1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0059P (6th C ir.) File Name: 04a00 59p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

J AMES K ELLNER

and LAURI K ELLNER , individually and as next k in of M ichael W. Kellner , decea sed; L AURI K ELLNER , individually and as natural parent a nd next of ki

n of Shawn June, a minor, Plaintiffs- Appellant s,

v.

B UDGET C AR AND T RUCK R ENTAL , I

NC ., et al.; C OMCAR I NDUSTRIES , I

NC ., a/k/a M.D. Transport Systems, I

nc., Defenda nts,

C LAY H YDER T RUCKI NG L INES , I

NC .; M.D. T RANSPORT S YSTE MS , I

NC .; J OHN Z AFFER , Administrator of the Estate of Christopher N. Zaffer, Defenda nts-Appe llees. X - - - -

> , - - - - - - - - - - - - - - - - - - - - N No. 02-5314

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. 2 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

No. 00-00336—Curtis L. Collier, District Judge.
Argued: September 17, 2003
Decided and Filed: February 26, 2004
Before: BOGGS, Chief Judge; KRUPANSKY and CL AY, Circuit Judg es.

_________________ COUNSEL

ARGUED: Paul T. Gillenwater, GIL LENW ATER, NICHO L & AMES, Knoxville, Tennessee, H. Forrest Horne, Jr., JONES, MARTI

N, PARRI S & TESSENER, PL LC, Raleigh, North Carolina, f

or Plaint iffs. Micha el J. Kin g, WOOLF, McCLANE, BRIGHT, ALL EN & CARPE

NTER, Knoxville, Tennessee, for Defendants. ON BR IEF: Paul T. Gil lenwater, GIL LEN WATER, NICHOL & AMES, Knoxville, Tennessee, for Plaintiffs. Michael J. King, Tony R. Da lt on, WOOLF, McCL ANE, BRIGHT, AL

LEN & CARPENTER, Knoxville, T ennesse e, for D efenda nts.

_________________ OPINION

_________________ KRUPANSKY, Cir cui t Judge. James and Lauri Kellner, appearing individually

and as next of kin, have appealed the districtcourt’s summary dismissal of their ne glige

nce suit againstthree pa

rty -defen dants – John Zaffer, administrator of the estate of Christopher Zaffer ( “Zaffer”), M.D. Tr ansport Syst ems, Inc. (“MDTS” ) and Clay Hyder Truc

king Lines, Inc. (“CHTL”)– arising from a mo tor vehicle accident on the Tennessee inte rst ate. The Kellners have contended that defenda nts negli gentl y and proximately caused the accidentNo. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 3

1 Zaffe r owned the park ed and disabl ed 1991 Freightl iner commercial tru ck- tra ctor

s truck b y Rup e. In 19 99 Z affer had leased his tracto r to appellee M.D. Transpor t Sy ste ms and h ad begun haul ing fr eigh t f

or MD TS; howeve r, a t t

he t ime of

the accident Zaff

er was hauling aload f

or defendant -appell ee Clay Hyder Trucking Li nes, I nc.

2 Ap pellan ts contend that Zaff er’s tract or-trail er was s topped one f oot from the fog li ne which separates the t ravel lanes of the interst ate from the emerg ency breakdown lan e. The eviden ce indi cates that the ri g wa s a t least one foot f

rom the l ine and may , perhaps , have been further, but the impact of t

he a cci dent

mo v ed the truck several feet making est imations difficult. by leaving a tractor-trailer pa rked in the emergency “breakdown” lane along the shoulder of the interstate. For the

reasons discussed below, this C ourt affirms the order of summary judgmen t.

