Isaac D. Walker v. Robert L. McMillin et al.

Nashville, TN - Personal Injury lawyer represented plaintiff with appealing the dismissal of negligence against a truck driver and his employer.

n July 30, 2013, Isaac D. Walker1

("Plaintiff”) was seriously injured in a singlecar accident that occurred at approximately 1:29 p.m. on Interstate 24 in Nashville,

Tennessee. Plaintiff's only memory of the accident was seeing a tire tread on the highway

in front of him.2 Eyewitnesses reported that tire debris was in the road, and when Plaintiff

swerved to avoid the debris, his vehicle flipped and Plaintiff was ejected from the vehicle.

A few minutes before Plaintiff's accident, a truck owned by Southern Recycling,

LLC, and operated by its employee, Robert McMillin, had a tire blowout where Plaintiff

crashed. When the blowout occurred, Mr. McMillin slowed and proceeded to pull onto the

shoulder; however, his vehicle traveled a considerable distance, perhaps as much as onehalf mile, before stopping. As a consequence, the tire debris was a considerable distance

from where Mr. McMillin stopped his vehicle. After stopping, Mr. McMillin promptly set

out warning triangles around his truck and called Southern Recycling's tire service

provider, Best One Tire & Service, as well as his employer. While sitting in the cab of his

truck waiting for Best One to arrive, Mr. McMillin observed a large cloud of dust in his

rearview mirror, at which time he called 911 to report the accident.

One month later, Plaintiff commenced this action by filing his Complaint against

Mr. McMillin and Southern Recycling, LLC ("Defendants”). Defendants answered the

Complaint and generally denied liability. Plaintiff then sent Defendants an evidence

preservation notice, asking Defendants to preserve relevant evidence, including but not

limited to "the tires which were on [Mr. McMillin's truck].” Defendants later produced and

provided Plaintiff with a copy of Best One's repair records, which showed Mr. McMillin's

old tire was sent back to the Best One repair shop. For reasons that are not explained in the

record, Mr. McMillin's old tire was not preserved.



1 Plaintiff is identified as both "Isaac D. Walker” and "Isaac O. Walker” in the record.

2 Plaintiff has limited memory of the accident. He does not recall how much of the tire was in the

road and does not know how it got there. He does remember that the tire debris was stationary in the

roadway, stating that "the tire was in the middle of—laying in the road, and I just hit it.”

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Plaintiff then hired a forensic engineer, Steven Koontz, to inspect Mr. McMillin's

trailer. Mr. Koontz, however, could not determine what caused the tire failure without

inspecting the old tire.

The parties continued with discovery and, in July 2017, Plaintiff filed a Fourth

Amended Complaint that asserted a negligence claim against Mr. McMillin based on

several allegations3

:

16.The Defendant, Robert McMillin was negligent in the following

particulars, among others:

a) Negligently failing to maintain the tires on the trailer of the tractor

truck, leading to tire failure in violation of [Federal Motor Carrier

Safety Regulation ("FMCSR”)] §396:11;

b) Failure to perform pre-trip inspection of the vehicle in violation of

FMCSR §396.11;

c) The Defendant operated the vehicle he was driving in a willful and

wanton disregard for the safety of persons and property in violation of

T.C.A. [§] 55-10-205;

d) Defendant McMillin immediately after the tire blowout called Best

One Tire & Service for tire service. While awaiting tire service

Defendant McMillin left the retreaded tire carcass in the roadway for

seven (7) to eight (8) minutes without placing reflective triangles to

warn other motorists to avoid the scene or attempt to safely retrieve

the tire tread from the roadway in violation of T.C.A. § 55-8-136. The

Defendant failed to call local police, the Tennessee Highway Patrol or

any other governmental personnel and inform them of the tire carcass

in the roadway.

In July 2020, Defendants moved for summary judgment on all claims. After a

hearing, the court granted summary judgment in part. The court found, inter alia, that

Plaintiff could not establish his claim of negligence based on the alleged failure to maintain

the tire because there was no evidence of what caused the tire to fail. The court also found

that Plaintiff could not prove Mr. McMillin's failure to notify law enforcement caused the

accident because there was no evidence that law enforcement would have arrived before



3 Plaintiff asserted that Southern Recycling was vicariously liable for Mr. McMillin's actions as

well as directly negligent in other regards. Those claims are not at issue on appeal.

