### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE August 5, 2003 Session

SHIRLEY P. SECREST v. TERA C. HAYNES, ET AL 

### . Appeal from the Circuit Court for Marshall County No. 14587 F. Lee Russell, Judge

No. M2002-01895-COA-R3-CV - Filed Septem ber 8, 2003

The a ppeal involves a claim for property damages by

Shirley Secrest (“ Secrest” or “Plaintiff”) agains tKenneth Smith and Te ra Hay nes, who w ere dri ving sep arate v ehicles involved i n a multivehicle accide nt with a ve

hicle own ed by Plaintiff . After a trial, the Trial Cour

t conclud ed that wh ile the driver of Plaintiff’s vehicle was not at fault and that either one or both of

the Defendants were at fault, the complaint nevertheless should be di sm is se d b ec au se : ( 1) Pl ai nt if f f ai le d t o p ro ve by a prepond erance of the evidence t

hat Kenneth Smith

was negligent; and (2) Plaintiff failed to prove by a preponderance of the evidenc e that Tera Hay nes was negligent. Plaintiff appeals, claiming the Trial Court was require d to alloc ate fault to Smith and/or Hayne s once it concluded that Plaintiff was not at fa ult and either one

or both of

the Defe ndants we

re at fa ult. We aff

irm.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Circuit C ourt Affirm

ed; Case Remande

d.

D. M ICHAEL S WINEY , J., deliver ed the opinion of the

court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

C. Tim Tishe

r, Columbia , Tennes see, for the Appellant Shirl ey

P. Secre st.

Edwin Z . Kelly , Jr., Jasper , Tennes see, for the Appellees Te

ra C. Hay nes and T erry

Hay nes.

David W. Carter, Columbia, Tennessee, for the Appellee Kenne th W. Smith.-2- OPINION
Background

This lawsuit in

volves a m

ulti-vehi cle auto mobile ac cident. Secrest fi led a law suit in the Genera

l Sessions Co

urt for Ma rshall Cou

nty against Tera Hay

nes (“Ms. Hay

nes”), whom

Secrest claimed was negligent

and responsible for the accident, as well as Te rry Ha ynes, the owner

of the automobile

driven by Ms. Hay

nes. A couple of months later, Secrest filed a separate lawsuit in the

sameCourt ag ai nst Kenneth Smith (“Smith”), claiming he also was neglige nt and caused the accide nt. Smith also f

iled suit a gainst T era and

Terry Hay nes seek ing comp ensation

for dama ge to his vehicle resulting from the accident.

After the various lawsui ts were con solidated, a trial took place in the General Sessions Court. A copy of the tra nscript of this trial has not been included in the record on appea l. We do kno w, how ever, t hat: ( 1) the Genera l Ses sion s Cou rt Ju dge found in favor of Ms. Ha

yne s, Terry Hay nes, and Smith in the lawsuits filed against them by Secrest; and ( 2) the lawsuit filed by Smith against Ms. Haynes a nd Terry H aynes wa s dismissed for “failure of proof.”

The Genera

l Sessions Co

urt lawsu its were appealed to the

Marshal l County

Circuit Court. Terry Haynes t hen fi led a s eparat e laws uit fo r prop erty damage against Smith, Secrest, and her son, Tony Secrest (“

Mr. Secrest”) who was driving Secre st’s car at the time of the accide nt. All of these lawsuits were consolidated and a bench tria l was conducted on January 25, 2002.

Smith testified that on the day of the a ccident, he was driving a 1992 Ford Ranger. He described the road conditions as “the slickest road I had ever been

on.” The accident occurred between 6:00 and 6:30 p .m., and it was dar k outside. There w as a vehi cle travelin g behin d him just before the accident. After the accide n t he learned this vehicle behind him was a Honda Accor d driven by Mr. Secr est and owned by

Secrest . Smith testi fied he w as going betwee n 20 to 25 miles per hour and was trav eling do wn a hill when the a ccident occurr ed. Acc ording t

o Smith, he f

irst noticed the Chevy B lazer being driven by Ms. Haynes “[w]hen I

saw her headlig hts pointe d at my door.” Smith stated it looked l i ke the Hay nes vehicle “just jumped out from under her. I t turned si de wa ys [at] about a 45 degreeangle and started across our lane of traffic.” According

to Smith, the accident then occurred in Smith’s lane of travel. The left front of t he drive r’s side of the Hay

nes vehicle impacted with Smith’sdriver’ s door dow n to the back bumper. Smith testified the Secr est vehicle behind him

was follo wing at

a safe d istance . After Sm

ith’s and Hay nes’ veh icles hit, Smith stopped his vehic le at the b ottom of the hil l. He looked back up the hill and could see the other wrecked vehicles. On cross-examination, Smith admitted he could have been traveling a s fast as 30 miles per hour. Smith did not rec a ll seeing a vehicle in front of the Hay nes vehicle although he could not definitively state there was not one.

