02/11/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
January 5, 2022 Session
ISAAC D. WALKER v. ROBERT L. MCMILLIN ET AL.
Appeal from the Circuit Court for Davidson County
No. 13C3420 Joseph P. Binkley, Jr., Judge
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No. M2020-01507-COA-R3-CV
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This appeal arises from the summary dismissal of a negligence action filed by a plaintiff-
motorist against a truck driver and the driver’s employer. The plaintiff alleged that he was
injured in a single-vehicle accident on Interstate 24 in Nashville, Tennessee, when he
swerved to avoid tire debris from the truck driver’s trailer. The plaintiff further alleged that
the truck driver and his employer were negligent in the maintenance and inspection of the
vehicle, and that the truck driver acted negligently by leaving the debris on the roadway
without attempting to retrieve it, warn other motorists, or call law enforcement. After
discovery, the defendants moved for summary judgment on all claims. The trial court
granted the motion in part, finding no evidence that the tire blowout was caused by a failure
in the maintenance and inspection of the tire. The court also found no evidence that the
truck driver’s failure to call law enforcement caused the accident. But the court asked for
supplemental briefing on whether a driver has a common-law duty to remove from a
roadway tire debris that came from his vehicle and/or a duty to warn motorists of the debris.
After additional briefing and a second hearing, the court summarily dismissed that claim
as well, ruling that the defendant truck driver had no duty as a matter of law to attempt to
retrieve the tire from the interstate highway and that there were no facts to support a finding
that the defendant driver had sufficient time to do so. The plaintiff subsequently filed a
motion to alter or amend, arguing that he was entitled to the benefit of an adverse inference
for spoliation of evidence as a discovery sanction because the defendants failed to preserve
the blown tire. The trial court denied the motion, reasoning that the plaintiff knew about
the potential spoliation issue for six years and failed to raise it in his response to the motion
for summary judgment. This appeal followed. We affirm the trial court in all respects.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.
Erik Wayne Benton, Nashville, Tennessee, and Donald Kelly Vowell, Knoxville,
Tennessee, for the appellant, Isaac D. Walker.
Julie Bhattacharya Peak and Owen Randolph Lipscomb, Brentwood, Tennessee, for the
appellees, Robert L. McMillin and Southern Recycling, LLC.
OPINION
On July 30, 2013, Isaac D. Walker1 (“Plaintiff”) was seriously injured in a single-
car accident that occurred at approximately 1:29 p.m. on Interstate 24 in Nashville,
Tennessee. Plaintiff’s only memory of the accident was seeing a tire tread on the highway
in front of him.2 Eyewitnesses reported that tire debris was in the road, and when Plaintiff
swerved to avoid the debris, his vehicle flipped and Plaintiff was ejected from the vehicle.
A few minutes before Plaintiff’s accident, a truck owned by Southern Recycling,
LLC, and operated by its employee, Robert McMillin, had a tire blowout where Plaintiff
crashed. When the blowout occurred, Mr. McMillin slowed and proceeded to pull onto the
shoulder; however, his vehicle traveled a considerable distance, perhaps as much as one-
half mile, before stopping. As a consequence, the tire debris was a considerable distance
from where Mr. McMillin stopped his vehicle. After stopping, Mr. McMillin promptly set
out warning triangles around his truck and called Southern Recycling’s tire service
provider, Best One Tire & Service, as well as his employer. While sitting in the cab of his
truck waiting for Best One to arrive, Mr. McMillin observed a large cloud of dust in his
rearview mirror, at which time he called 911 to report the accident.
One month later, Plaintiff commenced this action by filing his Complaint against
Mr. McMillin and Southern Recycling, LLC (“Defendants”). Defendants answered the
Complaint and generally denied liability. Plaintiff then sent Defendants an evidence
preservation notice, asking Defendants to preserve relevant evidence, including but not
limited to “the tires which were on [Mr. McMillin’s truck].” Defendants later produced and
provided Plaintiff with a copy of Best One’s repair records, which showed Mr. McMillin’s
old tire was sent back to the Best One repair shop. For reasons that are not explained in the
record, Mr. McMillin’s old tire was not preserved.