On the morning of October 23, 1999, Christopher Zaffe r
was driving his tractor-trailer westboun d on Inte rstate 40 in Jefferson C oun ty, Tennessee , when his rig began experiencingmechanical pro blem s and became disabled. 1 Zaffer drove the vehicle into the em ergency lane of the intersta te and ther

e is no disp

ute between the parties that both Zaffer’stractor and trailer were completely within the

“ breakdown” lane with

no portion

of the rig protrudi ng into or overlapping onto the travel lanes of the interstate

. 2

Zaffer placed the orange-triangle warningdevices required by Tenness ee statu

te and fe deral regu lation behind the tractortrailer to signal to approaching traffic that his rig was disabled. The weather conditions were clear and the roadway

was dry. The sec

tion of I-40 on which Za

ffe r’s ri g b ecame disabled provided three lanes for motorists traveling either east or west. Acc ording to record testimonythe tractortrailer c o uld be see

n by approac hing we stbound mot

orists from a distance of at least 1,000 feet. 4 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

Zaffer was under or near thetractor-trailer, shortly before 3:30 p.m., when Diane Rupe was driving westbound on I-40 ina For d truc k with a 24- foot c arg o box, rented from Budget Car & Truck Rental, Inc . (“Budget”). Be hind the Ford truck, Rupe towed a mi

nivan. I n the pass e n ger ca

b, along with Rupe, were her grandsons Michae l Kellner and Shawn June, ages 1 and 10 respectively

. T ragi ca ll y, the Budget truck driven by Rupe left the far right travel l ane of

traffic, moved into the emergency lane, and collided

with Zaffer’s

parked t ractor -traile r. As a re sult of the collision , M ichael Kellner, Rupe and Zaff er were killed, while Shawn June sustained injuries requiring hospitalization.

OnJune 6, 2000 , plaintif fs- appellants James and Lauri Kellner, the parents of

Michael Kellner and Shawn June, filed

a negligence

complaint in the districtcourt against MDTS and Comc ar Industries (“Comcar”) . Appellants later amend e d their complaint

to add as d efe nda nt s: Zaf fer ’s e st ate , C HTL, Jeannie Denniston –

the administrator of the estate of Diane Rupe – and State

Farm I nsu r ance Company ( “State Farm”), Rupe’s uninsured/underinsured motorist insurance carri er

. OnSeptembe

r 20, 2000 , the par

ties agreed b y st

ipulation t

o dismiss Comcar from the action.

OnNovember 29, 2001, Zaffer, MDTS and CHT L filed a motion for summary judg ment; State Farm filed a motion for summary judgment on December 14, 2001. OnFebruary 11, 2 002 in a memor

andum and

order, t he distric t court grante d defenda nts’ motions, concluding that, as a matter of law, the defenda nts’ actions were not the pr o ximate cause of theNo. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 5

3 Th e plain tiffs did no t respo nd to Stat e Farm’ s moti on for summary judg men t. State F arm’s p otentia l for liability reste d sole ly on the te stimony of a wi tness who specul ated th at Rupe had t o tak e eva siv e actio n to avo id a ve hicle swe rving to ward Rup e on h er left and causin g her to st rike t he tra ct or- trail er. This test imony was later r ecanted by the witness a s p ure sp ecula tion an d no corro bor ating testim ony em erged to support the witne ss’ s ear li er s tat ement . Becau se t he pl aintif

fs did not contest State Farm’s posi tion t he court grant ed the State Farm motion and dismis sed Stat e Farm f

rom th e la wsui t. See E.D. TN. LR 7.2 (“Failur e to respond to a m otion may b e dee med a waive r of a ny opp osition t o the relief sou ght.”).

4 On March 22, 2002, because t here were other cl aims and cr oss

cla ims rema ining for a djud ication in the insta nt cas e, the Clerk of the Sixth Circui t ent ered an O rder for the p laintiffs to sho w cau se why the ir appeal should not be dismissed for lack of a f inal appealable order. The show cau se o rder was withdrawn on May 6, 2002 after t he distri ct court approved a settlem ent of all re mainin g cl aims in the act ion, leaving the only remaini ng is sues i n the ca se as t hose betwee n appe llees and appe llants. Gillis v. United S tates Dep ’t of Hea lth and H um an S erv ., 759 F.2 d 565 , 568 -69 (6 th Cir. 1 985 ) (an ap pea l from a n ord er disp osin g o f fewer th an a ll cl aim s in a civil ac tion invo kes ap pellate jurisdic tion if fin al judgment is entere d in th e unde rlyi ng action during t he pendency of the appeal). appella nts injuries a

nd damag es. 3 On Fe br ua ry 2 5, 2002
, appella nts filed a timely notice of appeal t o this Court

. 4

This Court rev

iews de novo the order gra nting summary judgment to appellees Zaffer, MDTS and CHTL. See Virts

v. Consolidated

Freightwa

ys Corp. of

Delaware , 285 F.3d 508, 516 (6th Cir. 2002).

