Gray v. Roten

Decision Date18 January 2011
Docket NumberNo. W2010-00614-COA-R3-CV,W2010-00614-COA-R3-CV
PartiesROBERT D. GRAY v. ANDY B. ROTEN, II and GARY B. ROTEN
CourtTennessee Court of Appeals

Direct Appeal from the Circuit Court for Shelby County

No. CT-004812-05 Kay S. Robilio, Judge

This case involves an accident between a bicycle and a pick-up truck. Appellant was struck by Appellee's truck when Appellant failed to obey a stop sign and rode his bicycle into traffic. The trial court found that Appellant was sixty percent at fault for the accident, and, pursuant to a comparative fault analysis, entered judgment for Appellee. On appeal, we find that the trial court erred in applying a pedestrian statute to a bicyclist, but that this error was harmless in light of our finding that Appellant was negligent per se in failing to obey the stop sign, and/or in failing to yield to oncoming traffic. We conclude that the evidence preponderates in favor of the trial court's finding that Appellant was at least sixty percent at fault so as to foreclose any recovery under a comparative fault analysis. Affirmed for the reasons discussed herein.

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 ALAN E. HIGHERS, P.J., W.S., and HOLLY M. KIRBY, J., joined.

A. Wilson Wages, Millington, Tennessee, for the appellant, Robert D. Gray.

Sam R. Marney, III and Matthew S. Russell, Germantown, Tennessee, for the appellees, Andy B. Roten, II and Gary B. Roten.

OPINION

On or about September 8, 20041, Robert D. Gray ("Plaintiff," or "Appellant"), who was sixty years old at the time, was riding his bicycle in Millington on Juana Street, near itsintersection with Raleigh-Millington Road. Neither bike lanes nor crosswalks are present at this location. However, there is one stop sign, signaling those traveling on Juana Street to stop before entering Raleigh-Millington Road. According to the testimony, Mr. Gray frequently rode his bicycle around Millington. George Adams, Mr. Gray's brother, testified that Mr. Gray suffered from a mental disability; however, there is no evidence in the record concerning Mr. Gray's exact diagnosis. Mr. Gray was apparently unable to hold a full-time job but took odd jobs from local business owners and collected aluminum cans for recycling. His primary support came from SSI benefits; however, the record is silent as to why he was eligible for SSI. It appears that prior to the accident Mr. Gray was able to take care of his own basic needs and was able to live on his own.

Andy B. Roten, II, who was nineteen years old at the time of the accident, was driving a 1989 Ford F-150 truck, which was titled in his father, Gary B. Roten's (together with Andy Roten, "Defendants," or "Appellees") name. Both Andy and Gary Roten testified that, although Andy Roten had paid his father for the truck, the title had not been transferred and remained in Gary Roten's name at the time of the accident. As Andy Roten traveled North on Raleigh-Millington Road, Mr. Gray emerged from Juana Street, and attempted to cross Raleigh-Millington Road on his bicycle. Despite Andy Roten's efforts to brake, his truck made impact with Mr. Gray in the left-hand, northbound lane of Raleigh-Millington Road. Mr. Gray sustained significant injuries as a result of the accident. Mr. Gray's sister, Lottie Johnson, testified that Mr. Gray came to live with her after the accident. Ms. Johnson also testified that, since the accident, her brother was no longer self-sufficient, and specifically that he can no longer ride his bike or walk on his own, and that he is unable to perform his most basic needs.2

On or about September 8, 2005, Mr. Gray filed a complaint against the Rotens in the Shelby County Circuit Court, alleging negligence and negligence per se against Andy Roten, for which Gary Roten was allegedly vicariously liable under theories of respondeat superior and/or the Family Purpose Automobile Doctrine. On or about October 20, 2005, the Rotens filed their answer, in which they admitted that the accident occurred and that Andy Roten was operating the vehicle. However, the Rotens denied liability and invoked the doctrine of comparative fault. Specifically, the Rotens alleged that Mr. Gray had caused or contributed to the accident by riding his bicycle into the path of the Roten vehicle. The Rotens further alleged that Andy Roten had neither time, nor space, to avoid Mr. Gray's bicycle. On or about July 13, 2007, a consent order was entered, allowing Mr. Gray's brother, George Adams, to be added to the complaint as next friend of Mr. Gray. This amendment was allowed "due to the belief of defense counsel that Plaintiff Robert Gray is mentally incompetent."3

