JOHN WATSON LITTLE and LESLIE )

EARL LITTLE, Executors for the ) Estate of LESLIE H. LITTLE, de ceased, ) ) Bedford Circuit Plaintiffs/Appellants

, ) No. 7212

) VS. ) ) MICHAEL HOGAN, JEF F PAYNE, ) and MIKE WILHELM T RUCKING, ) INC., ) Appeal No. ) 01A01-9707-CV-00291 Defendants/Appellee

s. ) IN THE COURT OF AP PEALS OF TENNESSEE MIDDLE SECTION AT NASH VILLE
APPEAL FROM

THE CIRCUIT COURT OF BEDFORD COUNTY AT SHELBYVILLE, TENNESSEE HONORABLE LEE RU SSELL, JUDGE

D. Russell Thomas, Herbert M. Schaltegger 218 W. Main St., Suite One Murfreesboro, TN 37130 ATTORNEY FOR PLAINTIF FS/APPELLANTS James D. Kay Jr. Washington Square One, Suite 340M 222 Second Avenue

, North Nashville, TN 37201 ATTORNEY FOR DEFENDANTS/APPELLEES

MODIFIED, AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR IN SEPARATE OPINION: BEN H. CANTRELL, JUDGE CONCUR WITH SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

JOHN WATSON LITTLE and LESLIE ) EARL LITTLE, Executors for the ) Estate of LESLIE H. LITTLE, de ceased, ) ) Bedford Circuit Plaintiffs/Appellants

, ) No. 7212

) VS. ) ) MICHAEL HOGAN, JEF F PAYNE, ) and MIKE WILHELM T RUCKING, ) INC., ) Appeal No. ) 01A01-9707-CV-00291 Defendants/Appellee

s. ) 

## O P I N I O N
The captioned executors filed this suit to recover damages for the

wrongful death of 88 year old Leslie H. Little, deceased, who lost his life in a motor vehicle collision at the intersection of North Main Street and Colloredo Boulevard in Shelbyvi lle , Bed for d Co unt y, Tennessee. Movement of traf fic through the intersection was controlled by the multicolored lights of an ordin

ary traff ic control signa

l.

Several vehicles were present at the intersection a

t the time of the coll ision. Two large transport trucks, being operated on the business of

Mike Wilhelm Trucking, Inc., approached the intersection from the north, moving south. One of the Wilhelm truck

s, operated by Jeff Payne, approached

the intersection in the left southbound lane, but did not en ter the intersec

tion because its approach to the intersection was blocked by the presence of a pick-up truck stopped in the left lane waiting for the traffic signal to change. As the other Wilhelm truck, operated by Michael Hogan, approached the intersection in the right southbound lane , the signal for southbound traffic changed to green and Hogan drove his truck southwa rd across the intersection.

The deceased approached the intersection from the south, moving north, when the signal for northbound traffic turned green, he entered the intersection and turned left (west) across the two southbound lanes of North Main Street, in the direction of Colloredo Blvd. West. The Wilhelm truck, operated

by Michael Hogan in the right southbound l

ane of North Main

Street, proceeded

southward across the intersection and struck the right side of the vehicle of deceased.-3-

After being struck by

the Wilhelm truck, the vehicle of dece ased was propell

ed in a southerly direction to collide with a northbound vehicle which had not arrived at the intersection, and then movedsome distance southward to a point 65 or 70 feet from thepoint of the original collision with the Wilhelm truck.

After striking the vehicle of deceased, the Wilhelm truck operated by Hoga n, proceeded southwardin the right lane of North Main Street to a point 295 feet from the point of collision.

At the subject inters

ection, North Main

Street was desig

nated a s State Route 231. However, State Route 231 had alternate routings in the city of Shelbyvil

le. “Business Sout

h 231" continued south from the intersection through the city square to its intersection with State Route82. “Truck

Route 231" turned right (west) on ColloredoBoulevard and continued thereon to its intersection with State Route 82, which led to Lynchburg, the intended de stination of

both Wilhelm trucks. The “truck route” around the city was somewhat lon ger th an the “business
rou te” thr ough the cit y.

