Downs v. Bush, No. M2005-01498-COA-R3-CV (Tenn. App. 8/31/2007)
| Decision Date | 31 August 2007 |
| Docket Number | No. M2005-01498-COA-R3-CV.,M2005-01498-COA-R3-CV. |
| Parties | DIANE DOWNS, INDIVIDUALLY AND AS NATURAL PARENT OF RYAN CODY DOWNS v. MARK BUSH, ET AL. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County; No. 04C470; Barbara N. Haynes, Judge.
Judgment of the Circuit Court Affirmed.
Charles P. Yezbak, III, Nashville, Tennessee, for the appellant, Diane Downs.
C. Benton Patton, Nashville, Tennessee, for the appellee, Mark Bush.
Barry L. Howard and Melissa Bradford Muller, Nashville, Tennessee, for the appellee, Scott Hurdle.
W. Bryan Brooks, Nashville, Tennessee, for the appellee, Ryan F. Britt.
R. Kreis White, Brentwood, Tennessee, for the appellee, Jerry Dane Eller.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, Jr., P.J., M.S., and Patricia J. Cottrell, J., joined.
The mother of a deceased eighteen-year-old filed this wrongful death action against four defendants with whom her son had been partying prior to his death. Following the party and during the drive on Interstate 65 back to the deceased's apartment, the deceased, who had been riding in the bed of the pickup truck because he was intoxicated and nauseous, fell out or jumped out of the bed of the truck. Thereafter, the deceased was seen standing near but off of the roadway, at which time he ran into traffic, was struck by two vehicles traveling north on Interstate 65, and later died from the trauma. Following discovery, each defendant filed a motion for summary judgment contending, inter alia, he owed no duty to the deceased, he did not breach a duty, and the deceased's injuries and death were the result of the deceased intentionally running into traffic. The trial court granted summary judgment without stating its grounds. This appeal followed. Finding each defendant is entitled to summary dismissal as a matter of law, we affirm.
Cody Downs, an eighteen-year-old who was intoxicated at the time of the accident, died following injuries he sustained when he was run over by two vehicles that were traveling on Interstate 65. It is undisputed that Downs ran onto the interstate in front of oncoming vehicles and was run over by two vehicles. What is disputed is whether the defendants, four men with whom he had been partying shortly prior to his death, owed or breached a duty owed to Downs and, if so, whether their breach was the cause in fact and legal cause of Downs' death.
The mother of Cody Downs (Plaintiff) filed this action against the four men with whom her son had been partying on the evening of his death. She presents two general claims against each defendant. One is a claim of negligence; the other is characterized by Plaintiff as a claim for outrageous conduct.
In her claim of negligence, Plaintiff contends the four defendants violated a duty of care by putting her son, who was intoxicated and nauseous, into the open bed of a pickup truck on a cold, damp evening, and then driving 60 to 70 miles per hour on the interstate. The relevant facts leading up to the tragic event are as follows. The deceased resided in an apartment with his longtime friend Ryan Britt on Glastonbury Drive in Nashville, Tennessee. At approximately 7:00 p.m. on the evening of February 15, 2003, Downs and Britt were joined by Scott Hurdle, Jerry Eller and Mark Bush at their apartment for an evening of social activities for which there was little planning.1 One of them suggested they go to a party at an apartment in the Cool Springs area near Franklin, Tennessee, which was several miles south of the deceased's apartment. They agreed and all of them rode in the cab of the pickup truck to Cool Springs. The truck was owned by Hurdle; however, he did not drive. Instead, Eller agreed to be the designated driver for the evening.
Downs became intoxicated, obnoxious and belligerent not long after they arrived at the apartment in Cool Springs, and as a consequence, the host insisted that Downs leave.2 Shortly thereafter, Downs agreed to leave, and the four defendants left with him. After a brief discussion in the parking lot, the five men agreed to return to Downs' apartment where their evening had begun. Thus, all five men got into the cab of the truck, and, as before, Eller was the driver. Hurdle, who owned the truck, sat in the front passenger's seat. The other three, Downs, Britt and Bush, rode in the back seat in the cab of the truck.
