IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 21, 2016 Session

VOLODYMYR HELYUKH, ET AL. v. BUDDY HEAD LIVESTOCK & 

TRUCKING, INC., ET AL.

Appeal from the Circuit Court for Henderson County

No. 12095 Roy B. Morgan, Jr., Judge

___________________________________

No. W2015-01354-COA-R3-CV – Filed April 24, 2017

___________________________________

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the 

plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractortrailer owned by the defendant and operated by its employee. The plaintiffs claimed that 

the employee‟s negligence proximately caused the accident. The owner of the overturned 

tractor-trailer moved for summary judgment on the ground that the plaintiffs could not 

establish that its employee‟s conduct fell below the applicable standard of care. The trial 

court agreed and granted summary judgment. On appeal, the plaintiffs argue, among 

other things, that owner of the overturned tractor-trailed failed to meet its burden of 

production in moving for summary judgment. Because we conclude that the movant 

failed to demonstrate the absence of material facts that would create genuine issues for 

trial, we reverse the grant of summary judgment.

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

Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which J. STEVEN 

STAFFORD, P.J., W.S. and KENNY ARMSTRONG, J., joined.

Ronald J. Berke, Jeremy M. Cother, and Charles A. Flynn, Chattanooga, Tennessee, for 

the appellants, Volodymyr Helyukh, and Mariah Helyukh.

R. Dale Thomas and Matthew R. Courtner, Jackson, Tennessee, for the appellee, Buddy 

Head Livestock & Trucking, Inc.

Gary M. Kellar and Lucas E.W. Jerkins, Nashville, Tennessee, for the appellee, 

Northland Insurance Company.
2

OPINION

I.

On November 16, 2011, Volodymyr Helyukh, a long-distance truck driver, 

sustained injuries when he collided with an overturned tractor-trailer on Interstate 40 in 

western Tennessee. The overturned vehicle was owned by Buddy Head Livestock & 

Trucking, Inc. and operated by its employee, Michael Heller. Mr. Helyukh testified in 

his deposition that he was driving west within the posted speed limit on Interstate 40 

when he suddenly saw what he thought was a “wall” blocking both lanes of travel. 

Unable to stop or avoid the obstacle, Mr. Helyukh collided with the overturned vehicle. 

He did not know what events transpired to cause the tractor-trailer to overturn. 

A. PROCEDURAL HISTORY

On May 24, 2012, Mr. Helyukh and his wife1filed this action against Buddy Head 

Livestock, Michael Heller, USF Holland, Inc., and Jack Grady. Plaintiffs alleged that 

Mr. Heller‟s negligence2 was the proximate cause of Mr. Helyukh‟s injuries and that 

Buddy Head Livestock was responsible for that negligence because Mr. Heller was 

driving the tractor-trailer in the course of his employment. 

According to the complaint, a third tractor-trailer, driven by Mr. Grady and owned 

by USF Holland, was also traveling west along the same stretch of interstate during the 

relevant time period. Plaintiffs included Mr. Grady and USF Holland in this action 

because Buddy Head Livestock and Mr. Heller claimed that Mr. Grady forced Mr. Heller 

off the road and contributed to the accident. 

In its initial answer, Buddy Head Livestock admitted that Mr. Heller was an 

employee3and that, as his employer, the company was liable for any negligence on the 

part of Mr. Heller but denied that Mr. Heller was negligent. The company also admitted 

that Mr. Heller left his lane of travel after being forced off the road by another vehicle

and that the vehicle in question “may have been” driven by Mr. Grady or “may have 

been” a vehicle driven by an unidentified driver. Buddy Head Livestock affirmatively 

 

1 Mrs. Helyukh alleged a claim for loss of consortium and payment of her husband‟s medical 

bills.

2

Plaintiffs also asserted that Mr. Heller‟s violation of numerous motor vehicle statutes constituted 

negligence per se. 

3 This record indicates that, at some point during the pendency of this case, Mr. Heller ceased 

working for Buddy Head Livestock.
3

asserted the comparative fault of Mr. Helyukh, Mr. Grady, and the unidentified driver.

On September 16, 2013, the court granted Buddy Head Livestock leave to amend 

its answer. In the amended answer, the company asserted that Mr. Heller was forced off 

the road by an unidentified vehicle and eliminated all references to Mr. Grady and USF 

Holland. Subsequently, Plaintiffs voluntarily dismissed Mr. Grady and USF Holland 

from the lawsuit. 

At the outset of this case, the court issued a scheduling order setting deadlines for 

discovery and dispositive motions, among other things. The court amended the 

scheduling order to allow more time for discovery, at the joint request of the parties, three

times. In addition, in August 2014, Buddy Head Livestock successfully moved for a 

fourth amended scheduling order that extended the discovery deadline to February 27, 

2015. 