The Trial Court ordered:

1. The motion for summary judgment in favor of Jeff Payne is gr anted and all claims against Jeff Payne are dismissed with p rej udice . Mike Wilh elm Tr uckin g, Inc. Is dismissed with prejudice only as to all claims directed to Jeff Payne as an employ

ee, agent or dr

iv er o f Mike Wilhelm Trucking, Inc. 2. The motion for summary judgment in favor of Michael Hogan is granted in part and den ied in part. All claims against Michael Hogan sh all be dismissed with prejud ice wi th the exception of the issue of speed under the circumstances. 3. All claims against the defendants for punitive damages are dismissed with prejudice. 4. The defendant’s motion for protective order is granted in part and denied in part. The p lain tiffs are precluded from inquiry as to

any recor ds which do not rela

te to the particular delivery that defendant Mike Hogan wa s making on the date of the accident or the hiring of defendant Hogan as a driver. I

f the plaintiffs wi

sh to see k additional-4- records,and the defenda

nts will n ot agr ee t o th e di sco very, then the plaintiff must a

pply to the Cour t for permission to seek the information. 5. The plaintiffs’ motion to compel is denied. IT IS FURTHER

ORDERED that this order is hereby expressly deemed a final judgment as to the dismissalof Jeff Payne as an employ

ee, agent, or d

riv er of Mike Wilhelm Trucking, Inc., there be ing no just reason for delay,

all in accordance w

ith Rule 54.02 of the TennesseeRules of Civil Procedure. The plaintiffs have appealed and presented four issues. The first two issues are:

A. The Trial Court erred in granting Defen dan t Jeff Payne summary judgment when there are genuine

issues of material fact wh

ich, when viewed

in a light most favorable to the plaint iffs, and dr awing a ll reasonable inferences therefrom,

establish at least partial liability on the part of this Defendant for the death of Decedent Leslie H. L ittle. B. Defendant Mike Wilhelm Trucking, Inc. The Trial Court erre

d ingranting the

Defendant Mike Wilhel mTrucking, Inc. partial summary judg ment wh en ther e are genuine issu

e s of material fact which, when viewed in a light most favo rabl e to the Plaintiffs, and drawing all reasonable

infer ences therefrom, establish at least partial liability on the part of this Defend ant for the death of De ceden tLeslie H. L

ittle due to the act

ions of its agent, Defendant

Jeff Payne, under the doctrine of respondeat superior
. In support of these issues, plaintiffs argue:

It has been established that Defendant Payne was proceedingsouth i nt o the City of Shelbyville and into the businessdistrict rather th

an following the

alternate state route around the downto

wn district.

- - - - The Payn e tractor-trailer rig was not following the posted truck route and was therefore in the wrong lane.
The presence of

the Jeff Payne truck in the left southbound lane could be some indication that he intended to proceed south on the “Business Route”, but, if so, he had not carried out the intentbecause his truck never entered the intersection before the other Wilhelm truck struck the vehicle of deceased.-5- Appellants’ argue correctly that, if Pay ne ha d appr oached the intersection in the right lane in prepar ation for aright turn to follow the truck route, his truck would have blocked progress of the Hogan tru

ck and would not ha

ve been in the lef

t la ne to obstruct the view of Michael in the direct ion of deceased. However, the test of the liability of Pay ne is the foreseeability

of harm from his actions. There is no evidence that Payne should have known that the Hogan truck

was approaching

from his rear at h

igh speed and tha

t he should

block its path by using the

right lane to pre

vent Hogan fro

m colliding with

a northbound vehic

le turning left across the path of Hogan.

