# FILED
September 10, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON JAMES M. LOWERY, for himself and ) the use and benefit of his sister , ) LINDA LA NEY, in the death of ) his fathe r, JAMES G. LOWE RY, ) ) Plaintiff/Appellant, ) Madison Circuit N o. C-95-328 ) VS. ) A ppeal No. 02A 01-9612-CV-003 04 ) GAR Y A ND EMILY

FRA NKS, )

) Defendants/Ap pellees. )
APPEAL FROM THE CI RCUI T COUR T OF MA DISON COUN TY

AT JACKSON, TENN ESSEE THE HONORABLE FRANKLIN M URCHISON , JUDGE

HAROLD R . GUNN Humboldt, Tennessee Attorney for Appellant CLINTON V. BUTLER, JR. PATRICK W. ROGERS RAINEY, KIZER, B UTLER, REVIERE & BELL, P.L.C. Jackson, Tennessee Attorneys for Appellees

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J. In this wr ongf ul death action, Plaintif fs, James Lowery and Linda Lane y, filed suit2

against Defendants, Gary and Emily F ranks, for

the wrong ful death of their father, Ja mes Lowery (“Decedent” ), whic h occurred after Decedent was struck by Defendants’ vehicle. In their complai nt, Plaintiffs all ege that Defendant, Emily Fr anks, the dri ver ofthe vehicl e, is liable for common law and st atutory neg ligence w hich was the direct and pr oximate
cause of De cede nt’s

deat h. P lai ntiffs premise their suit against Defendant, Ga ry Franks, upon the family pur pose doctrine. Plaintiffs alleg e that Defendant, Gar y Franks , wasthe
owner of the vehicl e driven by Emily Franks at the time of the accident, tha t the vehicle was maintained for the use of the fam ily, and that Defendant, Emi ly Frank s, was ent rusted wi th t h e vehicle in accordance with the famil y purpose doc trine. Defendants

filed an answ er d enyin g their negl igence and ass erting that the neglig ence of the Decedent w as the proximatecause of the acci de nt. Def endants thereaf ter filed a motion f or summary judgment. The trial court granted the Defenda nts’ motion for summary judgment holdi ng that there was

no evidence of negligence which could be attributed to the Def endant, Emily Franks, and, alternatively, if some fault co uld be attributed t o the Defendant, Emily Franks, the neglige nce of the Decedent equal ed or exceeded fifty percent of the total fault attributable to the parties. Plaintiffs appeal the judgment of the t rial court arguing that the trial court erre d in granti ng summary judgmentin favor of the Defendants. For the reasons stated hereafter, we affirm the judgment of the trial cour t.

FACTS On December 17, 1994 at approximately 6:00 p.m., Deceden t was struck by a 1987 Chevrolet

van driv en by the Defendant, Emily Franks (“ Defendant”). Defendant’ s van was traveli ng northbound on Hi ghway 45, and Decedent w

as walki ng in a sou ther ly direction adjacent to the nor

thbound lane of Hig hway 45.

At the time of the accid ent, it was dark outside. No streetlights lit the area where the acciden t occurred. There were no warninglights, flashing li ghts or tr affic lights nea r

the area of the accident. D efendant’s headlig hts were on and work ing proper ly at thetime. Decedent was

wearingdark clothi ng at the time of impact.3

The posted speed li mit was 45 miles per hour . In an affidavit , Defendant testified that she was t ravelingat approxi mately 40 mil es per hour at the time of the acci dent. The area wherethe accident oc curred was flat, level and smooth. The st reet was dry.

Def endant te stified that at al l times pri or to the point of impact, she was travel ing within her lane of traffic. Defendant did not veer outside of her lane of traffic either to the right or to the left. Defendant testified that at all times prior

to the accident

she was pay ing full and complete attenti on to the road ahead and that a t no time prior to the impact did she
see any person or obstructi on in the roadway. Defendant furt her stated that she did not
veer from her traff iclane and hit the Decedent; rather, the Decedent walked into her traf fic lane whil e she was dr iving in her lane.