1
Plaintiff is identified as both “Isaac D. Walker” and “Isaac O. Walker” in the record.
2
Plaintiff has limited memory of the accident. He does not recall how much of the tire was in the
road and does not know how it got there. He does remember that the tire debris was stationary in the
roadway, stating that “the tire was in the middle of—laying in the road, and I just hit it.”
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Plaintiff then hired a forensic engineer, Steven Koontz, to inspect Mr. McMillin’s
trailer. Mr. Koontz, however, could not determine what caused the tire failure without
inspecting the old tire.
The parties continued with discovery and, in July 2017, Plaintiff filed a Fourth
Amended Complaint that asserted a negligence claim against Mr. McMillin based on
several allegations3:
16. The Defendant, Robert McMillin was negligent in the following
particulars, among others:
a) Negligently failing to maintain the tires on the trailer of the tractor
truck, leading to tire failure in violation of [Federal Motor Carrier
Safety Regulation (“FMCSR”)] §396:11;
b) Failure to perform pre-trip inspection of the vehicle in violation of
FMCSR §396.11;
c) The Defendant operated the vehicle he was driving in a willful and
wanton disregard for the safety of persons and property in violation of
T.C.A. [§] 55-10-205;
d) Defendant McMillin immediately after the tire blowout called Best
One Tire & Service for tire service. While awaiting tire service
Defendant McMillin left the retreaded tire carcass in the roadway for
seven (7) to eight (8) minutes without placing reflective triangles to
warn other motorists to avoid the scene or attempt to safely retrieve
the tire tread from the roadway in violation of T.C.A. § 55-8-136. The
Defendant failed to call local police, the Tennessee Highway Patrol or
any other governmental personnel and inform them of the tire carcass
in the roadway.
In July 2020, Defendants moved for summary judgment on all claims. After a
hearing, the court granted summary judgment in part. The court found, inter alia, that
Plaintiff could not establish his claim of negligence based on the alleged failure to maintain
the tire because there was no evidence of what caused the tire to fail. The court also found
that Plaintiff could not prove Mr. McMillin’s failure to notify law enforcement caused the
accident because there was no evidence that law enforcement would have arrived before
3
Plaintiff asserted that Southern Recycling was vicariously liable for Mr. McMillin’s actions as
well as directly negligent in other regards. Those claims are not at issue on appeal.
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the accident occurred. With regard to Mr. McMillin’s failure to retrieve the tire debris and
warn other motorists, the court found that Tennessee Code Annotated § 55-8-136 was
inapplicable.4 Nonetheless, the court asked the parties to submit supplementary briefs on
two issues: (1) whether the Complaint stated a claim for common-law negligence based on
Mr. McMillin’s failure to retrieve the debris carcass and warn others and, if so, (2) whether
summary judgment was appropriate on that claim.
Plaintiff then filed a “Motion for Reconsideration and for Curative Action.” In that
motion, Plaintiff alleged for the first time that Defendants breached their duty to preserve
Mr. McMillin’s old tire in violation of Tennessee Rule of Civil Procedure 34A.02, and
Plaintiff asserted that he was entitled to a curative jury instruction under Rule 37.02.
Accordingly, Plaintiff asked the court to reconsider its decision to grant summary judgment
under Tennessee Rule of Civil Procedure 54.02. Defendants and Plaintiff also submitted
supplemental briefing on whether summary judgment was appropriate on the common-law
negligence claim based on Mr. McMillin’s alleged failure to retrieve the tire debris.
After another hearing, the trial court entered orders denying the Motion for
Reconsideration and granting summary judgment on the common-law negligence claim.
As for the Motion for Reconsideration, the court noted that Plaintiff’s counsel had known
about the potential spoliation issue since 2013 but provided “no explanation, argument or
affidavits to demonstrate why the new evidence and spoliation theory was not raised before
4
Tennessee Code Annotated § 55-8-136 provides:
(a) Notwithstanding the foregoing provisions of this chapter, every driver of a vehicle shall
exercise due care to avoid colliding with any pedestrian 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.
