1 The eight people who made the trip to Texas were James Harper, Janet Harp er, Damon H arvey, Keith Churn,

Rodney Beard, Charl ene Bear d, Al li son W alker, and Tolena Starks. Mr. Beard was the pastor of the church. T he others, exce pt for M r. Ha rvey, were leade rs i n th e chur ch. Mr. Harvey , Jan et Har per’ s son , t ravel ed to Hous ton f

or personal matter s. 

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 5, 2001 Session JANET HARPER, ET AL 

### . v. KEITH D. CHURN, ET AL 

### . Direct Appeal from the Circuit Court for Davidson County No. 98C-3354 Hamilton V. Gayden, Jr., Judge

No. M2000-02353-COA-R3-CV - Filed December 10, 2001

This is a pers onal injur

y c ase ari sing fr

om a vehicula r collisio n. The pla

intiffs, t he Harp ers, and the defenda nts, Mr. Churn

and Mr. B eard, a

long with severa l others, were tr

aveling togethe r ina rented vehicle at the time of the collision. Mr. Churn w as the driver of the vehicle; Mr. Bear d was the pastor of the parties’ church. At tri a l, the Har pers ass erted th at Mr. Chur n was negligent in

his operation of the ve

hicle. Ad ditionally , the Har

pers cla im ed that Mr. Bea

rd was vic ariously

liable for their injuries, or in the alternative, that Mr. Beard wa s liable under the theor y of negligent entrustment. The trial court granted Mr. Be ard’s motion for a dir ected ve rdict, and the jury found in favor of

Mr. Churn . The Har

pers appeal bo th decisions. We affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d; and Remanded
D AV ID R. F ARMER , J., de liver ed th e opi nion o f the

cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and H OLLY K. L ILLARD , J., joined. Terry R. Clay

ton, Nashville, Tennessee, for the appellants, Janet Harper a nd James Harper. Alan M. Sowell, Nashville, Tennessee, for the appellee, Ke ith Churn. Nancy W. Phillips, Nashville, Tennessee, f or the appellee, Rodney

Beard. OPINION
In the summer of 1998, a group primarily composed of

church leaders from

the Living Word Community

Church in

Davidson

County , Tennes see tra

veled to H ouston, Te

xas. 1 The group went-2-

to Houston to meet with leaders of su ccessf ul churches loca

ted in the area. T he party hoped to collect ideas from the Houston churches that they could employ in the Davidson County church.
When the group arrived in Houston, they rented a Chevrolet Suburb an to use as transportation

. As the group searched for their hotel, the Suburban entered an intersection and collided with a tractor trailer. Keith Churn was driving the Suburban a t the time of

the accident. The collision caused t

he Suburb an to turn

over sev eral time s, and Jane t Harper suffer ed sever al injurie s. Ms. Harper and her husband, James Harper, sued Mr. Churn and Rodney Beard to recover for her injuries. The Harpers asserted that Mr. Churn was negligent in his operation of the Suburban. The Harpers sued

Mr. Beard under the theories of ne gligent entrustment and vicarious liability

. Mr. Harper sought compensation for his loss of consortium.
The parties tried the case before a jury on June 26, 27, and 28, 2000. The Harpers asserted that Mr. Churn

was neg ligent in

his operation of

the Suburban. Additionally, the Har pers contended that Mr. Beard was vicariously liable fo r Mr. Chur

n’s acts , or in the

alterna tive, wasliable

under the theory of negligent

entrustment. At the close of the Harpers’ case in chief, the trial court granted Mr. Beard’s motionfor a dir

ected ve rdict. After the prese

ntation of all the ev idence, the jury

found in favor of Mr. Churn. The trial cou rt en tered the corresponding judgme nt, and the Harpers filed a motion seeking a new trial. The trial court denied the Harpers’ motion and this app eal followed.
The Harper s raise th

ree issu es for ou

r review. These

issues, as stated by the

Harpers, are as follows:
I. [Whether] the trial court erred by granting a directed ve

rdict to Appellee, Rodney Be ard.
II. [Whether] the jury’s verdict was contra ry to the weig

ht of the evidence.
III. [Whether] the trial court er red by allowing counsel fo r Appellee, Keith Churn, to cross e

xamin e Damo n Harvey regarding an incident that happen[ed] at the parties[’] church two (2) months before the collision, as the testimonywas irrelevant pursuant to Tennessee Rules of Evidence, Rule 401.
We willdiscuss the issues in reverse order. The Harpe rs argue that the trial court erred by permitting Mr. Churn to question Damon Harvey about an incident at the Living Word Community Church. Over