One eyewi tness to the acc ident, Phi llip R ushing (“ Rushing”) , testified that h e was traveli ng sout hbo und on Hig hway 4 5 at the time of the accident. As Rushing’s vehicle traveled past Defendant’s v an on Highway 45, Rushi ng saw t he Defend ant’ s va n’s reflectors fly upward into the air. Rushing later discovered that the reason the Def endant’s van’s reflectors flew

upward i nto the air was the res ult of Dece dent’s impact w ith Defendant’s van. Aft er witnessi ng the acc ident, Rushing s topped his vehicle at the accident scene.

Corroborati ng the testimony of the Defendant, R ushin g stated that there were no streetlights, warning lights, flashing lig hts o r traffic lig hts in the area where the accident occurred. Based upon his obs ervation of D efen dant’ s vehicl e, Rushing estimated that Defendant’s van was traveling at approximately forty miles

per hour and that Defen dant did not veer outsi de of her lane of traffic at any time pr ior to impact. Rushing further testified that he was pay ing full and comple te atte ntion t o the road ahea d and th at at no time prior to impact did he s ee any person or obstruct ion in th e roadway

. Rushing st ated that the Defendant did not vee r ou tside of her lane of traffic and hit the D ecedent; rather, the Decedentwalked i nto the path ofthe Defendant’s v an while t he Defendantwas driving in her lane. Rushi ng testified t hat the Defen dant was not d rivingin a careles s, reckles s or4

negligent manner and that there was nothing that the Defendant could ha ve done to avoid this accident

.

LAW The two issues before this Court are as f ollows: 1) Whether the trial court er red in gr anting summary

judgment in fa vo r of the Defendants; and 2) Whether the Plaintiff failed to proper ly perfect hi s appeal by failing to s erve a copy of his notice of appeal upon the cl erk of the Court of Appeals as req uired by T. R. A. P. 5.

The standardsgoverni ng our review of a trial court’s action on a motion for summ ary judgmentar e w ell settled. Since our i nquiry involves purely

a question of l aw, no presumption of correctness attaches to the trial court’s j udgment, and our task is confined to reviewing the record to determine wh ether the req uirements of Rule 56 of the Tennessee Rules of Civ il Procedure have been met. Carvell v . Botto ms , 900 S.W.2d 23, 26 (Tenn. 1995); Cowden v . So vra n Bank/Central South , 816 S.W.2d 741, 744 (Tenn. 1991); Foley v . St. Thomas Hosp. , 906 S.W.2d 448, 452 (Tenn. Ct. App. 1995); Brenner
v. Textron Aerostructures, A Division of Textron, Inc. , 874 S.W.2d 579, 582 (Tenn. Ct. App. 1993). Tennessee Rule of Civil Procedure 56.03 provides that summary judgment is only appropr iate where: (1) thereis no genui ne iss ue of mate rial fact re leva nt to t he cla im o r def ense con tained in the motion, an d (2) the moving party is entitled to a judgment as a matter of law on the undisputed facts. Carvell , 900 S.W.2d at 26; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Anderson v. Standard Regi ster Co. , 857 S.W.2d 555, 559 (Tenn. 1993). The moving party has the bur den of proving that the motion satisfies these requirements

. Downen v . Allstate In s. Co. , 811 S.W .2d 523, 524 (Tenn . 1991).

W hile the summary j udgment procedure is not a substitute for tr ial, it g oes to the merits of a case and should not be ignored or treated l ightly

. Byrd , 847 S.W.2d at 210; Jones v. Home Indem. Ins. Co. , 651 S.W.2d 213, 214 (Tenn. 1 983); Fo wler v . Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn. 1978); Foley , 906 S.W.2d at 452; Ferguson5

v. Tomerlin , 656 S.W.2d 378, 382 (Tenn. Ct. App.1983). Tenn.R.Civ .P. 56.05 war ns the opponent of a summary judgment mo tion not to "rest upon the mere allegatio ns or denials of his pleading s." When faced with a motion for s um mary judg men t, a party should respond by affidavit or

by otherw ise setting forth facts show ing that there is a genui ne issue of fact.

