If a Tennessee driver hits a bicyclist or pedestrian who was using the road properly, is the crash itself proof the driver failed to exercise due care?

Subject

Opinion No. 13-68, Requirement that Drivers Exercise Due Care under Tenn. Code Ann. § 55-8-136, August 23, 2013

Plain-English summary

Rep. Mike Stewart asked four questions about driver due care in Tennessee: whether hitting a cyclist in a bike lane is automatic proof of fault, whether hitting any lawfully riding cyclist is automatic proof, whether hitting a pedestrian in a crosswalk is automatic proof, and whether drivers have to adjust their driving in fog or rain.

The first three questions, all related, got the same answer: no. Tenn. Code Ann. § 55-8-136 imposes a duty of due care on every Tennessee motorist. But Tennessee's negligence law has always evaluated that duty under a reasonable-person standard. The mere fact that a crash happened, even in a marked bike lane or a crosswalk, did not by itself prove the driver failed the standard. The question was whether a reasonable driver would have acted differently under the same circumstances. Hickman v. Jordan was express: "negligence is not presumed from the mere fact of an accident or injury." And Norman v. Prather rejected a similar argument that the "notwithstanding" clause in § 55-8-136 created an automatic presumption against the driver.

Question four: Yes, drivers in fog, mist, or rain had to adjust their driving, but only to the extent that a reasonable person would. The opinion declined to specify what adjustments. It depended on visibility, road conditions, traffic volume, and so on. Tennessee railroad-crossing cases illustrated the principle: in heavy fog, a reasonable driver might stop the car, cut off the motor, and listen for trains. Other circumstances called for less. The reasonable-person standard, not a list of specific rules, controlled.

The opinion did, however, give the cyclist and pedestrian some help: § 55-8-136(b) explicitly required drivers to keep a safe lookout for things "within or beside the roadway right-of-way including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm." So a driver could not defend on the ground that the cyclist was outside the travel lane.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Tennessee has enacted bicycle-safety amendments (including a three-foot passing rule and a "vulnerable road user" statute) since 2013. Anyone evaluating a current traffic-collision case should check those amendments and current case law on whether a violation of those rules creates a presumption of negligence.

Background and statutory framework

The duty of due care. Tenn. Code Ann. § 55-8-136(a) and (b) imposed a duty on every driver to use due care, summarized by the AG as: maintain a safe lookout, drive at a safe speed, keep proper control, give full attention, and avoid colliding with people, vehicles, or fixed objects on or beside the roadway, "including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm." The statute explicitly applied notwithstanding posted speed limits or right-of-way rules.

Reasonable-person framework. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995), defined the duty of care as a motorist's "legal obligation to act as a reasonably prudent person to protect others against unreasonable risks of harm." Hickman v. Jordan, 87 S.W.3d 496, 499 (Tenn. Ct. App. 2001), repeated that negligence is not presumed from the fact of an accident. Norman v. Prather, 971 S.W.2d 398, 401 (Tenn. Ct. App. 1997), addressed and rejected the specific argument that the "notwithstanding" phrasing of § 55-8-136 created an automatic presumption of fault against drivers in pedestrian/vehicle collisions.

Heightened care. Kim v. Boucher, 55 S.W.3d 551, 558 (Tenn. Ct. App. 2001), recognized a heightened duty of care when children were on the roadway. Russell v. Anderson County, No. E2010-00189-COA-R3-CV, 2011 WL 486900, at *5 (Tenn. Ct. App. Feb. 11, 2011), discussed a diminished duty when children were accompanied by an adult.

Low-visibility cases. Nashville C. & St. L. Ry. v. Barnes, 177 Tenn. 690, 694-97, 152 S.W.2d 1023, 1024-25 (1941), held that occupants of a car did not exercise due care when they failed to take additional precautions during dark, rainy, foggy conditions at a railroad crossing. Francis v. Atlantic Terminals, Inc., 244 A.2d 415, 418 (R.I. 1968), reached a similar result for heavy snow. Grady v. Bryant, 506 S.W.2d 159, 162 (Tenn. Ct. App. 1973), reaffirmed that whether specific adjustments were required was a jury question based on knowledge of "how persons of reasonable prudence usually deport themselves in relation to their surroundings."

Common questions

So can a driver who hit a bicyclist in a marked bike lane be held liable?

Yes, but the cyclist had to prove the driver failed to act as a reasonable person. The crash alone did not satisfy that burden. Evidence of speed, lookout, distraction, weather, lighting, and the cyclist's own conduct all entered the calculus.