When mediation attempts failed, the case was tried by the court, sitting without a jury, on February 16 and 17, 2009. On March 13, 2009, the trial court entered judgment in favor of the Rotens, specifically finding:

1. That liability for the incident that is the subject of this cause of action should be split with 60% assessed to Plaintiff Robert Gray and 40% assessed to the Defendants;
2. That the Plaintiff would have been entitled to compensatory damages in the total amount of $125,000.00 based upon the testimony at trial as to how this accident has affected Robert Gray and total medical bills of $64,862.65, which the Court finds to be necessary, reasonable, and causally related to the accident;
3. That the testimony and exhibits from Frank Palumbo and Mike Rzesutock were too problematic to assist Judge Robilio in assessing fault;
4. That the Plaintiff had a duty to keep a proper lookout, which he failed to do;
5. That the Plaintiff committed negligence per se by attempting to cross Raleigh-Millington Road where there was no crosswalk;
6. That the Plaintiff had the last clear chance to avoid the accident by waiting until traffic on Raleigh-Millington Road had cleared;
7. That the Defendant Andy Roten had the right to assume that the Plaintiff would obey traffic laws; and8. That the defense witnesses, Paul Collins and Howard Glasper, were credible, especially Howard Glasper's testimony that Andy Roten was driving the speed limit, and that Mr. Glasper was attentive to speed limits because he possessed a commercial driver's license and did not want to receive citations for driving in excess of the speed limit so that he would not lose his commercial driver's license.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that based upon the Plaintiff's 60% fault and the comparative fault laws of the State of Tennessee, the Plaintiff is not entitled to recover any damages from the Defendants; a judgment is awarded for the Defendants; and the case is hereby dismissed at Plaintiff's cost....

On April 13, 2009, and October 8, 2009, respectively, Mr. Gray filed a motion and a supplemental motion to alter or amend the judgment and/or for a new trial, which were heard by the trial court on February 5, 2010, and subsequently denied by order of February 19, 2010. Mr. Gray appeals. We note at the outset that Mr. Gray's statement of the issues presented for appeal fails to comport with Rule 6 of the Rules of the Court of Appeals of Tennessee. Nevertheless, in the interest of expediting this matter, we suspend this requirement and discern the relevant issues to be:

1. Whether the trial court erred in failing to find that Andy Roten violated Tenn. Code Ann. § 55-8-136?
2. Whether the trial court erred in finding that Mr. Gray was negligent per se?
3. Whether the weight of the evidence preponderates against the trial court's finding that Mr. Gray was 60% at fault in the accident?

Because this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R. App. P. 13(d). Furthermore, when the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge who has the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness' testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Whitaker, 957 S.W.2d at 837; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

Negligence

A. Applicability of Tenn. Code Ann. § 55-8-136.

Throughout these proceedings, Mr. Gray has asserted that Andy Roten violated Tenn. Code Ann. § 55-8-136, which provides, in relevant part, as follows:

(a) Notwithstanding the foregoing provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian4 upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

In the first instance, the record clearly establishes that Mr. Gray was not, in fact, a pedestrian at the time of the accident; rather, all of the witnesses to the accident testified that Mr. Gray was actually riding the bicycle when it collided with the Roten truck. Howard Glasper, who was driving his vehicle directly behind the Roten truck at the time of the accident, testified that Mr. Gray "just rolled out" from Juana onto Raleigh-Millington Road and that Mr. Gray was riding the bicycle at that time. Paul Collins, who was waiting to turn left onto Juana, also witnessed the accident and testified that Mr. Gray was riding his bike. Andy Roten testified that he observed Mr. Gray on the bicycle, and that it appeared that Mr. Gray was going to make a...

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