It has been repeatedly stated by t he appellate cour ts of this state that the purpose of a summary jud gment proceedi ng is not th e finding of facts, th e resolution of dispute d factual issuesor the dete rmin atio n of conf licti ng inf eren ces re ason ably t o be d rawn from the facts. Bella my

v. Federa l Expres s Corp. , 749 S.W .2d 31, 33 (Tenn. 19 88). Rather, the purpose of summary judgment is to resolve controlli ng issues of law. Id

.

In evaluatingthe propriety of a motion for s umm ary jud gmen t, we view the evidence in the light most favorable t o the nonmoving party and dr awal l reasonable inference s in the nonmov ing part y’s favor

. Byrd , 847 S.W .2d at 210-11. A motion for summary judgmentshould only

be granted w hen both the facts and t he conclusions drawn from the facts permit a reasonable person to reach only one conclusio n. Id

. Tenn. R. Civ. P. 56.05 provides in pertinent part as f ollows: When a motion for summary j udgment is madeand supported as provided in this rule, an adverse party may not rest upon th e mere allegatio ns or denials of the advers e party's

pleading, but his or her response, by affidavits or as otherwise provided in thi s ru le, must set forth specif ic facts showing that there is a genuine issue for trial. If the adverse party does no t so respond, summary judg ment, if appropriat e, shall be ente red again st th e adve rse p arty. In Byrd v. Hall , 847 S.W.2d 208, 211 (Tenn. 1993), the s upreme court st ated: Once it is show n by

the moving party that

there is no g enuine issue of ma terial fact, the nonmovingparty must then demonstrate, by

affidavits or discover

y material s, thatthere is a genuine, materi al fact dispute to warrant a trial. Fowler v . Happy Goodman Family , 575 S.W.2d 496, 498 (Tenn.19 78 ); Merritt v. W ilson Cty. Bd. of Zoning Appeals , 656 S.W.2d 846, 859 (Tenn.App.198 3). In this reg ard, Rule 56.05provides that the nonmoving party cannot simply r ely upon his plead ings but must set forth speci fic facts show ing that there is a genui ne issue o f material fact for t rial. "If he does not so respond, summary judgment ... shall be entere d again st him." Rule6 56.05.

In addressing when entry of an order of summary judgment is appropriate, this Court stated: Under

Rule 56.03, upon motion , su mmary judg ment shall be entered against a par

ty whofailed to make a

showing sufficient to establish theexistence of a n essential el ement to that party's case and on w hich the p arty w ill bear th e burden of pro of at trial. If the non-movi ng party fails to establ ish th e existence of an essentia l element, there can be no genuine issue as to any

material fact s ince a complete fai lure of proof concerning an essential ele ment of the non-moving party's case necessa rilyrenders all other facts immater ial. Celotex Corp. v. Ca trett , --- U. S. ----, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Moman v. Walden , 719 S.W .2d 531, 533 (Tenn . Ct. App. 1986). Simila rly, in Owen v. Stanley , 739 S.W.2d 782, 787 (Tenn. Ct. App. 1987 ), we st ated:

A motion for

summary judgment can put the plaintiff's case to the test . A fter a plaintiff has been given a reasonable opportunity

to s ubstantiate its

claims, a su mmary judg ment maybe ent er ed if the plainti ff has failed to establi sh an essential element of his case on whi ch it wi ll bear the burden of proof at trial

. Celotex C orp. v. C atrett , 477 U.S. 317, ----, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1 986 ); Moma n v. Walden , 719 S.W .2d 531, 533 (Tenn . Ct. App.1986).