In McClenahan v. Cooley , Tenn. 199 1, 806 S.W .2d 767, the questio n was the liability of the owner who lef

t his keys in hi

s vehicle. A thief

stolethe vehicle and a hig h speed chase by the policy resulted in the deaths of innocent pe rsons. The Supreme Court held: [4,5] This Court is of

the opinion thatthe approach taken by the substantial (and growing) number of j urisdictions representingthe minority v iew is the approach that should be taken in Tennessee, in part, because pr inciples of common law negligence l

ong est ab lished in this state provide a sufficient analy

tical framewor

k to dispose

of cases with

fact patterns similar to the one presented in this appeal. First, it is axiomatic that in order for there to be a cause of action for common law negligen ce, the following elements must be established: (1) a duty of c are owed by the defendant to the plaintiff; (2) conduct fal ling b elow the applicable standard careamounting to a breach of that duty;

(3) an injury

or loss; (4) causation in fact; and (5) proximate, or legal, cause.

- - - - [6-8] Takenas a whole, our ca se s sugg est a threepronged test for pro x imate causation: (1) the tortfeasor’s conduct must have been a “

substa nt ial factor” in bringing about the harm being complained of; and (2) there is

no rule or policy that s

hould reli eve th e wrongdoer f rom liability because of the manner in w

hich the neglig

ence has resulte

d in the harm; and (3) the

harm giv

ing rise to the action could have reas ona bly been foreseen or anticipated by a person of ordinary intelligence and prudence.

- - - - [9-12] With respect to superseding intervening caus es that might break thechain of proximate causation, the ru

le is establishedthat it is not necessary that tortfeas ors o r concurrent

forces act in co

ncert, or that th

ere b e a joint operation or a union of act or intent, in order fo r the negligence

of ea c h to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable.

- - - --6- “A n intervening act will not exculpate the ori gina l wrongdoer

unless it appears that

the negligent intervening act could not have been reasonably anticipated.”

- - - - “It is o nly w here misconduct was to be anticipated, and tak ing t he ri sk o f it was unr easo nab le, tha t li abi lit y w il l be imposed for

consequences to which

such intervening

acts contributed.”
In the present case, th

is Court holds as a ma

tter of law that no

reasonable

jury would find that Jeff Payne should have anticipated that the presence of his truck stopped in the left lane of traffic would create or contribute to the injury which occurred. The first issue therefore presents no ground for re

versal.

Plaintiffs’ insist that Wilhelm is liabl e for the fault of Payne under the doctrine of respondeat

superior, but, with

out culpable faul

tof the agent, th

ere is no vicarious liability of the principal
. Rain es v. Mercer , 165 Tenn. 415, 55 S. W.2d 263 (1932): Goodman v. Wilson , 129 Tenn. 464, 166 S.W. 752 (1914 ); L oveman & C

o. v. Bayless , 128 Tenn. 307, 160 S.W. 841 (1913).
No ground of re

versal is presen

ted by the fi

rst two issues.

Plaintiffs’ third is sue is:

(3) The Trial Co urterred in granting Defendant Mike Hogan partial summary judgment as to all issues except for speed under the circumstances when there a re g enuine issues of material fac

t which, wh en viewed in a lig ht most favorable to the Plaintif

fs , and drawing a

ll reasonable inferences therefrom, esta blish at least partial liability on the part of this Defendant for the death of Decedent Leslie H. Little under the theory of neglig ence per se. Plaintiffs’ arg

ument in support of t

his issue is verbati

m: First, all arguments raised above with referen ce to negligence per se

con cern ing D efen dan ts P ayn e and Mike Wilhelm Trucking are f

ull applicable

and germane; the

same statutes were viol ated by Defendant Hogan under the very samefacts. Therefore, Defendant Hogan i s guilty of-7- negligence per se . Further, it is not at all unforeseeable that such negligence per se

could or would lead to a fatal accident of this type. Had Defendan t Hogan been following the designated

state truck route around

the downtown Shelbyville area, he would

not have beenapproaching the intersection at between30 and 40 miles per hour (Hogan Depo., pp. 35-36). Instead, he would