(b) Notwithstanding any speed limit or zone in effect at the time, or right-of-way rules that
may be applicable, every driver of a vehicle shall exercise due care by operating the
vehicle at a safe speed, by maintaining a safe lookout, by keeping the vehicle under
proper control and by devoting full time and attention to operating the vehicle, under
the existing circumstances as necessary in order to be able to see and to avoid
endangering life, limb or property and to see and avoid colliding with any other vehicle
or person, or any road sign, guard rail or any fixed object either legally using or legally
parked or legally placed, upon any roadway, within or beside the roadway right-of-
way including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or
berm.
(c) A violation of this section is a Class C misdemeanor.
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the hearing on Defendants’ motion for summary judgment.” As a result, the court found
that Plaintiff’s motion was “simply . . . too late.”
As for the common-law negligence claim, the trial court found summary judgment
was appropriate because there were only 5 to 7 minutes between the tire blowout and
Plaintiff’s accident, and retrieving the tire would have required Mr. McMillin to walk into
traffic on an interstate highway. Thus, the court concluded that “there was no duty for
Defendant McMillin to retrieve the tire debris from I-24 as a matter of law when weighing
the foreseeability of injury to third person[s]; the gravity of the harm to Defendant and
others, including Plaintiff; and the burden on the Defendant in doing so.”
This appeal followed.5
ISSUES
Plaintiff raises eight issues on appeal, which we have restated and consolidated.6
Plaintiff’s three issues concerning the trial court’s decision to summarily dismiss his
5
On appeal, Plaintiff has not challenged the trial court’s rulings related to the individual claims
against Mr. McMillin’s employer, Southern Recycling, LLC. As a consequence, Southern Recycling’s
potential liability is limited to vicarious liability for the conduct of its employee, Mr. McMillin. Further,
Plaintiff has not appealed the dismissed claims that (1) Mr. McMillin failed to conduct a pre-trip inspection
and (2) Mr. McMillin negligently operated his vehicle in violation of Tennessee Code Annotated § 55-10-
205.
6
Plaintiff’s issues read as follows:
1. Whether a person who allows, causes, leaves or creates a hazardous condition on a
public roadway has a common law duty to remove the hazard and/or to give warning
of the hazard, for example by placing triangles at or near the hazard; and whether this
principle applies to hazards on the interstate highway system.
2. Whether the trial court erred in ruling that there was no common law duty to remove
the hazard (tire carcass/debris) from the roadway in the case at bar.
3. Whether, in making this ruling, the trial court improperly weighed the evidence.
4. Whether the trial court impermissibly weighed the evidence and substituted its
judgment for that of the jury when it ruled that the “limited time of 5–7 minutes” was
not sufficient, as a matter of law, to allow Mr. McMillin to remove the tire
carcass/debris from the highway, when there was incontrovertible evidence that the
relevant time period was substantially longer than 5–7 minutes and in any event there
was a disputed question of fact as to whether the time available would have been
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negligence claim based on Mr. McMillin’s failure to remove the tire debris or warn others
are restated as follows: (1) Plaintiff contends the trial court erred by “ruling that there is no
common law duty to remove the tire carcass from the roadway”; (2) Plaintiff argues that
the trial court erred by ruling that Mr. McMillin, in particular, had no duty to remove the
tire debris from Interstate 24 or warn others about its presence; and (3) Plaintiff maintains
that the trial court erred by ruling that Plaintiff could not establish that Mr. McMillin’s
failure to remove the debris or warn others caused Plaintiff’s accident. Plaintiff also
contends the trial court erred by denying his Motion for Reconsideration in which he asked
the court to award discovery sanctions under Tennessee Rule of Civil Procedure 34A.02
due to Defendants’ failure to preserve the tire.
Defendants identify eight issues that are similar to those raised by Plaintiff.
Defendants’ issues, as we have restated and consolidated, are: (1) whether Plaintiff’s
Fourth Amended Complaint states a claim of common-law negligence for failure to retrieve
the tire tread or to warn; (2) whether a common-law duty existed that required Mr.
McMillin to enter the interstate highway as a pedestrian to remove the tire debris and, if
so, whether Plaintiff presented competent evidence establishing that Mr. McMillin
sufficient for Mr. McMillin to remove the carcass/debris and/or place triangles near
the carcass/debris or otherwise warn oncoming motorists.
