EASLEY v. CITY OF MEMPHIS (2024)

ORDER

Sandra Easley brought this tort action against the City of Memphis pursuant to the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated sections 29-20-101 to -408. Easley alleges that she was injured when a City-owned truck negligently hit her while she was attempting to cross a street between intersections in downtown Memphis. Easley claims that the City is vicariously liable for the truck driver's negligence.

The Circuit Court conducted a bench trial and, after hearing conflicting testimony from Easley and the truck driver, credited Easley's version of events. Specifically, the Circuit Court found that Easley was following several other pedestrians who were crossing in front of stopped traffic when the City truck moved forward and hit her. The Circuit Court found that the truck driver was negligently talking on his phone at the time of the accident and that this distraction primarily caused Easley's injuries. The Circuit Court disbelieved the truck driver's testimony that Easley simply “walked into his truck” and that he was not talking on his phone. The Circuit Court allocated 90% fault to the City and 10% fault to Easley, resulting in a judgment for Easley in the amount of $95,858.56.

The Court of Appeals reversed the Circuit Court's judgment and dismissed Easley's claims, concluding that Easley had to be at least 50% at fault because she was cited for crossing the street between intersections, violating Tennessee Code Annotated section 55-8-135(a). Easley v. City of Memphis, No. W2023-00437-COA-R3-CV, 2024 WL 1916227, at *6 (Tenn. Ct. App. May 1, 2024). That provision requires pedestrians crossing outside of a crosswalk to “yield the right-of-way to all vehicles upon the roadway.” Tenn. Code Ann. § 55-8-135(a). Easley seeks permission to appeal the Court of Appeals’ judgment pursuant to Tennessee Rule of Appellate Procedure 11.

Upon consideration of Easley's application for permission to appeal, the City's response, and the entire record before us, we conclude that the Court of Appeals’ opinion is inconsistent with the applicable standard of review and fails to give appropriate weight to the Circuit Court's factual findings and credibility determinations. Accordingly, we grant Easley's application, vacate the Court of Appeals’ judgment, and remand for further consideration consistent with this Order.

A trial court's allocation of fault after a bench trial is a question of fact. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). And a trial court's factual findings are presumptively correct and must be honored unless there is evidence which preponderates to the contrary. See Keyt v. Keyt, 244 S.W.3d 321, 327 (Tenn. 2007); Tenn. R. App. P. 13(d). This standard of review is particularly deferential when the trial court is presented with conflicting trial testimony that it must reconcile as the factfinder. See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). “Unlike appellate courts, trial courts are able to observe witnesses as they testify and to assess their demeanor, which best situates trial judges to evaluate witness credibility.” Id.

Accordingly, appellate courts must give “considerable deference” to a trial court's factual findings if the court heard conflicting in-court testimony and issues of credibility are involved. Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). Indeed, appellate courts should not reverse a trial court's credibility-based factual findings “absent clear evidence to the contrary.” In re Markus E., 671 S.W.3d 437, 457 (Tenn. 2023); accord Wells, 9 S.W.3d at 783. This deference must be given to a trial court's express credibility determinations and those implied in its holdings. See Williams v. City of Burns, 465 S.W.3d 96, 120 (Tenn. 2015).

The Court of Appeals’ opinion in this case is inconsistent with these principles. As noted above, the Circuit Court was presented with conflicting testimony from Easley and the City truck driver, requiring it to make credibility determinations in evaluating what occurred on the day of the accident. The Circuit Court did so, expressly crediting Easley's testimony that she was following several other pedestrians who were crossing in front of stopped traffic and that the City truck driver hit Easley because he was distracted by his telephone. The Circuit Court likewise expressly disbelieved the truck driver's claims that he was not on his phone and that Easley simply “walked into” his truck.