have been moving much

more slowly as he prepa red to make the right-hand turn onto Colloredo Boulevard; it is a reasonable inference that but for Defendant Hogan’s failure to follow the state truck route, he would have not collided with and killed the Decedent Mr. Little.
The foregoingquotation intimates that the failure of a truck to follow a “

truck route” is unlawful, and therefore negligence per se. Appellants cite TCA §54-5205 which authorizes the transportation department to select the streets upon which state highways are routed, a nd 55-8- 101 (33) and 55-8-109(a)

requires that dr

ivers obey t

raffic-contro

l devices includin

g “si gns , signalsmarkings and devices placed by authority of a public body or official having jurisdiction.”

No evidence is cited or

found as to who poste

d the “truck route

” signs. If the signs were posted wit h du e aut hor ity, the n th ey w oul d indicate that a right turn should be made at the intersection by truckswhose destination was not within the City of Shelbyville. The intended destination of the two subject trucks was not within the city of Shelbyville.
Nevertheless,

the intent of the driver to proceed straight through the intersection instead of turning r ight to the “truck route” was not the proximate cause of the collision for lack of reasonable

anticipation. That is, a reasonable truck driver in the position of Hogan would not have anticipated that p

roceeding thr

ough the interse

ction at a safe speed would result in a collision with a vehicle turning across the path of the truck.

The proximate neglig

ence of Hogan

must be based upon e

xcessive speed or f

ailure to avoid collision with another vehicle in the intersection.-8- The Trial Court reserved the issue as to negligent speed. Therefore,when the Tri al Judge reserved speed, he also reserved negligence per se by speed. T he issue of ne gligent failur e to avoid collision also remains for resolution.
No ground for modification or reversal is presented by plaintiffs’ third issue.

Plaintiffs’ fourt

h issue is: 4) Th e Trial Court erred in granting the Defendant

summary judgment as to Plaintiffs’ claims for punitive damages when there are genuine issues of material fact which, when vie

we d in a light most favorable to the Plaintiffs, and drawing all reasonable inferences therefrom demonstrate

patterns of outrageous conduct suffi cient to allow a cla im f or p uni tiv e dam ages to b e su bmi tte d to a ju ry.

T.C.A. § 55-8-143 define

s the duties of driv

ers of vehicles a

t intersections wh

ere one vehicle is turning across the path of another vehicle. Material provisions are summarizedand discussed as follows: (a) The turning drive r must first see tha t said movement

can be made with safety. The requirement is not an absolute, but appli

es within the bounds of rea

son. That is, the turning driver must make th at ascertainmen

t of safety which a reasonable person wo uld make under the same or similar circumstances. The determination of th e reasonablenes s of t he as cert ain men t of saf ety is for the jur y. Atchley v. Sims , 23 Tenn App. 167, 128 S.W.2d 975 (1938). Among the facts to be considered by the jury in the pre sent case are the obstruction of the vision of deceased and Hogan by the truck o f Payne

stopped north of the intersection and the observable

movement and speed of thetruck operated by Hogan.

- - - - (2) Drivers receiv

ing a signal fo

r a left turn must “keep their

vehicle under c

omplete control and shall b

e able to av oid an accid ent result ing from a mi sunderstan ding o f such signal.” W

right v . City of Knoxville , Tenn. 1995, 898 S.W.2d 177. There is evid ence in this

record that Hogan approached an i ntersection whe re his vision was pa

rtially blockedby the truck in the left southbound lan e, and that Hogan’s speed was such that the c ol lision knocked the v ehicle of deceased into

another stopped vehicle and beyond, a total of 65 or 70 feet

from the point of collision with the Hogan truck, and the Hogan truck continued its southboun d course 295 feet past the point of collision before st opping. Under-9- these facts, it will be fo

r the ju ry t o decide whether Hogan was driving at an unreasonably high speed and w hether his action or inaction constitutedordinary negligence and/or such gross neglig