As the forum state, Tennessee pre ceden t provide s that a plaintiff bringing a negli gence

action mu st

prove: “ (1) a dut

y of care owed by

the defe nd ant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causati on in fact; and (5) proximate, or legal cause.” Bennett v. Putnam County
, 47 S.W.3d 438, 443 (Tenn. Ct. App. 2000) ( quoting 6 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

McClenhan v. Coo ley , 806 S.W.2d 767, 774 (Tenn. 1991)). Seealso McCall v. Wilder , 913 S.W.2d 15 0, 153 (Tenn. 1995); Bradshaw v. Daniel , 854 S.W.2d 865, 869 (Tenn. 1993). Recovery

in a negligence action may occur only if the plaintiff can prove that the defendants’ conduct was neg ligent and was the proximate cause of plaintiffs’ injury. Tennessee Trailways, Inc. v. Ervin, 438 S.W.2d 733, 735 (Tenn. 1969); Lancaste r v. Mo ntesi , 390 S.W.2d 217, 220 (Tenn. 1965). Tennessee courts have repeatedly stated that negligenc e is not presumed fr om th e m er e f

ac t o f a n a cc id en t o r i nj ur y. Williams v. Jordan , 346 S.W.2d 583, 586 (Tenn. 1961); De Glopper v. Na sh vi ll e R

y. & L ight Co. , 134 S.W. 609, 611 (Ten n. 1911); Armes v. Hulett , 843 S.W.2d 427, 4 3 2 (Tenn.Ct.App.1992).

Inthe instant case, th e district court de termined that as a matter of Tennessee law a

reasona ble jury could conclude

that Zaffer had breached his duty

by not moving the rig to a safer locationin the five hours prior to the accid ent. Howeve

r, in granting the motion for summary judg ment the cour t concluded

that, as a

matter of

law, none of the mov ants – Zaffer, MDTS, or CHTL – provided the pr oximate cause of the accident.

Based upon t he und ispu ted fac ts th at Za ffer’ s rig rested complete ly

off the active traffic lanesof the interstate and was plainly visible for a distan

ce of ove r 1,000 fe et, the di stri ct court reasoned that “a reasonable jury would have to conclude Rupe could see the ri g p ri or to th e a cc id en t. ” C on se qu en tl y, the court concluded

that Rupe’s actions in leaving the travel lanes and crashing into Zaffe r’s rig werethe proxima

te cause of pla intiffs’ losses. In so deciding, the c ourt relied upo n Carneyv. Goodman
, 270 S.W.2d 572, 576 (Tenn. Ct. App. 1954 ), which concluded that “the neglige nce of one i n obstructing the highway

by a standing

vehicle was superseded by anoth er's neglig ence in r

unning in to such vehicle, and that the latter's negligenc e was the proximate c ause o f the accident.” See also Dunni vant v. Na fe , 334 S.W.2d 717, 719No. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 7

(Tenn. 1960). T hus, in t he instant case, while the district court concluded that a reasonable jur y could find Zaffer negligent in not removing his rig from the shoulder of the intersta te before the acc ident occ

urred, t he court nevertheless held that plaintiff Rupe had p r ovided the proximate c ause pursuant to the standard determined in Carney : “ Di d the driver running into the stan d ing veh icle see it in time to

e nablehi m, by us e of

due car e, t o av oi d t he c ol li si on? If h e did not, hi s negligence is merely a contributory c ause; if he did, his negligence is the proximate cause.” Carney v. Goodman , 270 S.W.2d at 576.
Further, the district court stated that through Carne y “Ten nessee [has] adopte d a speci al rule a bout proxima

t e causati on in stand

ing veh icle cases such as the present one.” While the gen

eral ru le in Tennessee, that the foreseeability of

aninterve nin g, s uperseding act presents a jury question, the Carney court

adopted a special rule in sta

nding ve hicle ca ses, whichthe district court

applied i nthe present case, noting that “[ u]nder this rule it is unforeseeable as a matter o f law
someone would

drive into a plainly visible standing ve hicle.” The Carney opinion noted tha t “[t]he ope

rator of a vehicl e that cr ash es into a vehicle negligently left standing in an unsuitabl e stopping place provides the proximate ca use of any resulting injuries if she could see the stand ing veh icle in time to avoid a collision.” Id.

