### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Assigned O n Brief A

ugust 24, 2001 ELIZABETH ELAINE HICKMAN, ET AL 

### . v. CELIA VERNELL JORDAN, ET AL 

### . Direct Appeal from the Circuit Court for Madison County

No. C99-353 Roger A. Page, Judge

No. W2000-03070-COA-R3-CV - Novem ber 28, 2001

This dispute ste

ms from an

accide nt in a restaurant parking lot in which a pedestrian, the plaintiff,
was struck by a ve

hicle driven by the

defendant, who was backing-up throug h the parking lot. The jury in this cas e found th

e defendant driv er not at

fault. We a

ffirm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; and Remanded
D AV ID R. F ARMER , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. Dwayne D. Maddox, III , Huntingdon, Tenness ee, for the appe llants, Elizabeth Elaine Hickman and John Robert Hickman. Wesley A. Clayton and Gre g A. Petrinjak, Jackson, Tennessee, for the appellee s, Celia Vernel l Jordan and Dr. F. E. Jordan.
OPINION
The determ ina tive facts in this case are undisputed. The accident in which the plaintiff, Elizabeth El aine Hickman, was injured occurred a t lunch hour in the parking lot of Dumplin’s restaurant in Jackson, Tennessee. Witnesses testified that Dumplin’s was busy at the time, and that the parking lot was full. The defendant, Celia Vernell Jordan, arrived at Dumplin’s shortly before 1:00 p.m., driving a Toy ota Land Cruiser. Ms. Hickman and hermother-in-law had exited the restaurant and were between two parked c ars at the edge of the pa rking lo t, waiting

to cross to

their car, when Ms. Hickman saw Ms. Jordan drive through the parking lot in search of a parking space. When Ms. Jordan had gone s ome distance d own the lo t, Ms. Hick man aga in looked i n both directions and, see

ing no c ars hea

ding tow ard her , proceeded to cross the parking lot. Meanwhile, Ms. Jordan had reached the end of the lot and, since there is no room to turn a vehicle around, began to back-up

through the park ing lot, s till looking for a

vacant parking space. Ms. Jordan stated that-2-

she checked her two outside mirrors and the inside rear view mirror before she began backing-up. She also testified that she checked over her rig ht sho ulder, and cont inued to look over her right shoulder as she ba cked dow n throug

h the middle

of the pa rking lo t. Ms. Jordan further stated that she did not check over her left shoulder. She testified that she had not seen any pedestrians as she first drove forward

through the parking lot

or as she backed-up. Ms. Hickman was struck on her left side and knocked to the g round when she and the back end of the driver ’s side of Ms. Jordan’s vehicle collided.
Ms. Jordan testified that she first realized she had hit something when she heard a thud. She then stopped and could see Ms. Hickman sitting in the roadway through her driver’s side rear view mirror. Ms. Jordan agreed that her vehicle, a Toy ota Land Cruiser, sits “fairly high” off the ground; Ms. Hickman is under five feet tall.
Ms. Hi ck ma n t es ti fi ed th at sh e h ad lo ok ed bo th wa ys down the parking lot before procee ding
across it, that she had seen Ms. Jordan’s vehicle pass, and that the vehicle was about

eight car widths down the parking lot

when she and her mother-in-law bega n across the lot. Ms. Hickman did not
see Ms. Jordan’ s vehicle

again from the point she saw it some eight car widths down the p arking

lot. She further testified

that she had turned to her right to speak to her mother-in-la w, who was about two steps behind her, when she was hit and knock ed to the g round. She

did not see

the vehic le coming toward her before be ing hit.
Issue The issue of this appeal is whether there is any ma

terial evidence to support the finding by the jury that the def

endant , Celia Vernell Jordan, was not at fault in this case.

Standard of Review
This ca se wa s a ju ry t ri al . F in di ng s o f f ac t b y a j ur y sh al l b e s et as id e o nl y if there is n o material evidence to support the verdict. Tenn. R. App. P. 13(d). This Court will not reweigh the evidence, but will tak

e the stro ngest

view possible of the evidence in favor of the pr evailing party and discard evidence to the contrary