ence as justified

the award of puni

tive damages. Coppinger

Color Lab, Inc. v. Nixon , Tenn. 1985, 698 S.W.2d 72; Huckeby v. Spangler , Tenn. 1978, 563 S.W. 555.
Evi den tly, the Trial Court was of theopinion that the evi dence was not suf

ficient as a

matter of la w to jus tif y exemplary damages, as held in Walgreen Co. v. Walton , 16 Tenn. App. 213, 16 S.W.2d 44 (1933). The circumstances of the present case are distinguishable from those of the cited
case. In addition to the claim of exemplary for the misconduct of Hogan, plaintiffs claim exemplary damages for the misconduc t of Mike W ilhelm Tru cking, Inc., in the general conduct of its trucking businesssuch as selection and t raining of drive

rs, overloading and instruction or encouraging drivers to violate the law. Thi s Court holds that the allowanc e of punitive dama

ges from Mike Wilhe

lm Trucking, I

nc., on these gr

ounds may be

pursued further

in the Trial Court.

The judgment of the T

rial Court is

modified t o reserve the questions of punitive damages heretofore discussed.
Plaintiffs’ fifth,

and last, issue is: 5) The Trial Court erre d in granti

ng the Defendants’ motion for a protective order when the material sought is directly relevant to Plaintiffs’ claims for liability and punitive damages and wh en those materials were required

by federallaw to be maintained by the D efendant as par

t of its trucking enterprise. The request ed discover y included the following:

Comenow the pl ai ntiffs, John Watson Little and Leslie Earl Little, Executors for the Estate of Leslie H. Little, pursuant to Rule 34, Tenn. R. Ci

v. P., and hereby

requests that the defendants, Michael Hogan, Jeff Payne and Mike Wilhelm Trucking, Inc. a/k/a Southern Grain, hereinafter referred to as Mike Wilhelm Truc ki ng, produce for inspection an d copy ing a t th e off ice of p lai nti ffs ’ at tor ney, within thirty day

s (30) days f

rom the receipt h

ereof, th e originals or complete and c

learly re adable copies of the items defined and described herein:-10- 1. Drivers’ trip records 2. Receipts for trip expenses 3. Pick up and delivery orders 4. All commun ications r egarding tran sportatio n of cargo 5. All bills of lading and manifests 6. All equipment or ca rgo loading doc

uments 7. All cargo fre

ight bills 8. All written instructions to drivers 9. Dispatch records 10. All drivers’ calls in records 11. Accounting records 12. All drivers’ trip c

heck-in financi

al sheets 13. All drivers’ fue

l purchase and mil

eage reports 14. Copies of all checks issued to Hogan and Payne 15. All special fuel p

ermits 16. All trip lease con

tracts 17. All other operati

on or trip related

documents 18. Complete “Driver Qualification” files of Hogan and Payne 19. Any pre-e

mployment doc

uments 20. Complete application of employment of a driver 21. All medical examination records 22. All drivers’ viola

tion statements 23. All drivers’ roa

d tests 24. All drivers’ writ

ten tests 25. All drivers’ test certificates 26. All inquiries to former employers 27. All answers of former employers 28. All inquiries and a nswers regar

ding violations or

accidents-11- 29. Test cards issued by former employe rs 30. All annual reviews 31. All other contents of driver qualification files 32. Records of drug

tests 33. Records of training 34. Additions to Hogan and Payne file since June 10, 1994 35. Complete drivers’ personal file to d ate 36. Application contr acts and agre

ements 37. Hiring, sus pensions, warnings 38. Prior health, acc

idents, sickness, s

hortage repor

ts 39. Law Enforce

ment reports 40. Other documents on Hogan and Payne 41. Complete driver qualification file of Hogan and Payne 42. Addition to file of any driver operating same equipment 43. Documents in possession of other drivers 44. Drivers’ licenses of all drivers that operated equipment before accident 45. Copies of violation notices of all drivers that operated same equipment 46. All objects, pictures, drawings or statements regarding subject accident 47. A more verbose repetition of 46. 48. All accident file