The next witnes s was Mr. S ecrest

. Mr. Secr est testifie d the acc ident occ

urred w hile he was returning home from work and while he was traveling behind the Smith vehicle. According to Mr. Sec

rest:-3- As I was going

on [Highway] 99, after

we turned on, I seen Ms. Hay nes lose c ontrol of

her vehi cle and h

it Mr. Smith

in the side; and as I was coming down, I was try ing to ease to the shoulder of the road, and her ve hi cle kept coming, and I struck Ms. Hayne s and knocker her in the ditch. I w ent sideways a nd stayed in the roa

d....

Mr. Secrest stated he could not recall seeing any

vehicles in front of the Haynes veh icle. Alth ough the road was covered with snow and he could not see the roadmarking s, Mr. Sec

rest cla imed Smith didnot leave their lane of travel. Mr. Secrest testified he could tell where the cente r line was supposed to be based on the tracks in the snow left by other vehicles.

Ms. Haynestestified she was in Tennessee to visit a friend and was driving a Chevy Blazer owner by he

r father, Terry

Haynes. When it began to snow, Ms. Hay nes reduced her speed and was trav eling a

pproximate

ly 20 miles per hour whenthe accident occurred. Ms. Hay nes stated there was at le ast one ve

hicle tra veling i n front of

her. Ms. Haynesrecalled beginning to trave l up

a hill and then seeing Smith’s truck coming toward her and then the vehicles hit. Accord ing to Ms. Haynes, the Smith vehicle be gan to slide and was in her lane of trave l.

The accident was witnessed by Joe l Bray , a resid

ent of Ok lahoma whose deposition testimonywas admitted at trial. Bray

testified the weather conditions on the day of the accident were “nasty.” The roa

ds were iced ove r and it ha

d been sn owing a

nd sleeting. Acc ordin g to Bra y, a vehicle came ove

r the hill “ goingpretty

fast” and Bray

swerved to avoid a collision. Bray then describ ed the ac cident a s follows:

I knew that there was a vehicle immediately behind me. The vehicle had been behind me ever since I got off at the interstate.... I knew they were

just right there behind

me. I knew that

they couldn’t avoid the collis ion, beca

use I barely did. I looked in

myrearview mirror and seen the impact, and then looked over my rig

ht shoulder, turned a round, loo

ked over my r ight shoulder and

seen the m hit.
My wife hol ler ed at me. I was about to run of f in the ditch. I started t o stop right there, but there was another vehic le come off the hill. He lost control of his [car]. There wa s cars all wrecked in the road. He lost contr

ol of his ve

hicle. He nearly hit me, nearly

hit all the other ve

hicles, a nd he slid off in the ditch....I was shocked no one was hurt, the way

the guy hit the woman.
Bray described the vehicle which was behind him as an S10 Blazer, which

was the Haynesvehicle. According to Bray , there was another vehicle, a Honda, traveling westbound which

was behind the

Smith vehic le. The H onda end ed up sittin

g in the middle of

the road. By

this time, the Smith vehic le was ou t of sigh t, althoug h Smith had apparently

walked back

to the scene of the accide nt. Bray testified the S10 Blazer that was behind h im had been traveling at about 15 to 20-4-

miles per hour and maintained a “good distance ” between them. From what Bray

observed, the S10 Blazer was being operated

within its lane of traffic. According to Br ay, the ac cident occurred in the lane in which B ray

and the H aynes vehic le were travelin g. Bra

y te stified th at the ve

hicle whi ch initially impacted the S10 Blazer was a Ford Rang er and, by the time it impacted with the Blazer, it was sideways.

The Trial Court issued a Memorandum Opinion and concluded that: (1) ne ither Smith

nor Secrest had met their burden of proving that Ms. Hay nes was at fault; (2) neither Mr. Hay nes nor Secrest had met their burden of proving that Smith was a fault. The Trial Court went on to conclude that the accident was not the result of an act of Go d, althoug h the wea

ther con ditions ce

rtainly impacted on how a reasonable person should have been dr iving. After stating Mr. S ecrest wa s entirely without fault, the Tria l Court stated:

[I conclude] that Ms. Secrest’s damages were caused, in fact and le ga ll y, by either

the negligence

of Ms. Haynes, the ne gligence of Mr. Smith, or some combination of

the two. However, again, I [find] that Ms. Secrest did not

carry her burden of proof which of the two other drivers was at fault and to what degree.