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the accident occurred. With regard to Mr. McMillin's failure to retrieve the tire debris and

warn other motorists, the court found that Tennessee Code Annotated § 55-8-136 was

inapplicable.

4 Nonetheless, the court asked the parties to submit supplementary briefs on

two issues: (1) whether the Complaint stated a claim for common-law negligence based on

Mr. McMillin's failure to retrieve the debris carcass and warn others and, if so, (2) whether

summary judgment was appropriate on that claim.

Plaintiff then filed a "Motion for Reconsideration and for Curative Action.” In that

motion, Plaintiff alleged for the first time that Defendants breached their duty to preserve

Mr. McMillin's old tire in violation of Tennessee Rule of Civil Procedure 34A.02, and

Plaintiff asserted that he was entitled to a curative jury instruction under Rule 37.02.

Accordingly, Plaintiff asked the court to reconsider its decision to grant summary judgment

under Tennessee Rule of Civil Procedure 54.02. Defendants and Plaintiff also submitted

supplemental briefing on whether summary judgment was appropriate on the common-law

negligence claim based on Mr. McMillin's alleged failure to retrieve the tire debris.

After another hearing, the trial court entered orders denying the Motion for

Reconsideration and granting summary judgment on the common-law negligence claim.

As for the Motion for Reconsideration, the court noted that Plaintiff's counsel had known

about the potential spoliation issue since 2013 but provided "no explanation, argument or

affidavits to demonstrate why the new evidence and spoliation theory was not raised before



4 Tennessee Code Annotated § 55-8-136 provides:

(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-ofway including, but not limited to, any adjacent sidewalk, bicycle lane, shoulder or

berm.

(c) A violation of this section is a Class C misdemeanor.

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the hearing on Defendants' motion for summary judgment.” As a result, the court found

that Plaintiff's motion was "simply . . . too late.”

As for the common-law negligence claim, the trial court found summary judgment

was appropriate because there were only 5 to 7 minutes between the tire blowout and

Plaintiff's accident, and retrieving the tire would have required Mr. McMillin to walk into

traffic on an interstate highway. Thus, the court concluded that "there was no duty for

Defendant McMillin to retrieve the tire debris from I-24 as a matter of law when weighing

the foreseeability of injury to third person[s]; the gravity of the harm to Defendant and

others, including Plaintiff; and the burden on the Defendant in doing so.”

This appeal followed.5

ISSUES

Plaintiff raises eight issues on appeal, which we have restated and consolidated.

6

Plaintiff's three issues concerning the trial court's decision to summarily dismiss his



5 On appeal, Plaintiff has not challenged the trial court's rulings related to the individual claims

against Mr. McMillin's employer, Southern Recycling, LLC. As a consequence, Southern Recycling's

potential liability is limited to vicarious liability for the conduct of its employee, Mr. McMillin. Further,

Plaintiff has not appealed the dismissed claims that (1) Mr. McMillin failed to conduct a pre-trip inspection

and (2) Mr. McMillin negligently operated his vehicle in violation of Tennessee Code Annotated § 55-10-

205.

6 Plaintiff's issues read as follows:

1. Whether a person who allows, causes, leaves or creates a hazardous condition on a

public roadway has a common law duty to remove the hazard and/or to give warning

of the hazard, for example by placing triangles at or near the hazard; and whether this

principle applies to hazards on the interstate highway system.

2. Whether the trial court erred in ruling that there was no common law duty to remove

the hazard (tire carcass/debris) from the roadway in the case at bar.