In order to prevail in an action based upon neglige nce, a plaintiff must establish: ( 1)
a du ty of care ow ed by the defendant to the plaintiff; (2) conduct fallingbelow the applicable standar d of c are amounting t o a breach of that duty ; (3) an inj ury or l oss; (4) causation in fact; and ( 5) proxi mate orlegal caus e. McCall v . Wilder , 913 S.W.2d 150, 153 (Tenn. 1995); Bradshaw v . Daniel , 854 S.W.2d 865, 869 (Tenn. 1993); McClenahan
v. Cooley , 806 S.W .2d 767, 774 (Tenn . 1991); Lindsey v . Miami DevelopmentCorp. , 689 S.W.2d 856, 858 (Tenn. 1985) . Recover y in a neg ligence ac

tion may occur on ly if the plai ntiff can show that the defend ant’s conduct was neglige nt and was t he proximatecause of plaintiff’s inj ury. Tennessee Trailways, Inc. v. Ervin , 438 S.W.2d 733, 735 (Tenn. 19 69); Lancaster

v. Montesi , 390 S.W.2d 217, 220 (Tenn. 1965). Tennesse e cou rts ha ve repeatedly stated that neg ligence i s not presumed from the mere fact of an acci dent or inju ry. W illia ms v. Jordan , 346 S.W.2d 583, 586 (Tenn. 1961); De Glo ppe r v. Nas hville Ry. & Light Co. , 134 S.W. 609, 611 (Tenn. 1911); Gunter , 1996 WL 283069, at *1; Arme s v.7

Hulett , 843 S.W.2d 427, 432 (Tenn. Ct. App . 1992); Nichols v . Smith , 111 S.W.2d 911, 920 (Tenn. Ct. App. 193 7).

In Tenn essee, pr oximate cause has been def ined as that act or omission which immediately causes or fails to pr event the inj ury; an act

or omission occ urring or

concurring with another which, if it had not happ ened, the injury would not have been infli cted. Ervin , 438 S.W.2d at 735; Sout hea ster n Gre yhou nd Li nes, Inc. v. Groves , 136 S.W.2d 512, 515- 16 (Tenn. 1940); Anderson v. Miller , 33 S.W. 61 5, 61 8 (Tenn. 1896); Postal Telegr aph Cable Co. v. Zopfi , 24 S.W. 633, 634 (Tenn. 1894); Deming v. Merchants’ Cotton-Press & Storage Co. , 17 S.W. 89, 99 (Tenn. 1891). An actor ’s conduct w ill be consi dered the proximateor legal cause if the f ollowing t hree requirements are met. First, the actor’s conduct must have been a substantial fact or in bring ing about the ha rm. Next, there must be no legal rule or policy that would operate to relieve the actor from l iability . Finally , the harm that occurred must have been reasonabl y forese eable by a person of ordinary intellig ence and prudence. McClenahan , 806 S.W.2d at 775.

In Tennessee Trailways, Inc. v. E rvin , 438 S.W.2d 733 (Tenn. 1969), the Tennessee SupremeCourt faced an i ssue similar to the one in the case at bar. I n E rvin , plain tiff’s decedentwas ri ding a motorc ycle on a pr ivate roadw ay towar d an intersect ion. Plaintiff’s decedentdrove across Highway 70-S where he was struck and killed by defendant’s bus. Plai ntiff alleged that

the defendant bus dri ver failed t o keep a lookout ahead, failed to stop
or alter his course of travel after he saw or, in the exerci se of due care, shoul d have seen, plaintiff’s decedent

in a positi on of peril, failed abide by the posted speed limit an d failed to drive i n a careful and pr udent manner. The posted speed limit i n the area w here the accidentoccu rred was sixt y-five miles per hour. Plaintiff’s expert testified that, a ccording to his calcul ations, the defendant bus driver was tr aveling at a speed of 73.5 mil es per hour at the ti me of impact. Id . at 734. The defendant’s witnesses , which i ncluded the driver of the bus, passeng ers on the bus an d the driver of a car following the bus, all testified that the bu s was tr

aveling at a speed less than sixt

y-five miles per hour

. Id . Pas sengers o n defendant ’s bus further test ified that plaint iff’s decedent “spur ted” out onto the h ighway8