Onappeal, the plain

tiffs a ver th at summar

y ju dgment i s inappropriate in the instant case where facts reg arding the forese eability

requirement of proximate caus a tion are in dispute. Spec ifi cally, the appe llants maintain that Zaffer’s neglige nce was the proximate cause of the tragic ac cident beca us e, by parking

his disabled vehicle on the shoulder of the interst ate and not moving it during the five hours preceding the accident, Zaffer

could foresee throu gh the exercise of reasonable diligenc e that i njury or loss could or

w ould o ccur. However, appellants’ relianc e upon such a broad defini t ion of for

eseeab ility

fails to c omport wit

h 8 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

5 § 55 -8-15 8. Sto ppin g or p arking on ro adw ays
(a) Upon any highw ay outs ide o f a busines s or res identi al district, no person shall stop, park, or leave standi ng any v ehicl e, Ten nessee negligence law and, c onsequently, fails to p rov e that the district

court erred i n gran ting summa

ry judgmen t to appelle es.

Pursuant to Tennessee negligence law, onc e it is determined

that the defendant owed the plaintiff a legal obligation

to conform to a reasonable person standard of conduct, i.e., a du

ty- -th e q uestion becomes whether defendant failed to exercis e reasonable ca re under the circ umstance s, i.e., whether

defenda nt breache d the duty. I

n a negligence action, th e st and ard of c ond uct is alw ays t he s ame . It is a standard of reasonable care

in light of the apparent risk. See Pittman v. U

pjohn Co. , 890 S.W.2d 425, 428 (Tenn. 1994) (“As in all cases, there is a duty to exercise r easonable care under the circ umstance s.”); Bradshaw v. Daniel , 854 S.W.2d at 870 (“Al l persons

have a d uty to use re asonable

care t o refra infrom con

duct that will fore seeably

cause in jury to others.”). If defend

ant does not exercise reasonable care, defen dant has breached the duty

. Doe v. Linder Const. Co., Inc ., 845 S.W.2d 173, 178 (Tenn. 1992).
Uponthis court’s review, the record e vidence indicate s that, contrary to the d i strict court’s determination, Zaffer did not breach any duty of care. Tennessee has

codified the standard of care for parking a disable d vehicle by m aking c ertain conduct ille gal an d by requiring drivers of commercial vehicles to take certain safety precautions when their vehicles break down. Vehicles left standing on “any highway outside of a busines s or resid

ential dis trict” mu st

be parked off of the “paved or mai n-tra veled part o f the h igh way” a n d must be positio nedto al low “a c lear vie w of [the ve

hicle] fr om a distance of 200 feet. Tenn. Cod e Ann. § 55-8-158 (1998) 5 ;No. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 9

whether att ended or

unat tende d, uponthe paved or main- travel ed part of th e highway when i t is practi ca ble to sto p, park o r so leave s uch vehicle off such part of the hi ghway, but in ever y event an unobstructedwidth o f the highw ay op pos ite a standing vehicle of not less than eigh teen fe et (18') s hall be lef t for the free pas sage of othervehicl es, an d a clear view of such st opped vehicl es shall

be avail ab le f

rom a dist ance of t

wo hundred fe et (20 0') in eac h direc tion up on suc h highw ay.
(b)( 1) This sect ion shal l not apply t o the dri ver of any v ehicle which is di sabled whi le onthe paved or main -travel ed port ion of

a highwa y in such manner and to such extent that it is impo ssible to avoid stopping and temporarily leavi ng such d isabled vehicle in such positi on. Tenn. Code § 55-8- 158. see also Fe rgus v. Action Car tage & Distrib ., 199 0 WL 43463, * 6 (Tenn. Ct. App. April 17, 1990) (unpublished) (explaining the “main-traveled part of the highway