3. Whether, in making this ruling, the trial court improperly weighed the evidence.

4. Whether the trial court impermissibly weighed the evidence and substituted its

judgment for that of the jury when it ruled that the "limited time of 5–7 minutes” was

not sufficient, as a matter of law, to allow Mr. McMillin to remove the tire

carcass/debris from the highway, when there was incontrovertible evidence that the

relevant time period was substantially longer than 5–7 minutes and in any event there

was a disputed question of fact as to whether the time available would have been

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negligence claim based on Mr. McMillin's failure to remove the tire debris or warn others

are restated as follows: (1) Plaintiff contends the trial court erred by "ruling that there is no

common law duty to remove the tire carcass from the roadway”; (2) Plaintiff argues that

the trial court erred by ruling that Mr. McMillin, in particular, had no duty to remove the

tire debris from Interstate 24 or warn others about its presence; and (3) Plaintiff maintains

that the trial court erred by ruling that Plaintiff could not establish that Mr. McMillin's

failure to remove the debris or warn others caused Plaintiff's accident. Plaintiff also

contends the trial court erred by denying his Motion for Reconsideration in which he asked

the court to award discovery sanctions under Tennessee Rule of Civil Procedure 34A.02

due to Defendants' failure to preserve the tire.

Defendants identify eight issues that are similar to those raised by Plaintiff.

Defendants' issues, as we have restated and consolidated, are: (1) whether Plaintiff's

Fourth Amended Complaint states a claim of common-law negligence for failure to retrieve

the tire tread or to warn; (2) whether a common-law duty existed that required Mr.

McMillin to enter the interstate highway as a pedestrian to remove the tire debris and, if

so, whether Plaintiff presented competent evidence establishing that Mr. McMillin



sufficient for Mr. McMillin to remove the carcass/debris and/or place triangles near

the carcass/debris or otherwise warn oncoming motorists.

5. Whether the trial court impermissibly weighed the evidence and substituted its

judgment for that of the jury when it ruled as a matter of law that Plaintiff "cannot

establish causation” as to Mr. McMillin's failure to call the police after the accident

because "Plaintiff has presented no evidence of incident response times” to

demonstrate that the response "would have been within the intervening 5–7 minutes so

as to avoid the accident,” where there was incontrovertible evidence that the time

available was actually substantially more than 5–7 minutes and in any event the time

was substantial enough to present a jury question as to whether the police would have

been able to respond in time to prevent the accident.

6. Whether the trial court erred in dismissing the Complaint because "the cause of the tire

failure cannot be determined in the absence of the subject tire” when Defendants did

not comply with their duty to preserve the tire, and when the Absence of Evidence jury

instruction would create a disputed question of fact as to the condition of the tire.

7. Whether the trial court committed error in refusing to consider Plaintiff's legal argument

that sanctions should be imposed against the Defendants, with the error occurring when

the court applied the factors to be used in determining whether to consider additional

evidence, as stated by the Tennessee Supreme Court in Harris v. Chern, 33 S.W.3d

741, 742 (Tenn. 2000) to the aspect of Plaintiff's Motion for Reconsideration that

merely requested the Court to consider additional legal argument.

8. The overall issue of whether the trial court erred in granting Defendants' Motion for

Summary Judgment by the orders entered on or about September 10, 2020 and October

2, 2020.

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breached that duty; (3) whether Plaintiff presented competent evidence of causation linking

Mr. McMillin's duty to call law enforcement to Plaintiff's injury; and (4) whether

application of the "Absence of Evidence” jury instruction applies under these facts and, if

so, whether Plaintiff presented competent evidence to create a genuine issue of material

facts so as to defeat a motion for summary judgment as it relates to the negligent tire

maintenance claim.

STANDARD OF REVIEW

This court reviews a trial court's decision on a motion for summary judgment de

novo without a presumption of correctness. Rye v. Women's Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). Accordingly, this court must make a fresh

determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id.

In so doing, we consider the evidence in the light most favorable to the nonmoving party

and draw all reasonable inferences in that party's favor. Godfrey v. Ruiz, 90 S.W.3d 692,

695 (Tenn. 2002).

Summary judgment should be granted when "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there

is no genuine issue as to any material fact and that the moving party is entitled to a judgment

as a matter of law.” Tenn. R. Civ. P. 56.04. When the party moving for summary judgment

does not bear the burden of proof at trial, it "may satisfy its burden of production either (1)

by affirmatively negating an essential element of the nonmoving party's claim or (2) by

demonstrating that the nonmoving party's evidence at the summary judgment stage is

insufficient to establish the nonmoving party's claim or defense.” Rye, 477 S.W.3d at 264.

When a motion for summary judgment is made and supported as provided in

Tennessee Rule of Civil Procedure 56, the nonmoving party may not rest on the allegations

or denials in its pleadings. Id. at 265. Instead, the nonmoving party must respond with

specific facts showing there is a genuine issue for trial. Id. A fact is material "if it must be

decided in order to resolve the substantive claim or defense at which the motion is

directed.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). A "genuine issue” exists if "a

reasonable jury could legitimately resolve that fact in favor of one side or the other.” Id.

ANALYSIS

I. FAILURE TO PLEAD A COMMON-LAW CLAIM OF NEGLIGENCE

Defendants argue that the trial court erred by finding that Plaintiff's Complaint

pleaded a common-law claim for negligence based on Mr. McMillin's failure to remove

the tire debris or warn others. Plaintiff responds that Defendants waived this issue by not

raising it before the trial court. We agree that Defendants waived this issue.

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In its Order of Partial Summary Judgment, the trial court asked Defendants for

additional briefing on two issues: (1) "whether Plaintiff's Fourth Amended Complaint as

written states a common law claim for negligence for failing to retrieve the tire tread from

the roadway or place triangles near the tire carcass to warn motorist[s]” and (2) "whether

any such claim is also subject to summary dismissal at this time based upon factual and

legal arguments.” In their Supplemental Brief, Defendants addressed only the latter of these

two issues and, significantly, they did not raise the defense that such a claim had not been

affirmatively pleaded.

Subject to some exceptions not applicable here, "issues are properly raised on appeal

. . . when they have been raised and preserved [in the trial court].” Hodge v. Craig, 382

S.W.3d 325, 334 (Tenn. 2012); see also Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn.

1976) (explaining that appellate courts are courts "of appeals and errors,” and "are limited

in authority to the adjudication of issues that are presented and decided in the trial courts”).

Moreover, "[w]hen issues not raised by the pleadings are tried by express or implied

consent of the parties, they shall be treated in all respects as if they had been raised in the

pleadings.” Tenn. R. Civ. P. 15.02.

Here, Defendants did not dispute or otherwise preserve the issue of whether the

Fourth Amended Complaint stated a claim of common-law negligence based on Mr.

McMillin's alleged duty to remove the tire tread and warn other motorists, despite the trial

court's invitation for briefing on that issue. As a result, we find Defendants failed to

preserve this issue for appeal.

II. FAILURE TO REMOVE DEBRIS OR WARN OTHERS

Duty is the first of several elements that a plaintiff must prove to establish a prima

facie negligence claim. See Cotten v. Wilson, 576 S.W.3d 626, 637 (Tenn. 2019). Whether

a duty exists is "a question of law to be determined by courts.” Satterfield v. Breeding

Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008). Thus, a motion for summary judgment

"may be used to determine whether a defendant owes a duty to a plaintiff in a particular

circumstance.” Rains v. Bend of the River, 124 S.W.3d 580, 588 (Tenn. Ct. App. 2003)

(citations omitted).

Duty has been defined as the legal obligation owed by a defendant to a plaintiff "to

conform to a reasonable person standard of care for the protection against unreasonable

risks of harm.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). "A risk is

unreasonable and gives rise to a duty to act with due care if the foreseeable probability and

gravity of harm posed by defendant's conduct outweigh the burden upon defendant to

engage in alternative conduct that would have prevented the harm.” Id.

In Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008), the

Tennessee Supreme Court articulated several factors to be considered when determining

whether a duty of reasonable care exists:

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(1) the foreseeable probability of the harm or injury occurring; (2) the

possible magnitude of the potential harm or injury; (3) the importance or

social value of the activity engaged in by the defendant; (4) the usefulness of

the conduct to the defendant; (5) the feasibility of alternative conduct that is

safer; (6) the relative costs and burdens associated with that safer conduct;

(7) the relative usefulness of the safer conduct; and (8) the relative safety of

alternative conduct.

Id. at 365.

Here, the trial court concluded that Mr. McMillin did not have a duty to retrieve the

tire carcass from the roadway after weighing several of the Satterfield factors:

[T]his Court finds that it is not a normal response for a person to enter a[]

six-lane interstate with vehicle speeds of 55–65 mph, on foot, without any

safety protocol in place to retrieve a piece of tire that came off of his vehicle.