the Harpers’ objection, Mr. Harvey admitted that he “create[d] an incident in church one day, kick[ed] a lady

in the mouth, [and] had to be tackled” by the elders of the church. Further, Mr. Harvey

admitte d that Mr. C hurn, an elder of the church, was one of the people who took Mr. Harvey to the hospital after this incident. Following this exchange, Mr. Ha rvey stat ed that he regarded Mr. Churn as an untruthful per son. On direct examination, Mr. Harvey testified that Mr. Churn was not paying attention to his surro undi ngs at the time of the collision. Additionally, Mr. Harve y testified that the

traffic lig ht2 Rule 401 defi nes rel evant ev idence as “evi dence havi ng any tendency t o make the exi stence of any fact that is of co nseq uenc e to the deter minatio n of the a ction m ore p rob able o r less pro bab le than it wo uld b e with out th e evide nce. T enn. R . Evid . 401

. -3- changed from yellow to red

immediately prior to the collision. Thus, Mr. Harve y provided testimony that Mr. Churn ran through a red light when Mr . Churn collided with the tractor trailer.
The Harpers assert that questions regar ding the incident at church involving Mr. Harve y were notrelevant under Rule 401 of the Tennessee Rules of Evidenc e. 2 Additionally, the Harpers argue that the pr obative value of the evidence is “substantially outweighed by

the danger of unf

ai r prejudice, confusion of the issues, or misleading the jury

. . . .” Ten n. R. Evid. 403. Finally, the Harpers assert that the testimony was not admissible bec ause it was a collateral issue that was used solely to contradict the witness.
We disagr

ee with th

e Harpe rs’ arg ument. The

trial cou rt prope rly allowed M

r. Churn to question Mr. Harvey

about the incident

that took place two months prior to the accident in Houston. Rule 616 of the TennesseeRules of E vid ence sta tes that “ [a] party

may offer e vidence by crossexaminat ion, ex trinsic e

vidence , or both, t

hat a witness is bias ed in fav or of or p rejudic ed aga

inst a party or anothe

r witness .” T hus, this rule establishes that evidence of a witness’s possible bias agains t a p arty is releva

nt for impeachment purposes. Further, this form of impeachme nt is no t considered

a collateral matter, as the rule speci fically permits the introduction of extrinsic evidence. Tenn. R. Evid. 401 ; Stat e v. Will iams , 827 S.W.2d 8 04, 809 ( Tenn. Crim. App. 199 1); Neil P. Cohen et al., Tennessee Law of Evidence § 6.16[3][c] (4 th ed. 2000).
In this case, the evidence establishes that Mr. Harvey

could have maintained a biased opinion of Mr. Churn . The evidence illustrates that Mr. Harvey and Mr. Churn have had a previous encounter that might influence the course of Mr. Harve y’s testimony . As the encounter might have led Mr. Harvey

to be prejudiced against Mr. Churn, it was proper f or th e j ur y to he ar th is te st im on y. Therefore, we concludethat the trial court did not err in permitting Mr. Churn’s cross-examination of Mr. Harvey

regarding the incident at the L iving Word Community Church. In the Harpers’ second issue, they a ssert that the jury verdict wa s contrary to the weight of the evidence. Because this appea l results froma jury

trial, our review is limited to a determination o f whether there is material evidence to support the jury ’s verdict. Tenn. R. App. P. 13 (d) ; Reynolds v. Ozark M

oto r Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994). If material evidenc e exists to support the jury’s verdict, the corresponding judgment will not be di s turbed on appeal. Reynolds , 887 S.W.2d at 823. Further, on an appeal from a jury ve

rdict, we do not determine the credibility of witnesses or w eigh the evidence. Id.
At trial, the parties offered conflicting testimony regarding the color

of the traffic light as Mr. Churn approached the intersection. Witnesses for Mr. Churn stat ed that the light w as gre en, while the Harpers introduce d evidenc e that the traffic light wa s red. Ad

ditionally , witnesse s for both parties offered vary

ing accounts of

whether Mr. Churn

was driving in a sa

fe manne r just prior to the accide nt. Finally, by

eliciting damaging testimony and utilizing prior inconsistent statements, Mr.-4-

Churn effectively

attacked the credibility

of several of theHarpers’ witnesses on cross-examination. When consider

ing the a bove evid ence in a ddition to th

e entire record in this cause, we conclude that material evidence exists to support the jury’s verdict. Theref ore, pursuant to our standard of review, we hold that the trial court did not err in entering the jury verdict in favor of Mr. Churn.
In their remaining issue, theHarpers assert th at the tri al court erred b y di

