused the resulting inju ries. Instead, the question is: assuming that both plaintiff an d defendant have been fou nd guilty of negl igent conduct that proximately

caused the injuries, was the f ault attributable

to plaintiff equal to or gre ater tha n the fault attribu table to the defe

ndant. (Footnote omitted).
Eaton, 891 S.W.2d 590. The trial court found Jason in violation of T.C.A. § 55-8-173 ( 1998 ), and Memphis City ordinance 21-14, addressing the use of roller skates and coasters in the roadway . T.C.A. § 55-8-173 reads in pertine

nt part: (c) No person shall pla y on a hig

hway othe

r than upon the sidewalk thereof, within a city or town, or in any part of a highway-7- outside the limits of a city or town, or use the

reon roller skat

es, coasters or any similar vehicle or toy or ar ticle on wheels or a runner, except in such areas as may be spe cially designated for

that purpose by local aut

horities.

The record reflec

ts that Jason was mer

ely propell

ing himself behin

d one pedestrian

and in front of another, perhaps technically violating the statute. However , although theremay be sufficient evidence from which a jury could conclude that Jason did violate the statue, whether Jason’s conduct
was a cause in fact a

nd to what extent is not

without question. Mo

reover, “[l]ia

bility cannot be predicated

upon mere violations of a statute, ordinance, or regulation unless it affirmatively appear s that such violation was the pr oximate cause of the injury.” Long by Cotten v. Broo kside Manor, 885 S.W.2d 73 -885 S.W. 2d 70, 73- 7 4. (Tenn. C t. App. 199 4) (citing Biggert v. Memphis Power and Light Co., 168 Tenn. 638, 80 S.W.2d 90, 92 (Tenn.1935)).

With regard to

the trial court’s finding that Jason violated Memphis City ordinance 21-14,
we note that 202 (b)(3), Tenn. R. Evid. allows court s the option of takin

g judicial notice

of “all duly enacted ordinance of

municipalities” upon notice to adverse parti es, and request o

f one of the parti

es. The record does not reflect that there was compliance with this rule. Therefore, we will not address the City of Memphis ordinances individually. Howev er , the same reasoning would apply to an alleged violatio n of ordinan ces by Jason wi th regard to p roximate cause and negl igence per se as applied to his alleged violation of a statute.

A number of Tenne

ss ee courts have addressed questions involving alleged negligence on the part of both parties in cases involving an automobile and a pedestrian. In Derossett v. Malone , 34 Tenn. App. 451, 239 S.W.2d 366, (Tenn. Ct. App. 1950) the Court held that where the plaintiff
was guilty of negligence per se, but wher e there was evidence that

the driver of the automobile that struck the plaintiff was

also in violation of a city ordinance, the question of whether the plaintiff’s negligence

in viol ation the city ord

inance contribut

ed as a proximate c

ause of her injur

ies was a question for the jury. Id. at 377 (cit ing Elmore v. Thompson, 15 Tenn. App. 78(the trial court’s directed verdict was reversed on appeal where reasonable minds cou ld differ as to whether the plaintiff’s negligence w

as a proximate cau

se of his injuries)

and Phillips-Buttorff Mfg. Co. v. McAlexander, 15 Tenn. App. 618). See also Hayne v. Hamilton County, 833 S.W.2d 606 (Tenn. 1994).

In the instant case, the trial court stated that there was “no evidence in the record at this poi nt, at this juncture, that poi

nts any fing

er at the defend

ant, placing any fault on the defendant at all. I
mean that is what t

he court finds.” F

or the purposes of

a directed verd

ict, we must respe

ctfully disagree with the trial court. Th e record at this “juncture” e

stablished that Ms. B oucher, while approaching the accident scene and in close proximity thereof, saw 20 or 30 children in thestreet to her left front. As she proceeded, the next thing she saw o

r that she took note

of was that the front of her car struck something which s

he later ascer

tained to be Jason. T

he proof establis

hed that at this locati on there was one nor thbound lane and tw

o southbound lanes f

or traffic, and

that s he wa s proceeding in the northbound lane. Jason had left from t he west side of the

street to procee

d to the-8-

east side and had crossed thetwo southbound traffic lanes and had moved into the northbound lane where he was struck by the right front of Ms. Boucher’s vehic le. It is undisputed that she did not put on her brakes prior to the accident and by her own testimony in th

e deposition, she d

id not see Jason until after he was struck. While a jury may very well find that Jason was more than fifty percent at fault, we bel ieve that it is for th e jury to dec

ide, considering

Jason’s age and t

he fact that Ms. Boucher being aware of the presence of the children and

childish impulses, proceeded forward in a vehicle without keeping a lookout to the extent that she could see a child cross two traffic lanes and part of her lane before she struck him. At least, if she had seen the child an instant before the accident,she could have ap plied her brakes , but the failure on her part to take this action should be
con sid ered by th e ju ry.
Where the presence of children is known to the driver, Tennessee law places upon a driver
a duty of care to consider childish behavi orand to take precautions accordingly. Staley v. Harkleroad, 501 S.W.2d 571 (Tenn. Ct. App 1973).

“Children, wherever they go, mu st be expected to ac

t upon childish instincts and impulses; and others who are chargeable with a duty of
care an d caution towards them, must calculate upon this, and take precaution accordingly.” Townsley v. Yellow Cab Company, 145 Tenn. 91, 237 S.W.

58 (1922) (q uoting Flicker v. Cleveland ect., R. Co., 7 Ohio N.P. 600); see also Bradshaw v. Holt , 200 Tenn. 249, 292 S.W.2d 30 (1956). Where this heighten standard of care has not been considered by a trial court, a

directed verdict may notbe appropriate. See Staley v. Harkleroad, 501 S.W.2d 571 (Tenn. Ct. App 1973) (the Court of Appealsreversed the tr

ial court’s direc

ted verdict statin

g it was obviously based on the view that the defendant was not guilty of any negligence).

In the same title

of the Tennessee statute addressing bicycles and playing on highway

s, there is a due care pro

vision which provid

es: Notwithstanding the foregoing provisions of th

is ch apter, every driver of a vehicle shall exercise due care toavoid colliding with anypedestrian upon any roadway , and shall give warning by soundi ng t he horn when necessary, and shall exercise proper precautionupon observing any child or any confused or incapacitated pers on u pon a roa dwa y. T.C.A. § 55-8-136 (1998).

In the case at bar, it is obvious that the testimony establishes that both parties are guilty of
some degre e of negligence; but, under these circumstances, the finders of fac t should make t h e det erm ina tio n of the perc ent age o f th e deg ree o f fau lt o f eac h pa rty.-9-

Acco rdi ngly, the order of

the trial court directing a verdict for defendant is vacated, and the
ca se is remanded for a new trial. Costs of the appeal are assessed against the ap pellee, Nanc y Boucher.

__________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W. S

.