Buddy Head Livestock & Trucking, Inc

The dispositive issue in this personal injury action is whether the claims against the defendant trucking company for the tortious acts of its employee/truck driver are time-barred under Abshure v. Methodist Healthcare-Memphis Hospitals, 325 S.W.3d 98 (Tenn. 2010) or saved by the commencement of a new action under Tenn. Code Ann. § 28-1-105, Tennessee's "savings statute." After the plaintiffs commenced the new action, the company filed a motion to summarily dismiss the complaint, asserting the plaintiffs' claims against the employee were procedurally barred before the new action was commenced. The trial court denied the motion because the first action was instituted before the plaintiffs' right of action against the employee became extinguished by operation of law, and the second complaint was timely filed pursuant to the savings statute. For the same reason, we affirm and remand for further proceedings.

The plaintiffs appeal the grant of summary judgment in a negligence case. One of the plaintiffs, a truck driver, suffered injuries stemming from a collision with another tractor-trailer owned by the defendant and operated by its employee. The plaintiffs claimed that the employee's negligence proximately caused the accident. The owner of the overturned tractor-trailer moved for summary judgment on the ground that the plaintiffs could not establish that its employee‟s conduct fell below the applicable standard of care. The trial court agreed and granted summary judgment. On appeal, the plaintiffs argue, among other things, that owner of the overturned tractor-trailed failed to meet its burden of production in moving for summary judgment. Because we conclude that the movant failed to demonstrate the absence of material facts that would create genuine issues for trial, we reverse the grant of summary judgment.