Arnold v. Hayslett

• Decision Date: 22 August 1983
• Citation: Arnold v. Hayslett, 655 S.W.2d 941, 13 Ed.LawRep. 566 (Tenn. 1983)
• Parties: Earl Nelson ARNOLD, et al., Plaintiffs-Appellants, v. Tommy L. HAYSLETT, Jr., et al., Defendants-Appellees. 655 S.W.2d 941, 13 Ed. Law Rep. 566
• Court: Tennessee Supreme Court

Page 941

655 S.W.2d 941

Earl Nelson ARNOLD, et al., Plaintiffs-Appellants, v. Tommy L. HAYSLETT, Jr., et al., Defendants-Appellees.

655 S.W.2d 941, 13 Ed. Law Rep. 566

Supreme Court of Tennessee At Jackson.

Aug. 22, 1983.

James V. Ball, Michael S. Long, Memphis, for plaintiffs-appellants.

Richard Glassman, Memphis, for Hayslett, Letcher & City of Memphis Bd. of Educ.

Max D. Lucas, Jr., Memphis, for R.W. Harmon & Sons, Inc.; Lucas & Leach, Memphis, of counsel.

Eugene C. Gaerig, Asst. City Atty., Memphis, for City of Memphis.

OPINION

HARBISON, Justice.

This is an action for the wrongful death of a twelve-year-old junior high school student who was fatally injured while riding as a passenger in a school bus. The vehicle was owned by the Board of Education, Memphis City Schools, and was being operated by its employee Tommy L. Hayslett, Jr., at the time of the accident on February 10, 1977. The child, Michael Channing Arnold, was a seventh grade student at Humes Junior High School in Memphis. In nine more days he would have reached his thirteenth birthday. He was fatally injured when he leaned out of the window of the rear seat on the right-hand side of the bus to speak to another student. As the bus moved forward, his head and neck came into contact with a guy wire supporting a utility pole, and he was killed almost instantly.

The trial judge found that the operator of the bus and James Letcher, a teacher at the school who was an assistant monitor, were negligent in the operation and management of the school bus. He also found that the child was capable of contributory negligence and that he was partially responsible for his injuries. The trial judge found the decedent to be guilty of "remote contributory negligence" and awarded a mitigated recovery to his next-of-kin in the amount of $40,000.

The Court of Appeals concurred in the factual findings of the trial judge, including the capability of the minor and his fault in causing or contributing to the accident. The Court of Appeals found, however, that the actions of the minor constituted proximate, rather than remote, contributory negligence, precluding recovery. ¹

We are bound by the concurrent findings of the trial court and Court of Appeals that the driver, Hayslett, was negligent in operating the bus, although we are constrained to state that those findings were very general, indefinite and unclear. The amended complaint upon which this case was tried charged the bus driver and other school personnel with eighteen separate acts of common-law negligence, violation of twelve separate city ordinances and five statutory violations. Neither court below responded to any of these allegations. After a lengthy trial the case was taken under advisement. Later the trial judge gave a short oral opinion. With respect to negligence of the school bus operator and other school personnel he merely made this statement:

"In evaluating all of the evidence in this case the Court has to find that the Board through its agents, servants, and employees was guilty of negligence which directly and proximately contributed to this accident and the resulting death of the young Mr. Arnold."

The order of judgment entered in the case stated:

"3. The Court further finds that the Defendant, The City of Memphis Board of Education, and its agents, servants or employees, Tommy L. Hayslett, Jr., and James Letcher, were guilty of proximate negligence in the backing of the school bus and that the Plaintiffs are entitled to recover damages in the amount of FORTY THOUSAND ($40,000.00) DOLLARS and costs."

The Court of Appeals treated the matter with equal brevity. It said:

"Before even considering contributory negligence on the part of plaintiff, either as proximate or remote, it must first be conceded that defendant is negligent. Otherwise there is no need to consider it as there can be no recovery unless the defendant has committed a negligent act. For the purposes of this opinion we consider one, some or all of the acts of the judgment defendants to have been negligently done."