” does not include the shoulde r). Drivers of disabled commercial vehicles must place warning devicesspec ified distances behind their vehi cl es. See T enn. Code § 55-9-10 3. While neither Tennessee law nor federal re gulations limit the amount of time a disabled commercialvehicle may r emain on the side of a roadway , Tennessee statute per m its vehicl es to be towed onl

y after th ey have been immobile or unattended for at least twelve hours. See Tenn. Code § 55-16-111 (“[A] vehicle may not be towed

without authorization by theowner of the vehicle until twelve (12) hours have passed since it was first obs e rved to be immobile or unattended unless such vehicle is creating a hazard.”)

. The district court found that n one of the

defenda nts breached a statutory or re gulator

y duty of car

e owed to the plaintiff s. The evidenc e disclos ed that Z affer did not viol ate any of Tenne ssee’s tr

affic provisions

relating to disa ble d vehicle s. Additional testimony by the Te n nessee Highway Patrol also indicated that, as a pra ctice, they do not re move abandon edvehicle s from the shoulder of the inte

rstate un til 10 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

6 See als o Carr v . Ozburn-Hess ey St orage Co. , 1996 WL 383295 (Tenn. Ct. Ap p. July 1 0, 19 96) (unp ublishe d), in wh ich the S tate ap pellate

cou rt dismiss ed a c ase sim ilar to the o ne at b ar, no ting: forty-eig hthours after the vehicles were first observe d. Zaffer had been on the shoulde

r of the in terstate no longer than

five and a half hours according to the appe llants’ ownexpert and he had not abandoned the tractor-trailer.
However, the district court concluded that Zaffer had breach ed his common -law duty of care , predic ated on it s reading of Maddux v

. Bush , No . 86 -18 3-II , 1987 WL 4845 ( Tenn. Ct . App. May 27, 1987) (unpublished) . In Maddux
, the c ourt dis cussed the common law standard of care for a motorist who stops a vehicle in the road

. Maddu x opined that it was n ot nece ssarily negligent to temporarily stop a vehicle ona road for a legitimate purpose, but the driver had th e duty to select a suitable stopping place and to give adequa te warning to o t he r m ot or is ts wh en ne ce ss ar y. According

to Maddux , the suita

bility of astopping place depended on a number of factors
, including whether the vehicle was reasonably

capable of being moved to a safe r location.
In the instant case, the district court found a

genuine issue existed with r egard

to whethe

r Zaff er could have move d his rig to a safer location. However, this Court is pe rsua ded otherwis e and concludes that defendants’ actions did not result in the bre ach of a

duty of care. The question of whether

a vehicle can reasonably

be moved to a safer location should be ask ed when, as was the case in Maddux , the vehicle has been pa rked in a dangerous location such as in the ro ad wa y. The rule that give s rise to this question states that “a driver should not stop his

vehicle ina dangerous place when it can be moved to safer one.” Id. at

*3 ( citing Barr v. Charley , 387 S.W.2d 614, 616 (Tenn. 1954) (car with flat tire wa s left parked partially in roadway at night)). 6 Co ns eq ue nt ly, ZafferNo. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 11

It is the op inion o f this cour t that the un dis put ed facts establish that M s. Carr 's neglig ence was gre ater tha n that of M r. Gu ffy. No reasonabl e jurycould find that Mr. Guffy, who drove a heav ily loade d truck app roxim ately twenty to twent y-f ive mil es per hour on anuphi llsl ope f

rom a n al mo st com ple te st op, was
more negli gent t

han Ms. Carr, who fai led to not ice a fully lit tract or-trail er on a fami liar , unobst ructedstr et ch of h ighwa y in clear weather until

it was t oo late to avoid crashing i nto it . The evidence that Ms. Carr' s negl igence wa s equal t o or great er than that of Mr. Guf

fy is overw helming. Reasona ble mi nds could not diff er as to t he legal conclus ions t

hat must be drawn. Theref

ore, the iss ue of apport ionment of faul t was properly wi thdr awn f rom the jury and det ermined by the court as a matter of law

. did not breach his common-law duty of ca re pursuant

to Maddux when he parked his rig completely off the travel lanes, in a highly visible position, and place d warningdevices behind his tractor

-traile r in compli ance wi

th state r egulat ions.