s on drivers of subj ect equipment 49. All drivers’ records of Hogan and Payne 50. All drivers’ records of other operators 51. Repetition of 50 52. Verbose repeti

tion of previous re

quest 53. Maintenance records 54. Verbose repetition of 53 55. Titles to both vehicles 56. Vehicle movement records-12- 57. Leasing co

ntracts 58. Purchase of ren

tal payment

s 59. Company manu

als 60. Maintenance records 61. Computer records 62. Instructions and logs of drivers 63. Notices to drivers 64. Operational documents of driver 65. State registration of vehicles 66. Operating Permits of Hogan and Payne 67. Safety Instructions 68. List of all empl

oyees of Wilh

elm 69. All Dispatch records 70. All operation for

ms 71. Income tax forms of Hogan and Payne 72. Flee t Ev alu ati on S urv eys 73. Correspondence with insurers 74. Driver Training

manuals 75. Employees substance abuse policy
The foregoing

summarizes plaintif

fs’ 21-page de

mand for producti

on of documents.
The judgment of t

he Trial Judge ru

led as follows on the

se demands: As to the discovery i

ssues, it appears that the Plaintiffs are exploring a numbe

r of areas which might or might not uncover sloppy business practices, but which are totally irrelevant to th e caus e of th is acc ident . If it is undisputed that Defendant

Hogan did not app

ly his brake

s u n til the time of impact, then maintenanceof brake recor ds is irrelevant. I

f it is undisputed that Defendant Payne sat at

the red light to wa

it for a truck to turn across the in

tersection, then

it is irrelevant how much his load weighed. It is equally certa in that th e-13- failure to maintain some par ticula r docum ent back at Wilhelm corporate headquarters did not kill

anyone at the intersection.

- - - - In the current state of the record, the Plain tiffs are precluded from inquiry as to any records which do not relate to the parti cular delivery that Defendant Hogan was ma king on the day of the accident or to the hiring of Defenda nt Hogan as a driver. If the Plaintiffs wish to seek additional records and the Defendants will not agree to that discovery, then the Plaintiffs will have to apply to the court for permiss

ion to seek the information. The writtendiscovery heretofore filed by the Plaintiffs is

extremely oppressive, but no sanctions will be ordered and no avenue of inquiry is finally precluded, but the Plaintiffs will have

to make a showing to

the court on an ad hoc basis that information sought is reasonably calculated to lead to the discovery of admissible, relevant evidence.
A trial court has wide discretion in enforcing discovery. T.R.C. P. Rule 26, Strickland v. Strickland, Tenn. App. 1981, 618 S.W.2d 496. The issuance of a protective order limiting discovery lies within the sounddiscretion of the trial judge. Brown v. Brown , Tenn. App. 1993, 863 S.W.2d 432. It is within the inherent powers of a trial judge to take appropria

te corrective a

ction against a party for discovery abuse
. Lyle v. Exxon Corp. , Tenn. 1988, 746 S.W.2d 694.

The judgment of the Trial Court is modified to require the plaintiffs to specify in detail the grounds upon which punitive damages are claimed and to require a discovery conferenc e pursuant to TRCP Rule 26.06 for the purpose of identifying issues for discovery andappropriately limiting its scope.

The judgment of the Trial Court is modified to delete th e partial summary judgment dismissing plainti ffs’ suit against Michael Hogan and Mike Wilhelm Trucking, Inc., for punitive damages. As modified, the judgment of the Trial Court is affirmed. One-half the costs of this appeal is taxed against

the pla int iff s-a ppe lla nts and the ir s uret y, and one-half of said costs are ta

xed against-14-

the defendants, Mike Hogan and Mike Wilhelm Trucking, Inc. The cause is remanded for further proceedings. 

### MODIFIED, AFFIRMED AND REMANDED

___________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION

CONCUR IN SEPARATE OPINION: BEN H. CANTR ELL CONCUR WITH SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE