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Belcher v. State11/25/2003
r of the subject property, but rather to the designer of the property. As the State has "actual possession or the control" of the highway at issue, see Tenn. Code Ann. § 28-3-205(a), it cannot assert the statute of repose as a defense to the Belchers' claim. Therefore, we find this issue to be without merit.
V.
The Belchers argue that the Claims Commission erred in determining that they failed to prove that the negligence of the State was the proximate cause of their injuries. We disagree.
In order to prevail on a negligence claim, a claimant must prove five essential elements: (1) that the defendant owed a duty of care to the claimant; (2) that the defendant breached that duty of care; (3) that the breach of care resulted in an injury to the claimant; (4) that the breach of care was the cause in fact of the claimant's injury; and (5) that the breach of care was the proximate or legal cause of the claimant's injury. McClenahan, 806 S.W.2d at 774 (emphasis added). Therefore, it is not enough to prove the existence of a dangerous condition on the highway, pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(J), or to prove that the State negligently approved, constructed, and maintained the highway, pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I). The Belchers were also required to prove that those conditions were the cause in fact and the proximate cause of the accident.
After reviewing the record, we cannot say that the evidence preponderates against the Claims Commission's determination that the Belchers did not prove that the deficiency in the design of the highway caused their injuries. While the Belchers take issue with the Claims Commission's findings with respect to the speed of the Belchers' vehicle and the exact location of the accident, we find that the evidence does not preponderate against those findings. The Claims Commission chose between competing and conflicting testimony. The trier of fact is in the best position to make these choices. See Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. Ct. App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn. Ct. App. 1991). Such determinations are entitled to great weight on appeal. Bowman, 836 S.W.2d at 566.
In short, there is a dearth of evidence in the record to support the Belchers' contention that the defective highway caused the accident and, consequently, their injuries. Indeed, the Belchers' own expert witness failed to testify that the design of the highway caused the accident. Because of this lack of evidence, we are loath to find that the evidence preponderates against the trial court's critical determination that this negligently-designed stretch of Interstate 40 was not the cause of the Belchers' accident.
VI.
The judgment of the Claims Commission is affirmed. This case is remanded for the collection of costs assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellants, Eddie W. Belcher, deceased, and Sara O. Belcher, deceased, through their executrix and daughter, Beverly J. Ritchie.
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