While they were traveling north on Interstate 65 to return to Downs' apartment in Nashville, Downs became nauseous, at which time they stopped along the interstate so he could get out of the truck to regurgitate. What occurred while the truck was stopped along Interstate 65 is in dispute; however, it is undisputed that Downs and Britt, if not others, got out of the truck at which time Downs regurgitated. After a brief respite, those who had gotten out of the truck returned to the vehicle, and all five of them proceeded north on Interstate 65; however, Downs did not get into the cab of the truck. Instead, he rode alone in the open bed of the truck while the defendants rode in the cab. Whether Downs got into the bed of the truck on his own or whether one or more of the defendants assisted him or "put" him in the bed of the truck is disputed.
Once all five of them were in the truck, with Downs riding in the bed of the truck, they continued north on Interstate 65. Shortly thereafter, Downs beat on the rear window of the cab, in response to which Eller, the driver, slowed down in order to pull the truck onto the shoulder of the interstate and stop; however, as he was preparing to stop, Downs stopped beating on the rear window, and someone in the cab advised Eller to keep driving because Downs was sitting or lying down in the bed of the truck. As instructed, Eller continued driving to the apartment.3
It was not until several interstate miles and minutes had passed that Eller, Hurdle, Britt or Bush realized that Downs was no longer in the bed of the truck. Although none of the defendants knew when, where or how Downs exited the vehicle, they realized he was no longer in the bed of the truck and they had no idea where he was. They did not go look for him; instead, they continued on to the apartment. It was not until much later that they learned of the events that follow.
No one knows what occurred after the four men last saw Downs in the bed of the truck until he was observed on the shoulder of the interstate by Melissa Barrell. She was a passenger in the front seat of a vehicle being driven by her husband. They were traveling north on Interstate 65. As Ms. Barrell described it, when she first saw Downs, he was standing on the shoulder of the interstate, a short distance ahead of her vehicle, in a position similar to that of a runner. A moment later, she saw him run onto the interstate immediately in front of her vehicle. With no time to react or to avoid Downs, the Barrell vehicle struck Downs, as did the next vehicle. Both vehicles stopped and called for emergency assistance. Downs was transported by ambulance to a hospital where he was subsequently pronounced dead as a result of multiple trauma.
In the Complaint that followed, Plaintiff contends that all four defendants were negligent by putting her son unrestrained in the open bed of the pickup truck, when he was very drunk, while they traveled along an interstate highway at speeds up to 70 miles per hour, which posed a substantial risk or serious injury or death. She also contends that Britt, with whom her son shared an apartment, owed her son a special duty based upon their close personal relationship. As for Eller and Hurdle, she contends Eller owed a special duty as the driver of the truck, and Hurdle owed a special duty because he owned the truck. Plaintiff also contends the four defendants' actions constituted "outrage."
Each defendant filed a separate Answer to the Complaint. All defendants denied owing or violating a duty to Downs and contended his injuries and death were the result of his own conduct, which was the cause in fact and legal cause of his injuries and death. Some of the defendants characterized his action, that of running from the side of the road into traffic, as an independent intervening act, for which the defendants are relieved of liability as a matter of law.
Following discovery, each defendant filed a motion for summary judgment seeking dismissal of the claims.4 Ryan Britt, the deceased's close friend and apartment mate, contended he owed no special duty. Instead, he was just a friend who shared an apartment, nothing more. Britt also contended Plaintiff had failed to establish either cause in fact or legal cause, and Downs' injuries and death were the result of his own action of intentionally running onto the interstate in front of the Barrell vehicle. Britt also contended it was not foreseeable that the deceased would choose to run onto the interstate in front of a vehicle.
Scott Hurdle, the owner of the truck, had no prior relationship with the deceased, having met Downs the day before his death. Hurdle contended he owed no duty and breached no duty. The only basis on which he could be liable was as the owner of the vehicle; however, the undisputed facts show that the deceased was not injured by the operation of Hurdle's vehicle but instead by Downs' intentional act of running onto the interstate in front of traffic, which was unforseeable.
Jerry Eller, the designated driver, contended he breached no duty and that there was no evidence to indicate that his operation of the vehicle was a contributing factor to Downs' injuries or death. Eller also contended Downs' injuries and death were the result of his act of running onto the interstate in front of traffic.
Mark Bush contended he was merely a passenger, along for the ride and the party, and that he owed no duty and breached no duty. Further, Bush contended...
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