“sud den ly” and “right in front of the bus.” Id . at 735. Pla inti ff off ered no evi de nce to the contrary . In affirming the trial court’s g rant of a direct ed verdic t in favor of the defendant and in holding that the defendant bus dr iver’s illegal conduct, if any, was notthe proxi mate cause of the decedent’ s death, the supreme court stated:

The record in the instant case l eaves no doubt b ut that pla i ntiff's intestate rodehis motorcycle up to the i ntersection, either hesitated or stopped, and, with the bus in unobstr ucted view, suddenly and abr uptl y c rossed the hig hway i nto the northbound lane to the point of col lision. It becomes too c lear forargument that t he asserted di ffe rential in the bus' speed simplycould not be a realisti c proximat e cause ofthe accident. In the fact of uncontroverted testimony showing that plaintiff 's intestate suddenly ro d e into the path of th e oncoming bus, whether d efendant's bus was travel ing at 73.5 or at 63 miles per hour becomes insignificant. It is plain th at the immediate cause of the collisi on was not t he speed of th e bu s; but apparently th e sudd en and heedless entry of pla intiff's inte stat e ont o the nort h sid e of the h ighway. Ervin , 438 S.W.2d 735. See also Budi selic h v. Rigsby , 639 S.W.2d 663 (Tenn. Ct. App. 1982) (holding that there was material evidence pr esented from which thejury could infer that plaintiff’s negligence was the proximate cause of plaintiff’s inj uries w herein the proof showed that plaintiff drove his automobile into the path of defendant’s pic kup truck w hen the defendant’s truck

was only

ten feet away); Combs v. Rogers , 450 S.W.2d 605 (Tenn. Ct. App. 1969) (aff irming the trial court’s grant of a dir ected verdi ct in favor of the defendant wherein the proof establi shed that plaint iff’s son failed tostop his motorbike at the end of
a private driveway, lost control and drov e onto Shelby Drive w here he was stru ck by defendant ’s vehicle).

In Gunter

v. Smith , No. 03A01-9512- CV-00448, 1996 WL 283069 (Tenn. Ct. App. 1996), plaintiff, the admini strator of deced ent ’s estate, sue d for the wr ongful death of decedentafter

decedent was

struck and k illed by

an automobile dri ven by t he defendant. Defendant was traveling south in his automobile in the outside lane of Congress Parkway
on a dar k, clo udy m orni ng at a ppro ximat ely 6: 30 a. m. T he po sted spee d lim it was f orty-f ive miles per hour. As

defendant approached an intersecti on traveli ng between thirty- five and forty miles per

hour, the decedent ap peared directly in front of defendant’s vehicle in the middle of the right-hand southbo und lane, approximately six feet or less from def endant’s vehicle. During a period o f ti me before 6:30 a.m., decedent consumed a substant ial9

amount of alcohol. At 8:00 a.m. on the morni ng ofthe accident, a blood sample taken from the decedent revealed that the d ecedent had a blood -alcohol r ating o f .17 percent. In h olding that

the n egl ige nce of the dece dent was equ al t o or

gr eate r th an an y i nfe rentia l negligence that could be at tributed to the defendant, this Cour t stated: In the final analy

sis, if the [pl aintiff] is entitl ed to recover for the death of the decedent under

the circumstances present here , such recovery must necessaril y be based on an inference that the defendant sho uld have seen the decedent before the collisi on occurred. We do not beli eve that actionable negligence can be inferred from "th e mere fact of the occurrence of injury alone." W ill iams v. Jor dan , 346 S.W.2d 583, 586 (Tenn.App.1961). Eaton v. Mc Lain , 891 S.W.2d 587, 590 (Tenn.1994) hold s tha t the doct rine of co mpa rative fault, McIn tyre v. Balentine , 833 S.W.2d 52 (Tenn.1992), does not alter the standards which govern assessment of ev idence based upon the negli gence of a pla inti ff , and we think the tr ial judge correctly held that reasonable minds could not differ asto the conclusion to be drawn in a light most favorable to the plainti ff that the ne gligenc e of the deceased was equal to or greater than any inferenti al neglig ence of the defendant. Gunter , 1996 WL 283069, at *1.