Although Plaintiffs voluntarily dismissed Mr. Heller from this case after they were 

unable to serve him with process, they successfully served him with a subpoena for a 

deposition on October 3, 2013. For reasons not apparent from this record, the deposition 

did not take place as scheduled. Plaintiffs had another subpoena issued for Mr. Heller on 

approximately June 20, 2014. Despite hiring a private process server, Plaintiffs were 

unable to serve the subpoena. Thereafter, counsel for Plaintiffs and Buddy Head 

Livestock discussed potential deposition dates for Mr. Heller, but Plaintiffs never had

another subpoena issued. 

B. BUDDY HEAD LIVESTOCK‟S MOTION FOR SUMMARY JUDGMENT

On March 13, 2015, Buddy Head Livestock filed a motion for summary judgment 

on the ground that Plaintiffs could not establish that Mr. Heller had breached his duty to 

exercise reasonable care. For support, Buddy Head Livestock filed affidavits from Mr. 

Heller and Charles Atkinson, an accident reconstructionist, and portions of the Plaintiffs‟ 

depositions. The motion was scheduled to be heard on May 11, 2015. 

Thereafter, Plaintiffs attempted to schedule Mr. Heller‟s deposition, but defense 

counsel refused to agree to a deposition date because the discovery deadline had passed. 

Six days before the scheduled hearing, Plaintiffs filed two motions: (1) a motion to 

continue the hearing and amend the scheduling order to extend the discovery deadline;

and (2) a motion for sanctions against Buddy Head Livestock for failure to supplement 

discovery responses. On that same date, Plaintiffs responded to Buddy Head Livestock‟s 

statement of undisputed material facts and submitted a statement of additional material 

facts. 
4

Buddy Head Livestock argued that it was entitled to entry of summary judgment

because Plaintiffs could produce no evidence that contradicted Mr. Heller‟s description of 

the accident. In his affidavit, Mr. Heller stated:

On November 16, 2011, I was traveling westbound on Interstate 40 

in Henderson County, Tennessee. I was traveling at approximately 68 

miles per hour. I was initially traveling in the right lane. I came upon three 

tractor trailers that were traveling slowly, and I switched to the left lane to 

pass.

I had passed the first two tractor trailers, but as I was passing the 

third tractor trailer, the third tractor trailer began veering into my lane of 

travel. I moved my truck toward the left shoulder and sounded my horn, 

but the third tractor trailer continued to come into my lane of travel. This 

third tractor trailer forced me off the road.

As a result of being forced off the road by the third tractor trailer, I 

exited my lane of travel and ran my truck off the road. When my truck left 

the roadway, I was traveling at 68 miles per hour and began braking 

immediately. I then traveled back onto the roadway and my tractor trailer 

rolled onto its side, blocking the roadway. My tractor trailer had just come 

to a complete stop when I was struck by Volodymyr Helyukh.

I do not know the identity of the third tractor trailer that ran me off 

the road or its driver. 

Mr. Atkinson‟s affidavit essentially confirmed Mr. Heller‟s story. Mr. Atkinson 

opined that “the angle that Michael Heller, the driver of Buddy Head Livestock‟s tractor 

trailer, departed the inside lane of I-40 westbound onto the inside shoulder and center 

median is consistent with Mr. Heller being forced to the left and off the interstate by a 

commercial vehicle changing lanes.” He also opined that Mr. Heller‟s speed was not a 

contributing factor in the accident. 

In response, Plaintiffs questioned the adequacy of Mr. Heller‟s affidavit and the 

“accuracy and scientific certainty” of Mr. Atkinson‟s conclusions. Plaintiffs argued that 

Mr. Heller‟s affidavit was not credible because the police report did not indicate that 

Mr. Heller was forced off the road, and Buddy Head Livestock‟s original answer had 

asserted that Mr. Heller was forced off the road by Mr. Grady.

C. CIRCUIT COURT ORDERS

At the hearing, the court first heard argument on Plaintiffs‟ motions to continue 

and for sanctions. Based on the considerable period of time that had elapsed in the case, 
5

defense counsel‟s objections, and the lack of evidence of wrongdoing, the court found no 

just cause for a continuance and thus denied the request. The court also denied Plaintiffs‟

motion for discovery sanctions because Plaintiffs had never sent any discovery requests 

to Buddy Head Livestock.

4

After hearing argument on the motion for summary judgment, the court found that 

the moving party had demonstrated that Plaintiffs could not establish a breach of duty and 

that Plaintiffs did not respond with any admissible evidence of a material factual dispute. 

On June 23, 2015, the court issued an order granting Buddy Head Livestock summary 

judgment, which the court certified as final under Rule 54.02 of the Tennessee Rules of 

Civil Procedure. 

II.

Summary judgment may be granted only “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary 

judgment has “the burden of persuading the court that no genuine and material factual 

issues exist and that it is, therefore, entitled to judgment as a matter of law.” Byrd v.

Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If the moving party satisfies its burden, the 

burden shifts to the nonmoving party to “demonstrate . . . that there is a genuine, material 

fact dispute to warrant a trial.” Id.

In this case, the party moving for summary judgment does not bear the burden of 

proof at trial. The burden-shifting analysis to be employed by courts tasked with 

deciding a motion for summary judgment in such situations is the same as that employed 

in the federal system. “[T]he moving party may satisfy its burden of production either (1) 

by affirmatively negating an essential element of the nonmoving party‟s claim or (2) by 

demonstrating that the nonmoving party‟s evidence at the summary judgment stage is

insufficient to establish the nonmoving party‟s claim or defense.” Rye v. Women’s Care

Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015), cert. denied, 136 S. Ct. 

2452 (2016). Satisfying this burden requires more than a “conclusory assertion that

summary judgment is appropriate,” rather the movant must set forth specific material 

facts as to which the movant contends there is no dispute. Id. 

If a motion for summary judgment is properly supported, the nonmoving party 

must then come forward with something more than the allegations or denials of its 

pleadings. Id. at 265. The nonmoving party must “by affidavits or one of the other 

 

4

Plaintiffs‟ motion was based on Buddy Head Livestock‟s failure to supplement its responses to 

interrogatories propounded by USF Holland, who was no longer a party to the case.
6

means provided in Tennessee Rule 56, „set forth specific facts‟ at the summary judgment 

stage „showing that there is a genuine issue for trial.‟” Id. (quoting Tenn. R. Civ. P. 

56.06).

A trial court‟s decision on a motion for summary judgment enjoys no presumption 

of correctness on appeal. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008); 

Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004). We review the summary 

judgment decision as a question of law. Martin, 271 S.W.3d at 84; Blair, 130 S.W.3d at 

763. Accordingly, we must review the record de novo and make a fresh determination of 

whether the requirements of Tennessee Rule of Civil Procedure 56 have been met. Eadie 

v. Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004); Blair, 130 S.W.3d at 763.

On appeal, Plaintiffs5raise several issues, but we conclude one issue is 

dispositive.

6

 Of course, mere evidence of an accident does not establish liability. Armes 

v. Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992). A negligence claim requires proof 

of five elements: “(1) a duty of care owed by defendant to plaintiff; (2) conduct below the 

applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) 

cause in fact; and (5) proximate, or legal, cause.” McCall v. Wilder, 913 S.W.2d 150, 

153 (Tenn. 1995). This appeal focuses solely on the second element, breach of the duty 

of care, and whether Buddy Head Livestock affirmatively negated that element through 

the affidavit of its employee. 

All drivers must act with reasonable care to avoid foreseeable injury to others.

Tenn. Code Ann. § 55-8-136(b) (2012); Hickman v. Jordan, 87 S.W.3d 496, 499 (Tenn. 

Ct. App. 2001). Whether a driver has exercised reasonable care must be evaluated in 

light of the circumstances and will vary according to the risk entailed in a particular 

situation. Hickman, 87 S.W.3d at 499. For instance, reasonable care on a deserted rural 

road may differ from reasonable care during rush hour in the rain. See Rains v. Bend of 

the River, 124 S.W.3d 580, 588 (Tenn. Ct. App. 2003) (“[D]eterminations regarding 

whether particular conduct conforms to the common-law standard of conduct are made 

on a case-by-case basis.”). 

Buddy Head Livestock argues that it is undisputed that Mr. Heller operated with 

reasonable care because Plaintiffs lack personal knowledge of why the tractor-trailer

overturned. See Phillips v. Strange Truck Lines, No. E2007-00160-COA-R3-CV, 2008 

WL 803129, at *2 (Tenn. Ct. App. Mar. 27, 2008) (affirming grant of summary judgment 

to the defendant when the plaintiff was unable to present evidence to contradict 

 

5 Northland Insurance Company, Plaintiffs‟ underinsured motorist carrier, filed a brief in this 

matter, raising issues from the proceedings in the trial court that were not addressed in the final order that 

is the subject of this appeal. We have determined that these issues are not properly before this Court. 

6 Because of this, we decline to address the other issues raised by Plaintiffs. 
7

defendant‟s evidence that its driver had exercised reasonable care). Before we can 

address the sufficiency of the non-moving party‟s opposing evidence, however, we must 

consider whether the moving party met its burden of “demonstrating the absence of 

material facts creating genuine issues for trial.” See McCarley v. W. Quality Food Serv., 

960 S.W.2d 585, 587 (Tenn. 1998) (holding the lower court erroneously focused on the 

non-moving party‟s burden without first determining whether that burden was triggered).

The evidence shows that Mr. Helyukh was traveling west on Interstate 40 when he 

suddenly encountered Buddy Head Livestock‟s tractor-trailer overturned across the road. 