The Court of Appeals’ opinion does not point to any evidence that would warrant reversal of these credibility-based factual findings on appeal. Although the Court of Appeals found aspects of Easley's trial testimony to be “conflicting,” see Easley, 2024 WL 1916227, at *6, the purported inconsistencies do not constitute the type of clear evidence necessary to override the Circuit Court's underlying credibility-based findings. For example, the Court of Appeals states that Easley “claimed she could observe [the truck driver] using his phone, [but] also stated that she could not see where he was looking.” Id. But Easley's testimony was far more cabined than the Court of Appeals suggests. When asked by her lawyer if the truck driver was looking forward at the time of the accident, Easley merely stated that she could not “exactly say he was looking forward, but [she] was watching him as [she] attempted to cross the street” and she saw that “[h]e was on the phone.” In any event, any potential inconsistency in Easley's oral testimony was primarily for the Circuit Court to consider in evaluating witness credibility. Notably, the City did not introduce—and the record does not contain—the truck driver's phone records, which might constitute the type of clear evidence sufficient to override the Circuit Court's finding that the driver was on his phone at the time of the accident. Without that type of evidence, the Court of Appeals should have credited the Circuit Court's credibility-based findings in evaluating the Circuit Court's allocation of fault.

The Court of Appeals concludes that Easley cannot recover because she was hit while crossing the street between intersections in violation of Tennessee Code Annotated section 55-8-135(a). Id. But a plaintiff's negligence—even negligence per se—is not an automatic bar to recovery under Tennessee's comparative-fault system. A plaintiff's claim is barred only if the plaintiff's negligence is equal to or greater than the defendant's negligence. See McIntyre v. Balentine, 833 S.W.2d 52, 57–58 (Tenn. 1992). The Court of Appeals cites no authority—and we are aware of none—holding that a plaintiff crossing outside of the crosswalk is necessarily at least 50% negligent when she is struck by a distracted motorist.

In fact, drivers are statutorily required to use due care to watch for and avoid hitting all pedestrians, including pedestrians crossing outside of a crosswalk. See Tenn. Code Ann. § 55-8-136(b) (providing that drivers have a duty to “maintain[ ] a safe lookout” and “avoid colliding with any other vehicle or person” “[n]otwithstanding any ․ right-of-way rules that may be applicable”); see also Seahorn v. Karr, 35 Tenn.App. 38, 242 S.W.2d 331, 334 (1951) (explaining that “a pedestrian who undertakes to cross a street or highway at any point other than a [crosswalk] must yield the right of way to vehicles” but “[t]his does not mean ․ that the driver of a vehicle is relieved of the duty of maintaining a reasonable lookout for pedestrians between intersections”).

The Circuit Court acknowledged that Easley was negligently crossing outside of the crosswalk at the time of the incident. The Circuit Court nevertheless weighed the conflicting testimony and determined that the City was primarily responsible for the incident given the truck driver's negligent failure to keep a proper lookout (in violation of Tennessee Code Annotated section 55-8-136(b)), his reckless driving (in violation of Tennessee Code Annotated section 55-10-205(a)), and his negligent decision to talk on the phone while driving (conduct that is now generally prohibited by Tennessee Code Annotated section 55-8-199).

The question on appeal is not whether the appellate court would have made the same allocation of fault if it sat as the trier of fact. Rather, the question is whether the trial court exceeded its “considerable latitude in allocating percentages of fault to [the] negligent parties.” Wright, 898 S.W.2d at 181. To alter the Circuit Court's allocation of fault, the Court of Appeals need not find clear error. See Cross v. City of Memphis, 20 S.W.3d 642, 644–45 (Tenn. 2000). But it must give due weight to the Circuit Court's factual findings and credibility determinations in evaluating whether the record preponderates against the Circuit Court's presumptively correct allocation of fault. We remand the case to the Court of Appeals for this purpose.

Finally, the Circuit Court's final order includes a perfunctory finding that the City negligently hired and failed to train the truck driver. The Court of Appeals found no evidence in the record to support this finding, and Easley does not challenge this aspect of the Court of Appeals’ judgment. See Easley, 2024 WL 1916227, at *5. On remand, the Court of Appeals should consider, as necessary, whether the case should be remanded to the Circuit Court to re-allocate fault among the parties given the Circuit Court's unsupported finding that the City was negligent in hiring and failing to train the truck driver. The Court of Appeals should also consider, as necessary, the other issues that the City raised on appeal, which were pretermitted by the Court of Appeals’ resolution of the allocation-of-fault issue.

For these reasons, we grant Easley's application, vacate the Court of Appeals’ judgment, and remand the case to the Court of Appeals for further consideration consistent with this Order. The costs of this appeal are taxed to the defendant, the City of Memphis, for which execution may issue if necessary.

This order is designated for publication pursuant to Tennessee Supreme Court Rule 4.

PER CURIAM