Therefore, this Court finds that there was no duty for Defendant McMillin to

retrieve the tire debris from I-24 as a matter of law when weighing the

foreseeability of injury to third person; the gravity of the harm to Defendant

and others, including Plaintiff; and the burden on the Defendant in doing so.

In reaching its decision, the court was particularly persuaded by two federal districtcourt cases, Bice v. Cooper Tire & Rubber Co., No. 3:15-CV-862, 2016 WL 6875973

(M.D. Tenn. Nov. 22, 2016), and Hensley v. Rector, No. 2:03-CV-343, 2005 WL 3088353

(E.D. Tenn. Nov. 17, 2005). In Bice, the court stated that it was "not a normal response” to

a tire blowout to "enter the Interstate on foot, without any safety protocol in place” to try

to retrieve the tire debris. 2016 WL 6875973, at *4. The court reasoned that "a pedestrian

in the roadway is itself a clear safety threat that supersedes any risk from debris.” Id. In

Hensley, another court found that traveling across an interstate highway on foot was "not

only an illegal act but grossly negligent.” 2005 WL 3088353, at *3.

We agree with the trial court's analysis and its conclusion. As stated in Satterfield,

the factors to be considered when determining whether a duty exists include "the feasibility

of alternative conduct that is safer,” "the relative costs and burdens associated with that

safer conduct,” and "the relative safety of alternative conduct.” 266 S.W.3d at 365. In this

case, retrieving the tire tread would have required Mr. McMillin to walk—or run—into the

middle of an active interstate highway. This cannot be described as relatively safe conduct.

The associated costs and burdens of attempting to retrieve the tire are readily apparent

given the high rate of speed at which motorists drive on closed-access highways such as

Interstate 24.

We recognize that the first factor in Satterfield is "the foreseeable probability of the

harm or injury occurring,” see id., and that the presence of a large tire tread in the middle

of an interstate highway poses a foreseeable risk of harm or injury to motorists.

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Nonetheless, requiring Mr. McMillin to traverse the highway, gather the debris, and return

to the shoulder would simply compound the risk of harm. See Bice, 2016 WL 6875973, at

*4 ("[A] pedestrian in the roadway is itself a clear safety threat that supersedes any risk

from debris.”).

The same reasoning applies to Mr. McMillin's alleged duty to warn others about the

tire tread. In his Fourth Amended Complaint, Plaintiff asserted that Mr. McMillin acted

negligently when he failed to place "triangles to warn other motorists to avoid the scene.”

Like walking onto an interstate highway to retrieve tire debris, walking onto an interstate

highway to place additional objects around the tire debris cannot be described as relatively

safe conduct.

For these reasons, we affirm the trial court's decision to dismiss Plaintiff's commonlaw claim for negligence based on the alleged failure to retrieve or warn others about the

tire debris.

III. FAILURE TO CALL LAW ENFORCEMENT

In the Fourth Amended Complaint, Plaintiff alleged that Mr. McMillin acted

negligently when he "failed to call local police, the Tennessee Highway Patrol or any other

governmental personnel and inform them of the tire carcass in the roadway.” The trial court

summarily dismissed the claim based on the determination that Plaintiff could not establish

causation.

7 Plaintiff contends this was error.

In their Motion for Summary Judgment, Defendants argued that there was "no

evidence that had local police or Tennessee Highway Patrol been called, that they would

have responded and retrieved the tire carcass in the intervening 5–7 minutes before Plaintiff

encountered it.” Moreover, Defendants relied on the fact that Mr. McMillin took

affirmative action by calling Best One to provide roadside assistance and was told that they

were on the way. Plaintiff responded to this assertion by simply contending that Mr.

McMillin "had a duty to do more than sit in his truck and call his supervisor and the tire

company.”