Did this opinion make it easier or harder for pedestrians to win cases?

Neither, really. It restated the standing rule that a crash is not automatic proof of fault. Pedestrians and cyclists still had to prove negligence in the ordinary way. The opinion did, however, emphasize the driver's specific duty to keep a lookout for adjacent sidewalks and bike lanes, which gave a clear textual anchor against drivers who claimed they had no duty to watch outside the travel lane.

What does the comparative-fault doctrine do here?

The opinion did not directly address comparative fault. But Tennessee operated under a modified-comparative-fault rule. If both the driver and the pedestrian/cyclist were negligent, the fact-finder allocated percentages of fault. A driver less than 50% at fault avoided liability under Tennessee law.

Did the opinion require any specific driving change in fog or rain?

No. It said only that whatever a reasonable person would do is required. In some conditions that might mean turning on headlights, slowing down, increasing following distance, or in extreme cases pulling over. The opinion declined to draft a rule that would supersede the jury's fact-specific judgment.

Was the opinion binding on courts?

AG opinions are persuasive authority, not binding precedent. Tennessee trial judges and appellate panels regularly cite them, but the controlling authority on driver due care remained the statutes and Tennessee Supreme Court cases discussed above.

Citations

Tenn. Code Ann. §§ 55-8-136, 55-8-135, 55-8-134(b). Cases: McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995); Hickman v. Jordan, 87 S.W.3d 496 (Tenn. Ct. App. 2001); Norman v. Prather, 971 S.W.2d 398 (Tenn. Ct. App. 1997); Kim v. Boucher, 55 S.W.3d 551 (Tenn. Ct. App. 2001); Russell v. Anderson County, 2011 WL 486900 (Tenn. Ct. App. Feb. 11, 2011); Nashville C. & St. L. Ry. v. Barnes, 177 Tenn. 690, 152 S.W.2d 1023 (1941); Francis v. Atlantic Terminals, Inc., 244 A.2d 415 (R.I. 1968); Grady v. Bryant, 506 S.W.2d 159 (Tenn. Ct. App. 1973).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-068.pdf

Original opinion text

August 23, 2013

Opinion No. 13-68

Requirement that Drivers Exercise Due Care under Tenn. Code Ann. § 55-8-136

QUESTIONS

1. If a motorist strikes a bicycle operating in a marked bicycle lane, is the accident itself evidence of lack of due care pursuant to Tenn. Code Ann. § 55-8-136?

2. If a motorist strikes a bicycle operating lawfully, is the accident itself evidence of lack of due care by the motorist pursuant to Tenn. Code Ann. § 55-8-136?

3. If a motorist strikes a pedestrian lawfully crossing a crosswalk, is the accident itself evidence of lack of due care by the motorist pursuant to Tenn. Code Ann. § 55-8-136, provided that the pedestrian is not in violation of Tenn. Code Ann. § 55-8-134(b)?

4. During periods of low visibility, such as conditions of fog, mist, and rain, must motorists adjust their driving habits to ensure that they can timely see pedestrians and bicyclists in order to comply with the due care requirement imposed by Tenn. Code Ann. § 55-8-136?

OPINIONS

1, 2 & 3. No. The fact that such accidents occur does not automatically mean that a motorist breached his or her duty of due care under Tenn. Code Ann. § 55-8-136. An accident is evidence of the motorist's lack of due care only if the motorist failed to act as a reasonably prudent person would have acted under the existing circumstances.

4. Even during periods of low visibility, a motorist's duty of care is governed by the reasonable-person standard. If a reasonable person would adjust his or her driving habits in order to meet the requirements of Tenn. Code Ann. § 55-8-136, the motorist must do the same. However, the adjustments necessary to meet the minimum level of reasonable care will vary depending upon individual circumstances.

ANALYSIS

1, 2 & 3. The fact that a motorist collides with a lawfully operating cyclist or pedestrian is not conclusive evidence that the motorist has breached his or her statutory duty of due care as set out in Tenn. Code Ann. § 55-8-136. Rather, it is the reasonableness of the motorist's actions under the circumstances that determines whether a motorist has breached his or her duty of care under the statutory standard.

All motorists in Tennessee have a duty to exercise reasonable care under the circumstances. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). This duty is a motorist's legal obligation to act as a reasonably prudent person to protect others against unreasonable risks of harm. Id.; Hickman v. Jordan, 87 S.W.3d 496, 499 (Tenn. Ct. App. 2001). In order to establish minimum standards of due care for motorists, the General Assembly enacted rules of the road, one of which is found in Tenn. Code Ann. § 55-8-136, which provides in pertinent part:

(a) Notwithstanding the foregoing provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.