The legal i ssue that

we were all pondering was whether under these circumstances, the finder of f act can infer a 50-50 apportionment

of fault. St at ed di ff

er en tl y, if an injured party proves th at one orboth of two tortfeasors were at fault but fails to prove which one was and to what degree, does the finder of fact presume or infer a 50-50 apportionment of fau lt? Put a third way, if a n injured party proves that one or both of two alleged tortfea sors was a

t fault in the accide

nt, but does not prove which one was and to what degree, does the burden of proof

shift to the alleged tortfeasors to prove that the other tortfeas o r was at fault, and if that is not done, is there a presumpt ion in fav or of a pa

rticular apportio nment of f

ault?
My conclusi on is that th

e burden of proof was on Ms. Secrest to pro ve, in order to recover any thing from Mr. Smith, that Mr. Smith’s driving was the cause in fact and the le gal cause of damag es to her car. She did not do so and therefore cannot recover from Mr. Smith. Likewise, the burden of proof was on Ms. Secrest to prove, in order to recover any

thing from Mr. or M s. Ha yne s, that Ms. Hay nes’ driving

was the c ause in f

act and l egal c ause of s ome damages to Ms. Secrest’s car. Ms. Secrest didnot do so and therefore cannot recover from Mr. or Ms. Hay nes. (emphasis in original).

The Trial Court then entered a fina l order i ncorpor

ating th ese conc lusions co ntained i n its Memorandum Opinion and dismissed all of the various lawsuits.-5- Secrest appeals claiming the Trial Court erred by not al locating fault between Defend ants Smith and Haynes when : (1) the accident was not the result of an ac t of God; (2) Secrest’s son was entirely without fa ult in the accident; and (3) Secrest ’s damag es were caused in fact and legally

by the neg ligence of either Smith and/or Hay nes. Secrest’s second

issue is whether the Trial Court erred in concluding Secrest did not carry her burden of proving which of the other two drivers was at fault and to what degree.

Discussion
The factual findings of

a trial court are accorded a presumption of correctness, and

we will not overturn those factual findings unless the evidence pre pondera tes against them. See Tenn. R. App. P. 13 (d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo standardof review, according no def erence to the conclusions of law made by the lower courts.” Southern C onstructo rs, Inc. v. Loudon County Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

In a negli gence

claim, a p la in ti ff

is re qu ir ed to pr ov e t he fo ll ow in g e le me nt s b y a preponderance

of the evidence: (1) a duty of careowed by the de

fendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a bre ach of the duty; ( 3) an injury

or loss; (4) causation in fact; and (5) proximate causation. See Rice

v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998).

In Bara v. Cla rksville Memorial

Health Systems Inc., 104 S.W.3d 1 (Tenn. Ct. App. 2002), thi s Court disc

ussed the distinctio n betwee

n cause in fact a

nd proximate

cause a s follows:

Causation and proxim ate cause are distinct elements of neglig ence, and both mus t b e proven by the plaintiff by a pre

ponderance of the evidence. Brad

shaw , 854 S.W.2d 8 65 at 869; McClenahan v. Cooley
, 806 S.W.2d 767, 774 ( Tenn. 199 1); Smith v. Gore , 728 S.W.2d 738, 749 (Tenn. 1 987) . "Causation (or cause in fact) is a ver y differe nt concept from that of proximat

e cause . Causatio n refer s to the ca use and effect relationship between the tortious co nd uc t a nd th e i nj ur y. The doctrine of proximate cause encompasses the whole panoply of rules that may deny

liability for otherwise actionable causes of harm." King, Causation, Valuation, and Chance in Perso nal I

njury Torts Involving Preexisting Injuries and Futur e Consequences
, 90 Ya le L .J. 1353, 1355 n.7 (1981). Thus, proximate cause, or legal cause,

concerns a determination of whether legal liability should be

imposed where cause in fact has been established. McKellips v. Saint Franc is Hosp. , 741 P.2d 467 (Okl. 198 7). "Ca use in fa ct, on the other hand, deals with the 'but fo r' cons equen ces of a n act. 'The def endan t's conduct is a cause of the event if the event would not have occurred-6- butfor that cond uct.'" Id. at 470 (quoting Prosser and K eet on, The Law of Torts , 266 (5th ed. 1984)).

Bara , 104 S .W.3 d at 9 ( quot ing Kilpatrick v. Bryant , 868 S.W.2d at 598 (Tenn. 1993)).