5. Whether the trial court impermissibly weighed the evidence and substituted its
judgment for that of the jury when it ruled as a matter of law that Plaintiff “cannot
establish causation” as to Mr. McMillin’s failure to call the police after the accident
because “Plaintiff has presented no evidence of incident response times” to
demonstrate that the response “would have been within the intervening 5–7 minutes so
as to avoid the accident,” where there was incontrovertible evidence that the time
available was actually substantially more than 5–7 minutes and in any event the time
was substantial enough to present a jury question as to whether the police would have
been able to respond in time to prevent the accident.
6. Whether the trial court erred in dismissing the Complaint because “the cause of the tire
failure cannot be determined in the absence of the subject tire” when Defendants did
not comply with their duty to preserve the tire, and when the Absence of Evidence jury
instruction would create a disputed question of fact as to the condition of the tire.
7. Whether the trial court committed error in refusing to consider Plaintiff’s legal argument
that sanctions should be imposed against the Defendants, with the error occurring when
the court applied the factors to be used in determining whether to consider additional
evidence, as stated by the Tennessee Supreme Court in Harris v. Chern, 33 S.W.3d
741, 742 (Tenn. 2000) to the aspect of Plaintiff’s Motion for Reconsideration that
merely requested the Court to consider additional legal argument.
8. The overall issue of whether the trial court erred in granting Defendants’ Motion for
Summary Judgment by the orders entered on or about September 10, 2020 and October
2, 2020.
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breached that duty; (3) whether Plaintiff presented competent evidence of causation linking
Mr. McMillin’s duty to call law enforcement to Plaintiff’s injury; and (4) whether
application of the “Absence of Evidence” jury instruction applies under these facts and, if
so, whether Plaintiff presented competent evidence to create a genuine issue of material
facts so as to defeat a motion for summary judgment as it relates to the negligent tire
maintenance claim.
STANDARD OF REVIEW
This court reviews a trial court’s decision on a motion for summary judgment de
novo without a presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh
determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.
In so doing, we consider the evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692,
695 (Tenn. 2002).
Summary judgment should be granted when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary judgment
does not bear the burden of proof at trial, it “may satisfy its burden of production either (1)
by affirmatively negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye, 477 S.W.3d at 264.
When a motion for summary judgment is made and supported as provided in
Tennessee Rule of Civil Procedure 56, the nonmoving party may not rest on the allegations
or denials in its pleadings. Id. at 265. Instead, the nonmoving party must respond with
specific facts showing there is a genuine issue for trial. Id. A fact is material “if it must be
decided in order to resolve the substantive claim or defense at which the motion is
directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A “genuine issue” exists if “a
reasonable jury could legitimately resolve that fact in favor of one side or the other.” Id.
ANALYSIS
I. FAILURE TO PLEAD A COMMON-LAW CLAIM OF NEGLIGENCE
Defendants argue that the trial court erred by finding that Plaintiff’s Complaint
pleaded a common-law claim for negligence based on Mr. McMillin’s failure to remove
the tire debris or warn others. Plaintiff responds that Defendants waived this issue by not
raising it before the trial court. We agree that Defendants waived this issue.
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In its Order of Partial Summary Judgment, the trial court asked Defendants for
additional briefing on two issues: (1) “whether Plaintiff’s Fourth Amended Complaint as
written states a common law claim for negligence for failing to retrieve the tire tread from
the roadway or place triangles near the tire carcass to warn motorist[s]” and (2) “whether
any such claim is also subject to summary dismissal at this time based upon factual and
legal arguments.” In their Supplemental Brief, Defendants addressed only the latter of these
two issues and, significantly, they did not raise the defense that such a claim had not been
affirmatively pleaded.
Subject to some exceptions not applicable here, “issues are properly raised on appeal
. . . when they have been raised and preserved [in the trial court].” Hodge v. Craig, 382
S.W.3d 325, 334 (Tenn. 2012); see also Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn.
1976) (explaining that appellate courts are courts “of appeals and errors,” and “are limited
in authority to the adjudication of issues that are presented and decided in the trial courts”).
Moreover, “[w]hen issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been raised in the
pleadings.” Tenn. R. Civ. P. 15.02.
Here, Defendants did not dispute or otherwise preserve the issue of whether the
Fourth Amended Complaint stated a claim of common-law negligence based on Mr.
McMillin’s alleged duty to remove the tire tread and warn other motorists, despite the trial
court’s invitation for briefing on that issue. As a result, we find Defendants failed to
preserve this issue for appeal.
II. FAILURE TO REMOVE DEBRIS OR WARN OTHERS
Duty is the first of several elements that a plaintiff must prove to establish a prima
facie negligence claim. See Cotten v. Wilson, 576 S.W.3d 626, 637 (Tenn. 2019). Whether
a duty exists is “a question of law to be determined by courts.” Satterfield v. Breeding
Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). Thus, a motion for summary judgment
“may be used to determine whether a defendant owes a duty to a plaintiff in a particular
circumstance.” Rains v. Bend of the River, 124 S.W.3d 580, 588 (Tenn. Ct. App. 2003)
(citations omitted).
Duty has been defined as the legal obligation owed by a defendant to a plaintiff “to
conform to a reasonable person standard of care for the protection against unreasonable
risks of harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). “A risk is
unreasonable and gives rise to a duty to act with due care if the foreseeable probability and
gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to
engage in alternative conduct that would have prevented the harm.” Id.
In Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008), the
Tennessee Supreme Court articulated several factors to be considered when determining
whether a duty of reasonable care exists:
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(1) the foreseeable probability of the harm or injury occurring; (2) the
possible magnitude of the potential harm or injury; (3) the importance or
social value of the activity engaged in by the defendant; (4) the usefulness of
the conduct to the defendant; (5) the feasibility of alternative conduct that is
safer; (6) the relative costs and burdens associated with that safer conduct;
(7) the relative usefulness of the safer conduct; and (8) the relative safety of
alternative conduct.
Id. at 365.
Here, the trial court concluded that Mr. McMillin did not have a duty to retrieve the
tire carcass from the roadway after weighing several of the Satterfield factors:
[T]his Court finds that it is not a normal response for a person to enter a[]
six-lane interstate with vehicle speeds of 55–65 mph, on foot, without any
safety protocol in place to retrieve a piece of tire that came off of his vehicle.
Therefore, this Court finds that there was no duty for Defendant McMillin to
retrieve the tire debris from I-24 as a matter of law when weighing the
foreseeability of injury to third person; the gravity of the harm to Defendant
and others, including Plaintiff; and the burden on the Defendant in doing so.
In reaching its decision, the court was particularly persuaded by two federal district-
court cases, Bice v. Cooper Tire & Rubber Co., No. 3:15-CV-862, 2016 WL 6875973
(M.D. Tenn. Nov. 22, 2016), and Hensley v. Rector, No. 2:03-CV-343, 2005 WL 3088353
(E.D. Tenn. Nov. 17, 2005). In Bice, the court stated that it was “not a normal response” to
a tire blowout to “enter the Interstate on foot, without any safety protocol in place” to try
to retrieve the tire debris. 2016 WL 6875973, at *4. The court reasoned that “a pedestrian
in the roadway is itself a clear safety threat that supersedes any risk from debris.” Id. In
Hensley, another court found that traveling across an interstate highway on foot was “not
only an illegal act but grossly negligent.” 2005 WL 3088353, at *3.
We agree with the trial court’s analysis and its conclusion. As stated in Satterfield,
the factors to be considered when determining whether a duty exists include “the feasibility
of alternative conduct that is safer,” “the relative costs and burdens associated with that
safer conduct,” and “the relative safety of alternative conduct.” 266 S.W.3d at 365. In this
case, retrieving the tire tread would have required Mr. McMillin to walk—or run—into the
middle of an active interstate highway. This cannot be described as relatively safe conduct.
The associated costs and burdens of attempting to retrieve the tire are readily apparent
given the high rate of speed at which motorists drive on closed-access highways such as
Interstate 24.
We recognize that the first factor in Satterfield is “the foreseeable probability of the
harm or injury occurring,” see id., and that the presence of a large tire tread in the middle
of an interstate highway poses a foreseeable risk of harm or injury to motorists.
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Nonetheless, requiring Mr. McMillin to traverse the highway, gather the debris, and return
to the shoulder would simply compound the risk of harm. See Bice, 2016 WL 6875973, at
*4 (“[A] pedestrian in the roadway is itself a clear safety threat that supersedes any risk
from debris.”).
The same reasoning applies to Mr. McMillin’s alleged duty to warn others about the
tire tread. In his Fourth Amended Complaint, Plaintiff asserted that Mr. McMillin acted
negligently when he failed to place “triangles to warn other motorists to avoid the scene.”
Like walking onto an interstate highway to retrieve tire debris, walking onto an interstate
highway to place additional objects around the tire debris cannot be described as relatively
safe conduct.
For these reasons, we affirm the trial court’s decision to dismiss Plaintiff’s common-
law claim for negligence based on the alleged failure to retrieve or warn others about the
tire debris.
III. FAILURE TO CALL LAW ENFORCEMENT
In the Fourth Amended Complaint, Plaintiff alleged that Mr. McMillin acted
negligently when he “failed to call local police, the Tennessee Highway Patrol or any other
governmental personnel and inform them of the tire carcass in the roadway.” The trial court
summarily dismissed the claim based on the determination that Plaintiff could not establish
causation.7 Plaintiff contends this was error.
In their Motion for Summary Judgment, Defendants argued that there was “no
evidence that had local police or Tennessee Highway Patrol been called, that they would
have responded and retrieved the tire carcass in the intervening 5–7 minutes before Plaintiff
encountered it.” Moreover, Defendants relied on the fact that Mr. McMillin took
affirmative action by calling Best One to provide roadside assistance and was told that they
were on the way. Plaintiff responded to this assertion by simply contending that Mr.
McMillin “had a duty to do more than sit in his truck and call his supervisor and the tire
company.”
In its Order of Partial Summary Judgment, the court found that Plaintiff could not
establish causation as to his claim that Mr. McMillin was negligent for failing to call law
enforcement:
7
The trial court did not make an express determination that Mr. McMillin had an affirmative duty
to call local police, the Tennessee Highway Patrol, or any other governmental personnel and inform them
of the tire carcass in the roadway. The trial court did, however, determine that Plaintiff failed to present
sufficient facts to establish causation concerning this claim. Accordingly, it is implicit in the trial court’s
ruling that Mr. McMillin had a duty to call, and the parties do not raise this as an issue in this appeal.
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Plaintiff cannot establish causation as to . . . his claim that the Defendants
were negligent for failing to call local police, the Tennessee Highway Patrol,
or other government personnel and inform them of the tire carcass in the
roadway. Plaintiff has presented no evidence of incident response times by
law enforcement or any other competent or admissible evidence to
demonstrate that had Defendant contacted law enforcement immediately
following the [tire failure] any such responses would have been [within] the
intervening 5–7 minutes so as to avoid the accident. As such, Plaintiff cannot
establish causation as to this aspect of his claim.
Plaintiff contends that the trial court overlooked two important facts in its analysis.
First, Mr. McMillin’s deposition testimony shows there were more than 5–7 minutes
between the time of the tire blowout and the accident. Second, the deposition testimony of
Metropolitan Police Department Officer W.A. Whitworth provides evidence that law
enforcement could have responded to a call in 9 minutes. Thus, Plaintiff argues that there
was enough evidence to create a genuine issue of material fact as to whether law
enforcement could have responded in time.
However, Plaintiff failed to present these facts in his initial response to Defendants’
Motion for Summary Judgment or in his subsequent Motion for Reconsideration. When a
motion for summary judgment is made and supported as provided in Tennessee Rule of
Civil Procedure 56, the nonmoving party must respond with specific facts showing there
is a genuine issue for trial. Rye, 477 S.W.3d at 265. In addition to responding to the moving
party’s statement of material facts, the nonmoving party may file its own statement of
additional facts. See Tenn. R. Civ. P. 56.03. Plaintiff, however, failed to set forth the facts
he now relies upon in his response in the trial court.
In Paragraph 14 of their Statement of Undisputed Material Facts, Defendants
asserted that “[a]pproximately 5–7 minutes passed between the time of Defendant’s tire
blow out and Plaintiff’s accident.” Plaintiff responded, “Plaintiff admits the averments
contained in Paragraph 14 for the purposes of this Summary Judgment matter.” Moreover,
and significantly, Plaintiff did not file an additional statement of facts and did not mention
Officer Whitworth’s testimony to rebut Plaintiff’s assertion that there was “no evidence
that had local police or Tennessee Highway Patrol been called, that they would have
responded and retrieved the tire carcass in the intervening 5–7 minutes before Plaintiff
encountered it.”
Because “the material facts set forth in the statement of the moving party may be
deemed admitted in the absence of a statement controverting them by the opposing party,”
Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (citation omitted),
we find the trial court did not err by relying on the undisputed facts stated in Defendants’
Statement of Material Facts. Accordingly, we affirm the trial court’s ruling on this claim.
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IV. DISCOVERY SANCTION AND MOTION TO ALTER OR AMEND
Plaintiff contends the trial court erred by denying his Motion for Reconsideration.
In that motion, Plaintiff asked the court to alter or amend its Order for Partial Summary
Judgment and give Plaintiff an adverse-inference jury instruction as a Rule 37 discovery
sanction for Defendants’ failure to preserve Mr. McMillin’s tire. Plaintiff argues that the
adverse-inference instruction would have created “a disputed question of fact as to the
condition of the tire.”8 Plaintiff’s request for an adverse-inference ruling was based on the
reasoning in Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734 (Tenn. 2015),
that “the intentional spoliation or destruction of evidence relevant to a case raises a
presumption, or, more properly, an inference, that the evidence would have been
unfavorable to the cause of the spoliator.” Id. at 741 (quoting Thurman-Bryant Elec. Supply
Co., Inc. v. Unisys Corp., Inc., No. 03A01-CV00152, 1991 WL 222256, at *5 (Tenn. Ct.
App. Nov. 4, 1991)).
The trial court analyzed Plaintiff’s Motion for Reconsideration under Rule 54.02
and found that the motion was, in essence, too-little-too-late. The court noted that Plaintiff
learned about the loss of the tire over six years prior, in October 2013, but had not explained
why he waited to move for discovery sanctions. Accordingly, the trial court found the
request to alter or amend the summary judgment order was unavailing.
We review a trial court’s decision to grant or deny a motion to alter or amend under
an abuse of discretion standard. See Harmon v. Hickman Cmty. Healthcare Servs., Inc.,
594 S.W.3d 297, 305 (Tenn. 2020). The abuse of discretion standard does not allow
reviewing courts to substitute their discretion for that of the trial court. Lee Med., Inc. v.
Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). Still, the abuse of discretion standard does
not “immunize a [trial] court’s decision from any meaningful appellate scrutiny”:
To avoid result-oriented decisions or seemingly irreconcilable precedents,
reviewing courts should review a [trial] court’s discretionary decision to
determine (1) whether the factual basis for the decision is properly supported
by evidence in the record, (2) whether the [trial] court properly identified and
applied the most appropriate legal principles applicable to the decision, and
(3) whether the [trial] court’s decision was within the range of acceptable
alternative dispositions.
Id.
8
Plaintiff contended he was entitled to a discovery sanction pursuant to Tennessee Rule of Civil
Procedure 34A.02, which reads: “Rule 37 sanctions may be imposed upon a party or an agent of a party
who discards, destroys, mutilates, alters, or conceals evidence.”
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There is no dispute over the first element of the abuse of discretion framework,
whether the facts the trial court relied on are properly supported by evidence in the record.
Instead, Plaintiff’s challenge falls under the second element, whether the court properly
identified and applied the most appropriate legal principles applicable to the decision.
Specifically, Plaintiff contends the trial court erred by applying the multifactor test for Rule
54.02 motions as stated in Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000).
