Day on Torts
Where defendants’ truck rolled into a duplex owned by plaintiff causing real property damage, a directed verdict for defendants on all but plaintiff’s negligence claim as well as a jury verdict for diminution in value to the property was affirmed.
In Twenty Holdings, LLC v. Land South LLC and Brandon Majors, No. M2018-01903-COA-R3-CV (Tenn. Ct. App. Sept. 5, 2019), plaintiff owned a duplex in Nashville, and defendant Majors lived nearby. Majors drove a tractor trailer truck for defendant Land South, and on the day of the incident, he “parked the truck, with an attached 53 foot trailer…, near his residence at the top of a steep hill with the front of the truck pointing toward the drop off of the hill and toward Plaintiff’s property.” Within hours of the truck being parked, it rolled down the hill. The trailer detached from the truck, but the truck portion struck the duplex and stopped in one of the living rooms, causing significant damage to the building. According to Majors, he had parked the truck on a safe area and “took various precautions in securing the tractor-trailer, including engaging the parking brake, placing garden timbers under the wheels, letting the trailer down, and placing the tractor-trailer in reverse.”
Plaintiff filed a complaint against defendant driver and his employer for negligence, gross negligence, recklessness, trespass, negligent hiring, negligent entrustment, and punitive damages. After several evidentiary disputes and motions in limine, this case proceeded to a jury trial. At the close of plaintiff’s proof, the trial court directed a verdict for defendant on all claims except the negligence claim. Later, the jury returned a verdict for plaintiff for $185,000 for the diminution in value to the real property. On appeal, the Court of Appeals affirmed all the rulings.
In a lengthy opinion, the Court analyzed several issues raised by the parties. First, the Court addressed plaintiff’s argument that the trial court erred by failing to determine whether the truck was a commercial or farm vehicle and excluding evidence about whether defendant kept appropriate records for a commercial vehicle. The background on this issue was extensive—the trial court had initially made a spoliation ruling based on the sale of the truck, but had later modified that ruling. Plaintiff asserted that it should have been allowed to introduce evidence regarding defendant’s record keeping after the modification of the spoliation ruling, but the transcript revealed that when plaintiff made this argument during the trial and was faced with the prospect of either getting to go to trial and not present evidence about record keeping or take a mistrial, plaintiff chose to go to trial. The Court stated that “where a party could have nullified an error by taking an offered mistrial, the party [is] not entitled to appellate relief.” (internal citation omitted). Because plaintiff declined the mistrial and chose to move forward with the trial, no relief could be granted on this issue.
Next, plaintiff asserted that the trial court wrongly directed a verdict for defendants on the trespass claim. While plaintiff presented evidence from an investigating police officer that Majors did not engage the brakes when parking the truck, the trial court found that such a conclusion was beyond the officer’s expertise and specifically did not accept his opinion. Accordingly, the trial court found, and the Court of Appeals agreed, that there were no facts upon which to base a trespass claim. Trespass is an intentional tort, and while the tortfeasor does not have to have the intent to specifically trespass, such a claim “requires the intentional entry onto the land of another.” (internal citation and quotation omitted). “Here, defendants did not drive the tractor-trailer onto plaintiff’s property, but the truck rolled down the hill unmanned. Whether by simple negligence or more reckless nonfeasance, the intrusion on plaintiff’s property was not a voluntary act by defendants.” The Court noted that there was no precedent to hold a defendant liable for trespass “where an object enters the property of the plaintiff without an intent on the part of the object’s owner/operator to perform the physical act that results in the invasion,” and the ruling for defendants was affirmed.
The next issue raised by plaintiff was that the trial court erred in its ruling regarding spoliation of evidence. In its brief, however, plaintiff failed to cite to any legal authority on this issue (other than to the applicable standard of review). “In the absence of appropriate legal authority to support this argument,” it was deemed waived on appeal.
The Court next analyzed plaintiff’s assertion that the trial court erred by directing a verdict on its claims for recklessness and gross negligence. As an initial matter, the Court noted that the trial court’s rulings on these claims was “rather deficient,” but that “the trial court is not required under Rule 50.01 to make specific findings to support its directed verdict ruling,” and that plaintiff made no objection to the rulings during the trial. As to the whether the rulings were correct, the Court found that “even taking the cited evidence in the light most favorable to plaintiff, we cannot conclude that Defendants’ conduct meets the high standard required of either gross negligence or recklessness.” Majors testified about several precautions he took when parking the truck, and though the police officer speculated that the brakes may not have actually been set, “the evidence supporting the plaintiff’s verdict must be more than mere speculation or a glimmer of evidence.” (internal citation omitted). The Court ruled that, “given the multiple steps taken by Mr. Majors to secure the tractor-trailer, it cannot be said that he consciously disregarded a substantial and unjustifiable risk.”
Plaintiff also took issue with the trial court’s directed verdict on its claims of negligent hiring and negligent entrustment. The Court of Appeals noted, though, that while plaintiff spent “considerable time it its brief on the question of whether Land South engaged in a sufficient investigation of Mr. Majors at the time of his hiring and when he was entrusted with the tractor-trailer, Plaintiff points to no evidence in the record to show that at the time of hiring or entrustment, Mr. Majors was in fact unfit for his job, posed an unreasonable risk to others, or was in any way incompetent to operate the tractor-trailer.” (internal citation omitted). The only evidence presented regarding his fitness was that his CDL license was suspended for unpaid speeding tickets, but this occurred after the incident in question and thus could not be the basis for these claims.
Plaintiff likewise took issue with the directed verdict for punitive damages, but because the Court affirmed the rulings on trespass, recklessness, and gross negligence, this ruling was also affirmed, as “simple negligence is generally held insufficient to support an award of punitive damages.” (internal citation omitted).
The next issue addressed by the Court of Appeals was the method by which damages were determined. In a case involving damages to real property, the measure of damages varies depending on whether the damages are permanent or temporary. Whether the damage is permanent or temporary is a question of fact. (internal citations omitted). In this case, the trial court gave the jury multiple instructions, including one about calculating damages for a permanent injury to real property and one about calculating damages for a temporary injury to real property. In addition, the instructions also included a Tennessee Pattern Jury Instruction stating that the “measure of damage to real property is the lesser of the following: 1) The reasonable cost of repairing the damage to the property; or 2) the difference between the fair market value of the premises immediately prior to and immediately after the damage.” Plaintiff argued that these instructions were conflicting, but the Court of Appeals disagreed. The Court found that “the instructions were appropriate as they contain a substantially accurate statement of Tennessee law on this subject and were not misleading to the jury.” The Court stated that “the instructions clearly indicated that the jury was required to make a determination as to whether the injury to the property was permanent or temporary, and reflected Tennessee law that the jury should also consider whether the cost of repairing the injury was more than the difference in value to the property as a result of the injury.” Further, the Court found that the jury’s verdict, which was between the amount requested by plaintiff and the evidence of diminution in value presented by defendant, was “well within the range of values submitted at trial.”
Finally, plaintiff argued that rather than 5% prejudgment interest, the trial court should have awarded the maximum allowed (10%). The Court of Appeals noted, though, that prejudgment interest is in the discretion of the trial court. Here, “though it was certain that the defendant could be liable for some amount of compensatory damages, the amount was uncertain and both sides had reputable experts on the issue of damages.” The Court ruled that based on all the facts at play here, including the fact that defendant did not admit liability until the day before the trial but also that there was a reasonable dispute as to the amount of damages in this case, the trial court did not abuse its discretion by awarding 5% instead of 10%.
Having concluded that the trial court did not err on any of the issues being appealed, the verdict was affirmed.
This opinion covered lots of issues, but a few big takeaways are: 1) trespass requires some intentional act, 2) a plaintiff can’t refuse a mistrial over an issue then later seek appellate relief for that same issue, and 3) an appellant must cite authority in its brief for each issue that it seeks to raise on appeal.
NOTE: To aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers. Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented. In this case, the opinion was released less than eight weeks after oral argument.