recting a verdict in favor of Mr. Beard. Our review of a trial court’s decision

to gran t a directed verdict is well-settled. It is approp riate fo r a trial court to g

rant a di rected verdict when the evidenc e is susce

ptible to on

ly one conclusion. Alexander v. Armentrout , 24 S.W .3d 267, 271 (Tenn . 2000 ) (cit ing Eaton v. Mclain , 891 S.W.2d 58 7, 590 (Te nn. 1994) ; Long v. Mattin gly, 797 S.W.2d 88 9, 892 (Te nn. Ct. App. 1990)). If rea sonabl e p ersons could draw conflicting conclusions, the case should go to the ju ry. Spann v. Abraham , 36 S.W.3d 452, 462 (Tenn. Ct. App. 1999) (citi ng Gulf, M. & O.R.R. v. Underwood , 187 S.W.2d 77 7, 779 (Te nn. 1945) ; Pettus v. Hurst , 882 S.W.2d 783, 7 88 (Tenn . Ct. App. 1993)). T

hese con clusions, however , cannot b e based o n specula tion, c onjecture, or guesswork. Id. (citi ng Daniels v. White Consol. Indus. Inc. , 692 S.W.2d 422, 425 (Tenn. Ct. App. 1985). When deciding whether a trial court should have granted a directed verdict, we must take the stronge st legitimate

view of the evidence in favor of the opponent of the motion. Alexander , 24 S.W.3d at 27 1. Further, we must allow all reasonable infere nces in favor of the opponent of the motion and disregard all evidence contra ry to the opponent’s position. Id.
The Harpers of

fered t w o theories as to Mr. Beard’s liability : negligent entrustment and vicarious liability. We will first address the neg ligent entrustment claim. Te nne ssee cou rts reco gniz e a cause of action for the neg ligent entrustment of an automobile to one who is incompetent to use it. Woodson v. Porter Brown Limestone Co. , 916 S.W.2d 8 96, 907 (Tenn. 1996 ); Nichols v. Atni p , 844 S .W. 2d 655, 661 (Tenn. Ct . App. 199 2); Rimer v. City of College dale, Tenn. , 835 S.W.2d 2 3, 24 (Te nn. Ct . App. 24). In Nichols , this Court listed the four elements of a negligent entrustment claim. The elements are “(1) an entrustment of a chattel, (2) to a person incompetent to use it, ( 3) with

knowledg e that the

person isincompet

ent, and (4) that is the proximate cause of injury or damage to another.” Nichols , 844 S.W.2d at 659 (quot ing Chiniche v. Smith , 374 So.2d 872, 876 (Ala. 1979)). It is important to note that the person entrusting the vehicle must have the right to control the vehicle at

the time the vehicle is entrusted. Rimer , 835 S.W.2d at 24. Further, we stated in Rimer that
the liability of an

owner . . . is generally

imposed only where the

owner entrusts the vehicle to one who se appea

rance o r conduct is such a s to indica te his incompetency or inability to operate the vehic le with care, and that to impose li ability

in other c ases, where the incompetency of the entrustee is not apparent to theentruste r of the v ehicle at the time of the entrustment, it must be affirmatively shown that the entruster had at that time k

nowledg e of such

facts and circumstances relating to the incompetency of the entrustee to operate the motor vehicle as would cha rge the entruster w ith knowledge of such incompetency

. Id. (quoting 60A C.J.S. Motor Vehicles § 431(1) (1969)).3 We note that t he Harpers f

aile d to int

roduce any a dditi onal evidence, such as the re ntal agreement, test imony by M r. Be ard, o r testimo ny by M r. Chu rn that wo uld p rovid e pro of of wh o ren ted o r con trolled the Sub urba n. -5- In the pres ent case , the Har pers did n ot establi sh the fir st elemen t n ec es sa ry t o maintain a cause of action under

the theory of negligent entrustment. The Harpers f ailed to offer evidence that would permit a r

easonab le infer

ence tha t Mr. Bea rd had the right to control th

e vehicl e or that

Mr. Beard entrusted the vehicle to Mr. Churn. The Harpers ar gue that Mr. Beard’s position as pastor of the church, coupled with the Harpers’ testimon y a t trial, establish the first element in a claim for neglig ent entr