Defend ants r ely , in part, on the unreported opinion in Anthony v. Holland , No. W2001-00745-COA-R3-CV, 2001 Tenn. App. LEXI S 900 (Tenn. Ct. App. Nov. 29, 2001), no appl. perm. appeal filed . In Anthon y , the defe ndant adm

itted fault in a “ve

ry low impac t” automo

bile accide nt. After a non-jury

trial, the trial court co ncluded the pl ai nt if f f ai le d t o p ro ve by a preponderance

of the evidence that

the automobile

accide nt proximate

ly c aused hisclaimed injuries. Anthony
, 2001 Tenn. App. LEXI S 900, at *4. In affirming the judgment of the trial court, this Court discussed the caus ation ele ment in a n eglig ence ca se, noting that a plaintiff must prove causation by

a pre pon der anc e of

th e ev id enc e. If

a pl ain ti ff f ail s t o do so, th en h is or h er a cti on m ust fai l. “If testimonyin a lawsuit leaves a determinative fact unresolved, the n t he evide nce does not preponderate.” Id. , at *7. When the probabilities of causation are at bes t “eve nly balance d,” the verdict must be for the defendant. Id. , at *8.

Defend ants also rely on Howard v. Norwood , N o. M1999 -00838-COA-R3-CV, 2000 Tenn. App. LEXI S 335 (Tenn. Ct. App. May 25, 2000), whe rein the plaintiff Lawre

nce Howard was involved in an autom obile accident with two other vehicles. After a trial, the jury assigned zero percent fault to each of the individuals listed on the verdict form, including the plaintiff. On appeal,

one of the ma

ny i ssues ra

ised by the plain tiff was his conte

ntion that s ince he w as in jur ed in an accident and was n ot at fau lt, the fault and responsibility must necessa rily be place d on one or more of the other people involved in the accident. We rejected this arg ument, noting that

it was poss ible for an injury to occur from an accident for which no one is culpable, and the mere occurrenc e of an accident does not require a jury

to find fault. Id. , at ** 14, 15. Howard is not squa

rely on point to the present

case because here the Tr

ial Court concluded somebody other than the driver of Plaintiff’s

car was at fault, even thou gh Plaintiff did not prove who it was. Nevertheless, Howard correctly points out that simply because there was an accident

causing damage to a non-ne gligent plaintiff, that plaintiff is not automatically entitled to recove r damages.

The questio n before u s is whethe r the Tri al Court w as required to assig n fault to Smith and/or Ms. Hayne s after it concluded that either one or both of them was at fault but: (1) Plaintiff did not establish by a preponder ance of the evidence that Smith was at fault; and (2) Plaintiff did not establish by a preponder ance of the evidence that Ms. Hay nes was at

fault. For the following reason s, we co nclud e the T rial C ourt w as not requi red to find l iabil ity and t hen as sign fault under these circumstances.

When confronted with flatly contradictory te st im on y, a trial cou rt has several weapons it its a rsenal in which to “break the tie” and deter mine whose testimony is more acc urate. For example, the testimony of one or more of the witnesses may be

riddled with internal inconsistencies

or simpl y be unbelieva

ble for one reason or another. Ther e also may be doc

umentary evi dence
, physical evidence, expert testimony or the like which is relevant to determining the causation issue.1 We in no way intend to imply that thes e other types of proof were avail able or ot herwis e should h ave been

introd uced at trial.

-7- Put simply, the fact finder must evaluate all of the proof and, if possible, make cre di bility determinations in order to determine which version of events is more ac curate.

In the pres ent case , Smith and M r. Secre st testifie d that Ms. Hay nes cros sed intotheir lane of travel causing the accident. Ms. Hay nes and Bray , however, testified that it was Smith who crossedinto their lane of travel causing the acc ident. It does not appear fr om the rec ord that the testimonyof any of the se wi tnesses was facially untrustworthy or otherwise tainted because of internal inconsistencies or the like. In addition, there was no documenta ry evidenc e or expert proof introducedto assist the Trial Court in resolving the critical issue of causation. 1 Based on the Trial Court’s ul

timate co nclusion, it implicitly found Smith

and Mr. Secrest were equally as credible as Ms. Haynes a

nd Bray . Although both versions of how the accident happened certainly could not be accurate, the Trial Court could not determine which version to credit, and after thoroughly r

eviewing the record, we find no error in the Trial Court’s inability to pick one version of events over the other. “Unlike this Court, the trial court observed the manner and demeanor of the witnesse s and was in the best position to evaluate their credibility.” Union Planters Nat’l Ban k v . Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). A t rial cou rt’s dete rmination s rega

rding c redibilit y
are accorded d eferenc e by this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “ [A]ppellate courts wi ll not re-evaluate a trial judg e’s asse ssment of witness credibi lity

absent clear

and convincing evidence to the contrary .” Well s v. Tenne ssee Bd. of Regen ts , 9 S.W.3d 779, 783 (Tenn. 1999). This rule concerning our defer ence to a trial judge’s assessment of witness c redibilit y is just as ap plicable to a situation where the trial judge decides that witnesses

are equally credible as it is when the trial judge decides one witness is more credible than the other. We find no such clear and convincing evidenc e to the contrary in the present case.

