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Thursday, May 30, 2019

Another New Case on Summary Judgment; Summary Judgment for the Defense Reversed on Appeal

The Tennessee Court of Appeals recently released its opinion in Flagg v. Hudson Construction Co., No. E2017-01810-COA-R3-CV (Tenn. Ct. App. May 28, 2019).  The syllabus from the slip opinion reads as follows:
A motorcyclist sustained severe injuries in an accident on a recently paved portion of a state maintained highway. Alleging that his accident was caused by loose gravel on the highway from the recent paving project, the motorcyclist filed separate actions against the state contractor who resurfaced the state highway and the State of Tennessee. The two actions were consolidated in the circuit court for discovery and trial. Both defendants moved for summary judgment arguing that the plaintiff could not prove that the gravel came from the paving project or that the defendants had notice of the gravel before the accident. The state contractor also argued that it was discharged from liability under the State Construction Projects Liability Act. See Tenn. Code Ann. § 12-4-503 (2011). The trial court initially denied the motions. But after the defendants filed motions to alter or amend based on new evidence, the court reversed its decision and granted the defendants summary judgment on all claims. The plaintiff appealed. Upon review, we conclude that the trial court erred in excluding lay witness opinion testimony and in ruling that expert proof was necessary to determine the source of the gravel. Taking the strongest legitimate view of the evidence in favor of the nonmoving party, we conclude that the plaintiff demonstrated genuine issues of material fact precluding summary judgment. So we reverse.
Here is a link to the slip opinion:

NOTE: This opinion does an excellent job of describing when expert testimony is necessary and the summary judgment standard.  See my note from my prior post as to the applicable standard of review.

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