In Johnson v. M cCommon , No. 02A01-9502- CV-00029, 1996 WL 2 43895 (Tenn. Ct. App. 1996), an ac tion was br ought against defendant, Michael McCommon, and defendant, Memphis Light, Gas, and W ater (“M LG&W ”) , for personal i njuries sustained when def end ant M cCom mon , an e mplo yee of MLG& W , stru ck pla inti ff wi th his vehicle. Plaintiff’s car stall ed in the center lane of an interstate, and plainti ff was unable to start her vehicle. Plaintiff proceede d to get out of her vehicle in order to warn approaching motorists of the obstructi on. Plaintiff testi fied thatdefendant’s vehicle struck her as she emerged from her car with her back facin g o ncoming traffic. Id . at *1. Defendant M cCommon, how ever, tes tifi ed th at hered uced hisspee d as soon as h e saw the p lai ntiff a nd that h e swerved into the m edian in ord er to avoi d hitting he r. Id . Defendant’s testimony was corroborated by an eyew itness w ho testified that after the plaintiff got

out of her car, s he took “running steps” acros s the left lane of oncomi ng traffic. Id . The eyewi tness testified that he saw defendant M cCommon brake a n d swerve into the median i n an attempt to avoid hitting t he plaintiff. Id . In holding that the plaintiff ’s neglig ence was th e proximate
cause of her own i njuries and t hat plaintiff wa s more than fifty percentresponsible for her own injur ies, this C ourt stated:

[P]laintiff’s act of emerging fr om her vehicle and stepping i nto10 oncoming traffic wasthe proximate cause of her own injuries. Simi larly, we do not find that the ev idence preponderates against the trial court’s deter mination that plain tiff was more than 50% responsible for her own injuries. In fact, we find very little evidence from the record that w ould support the conclusion that defendant was neg ligent in any respect
. Johnson , 1996 WL 243895, at *3.

Plai ntiffs arg ue th at th e doc tri ne of res ipsa lo quitur applies to the facts of this case. Plai ntiffs contend that Defen dant’s automobile was controll ed exclusively by the Defendant and that this acc ident woul d not have occ urred but for the Defendant’s negl igence. The doctri ne of res ipsa lo quitur is one of evi dence and not of substant ive law

. Quin ley v

. Cocke , 192 S.W.2d 992 (Tenn. 1946). I t f urnishes a permissible but not com pulsory inference of negligence. Armes , 843 S.W.2d at 432; Scarbro ugh v. City of Lewisburg , 504 S.W .2d 377, 382 (Tenn . Ct. App. 1973).

W here the thing causing the har m is shown to be unde rthe management of the defendant, and the accident is one which would not occur in the ordinary course of even ts if the defendanthad exerci sed proper car e, res ipsa lo quitur

allows reasonable ev idence, in the abs ence of a n exp lanation, that t he accident aro se from a lack of due care. Southeastern Aviation, Inc. v. Hurd , 355 S.W.2d 436, 446 (Tenn. 1962); Co ca-Cola Bottling Works v. Sulliva n , 158 S.W.2d 721, 726 (Tenn. 1942); Armes , 843 S.W.2d at 432.

The requisi te elements nece ssar y fo r ap pli cati on of the d octr ine of res ipsaloquitur
are: 1. Th ere m ust b e a “th ing” ca usin g an in jury.

2. That “thing”

must be under

the exclusi ve management and control of the def endant or his servants. 3. The “thi ng” must be show n to be ofsuch a nature that injury does not ordinar ily res ult from its car eful management. Armes , 843 S.W.2d at 432-33.

In the instant cas e, Plaintiffs all ege that the requisite “ thing” nece ssary for application of the doc trine of res ipsa lo quitur is Defendants’ van whi ch struck t he11

Decedent and all egedly caused his death. H owever , this acci dent is not of the ty pe that would not o rdinarily

occur if the D efendant had exercis ed prop er ca re. On the c ontr ary, the affidavits of Defendant and Rushing reveal t hat the Decedent stepped into the path of Defendants’ van as the Defendant was traveling in her lane of traf fic

. In addition, an automobile is not the type of “thing” which is of such a nature that injury does not ordinarily result from its careful management. We, therefore, conclude that the doctrine of res ipsa loquitur is inappli cable to the facts of this case.