We conclude

the prep onderan

ce of the evidenc e does no t weigh agains t t he Tria

l Court’s findings and conclusion that Plaintiff failed to prove Smith was “the cause in fact and the legal cause of . . .” thedamages to Plaintiff’s car. L ikewise, the preponderance of the evidence does notweigh against the Trial Court’s finding s and separate conclusion that Plaintiff failed to prove M s. Hayneswas “the cause in fact and [the] legal ca use . . .” of the damages to Plaintiff’s car. As we are unable to alter these fa ctual conclusions, it would be inappropriate for this Court literally to force the Trial Court to go agains t its own factual conclusions and require it to credit either the te stimony of Smith and Mr. Secr est or that of Ms. Hayne s and Bray . From the record before us, this Court certain ly is in no better position than was the Trial Court to make an independent credi bili ty determination and chos e which p air of witnesses to believe. Cf. Barrick v. Grimes , 720 N.E.2d 280, 283 (Ill. App. 1999)(Affirming a jury ver dict in an automobile accident case in which the jury

found for the defendants onplaintiff ’s compla int, and f ound for t he plaint iff on defendant s’ counte

rclaim. Holding the verdicts were not inconsistent, the Court stated that the “jury may well have felt that the evidence of which vehicle had the green li ght was so con flict ing, inconclusive, and unsatisfactory that it simply could not determine from the evidenc e presented which party was negligent.”).-8- Given the Trial Court’s conclusion that Plaintiff failed to prove by a preponderance of the evidence who was at fault, we believe req uiring t he Trial Court to as sess fault under th ese circumstance s also would run afoul of the Tennessee Supreme Court’s opinion in McIntyre v. Ballentine, 833 S.W.2d 52 (Tenn. 1992). In McInty re , the Court adopted a modified comparative fault system which “more c losely link [ed] liability and fault,” there by doing a

way with the “obsolete” common law doctrine of contributory negligence. McInty re , 833 S.W.2d a t 56-58. T

his

new sys tem also di d away withthe doctrine of joint and severa l liability , which ma

y “ fortuitou sly impose a degree of liability

that is out of all proportion to fault.” Id. at 58. Under this new sys tem, the Court observed that “because a particular defendant will henceforth be l iable only for the percen tage of a plai ntiff' s dama ges occasioned by that defendant's neglig ence, situations where a defendant has paid m

ore than his ‘shar e’ of a j udgmen

t will no lon ger ar

is e ....” Id. at 58. The Court’s adoption of a comparative fault sy stem in McInty re did not alter a plaintiff’s burden of proof withregard to causation

in a negligence claim. I

f we required the

Trial Court to assign fault to one

or both Def endants h erein, t hen that D efenda

nt(s) wou ld be assesse d a perc entage of fault a nd held liable for monetary

damages, even though Plaintiff never proved by a pr

eponderance of the evidence that either Defendant was causally at fault.

We are very

much aware o f the se emingly inher ent unfairness of any

decision we render in this case. If we

accept Plaintiff’s position, then one or both Defendants will be held liab le

even though Plaintiff failed to prove either one was the cause of the accident. This does not sound right. If we acc ept Defendants’ argument, then Plaintiff recovers no damages even though we know, accepting the Trial Court’s findings as we have, at least one of the Defendants (but not which one)

was at fault. This does not sound right either. Nevertheless, we be lieve we have reached the c orrect result since it w as Plaintif

f who at a ll times wa s requir

ed to establish eachelement in her negligence claim b y a preponde

rance of the evidence, something she did not do. Our conclusion also is i n accord with the principles of fairness discu ssed i n McInty re, supra . Fortun ately , it is a ra re case indeed when a trial court simply will be unable to “break the tie,” as in the present ca se.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Courtfor further procee dings asnecessa

ry , if any , consiste

nt with this Opinion, and for collection of the costs below. Cos ts on appea l are assessed against the Appellant, Shirley Secrest, and her

su re ty.

___________________________________ D. MICHAEL

SWINEY, JUDGE