ustment. T

he testimo ny b y Ms . Harpe r was as f ollows: Q: Who made the decision t o r ent the vehicle y ou all were riding in, the Suburban?
A: As far as I know it was the pastor’s decision. Q: How did Mr. Churn become the driver of the vehicle?
A: When we arrived

at the air port in Houston I can reca

ll my husband and

I and a couple of

the other people were like away just waiting because the

pastor and Keith Churn went up to make arrange ments for the vehicle.
Addit ional ly, Mr. Ha rper st ated t he fol lowi ng: Q: Who made th

e decisi on for Mr . Churn to d rive on th e date of the acc ident?
A: I suppose I couldn’t definitely

say, but he and Pastor B eard was at the counter where the vehicle was being required so I assume that Pastor Beard made the suggestion that he be the driver. Despite taking t he strong est leg itimate

view of th

e above testimony , we can

not agr ee that th is evidence establishes that Mr. Beard had the right to control the vehicle or that Mr. Beard entruste d the vehicle to Mr. Churn. 3 Ms. Harper’s testimony reg arding the decision to rent the Suburban does notpermit

a reasonable inference tha t Mr. Beard rented the vehicle or tha t Mr. Beard was in control of the vehicle. Further, testimony that Mr. Beard and Mr. Churn were at the counter together when the vehicle was rented fails to provide a rea sonable inference that Mr. Bea rd e ntru sted Mr. Churn with the vehicle. The Harpers’ testimony merely provide s a route for jury speculation and guesswork. Accord

ingly , the Har

pers fa iled to sat isfy the first eleme nt of neg ligent e

ntrustmen t. Moreover, we note that

the Harp ers fail ed to prov ide suff icient ev idence t o establish the second and third elemen ts of n egl igent entrustment. There is no evidence in the record to establish that Mr. Churn was incompetent to drive the Suburban. Further, the rec ord fails to indicate that Mr. Beard had knowledge of any

incompetency a

t the time of t he purpor ted entrustment of the vehicle. Therefore, we conclude that the trial court properly

granted Mr. Beard’ s motion for a directed verdict on the negligent entrustment issue.4 “A final judgment from which relief is available and o therwise app ropriate shall not be set aside unless,

considering the whole record, error involving a substanti al right more pro bab ly than no t affected the jud gme nt or wo uld result i n prejudice to the judicialprocess.” Tenn. R. App. P. 36 (b). -6- The Harpers also argue that Mr. Beard

is subject to vicarious liability because of the acts of Mr. Churn. Vicarious liability is the imposition of

li ab il it y on one pers on for the actionable conduct of another, based solely on a rela

tionship be

tween the

two perso ns . Indirect or imputed leg al responsi bility for acts of another; for example, the liabil ity of an emp loy er for th

e acts of an emp loy ee, or a

principa l for tort s and con

tracts of an age nt. Browderv. Morris , 975 S.W.2d 308, 3 11 (Te nn. 19 98) (q uoti ng Black’s L aw Dictiona

ry 1566 (6 th ed. 1990)).
In order to establish Mr. Beard’s liability , the Harpers again rely on Mr. Beard’s status as the churchpastor and the above testimony by the Harpe

rs. This evidence fails to pe rmit a re asonable inferencethat would establish the vicarious liability of Mr. Beard. The evidence doesnot indica te that Mr. Beard

and Mr. Churn had

an age ncy or employ

ment rela tionship tha

t would impo se liability on Mr . Beard for Mr. Churn’s acts. As we stated in our discussion of the negligent entrustmen t claim, the Harpers cannot r ely on speculation and guesswork to make their case . We find this issue withoutmerit; therefore, the trial court properly granted Mr. Beard’ s motion for a direc ted verd

ict.
In addition, the jury

found that Mr. Churn was not at fault in the collision. Mr. Bea rd could only be liable, under either of

the Harper s’ theor

ies, if Mr . Churn we

re found to be negligent in

his operation of the Suburban. Theref ore, as sumi ng arguendo that the trial court erred by granting Mr. Beard’s motion for

a direc ted verd

ict, such error w ould be ha

rmless pur suant to Rul e 36(b) of the Tennessee Rules of Appellate Procedure. 4
Ac co rd in gl y, we affirm the judgment of the trial court. The costs of th is appea l are taxe d to the appellants, Ms. Janet Harper and Mr. James Harper, and their surety , for which execution may issue if necessary

.

___________________________________ DAVID R. FARMER, JUDGE