A breach of defendants’ duty of care is an essential

element of the Kellners’ claim in this negligence a ction. Summar y judg m ent is appropriate when an essential element of neglige nce is miss ing. Doe, 845 S.W.2d a t 183. I n this case, the Kellners presented no proof as to how the defe ndan ts breached their duty to maintain proper c learance on the travel lanes of the intersta

te when p arking

their di sab led veh icl e. In failing to do so, the Kellners have failed to prove an essential element of their negligence c laim and cannot demonstrate a pri mafaci e case of neglige nce. Consequently, this court concludes that, as a matter of law, defendants did not breac h any statutory

or common-law duty.
Moreover, consonant with the distri ct court’s determination, defendants’ actions were no t the proxima te

cause of the plaintiffs’ injuries. To sustain proximate cause,

a plaintiff must prove “(1) the tortfeasor’s conduct must have bee na ‘substantial factor’ in bringing about the ha rm be in g complained

of; and ( 2) there

is no rule or polic y that should relieve the wron

gdoer from liab ility

because of the manner

in 12 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

7 The facts pro ving fo resee abilit y included proof that i ndustry standards had call ed for inst allati on of the safet y bars omitt ed by the State, proof that the St at e’ s own plans fo r con struction of the hig hway in quest ion called for the safet y barri ers, and proof that the St ate had not ice of six accident s atthe same location during t he three years preceding t he specific i ncident in Go ode rmo te

. which the neglig ence ha

d resulte d in harm; and (3) the harm givingrise to the action c ould have reasona bly been foreseen

ora nticipated by a pe

rson of ordinary

intelligence a

n d prudence.” McClen han v. Cooley , 806 S.W.2d at 775. See also Lowery v. Franks , 1997 WL 566114 (Tenn. Ct. App. Sept. 10, 1997) (unpublished) at *5. “[P]roximate causation is a jur y question unless the uncontrover ted facts and inferen ces to be drawn f rom them ma

ke it so cle ar that a

ll

reasona ble persons must agree on the proper outcome.” Id. Seealso Waste Mgmt. Inc. of Tennes see v. South Ce

nt. Bell Tel. Co. , 15 S.W.3d 425, 430 (Tenn. Ct. App. 1 9 97) (discussing proximate c ause as a policy decision by the judiciary to deny liability

for otherwise actionable conduct by requiringcourts to define the boundary of le gal liability using mixed considerations of

logic, common sense, ju st ic e, po li cy, and precedent).

The appella

nts rely upon the discussion of proximate c ause and forese eability

in Gooderm otev. State of Tennessee , 856 S.W.2d 715 (Tenn

. Ct. App. 1993) for support of the proposition that the districtcourt erred in apply ing the Carney test to the present case. Suchreliance is, however, misplaced. Gooderm ote involved a

single- car ac cident i

n w hich the vehicle veered off the highway and rolled down an embankme

nt, injuring the plai ntiff

. In that case, the cour

t concluded

tha t the State’s failure to install safety features alongthe highway

was the proximate cause of plaintiff’s injury because the State should have reasonably

foreseen that

a driver could leave the road wa y a nd sustain

injuries a s a result of an omitted safety

feature. 7 The cour

t conclud ed that:No. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 13

[T]he plaintiff

is not required to showthat the Sta te could foresee the specific facts of the accident before plaintiff

can reco ver . . . . It was necessar y only that the plaintiff establish that the State could have foreseen the gener al

manner in whichthe injury

or loss occurr

ed . . . The

re is

no require

ment that a

cause, t o be re garded as the proximate

cause of an injury , be the s ole caus e, the la st

a ct, or the nearest to the injury , provide d it is a substantial factor

in prod ucing the end r esult . . . . W e think that the evidence clearly

shows that the negligence of the State in failing to follow its own plans regarding install ing a s afety

barrie r was a su

bstantial factor in producing the injuries which the plaintiff sustained.