In Harris, the Tennessee Supreme Court adopted “a non-exclusive balancing test to
be applied” to Rule 54.02 motions “when additional evidence is submitted to overcome a
grant of partial summary judgment.”9 Id. at 745. The test set forth in Harris includes five
factors:
When additional evidence is submitted in support of a Rule 54.02 motion to
revise a grant of summary judgment, a trial court should consider, when
applicable: 1) the movant’s efforts to obtain evidence to respond to the
motion for summary judgment; 2) the importance of the newly submitted
evidence to the movant’s case; 3) the explanation offered by the movant for
its failure to offer the newly submitted evidence in its initial response to the
motion for summary judgment; 4) the likelihood that the nonmoving party
will suffer unfair prejudice; and 5) any other relevant factor.
Id.
Although Plaintiff argues on appeal that the trial court erred by relying on the
Harris test, Plaintiff himself cited and relied on the Harris test in his Motion for
Reconsideration. Thus, we find Plaintiff’s contention on appeal that the trial court erred by
applying these factors is not well-taken.
More significantly, we find that the trial court applied the correct legal principles by
relying on the Harris test because Plaintiff’s Motion for Reconsideration relied on evidence
that could have been, but was not, submitted in his initial response to the Motion for
Summary Judgment. The third Harris factor is “the explanation offered by the movant for
its failure to offer the newly submitted evidence in its initial response to the motion for
summary judgment.” Id. (emphasis added). The trial court considered this factor and found
that Plaintiff provided no reasonable explanation.
On this note, Plaintiff argues that the Harris test applies only when a party is seeking
to introduce “newly submitted” evidence, and the evidence of spoliation was not “newly
submitted” because it was filed with the court before the first summary judgment hearing.
9
Plaintiff filed his Motion for Reconsideration after the trial court announced it was granting
summary judgment on all claims except the common-law claim based on Mr. McMillin’s failure to retrieve
the tire or warn others.
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Specifically, Plaintiff filed a copy of Best One’s repair records three days before the first
summary judgment hearing in August 2020. Plaintiff did not, however, file the repair
records or allege spoliation in his initial response to Defendants’ Motion for Summary
Judgment. Further, when he filed the records just days before the hearing, Plaintiff did not
include a motion or otherwise explain the significance of the records. Moreover, Plaintiff
did not bring up the records or the issue of spoliation during the summary judgment
hearing. Thus, we find the trial court acted appropriately by treating the Best One’s repair
records as “newly submitted” evidence under the Harris test.
The final factor for consideration under the abuse of discretion framework is
whether the trial court’s decision falls within the range of acceptable alternatives. See Lee
Med., Inc., 312 S.W.3d at 524. In considering this factor, we must be mindful of the
limitations set forth in the abuse of discretion standard:
[T]he abuse of discretion standard of review does not permit an appellate
court to substitute its judgment for that of the trial court. Rather, because, by
their very nature, discretionary decisions involve a choice among acceptable
alternatives, reviewing courts will not second-guess a trial court’s exercise
of its discretion simply because the trial court chose an alternative that the
appellate courts would not have chosen. Accordingly, if the reviewing court
determines that reasonable minds can disagree with the propriety of the
decision, the decision should be affirmed.
Harmon, 594 S.W.3d at 306 (alteration in original) (quoting State v. McCaleb, 582 S.W.3d
179, 186 (Tenn. 2019)).
The trial court acknowledged that the theory and evidence of spoliation were
important to Plaintiff’s case. But the court found that the theory and evidence of spoliation
were available to Plaintiff long before the hearing on Defendants’ Motion for Summary
Judgment in August 2020 because Plaintiff had known of the spoliation issue since October
2013—nearly seven years earlier. The court also found that Plaintiff offered no explanation
for not raising the spoliation issue in response to Defendants’ Motion for Summary
Judgment. Weighing these factors, the court denied Plaintiff’s Motion for Reconsideration.
We find this decision is not outside the range of acceptable dispositions. Accordingly, we
affirm the trial court’s ruling on this issue.
IN CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. Costs of appeal
are assessed to Isaac D. Walker.
________________________________
FRANK G. CLEMENT JR., P.J., M.S.
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