More detailed analysis of the evidence and more specific findings of fact by the courts below would have been very helpful to this Court. Our role in reviewing cases is materially affected by whether there is or is not a concurrent finding of fact by the trial judge and the Court of Appeals in non-jury cases. T.C.A. Sec. 27-1-113. It is important to the workload of this court that trial judges and the Court of Appeals dispose of factual issues in specific terms.

Whether the bus driver was negligent in this case or not was, to say the least, a close question. He backed the school bus a short distance in order to clear a bus parked in front of him. He did this at the direction of two school monitors, the senior monitor being James L. McKenzie and the assistant James N. Letcher, Jr. McKenzie died before the trial. Both he and Letcher, however, testified by depositions which were made part of the record. McKenzie gave the primary directions to the bus driver to back the vehicle. He was standing on the sidewalk, near the center of the bus, on the right side, from which the minor leaned out of the window. McKenzie had warned other students to keep their heads and arms inside the bus while it was in motion. He had just finished telling a young girl, Maria Barker, for the second time to get her hands inside the bus when he gave the signal for the driver to commence backing. He testified that after the driver had backed sufficiently to clear the bus in front of him, he McKenzie, gave the signal for the bus to go forward. At that instant, just as the bus began to move forward, ² young Arnold leaned out of the window and his head struck the guy wire which was in very close proximity. The bus itself, according to all the witnesses, did not strike either the guy wire or the utility pole.

We can find no evidence to support the conclusion of the trial judge that Letcher was guilty of negligence. Mr. Letcher was standing in the middle of Manassas Street, to the rear and on the left side of the bus, stopping traffic so that the bus could pull out of the loading zone. He could not see the right-hand side of the bus from where he was standing, nor did he have any knowledge or indication that young Arnold, or any other student, was leaning out of the right side of the bus near the guy wire, when the bus began moving forward. The basis upon which either court below found him guilty of proximate negligence is difficult to understand. Mr. McKenzie was not found guilty of negligence, although he was joined as a party defendant.

Faced with the very general findings of the courts below, we are constrained to hold that there is no material evidence in the record upon which to base a judgment against the City of Memphis for the actions of James N. Letcher, Jr. The suit was dismissed as to McKenzie, the monitor in charge, and no serious argument has been made on appeal that liability should be predicated upon his actions. He died before the trial, and no effort was made to revive the suit against him.

With respect to Hayslett, the record does contain evidence from which a trier of fact could conclude that there was negligence, although it is unclear in what respect the courts below reached their conclusions. ³ All of the witnesses testified that he began backing the bus at the direction of the monitors, that the monitors had warned the children to keep their bodies inside the bus and that the accident happened within a very short interval of time, probably a matter of a few seconds at most.

Nevertheless, since the trial court found negligence and the Court of Appeals "considered" it established for the purpose of its discussion, it seems probable that there is a concurrent finding on the point so as to bind this Court to a very narrow scope of review on that issue. We request that this procedure not be followed in the future by trial judges or by the Court of Appeals, especially in governmental tort claims. Essentially the findings of negligence by the trial court remain unreviewed, or at least they have had no effective review, and a contrary finding by the Court of Appeals might well be dispositive of the whole case. For practical purposes, the Court of Appeals virtually pretermitted the issue of negligence. The scope of review in a non-jury case in that court is quite broad, whereas the issue has almost been foreclosed in this Court by an "assumption" which may or may not be accurate.

Nevertheless, accepting the conclusion that the school bus driver may have been negligent, we find that the preponderance of the evidence supports the conclusion of the Court of Appeals that the conduct of the decedent does not fit within the concept of remote contributory negligence.

This is a somewhat unusual principle developed by the Tennessee courts, originally stemming from the interpretation of certain railroad precautionary statutes, but thereafter finding its way into the general law of negligence. It is separate and apart from the doctrine of last clear chance. Both rules are accepted in this state as exceptions to the common-law principle that contributory fault is a complete bar to recovery. For a recent analysis of both rules see Street v. Calvert, 541 S.W.2d 576 (Tenn.1976). Under the last clear chance doctrine contributory fault of a claimant does not either bar or mitigate recovery, whereas under the remote contributory negligence...