In Peters-Asbury v. Knoxville Area Transit, Inc., No. E2015-01816-COA-R3-CV (Tenn. Ct. App. Aug. 8, 2016), the Court of Appeals overturned a bench trial negligence verdict.
Plaintiff was a student at the University of Tennessee with limited mobility due to a previous knee injury. For students with disabilities, UT provided transportation through an agreement with Knoxville Area Transit, Inc. (“KAT”), who was the defendant in this case. On the morning of the incident, plaintiff called the KAT operator and asked to be taken to the Office of Disability Services. Disability Services was located in Dunford Hall, which had a main entrance and a side entrance. The side entrance was closest to the Disability Services Office. A bus came to pick up plaintiff, and she repeated to the driver that she wanted to be taken to Disability Services. Accordingly, the driver took her to the side entrance of Dunford Hall. As plaintiff took her first step off the bus, she fell and fractured her right ankle. Plaintiff suffered many complications from the fall, eventually withdrawing from UT for the semester and moving to a single-level home with her family, and having surgery more than a year and a half after the fall.
Plaintiff brought this negligence action against defendant, asserting in her original complaint that the driver “had acted negligently in dropping [plaintiff] off at the side entrance to Dunford Hall, which [she] asserted was ‘an inappropriate and unreasonably dangerous location,’ rather than at the building’s main entrance.” After discovery, during which defendant produced a low-quality video of the incident taken from inside the bus, plaintiff amended her complaint to also allege that the driver negligently caused her to fall “by moving the bus forward as she was exiting the bus onto the pavement.”
During the trial, evidence was presented regarding both negligence theories. On her theory that she was dropped off in an unsafe area, plaintiff “testified that the main entrance was the safer of the two locations for mobility impaired students because the area around it was flat and clear, while the area around the side entrance was inclined and surrounded by landscaping.” Plaintiff alleged that debris could wash down onto the side entrance, but admitted on cross-examination that she did not step on any debris when she fell.
Regarding the alleged movement of the bus, plaintiff “testified that although she initially did not know whether the bus was moving as she exited, she suspected that it might have. She testified that she understood that the bus’s movement caused her to fall after viewing the video during discovery.” The driver, on the other hand, “testified that he never took his foot off of the brake…and that the bus was not moving as she exited.” The driver asserted that the video showed that the us was not moving during the exit.
Ultimately, the trial court “found no evidence that [plaintiff] was dropped off in a dangerous location,” but did find for plaintiff on the bus movement theory. On this issue, the trial court based its ruling on its review of the video and ruled that the bus was moving. Accordingly, plaintiff was awarded damages for medical expenses, tuition, living expenses, and pain and suffering. The Court of Appeals, however, overturned this award.
On appeal, the Court of Appeals noted that the standard of review here was “de novo upon the record of the trial court, accompanied by a presumption of correctness, unless the preponderance of the evidence is otherwise.” (internal citation omitted). The Court pointed out that the issue surrounded whether defendant breached its duty of care to plaintiff by either dropping her off in an unsafe location or moving the bus while she was getting off. On the location issue, the Court affirmed the trial court’s ruling that the driver was not negligent in dropping plaintiff off at the side entrance. The Court noted that, while plaintiff testified that “the area around the side entrance was inclined and surrounded by landscaping,” she had offered no link between these surroundings and her fall. Further, plaintiff specifically asked to be dropped off at Disability Services, which is located at this side entrance. The Court stated that it was “not willing to hold that [the driver] acted negligently by dropping [plaintiff] off as close to her requested destination as possible under these circumstances.”
As to the issue of whether the bus moved, the Court pointed out that the trial court based its ruling “solely on video,” and that since the Court was “equally capable of reviewing that video evidence, [it] review[ed] this issue de novo without a presumption that the trial court’s finding is correct.” The Court engaged in a thorough analysis of the video, pointing out the stationery objects that were visible as points of reference throughout. The Court noted the position of a parked car’s bumper, which it stated “did not move as [plaintiff] exited.” Further, the Court took note of apparent movement on the video, but attributed it to “the feet of a pedestrian walking past the bus,” an explanation the Court said was corroborated by plaintiff’s testimony. Ultimately, the Court reasoned:
[I]t is our view that the video supports a finding that the bus was not moving at that time. Moreover, there is no other evidence in the record to support the trial court’s finding that the bus was moving. Of the two witnesses with direct knowledge of the incident, [plaintiff] testified that she did not have any recollection of the bus moving independent from the video, and [the driver] maintained that the bus was not moving. As such, we conclude that [plaintiff] failed to present any evidence to establish that KAT’s conduct fell below the standard of care.
The trial court’s finding of negligence and award to plaintiff was thus reversed.