Day on Torts
A trial court’s ruling for plaintiff was overturned where plaintiff stepped off a curb between parked cars, not in a crosswalk, and was hit by a truck while attempting to cross the road.
In Easley v. City of Memphis, No. W2023-00437-COA-R3-CV (Tenn. Ct. App. May 1, 2024), plaintiff attempted to cross the street in the middle of a block. A crosswalk existed forty feet away, but plaintiff failed to use it. Instead, plaintiff stepped off the curb between parked cars and was hit by a city employee driving a truck. Plaintiff filed this case against the city as the driver’s employer pursuant to the GTLA.
At trial, plaintiff’s testimony shifted. While she initially testified that the driver was looking at his phone, she also testified that she could not see where he was looking. She also stated that the driver stopped to allow pedestrians to cross, but then testified that he stopped due to a red light.
The driver testified for defendant, and he stated that he was not on his phone. He maintained that he stopped for a red light, and when the light turned green and he took his foot off the brake, plaintiff walked into his truck.
The trial court found defendant city liable, placing only 10% of the fault on plaintiff. The trial court awarded plaintiff $106,580.06 in damages. On appeal, this ruling was reversed.
The Court of Appeals began its analysis by noting that the trial court failed to properly apportion fault. The trial court stated in its order that the city was both vicariously liable for the employee’s negligence and directly liable for negligent hiring and retention. When an employer is vicariously liable and liable in its own right, fault should be apportioned between the plaintiff, the employee, and the employer. (internal citation omitted). Here, however, the trial court only apportioned fault to the driver and the plaintiff, and even those fault attributions were not clear, as the 90% was attributed once to the driver and once directly to the City within the order.
After reviewing this inconsistency, the Court found that the City had no direct liability for negligent hiring and retention here based on a lack of evidence. The Court pointed out that plaintiff introduced no evidence whatsoever about the driver’s unfitness for his job. Without such evidence, the trial court’s ruling on the negligent hiring and retention claim required reversal.
Next, the Court considered the allocation of only 10% of fault to plaintiff. The Court cited Tenn. Code Ann. § 55-8-135 which states that “every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.” Noting that violating this statute is not an automatic bar to a pedestrian’s potential recovery, the Court then considered the facts presented here. Plaintiff was apparently not aware enough of her surroundings to realize the light had turned green. She was not able to see the driver clearly, and thus could not be sure he saw her. The roadway was heavily trafficked and she stepped out from between two parked cars. Further, she failed to use a crosswalk that was close by. Considering all the facts, the Court of Appeals ruled that plaintiff was at least 50% at fault for the incident, and that her fault barred her from recovery here.
The trial court’s ruling was reversed.
The Court of Appeals released this opinion 2.5 months after oral arguments.