Mr. Helyukh conceded he had no personal knowledge of how the tractor-trailer 

overturned. Mr. Heller‟s affidavit7established that: (1) he was not speeding; (2)

immediately before the accident, he had exited the roadway to the left to avoid a collision 

with an unidentified driver; and (3) when he attempted to re-enter the roadway, his 

tractor-trailer overturned. Mr. Atkinson provided his opinion that the angle at which the 

Buddy Head Livestock‟s tractor-trailer exited the roadway was consistent with 

Mr. Heller‟s story and that Mr. Heller‟s speed did not contribute to the accident.

In evaluating whether Mr. Heller used reasonable care, the mere fact that he may 

have been confronted with a sudden emergency, such as a vehicle unexpectedly entering 

his lane of travel, does not excuse him from liability. The sudden emergency doctrine 

“recognizes that a person confronted with a sudden or unexpected emergency which calls 

for immediate action is not expected to exercise the same accuracy of judgment as one 

acting under normal circumstances who has time for reflection and thought before 

acting.” McCall, 913 S.W.2d at 157. The doctrine has been subsumed within our system 

of comparative fault. Id. Thus, the actions of the third tractor-trailer are simply part of 

the circumstances to be considered when determining whether Mr. Heller acted 

reasonably.8 

 

7

Plaintiffs also opposed the motion for summary judgment by questioning Mr. Heller‟s 

credibility. See Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 942 (Tenn. Ct. App. 1984) (“[D]oubt as to 

the credibility of material witnesses will create a genuine issue of material fact sufficient to render 

granting a summary judgment improper.”). We conclude that the credibility issues alleged by Plaintiffs 

do not rise to a level above the “normal credibility questions that arise whenever a witness testifies.” 

Hepp v. Joe B’S, Inc., No. 01A01-9604-CV-00183, 1997 WL 266839, at *3 (Tenn. Ct. App. May 21, 

1997). 

8 Even under prior law, the party seeking to invoke the sudden emergency doctrine was required 

to exercise reasonable care. See Kowalski v. Eldridge, 765 S.W.2d 746, 749 (Tenn. Ct. App. 1988) (“The 

party asserting the sudden emergency doctrine must be free of fault in creating the emergency in whole or 

in part.”); Irvin v. City of Kingsport, 602 S.W.2d 495, 498 (Tenn. Ct. App. 1980) (“The arising of an 

emergency does not, however, relieve one from the obligation of exercising ordinary care under the 

circumstances.”).
8

Summary judgment is inappropriate if the evidence in the record is conflicting or 

if differing conclusions may reasonably be reached from the evidence. Id. at 153. 

Viewing the evidence in the light most favorable to the nonmoving party, we cannot say 

that a reasonable person could reach only one conclusion. Staples v. CBL & Assocs., 

Inc., 15 S.W.3d 83, 89 (Tenn. 2000). Mr. Heller provided an explanation for why the 

tractor-trailer overturned, but his affidavit does not foreclose differing conclusions about 

whether his conduct was reasonable. A reasonable juror could conclude that Mr. Heller‟s 

conduct fell below the applicable standard of care in several ways: (1) choosing to pass 

the three tractor-trailers; (2) choosing to sound his horn and move to the left shoulder 

instead of slowing to allow the third tractor-trailer to safely change lanes; (3) choosing to 

return to the roadway either in light of the approaching vehicles or without checking for 

approaching vehicles; or (4) losing control of the tractor-trailer when he attempted to 

return to the road. 

We find Buddy Head Livestock‟s reliance on the Phillips case unpersuasive. 

Phillips, 2008 WL 803129, at *2. Although the court in Phillips affirmed the grant of 

summary judgment in favor of the defendant because the plaintiff had no personal 

knowledge of any negligent driving by the defendant‟s driver, the court reached its 

conclusion only after finding the defendant had met its burden of affirmatively negating 

the essential element of breach of duty. Id. In contrast to this case, the Phillips‟

defendant established that the driver was not speeding, his “vehicle was equipped with 

the appropriate lights, all of which were operable and on,” and he “did nothing untoward 

that caused or contributed to the collision.” Id. Buddy Head Livestock did not produce 

the same level of proof.

Because reasonable persons could differ as to whether Mr. Heller acted reasonably 

under the circumstances he described in his affidavit, Buddy Head Livestock did not 

affirmatively negate an essential element of Plaintiffs‟ claim, and Plaintiffs‟ burden to 

produce evidence establishing the existence of a genuine issue for trial was not triggered. 

Therefore, the trial court erred in granting summary judgment. See Blair, 130 S.W.3d at

768.

III.

For the foregoing reasons, we reverse the grant of summary judgment and remand 

this case for further proceedings consistent with this opinion.

_________________________________

W. NEAL MCBRAYER, JUDGE