Gooderm ote , 865 S.W.2d at 72. While the Gooderm ote court

correctl y stat ed the general rule for determin ing proximate

cause in Tenne ssee, pur

suant to Carney, the State

had adopted

a specific rule f

or det ermin ing p ro ximate cause and forese eability

in claims involving standing vehicles, such as the instant case. Carney , 270 S.W.2d at 63-64.
Appellan ts have fu rther c ontended that since

Zaffe r could fore see the possibility that a car would leave its lane an d strike his rig then his actions were theproximate cause of the accide nt. Appellants’ broadly c onstrue d notion of forese eability

leads, however, to logical absurdit ies and f ails to comport with Tennessee judicial precedent. Thus, under the appella

nts’ sche me a drive r legally

traveling in her own lane, who is hit by

anoth er ve hicle that crossed into that driver’s lane, co

uld be hel d liable

f or neg ligenc e becau se it was foreseeable that vehicles leave their lanes of traffic.

Tennessee precedent construe s foreseeability more
narrowly th an p lai nt iff

s s ugge st . In Unde rwood v. Waterslidesof Mid-America , 823 S.W.2d 1 71, 180 (T enn. Ct. App. 1991) , the

cour t disc usse d for esee abili ty in the context of a superseding, intervening c ause: 14 Kellner, et al. v. Budget Car and Truck

Rental, e t al. No. 02-5314

The essence of the rule a s to independent intervening

cause is whethe

r the subs equent succ essive acts and injuries were probable and therefore to be anticipated. .

. . Our Supreme Court has explained that the te st

of liabili ty under the law o f interv ening c ause re quires a person to anticipa te or foresee what would norm ally happen; one is not required to anticipate a n d provide

against what is unusual or unlikely to ha ppen , or that w

hich is onl

y remotely possible.

Id. at 18 0. Pursuant to this standard, the district court

correctly determ ined i t was not foreseeable, within the meaningof

Tennessee law, that Rupe, with an extended unobstructed

view of Z af

fer’s tractor-trailer, would leave three travel la

nes of int

erstate and st rike th e rig that was parked completely

within the emergency

breakdown lane.

The a p pellants have additionally ar gued that the district court erred in apply

ing the Carney te st becau se the subsequent

decision in McIntyre v. Ballentine , 833 S.W.2d 52 (Tenn. 1992), altered Tennessee neglig ence law by replacing contribu to ry neglig ence wi

th a system of comparative fault. Yet, as the Tennessee Supreme Court has emphasized, “the questionis: assuming that both plaint iff an d defendant have been found guilty of ne gligent conduct that proximatel y caused the injuries, was the fault attrib utable to p laintiff equal t o or greater than the fault attributable to the defend an t .” Eaton v. M

cLain , 891 S.W.2d 587, 590 (Tenn. 1994). Becau se this cour

t has dete rmined tha

t the def endants’ actions were not negligent, the issue of c omparat ive faul t is inapplicable.
Moreover, in light of Eaton’s directive, it is i mpo rtant to note that while the district court failed to consider comparative negligence in its determination, it did not need to do so bec ause the

district c ourt did not conclude that Zaffer

was “guilty

of neg ligent c onduct tha

t proximate ly

caused the injuries.” Id. Inste ad it only conclude d th a t a fair-mindedNo. 02-5314 Kellner, et al. v. Budget Car and Truck

Rental, e t al. 15

jury could have fo und t hat Zaff er’s ri g was reasona

bly capable of bein g moved

to a safe

r location. This wa s a findin g of a po ssib le brea ch of d uty and no t a fin ding o f proximate

cause. Consequently, under Eaton , a comparative negligence

analysis was no t lega lly ne cessary to the district court’s grant o f summary

judgmen t.

Inlight of the afor ementioned, this Court concludes that the defenda nts’ actions d

id not giv e rise to

a breach of

a duty of

care and that as a matter of law Rupe’s actions provided the proximate

cause o f plai ntiffs’ l osses and , theref ore, af firms the distri ct court ’s gra

nt of summa

ry judgmen t.