IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

May 19, 2009 Session

GRACO CHILDREN'S PRODUCTS INC., ET AL. v. SHELTER

INSURANCE COMPANY, INC., ET AL.

Direct Appeal from the Circuit Court for Hardin County

No. 3791 Charles Creed McGinley, Judge 

No. W2008-01915-COA-R3-CV - Filed June 23, 2009

This is a negligence case. Appellant brought suit against Appellee alleging that Appellee negligently

destroyed a piece of evidence. This evidence was relevant to a separate lawsuit involving Appellant.

The trial court granted summary judgment in favor of Appellee finding that Appellee did not owe

a duty of care to Appellant. Finding no error, we affirm.

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

J. STEVEN STAFFORD, J., delivered the opinion of the court, in which DAVID R. FARMER, J., and

HOLLY M. KIRBY, J., joined.

Dale Conder,Jr., and Todd D. Siroky,Jackson, Tennessee, Joseph J. Krasovec, III, Chicago, Illinois,

for the Appellant, Graco Children's Products.

John S. Little and Andrew V. Sellers, Jackson, Tennessee, for the Appellee, Shelter Mutual

Insurance Company.

OPINION

This appeal involves a negligence action brought by a third party plaintiff. The underlying

action has been settled by the parties and is not at issue on appeal. For clarification, we will briefly

recite the facts and proceedings in the trial court.

On November 27, 2002, Jillian Davis was driving a 1990 Chevrolet Cavalier in Hardin

County, Tennessee. Her son, Waylon Davis, was also in the vehicle sitting in an infant car seat

manufactured by Graco Children’s Product’s Inc. (“Graco”). As Ms. Davis drove through an

intersection, her vehicle was struck by a Chevrolet S-10 Blazer driven by James Baker. Both Ms.

Davis and her son suffered severe injuries as a result of the collision. 
Graco initially asserted a claim for negligent spoilation of evidence against Shelter. This claim was dismissed 1

by the trial court, and Graco has not pursued it on appeal.

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At the time of the accident, Mr. Baker had automobile insurance provided by Shelter Mutual

Insurance Company, Inc. (“Shelter”). On December 2, 2002, Melvin Davis, Jillian’s husband and

Waylon’s father, contacted Victoria Royal, a claim representative for Shelter. Ms. Royal explained

that Mr. Baker’s insurance policy would provide a maximum of $50,000 for Jillian and Waylon’s

medical expenses. Although the precise details of the conversation are unclear, Ms. Royal did

inform Mr. Davis that $50,000 would not fully cover those expenses. She then advised Mr. Davis

to contact an attorney.

On December 16, 2002, Mr. Davis met with Ernest Russell, a claims adjuster for Shelter, to

settle the property damage claim for the Davises’ vehicle. Shelter had previously determined the

vehicle was a total loss. In settling the property claim, Mr. Davis signed a form provided by Shelter

with the heading “Permission to Move Vehicles Surrender of Salvage.” This form authorized Shelter

“to move [the Chevrolet Cavalier] to a place selected by Shelter for storage.” Mr. Davis also signed

the provision assigning and surrendering all rights of possession and title of the vehicle to Shelter.

On December 19, 2002, Mr. Russell sent an order to Southern Auto Salvage Pool

(“Southern”) requesting that they pick up and store the vehicle. Southern retrieved the vehicle from

Mr. Davis a few days later. On December 27, 2002, Paul Fava, another Shelter employee, reviewed

the claim information and approved a salvage order authorizing Southern to dispose of the vehicle.

Southern sold the vehicle at auction to Complete Auto Parts on January 8, 2003.

At some point in January 2003, Mr. Davis hired an attorney to pursue any claims arising from

the accident. The attorney, Keith Forstman, sent two identical letters to Shelter–the first on January

23, 2003, the second on January 24, 2003– requesting that Shelter preserve the vehicle in order to

facilitate his investigation of the accident. On February 20, 2003, a Shelter employee, who was

apparently unaware that the vehicle had been sold, informed Mr. Forstman that the vehicle was in

storage. Throughout 2003, Shelter repeatedly assured Mr. Forstman that the vehicle was in storage.

On October 31, 2003, Shelter finally informed Mr. Forstman that the vehicle had, in fact, been sold

and destroyed in January 2003. 

The Davises filed a complaint in Hardin County Circuit Court on November 25, 2003. The

complaint named Graco, among others, as defendant for its role as manufacturer of the car seat. The

claims asserted against Graco and the other defendants were ultimately settled out of court. This

appeal only involves a claim asserted by Graco as a third party plaintiff.

Graco’s complaint, filed on February 27, 2006, asserted a claim of common law negligence1

against Shelter. Specifically, Graco alleged that Shelter had a legal duty to preserve the vehicle for

use in litigation. This duty was breached, Graco alleged, when the vehicle was destroyed. Shelter

answered the complaint and filed a motion forsummary judgment. The trial court heard the motion
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on July 8, 2008 and subsequently entered an order granting summary judgment in favor of Shelter.

In its order, the trial court found that “there is no duty between Shelter and Graco.” Graco appeals.

In its brief, Graco raises two challenges to the trial court’s ruling. First, Graco argues that

the trial court misapplied the “foreseeability” test in its analysis of legal duty. Second, Graco

contends that the trial court should have found that Shelter voluntarily undertook a duty to preserve

the vehicle in the course of its interactions with Mr. Davis.

Standard of Review

Summary judgment is appropriate when the moving party demonstrates that there are no

genuine issues of material fact and that judgment is appropriate as a matter of law. Tenn. R. Civ.

P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Because summary judgment involves

questions of law only, our review is de novo with no presumption of correctness afforded to the trial

court's determination. Teter v. Republic Parking Sys., Inc., 181 S.W.3d 330, 337 (Tenn. 2005);

Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).

Law and Analysis

The issue presented in this case involves the first element of a negligence claim: the duty of

care. Whether a defendant owes a plaintiff a duty of care is a question of law to be decided by the

court. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005).

All persons have a duty to use reasonable care to refrain from conduct that will foreseeably

cause injury to others. Burroughs v. Magee, 118 S.W.3d 323, 329 (Tenn. 2005). This duty is

defined as “the legal obligation that a defendant owes a plaintiff to conform to a reasonable person

standard of care in order to protect against unreasonable risks of harm.” Id.; Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). To determine if a particular risk is unreasonable,

courts consider whether “the foreseeable probability and gravity of the harm posed by defendant’s

conduct outweigh the burden upon defendant to engage in alternative conduct that would have

prevented the harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). In McCall, the Court

listed several factors to be considered in determining whether a particular risk was unreasonable:

[T]he foreseeable probability of the harm or injury occurring; the possible magnitude

of the potential harm or injury; the importance or social value of the activity engaged

in by defendant; the usefulness of the conduct to defendant; the feasibility of

alternative, safer conduct and the relative costs and burdens associated with that

conduct; the relative usefulness of the safer conduct; and the relative safety of

alternative conduct.

Id. (citing Restatement (Second) of Torts, §§ 292, 293 (1964)). With these factors in mind, we turn

to the facts in the present case.
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Graco contends that it was foreseeable to Shelter that disposing of the vehicle would cause

harm to others. The harm in this case was depriving potential litigants of a piece of evidence in an

action arising from the accident. Graco relies on the deposition testimony of Ms. Royal, who had

advised Mr. Davis to consult with an attorney to determine if any claims from the accident were

available. Neither Ms. Royal nor any other Shelter employee, however, were aware of any litigation

or investigation when the vehicle was destroyed. In fact, Mr. Forstman’s letters asking Shelter to

preserve the vehicle arrived several weeks after the vehicle was destroyed. Ms. Royal’s comments

simply do not show it was foreseeable to Shelter that destroying the vehicle would create an

unreasonable risk of harm. Finally, accepting Graco’s argument would require Shelter to store (at

its own expense) damaged vehicles indefinitely in order to prevent any harm to a vast and unknown

array of potential litigants. 

Next, Graco contends that Shelter undertook an affirmative duty to store and the preserve the

vehicle through its agreement with Mr. Davis. Graco relies on the following provision of the form

signed by Mr. Davis:

PERMISSION TO MOVE VEHICLE

I/We do hereby authorize and permit Shelter Insurance Companies to move the above

described vehicle to a place selected by Shelter for storage.

Graco contends that this created an obligation for Shelterto place the vehicle in storage. In response,

Shelter points to the second provision on the form signed by Mr. Davis:

SURRENDER OF SALVAGE AND TITLE

I/We hereby assign and surrender all of my/our rights of possession and title to

my/our above described motor vehicle together with all its parts and equipment to

Shelter Insurance Companies. 

Shelter also notes that Mr. Davis testified in his deposition that he was aware when signing the form

that Shelter would destroy the vehicle. Considering this testimony, we cannot find that Shelter

agreed to store the vehicle indefinitely when the only other party to the agreement denies it. 

For these reasons, we find that Shelter did not owe a duty, or affirmatively undertake a duty,

to preserve the vehicle as evidence. Accordingly, the order of the trial court granting summary

judgment in favor of Shelter is affirmed. Costs of this appeal are assessed to Appellant, Graco

Children’s Products, Inc. and its surety.

___________________________________ 

J. STEVEN STAFFORD, J.