In Nicho ls v. Smith , 111 S.W.2d 911 (Tenn. Ct. App. 1937), th is Court addr essed the same issue as in the case at bar . In Nichols , plaintiff sued for th e wrong ful death ofa pedestrian who was struck by defendant’s vehicle while crossin g a street at an i ntersection. In affirming the trial court’s order which di rected a ve rdict for the de fendants and dismiss ed plaintiff’s suit , this Cour t stated that: An automobile is not a “danger ous instr u mentality,”

as that term is used in the la w of negligence. The rule of res ipsa loquitur is not applicable in this case. In order to justify the submission of a case of this charact er to the jury, over a moti on of the defendant for a directed verdi ct, there must b e some material evidence reasonably tend ing to support each and all of the three propositions , viz .: (1) A duty which th e defend ant owes to the plaintiff; (2) a neglig ent breach of that duty; and ( 3) injuri es received thereby resulting approximately from such negli gent breach of duty

. De Glopper v. Nashvil le Railway & Lig ht Co. , 123 Tenn. 633, 642, 643, 134 S.W. 609, 33 L.R.A.,N.S., 913. It is argued for plainti ff that defenda nt Sam Henderson’s admission, that he did not see the d eceased until the lat ter was on the hood ofthe truck H enderson was drivin g, proves that he was not mainta ining a proper lookou t ahead. This would be a sound proposition if there were proofthat [decedent] appeared in front of the truc k at such distance and in suc h position that he could have been seen by H enderson if the l at ter was exercis ing proper vi gilance ( Louisvil le & N. Rai lroa d Co . v. May , 5 Tenn.App. 100); but there is no s uch evidence

. T he first time and place t he deceased wa s seen on the night of his death (so far as this record shows) h e was o n the top of the hood of defendants’ truck. W hence he came or w hither he intended to go does no t appea r. Any findi ng by the jury that the death of [deced ent] was proximately caused by negligence of defendant Sa m Henderson would necessarilybe based on speculation and conjecture. Id . at 917-18.

In the present cas e, the Defendan ts filed a motion fo r summary judgment and, in12

support of such motion, the affidavi ts of the Defendant and Phill ip Rushing . The affidavits of the Def endan t and Rus hing show th at the De fend ant was pa ying f ull an d comp lete atten tion to the road ahead at all times pr ior to the acc ident, that at no time prior t o the impact did the Defendant see an y person or obstruction in the roadway , that the Defendant did not veer from her l ane of traffic and hit the Decedent, and that the Decedent walked into th e Defendant’s lane of traffic whi le the Defendant was drivi ng in her l ane. The Plaintiffs, on the other hand, did not file any affidavit, deposi tion , interrog atories or a ny other materials i n opposition to the Defendants’ motio n forsummary judg ment. Because the Plaintiffs have failed to set forth specific f acts showing that there is a genuine iss ue of material fact for trial and have failed t o sh ow that Defendant’ s neglig ence was the proximatecause of Decedent’ s death, we agree with the trial court’s findi ng that there was no evidence of neg ligence w hich could b e attribu ted to the Defend ant and that, even if
some fault could be attribute d to the Defendan t, the negligence of the Decedent eq ualed
or exceeded fifty percent of the total fault attributable to the parties. W e, therefore, af firm the trial court’s grant of summary judgment in f avor of the Defenda nts.

Because of our disposition of th e foregoing issue, it is not necessary to re a ch the second issue raised in this appeal.

The judgment of

the trial court is here by affirmed. Costs on appeal are taxed tothe Plai ntif f fo r which execu tion may is sue i f ne cess ary.

HIGHERS, J.

CONCUR:

FARMER, J.13

LILLARD, J.