(b) Notwithstanding any speed limit or zone in effect at the time, or right-of-way rules that may be applicable, every driver of a vehicle shall exercise due care by operating the vehicle at a safe speed, by maintaining a safe lookout, by keeping the vehicle under proper control and by devoting full time and attention to operating the vehicle, under the existing circumstances as necessary in order to be able to see and to avoid endangering life, limb or property and to see and avoid colliding with any other vehicle or person, or any road sign, guard rail or any fixed object either legally using or legally parked or legally placed, upon any roadway, within or beside the roadway right-of-way including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or berm.

Tenn. Code Ann. § 55-8-136.

Accordingly, every motorist has a duty to take reasonable and necessary steps to maintain a "safe" lookout and speed, to keep proper control of the vehicle, and to give full attention to driving "under the existing circumstances" in a manner designed to avoid a collision with people, other vehicles, or surrounding property. The General Assembly further made clear that this duty controls, regardless of what conduct may be permitted by a posted speed limit or statutory right of way. Thus, it is the motorist's failure to exercise reasonable care that establishes a breach of duty, not the mere fact that the accident occurs in a crosswalk or designated bicycle lane. See Hickman, 87 S.W.3d at 499; Norman v. Prather, 971 S.W.2d 398, 401 (Tenn. Ct. App. 1997) (rejecting the plaintiff's argument that the phrase "[n]otwithstanding the foregoing provisions" in Tenn. Code Ann. § 55-8-136 when read with Tenn. Code Ann. § 55-8-135 creates a presumption that the driver is primarily at fault in any pedestrian/vehicle collision). There is no one specific type of accident that alone establishes a breach of the motorist's duty as a matter of law. See Hickman, 87 S.W.3d at 499 ("[N]egligence is not presumed from the mere fact of an accident or injury").

Moreover, what conduct constitutes a "safe" speed and lookout, proper control, or full attention to driving under the reasonable-person standard may vary with the circumstances. In fact, the degree of care required may even be heightened if the circumstances demand, such as when children are present. See Kim v. Boucher, 55 S.W.3d 551, 558 (Tenn. Ct. App. 2001) (recognizing a motorist's heightened duty of care to take precautions for "childish behavior"). But see Russell v. Anderson County, No. E2010-00189-COA-R3-CV, 2011 WL 486900, at *5 (Tenn. Ct. App. Feb. 11, 2011) (discussing the diminished duty of care when children are present but accompanied by an adult). Again, the determinative factor is the reasonableness of the conduct under the circumstances.

4. The motorist's duty of care during periods of low visibility is likewise governed by what a reasonable person would do under the same or similar circumstances to meet the minimum standards of due care in the statute. Accordingly, a motorist is required to adjust his or her driving habits to the extent that a reasonable person would find it necessary to make adjustments during a period of low visibility.

The precise nature and/or extent of any adjustments would depend on weather conditions, visibility, road conditions, time of day, other pedestrians or traffic present, or any other circumstance that could affect the motorist's ability to timely see pedestrians and cyclists in compliance with his duty of care under the statute. For example, in cases involving collisions at railroad crossings, courts have required motorists to take extra precautions to meet their duty of care during inclement weather. See, e.g., Nashville C. & St. L. Ry. v. Barnes, 177 Tenn. 690, 694-97, 152 S.W.2d 1023, 1024-25 (1941) (holding that occupants of a car did not exercise due care when they failed to take additional precautions under dark, rainy, and foggy conditions, such as stopping the car, cutting off the motor, and opening the windows to look and listen for oncoming trains); Francis v. Atlantic Terminals, Inc., 244 A.2d 415, 418 (R.I. 1968) (holding that a motorist failed to exercise due care when he did not take additional precautions during a heavy snowfall to look and listen for trains before crossing the track).

As a practical matter, lowered visibility would likely require some adjustment for the motorist, although exactly what adjustment, if any, would be needed is a question for a court or jury based upon "their knowledge of mankind and of how persons of reasonable prudence usually deport themselves in relation to their surroundings." Grady v. Bryant, 506 S.W.2d 159, 162 (Tenn. Ct. App. 1973).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

LINDA D. KIRKLEN
Assistant Attorney General

Requested by:

The Honorable Mike Stewart
State Representative
23 Legislative Plaza
Nashville, Tennessee 37243-0152