In its Order of Partial Summary Judgment, the court found that Plaintiff could not

establish causation as to his claim that Mr. McMillin was negligent for failing to call law

enforcement:



7 The trial court did not make an express determination that Mr. McMillin had an affirmative duty

to call local police, the Tennessee Highway Patrol, or any other governmental personnel and inform them

of the tire carcass in the roadway. The trial court did, however, determine that Plaintiff failed to present

sufficient facts to establish causation concerning this claim. Accordingly, it is implicit in the trial court's

ruling that Mr. McMillin had a duty to call, and the parties do not raise this as an issue in this appeal.

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Plaintiff cannot establish causation as to . . . his claim that the Defendants

were negligent for failing to call local police, the Tennessee Highway Patrol,

or other government personnel and inform them of the tire carcass in the

roadway. Plaintiff has presented no evidence of incident response times by

law enforcement or any other competent or admissible evidence to

demonstrate that had Defendant contacted law enforcement immediately

following the [tire failure] any such responses would have been [within] the

intervening 5–7 minutes so as to avoid the accident. As such, Plaintiff cannot

establish causation as to this aspect of his claim.

Plaintiff contends that the trial court overlooked two important facts in its analysis.

First, Mr. McMillin's deposition testimony shows there were more than 5–7 minutes

between the time of the tire blowout and the accident. Second, the deposition testimony of

Metropolitan Police Department Officer W.A. Whitworth provides evidence that law

enforcement could have responded to a call in 9 minutes. Thus, Plaintiff argues that there

was enough evidence to create a genuine issue of material fact as to whether law

enforcement could have responded in time.

However, Plaintiff failed to present these facts in his initial response to Defendants'

Motion for Summary Judgment or in his subsequent Motion for Reconsideration. When a

motion for summary judgment is made and supported as provided in Tennessee Rule of

Civil Procedure 56, the nonmoving party must respond with specific facts showing there

is a genuine issue for trial. Rye, 477 S.W.3d at 265. In addition to responding to the moving

party's statement of material facts, the nonmoving party may file its own statement of

additional facts. See Tenn. R. Civ. P. 56.03. Plaintiff, however, failed to set forth the facts

he now relies upon in his response in the trial court.

In Paragraph 14 of their Statement of Undisputed Material Facts, Defendants

asserted that "[a]pproximately 5–7 minutes passed between the time of Defendant's tire

blow out and Plaintiff's accident.” Plaintiff responded, "Plaintiff admits the averments

contained in Paragraph 14 for the purposes of this Summary Judgment matter.” Moreover,

and significantly, Plaintiff did not file an additional statement of facts and did not mention

Officer Whitworth's testimony to rebut Plaintiff's assertion that there was "no evidence

that had local police or Tennessee Highway Patrol been called, that they would have

responded and retrieved the tire carcass in the intervening 5–7 minutes before Plaintiff

encountered it.”

Because "the material facts set forth in the statement of the moving party may be

deemed admitted in the absence of a statement controverting them by the opposing party,”

Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (citation omitted),

we find the trial court did not err by relying on the undisputed facts stated in Defendants'

Statement of Material Facts. Accordingly, we affirm the trial court's ruling on this claim.

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IV. DISCOVERY SANCTION AND MOTION TO ALTER OR AMEND

Plaintiff contends the trial court erred by denying his Motion for Reconsideration.

In that motion, Plaintiff asked the court to alter or amend its Order for Partial Summary

Judgment and give Plaintiff an adverse-inference jury instruction as a Rule 37 discovery

sanction for Defendants' failure to preserve Mr. McMillin's tire. Plaintiff argues that the

adverse-inference instruction would have created "a disputed question of fact as to the

condition of the tire.”8 Plaintiff's request for an adverse-inference ruling was based on the

reasoning in Tatham v. Bridgestone Americas Holding, Inc., 473 S.W.3d 734 (Tenn. 2015),

that "the intentional spoliation or destruction of evidence relevant to a case raises a

presumption, or, more properly, an inference, that the evidence would have been

unfavorable to the cause of the spoliator.” Id. at 741 (quoting Thurman-Bryant Elec. Supply

Co., Inc. v. Unisys Corp., Inc., No. 03A01-CV00152, 1991 WL 222256, at *5 (Tenn. Ct.

App. Nov. 4, 1991)).

The trial court an

Based on the foregoing, we affirm the judgment of the trial court. Costs of appeal

are assessed to Isaac D. Walker.