. Smith County v. Eat herly , 820 S .W.2d 366, 3 69 (Tenn Ct. App. 1991). We will allow a ll reasona ble infe rencesto uphold th

e jury ’s verdi ct, settin g it

aside onl y if there is no material eviden ce to support it. Id. This standard of review safegua rds the constitutional right to a trial by jury. Miller v. Berry , 457 S.W.2d 859, 862 (Tenn. Ct. App. 1970).
In an actio n for neg

ligenc e, the pla

intiff mus tprove five elements: (1) a duty of care owed to the plaintiff by the defe ndant; (2) conduct by the de fendant constituting breach of that duty ; (3) injury or loss to the plaintiff; (4) that the defendant’s conduct was the cause in fact of the plaintiff’s in ju ry; (5) that the defendant’s conduct was the proximate or lega l cause of the injury

. Waste Ma nagemen t, Inc. of Tennessee v. South Central Bell Tel. Co. , 15 S.W.3d 42 5, 430 (Te nn. Ct. App. 1997). If there is any material evidence to support the jury ’s finding that Ms. Jordan was not at fault, we must af

firm.-3-

The duty of

care is a lega

l obliga tion to ac t as a re asonably prudent p erson to p

rotect a gainst
an unreasonable risk of harm to others. McCall

v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). Once it has bee n determine d that a defendant owed the plaintiff a duty of reasonable care, the issue becomes whether the defendant has exercised re asonable care under the circumstances. Id. In other words, the question becomes whether the defendant acted as a reasonably prudent person would act under the circumstance s. See id. If the defenda nt has not exercised reasonable care, then he has breached his duty

to the plaintiff and is liable for his negligence. See id. at 153-54.
Both common sense and the Tennessee Code crea te an obligation on th e part of drivers of automobiles to exercise due care. Section 55-8-136 of

the Tennessee Code provides, “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any

roadway . . . .” Tenn. Code Ann. § 55-8-136 (1998). The Code further provides: “The dr iver of a vehicle shall not back such vehicle unless such movements can be made with r easonable safety and without interfering with other

traffic .” Tenn. Code Ann. § 55-8-16 3 (1998). Since this accid ent occurred
on private

propert y, neither th

e statutor y r ules of the road no

r the com mon law rules perta

ining to public roadway s are applicable. However, the duties and liabilities of drivers are governed by the basic principles of commo n law negligence requiring each person to exercise ordinary and
reasona ble care under the c ircumsta nces. The statutor

y r equirem ents help to det ermine the minimum standardof care. Miller , 457 S.W.2d at 862-63. Conditions such as tho s e found in a crowded parking lot may require a

driver to use an even grea ter degree of car

e. Id. The duty

of a driver has been summarized as “a

duty to keep a re asonably ca reful lookout commensurate with the dangerous character of the vehicle and the nature of the locality . . . .” Hale v. Rayburn , 264 S.W.2d 230, 233 (Tenn. Ct. App. 1953). However, negligenc e is not presumed from the mere fact of an a ccident or in ju ry. Armes v. Hu lett , 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992). When there is conflicting evidence or if diff

erent c onclusion s may

reasona bly be re ac he d, th e q ue st io n o f f au lt is fo r t he ju ry. See Hale , 264 S.W.2d at 233.
As noted above, Ms. Hickmantestified that she was emerging fr om between parked c ars to cross a full parking lot when she collided with Ms. Jordan’s vehicle. She did not see Ms. Jordan’s vehicle backing-up through the parking lot, and was not aware that it was coming toward he r until she was hit on her left side and knocked to the ground. At

the time of the collision, she was turned towardher right to speak to her mother-in-law, who was following a few steps behind. Ms. Jordan testified that she did n o t see the pedestrians, despite checking a ll of her rearview and side mirrors and looking over her shoulder as she backe d-up. Moreover, the configuration of Dumplin’s parking lot is such t

hat when the lot is f

ull, a driver

who has reached the end of the lot has no option other than to back-up, since there is no room to turn a vehicle around. Ne i ther Ms. Hickma

n nor Ms. Jordan saw the o ther until Ms. Hickman h ad actua

lly b een stru ck. Ther

e was no e

vidence that Ms. Jordan was traveling at an unreasonable speed.
Reasona ble minds may differ

as to whether Ms. Jordan exercised the heightened degree of
care necessary

under the circumstances here. Where rea sonable minds may differ , the question of fault is for the jury to dec ide. The facts of this case as outlined above provide mate rial evidence to support the jury’s finding

that Ms. Jordan was not at fault. We therefore affirm. Costs of this appeal-4-

are taxed to the Appellants, Elizabeth Elaine Hickman a nd John Rober

t Hickman , and thei

r su re ty, fo r w hi ch ex ec ut io n m ay l ev y if ne ce ss ar y.

___________________________________

DAVID R. FARMER, JUDGE