                                  Karen ANDERSON, Plaintiff-Appellee,

                                                       v.

                   AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellant.

                                                 No. 97-3270.

                                       United States Court of Appeals,

                                               Eleventh Circuit.

                                               April 13, 1999.

Appeal from the United States District Court for the Middle District of Florida. (No. 96-247-CIV-OC-10A),
William Terrell Hodges, Judge.

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and KEITH*, Senior Circuit Judge.

        PER CURIAM:

        This case requires us to determine whether two separate vehicles traveling in tandem and causing a

single automobile accident constitutes one or two "occurrences" for purposes of insurance policy

indemnification for the victim. Because we find no definitive Florida precedent for this insurance policy

language interpretation issue, we certify the question to the Supreme Court of Florida.

                                                  I. FACTS

        On December 7, 1996, appellant Karen Anderson was a passenger in a Mazda Miata convertible

automobile traveling southbound in the left lane of Interstate 75. A tractor-trailer rig, comprised of a 1987

white tractor and a 1986 Great Dane commercial trailer, was also traveling southbound in the left lane. The

Miata pulled into the right lane in order to pass the tractor-trailer rig, but while passing, the rig moved into

the right lane. To avoid a collision, the Miata swerved off the highway and overturned. Anderson sustained

severe injuries.

        Craig Bishop owned both the tractor and trailer, and insured both through Auto-Owner's Insurance

Company (Auto-Owner's), under the same policy. Auto-Owner's, pursuant to its contractual duty to defend

Bishop, entered into settlement negotiations with Anderson. The negotiations reached an impasse when the

   *
    Honorable Damon J. Keith, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation.
parties disagreed as to the interpretation of portions of the insurance policy language. The limiting language

in dispute reads as follows:

           The limit of liability stated in the Declarations is the most we will pay for all damages, including
           damages for expenses, care and loss of services and loss of use as a result of any one occurrence.
           Charging premiums under this policy for more than one automobile does not increase the limit of our
           liability as stated for each occurrence.

(Emphasis added).

           Anderson filed a lawsuit in the Circuit Court for the Fifth Judicial Circuit of Florida, seeking a

declaratory judgment that would award her the policy limit for both insured vehicles (the tractor and the

trailer). Auto-Owner's removed the action to federal district court in October of 1996. Ultimately, Auto-

Owner's settled the claim against Bishop, paying Anderson $750,000 in uncontested policy proceeds, and

agreeing to litigate and resolve Anderson's claimed entitlement to a second $750,000 policy payout, in a

separate action.

                                         II. PROCEDURAL HISTORY

           Pursuant to a case management report filed with the district court, both parties agreed that because

the sole issue required resolution as a matter of law, the court should render its decision through summary

judgment. According to the district court, the issue before it presented a question of first impression in

Florida.

           The district court granted Anderson's motion for summary judgment, determining that although the

rig was responsible for causing one accident, the rig was essentially two "automobiles," the tractor and the

trailer. Thus, the policy limit of $750,000 was available to Anderson for each of the insured automobiles.

The district court found that it was reasonable to interpret the above-cited policy language to mean that when

two separate vehicles are involved in one single accident, two occurrences exist. The district court further

found that if Auto-Owner's intended to treat the two separately covered vehicles as a single-covered vehicle

when operated in tandem, it could have drafted the policy to achieve that result. Therefore, the district court

awarded Anderson $1,500,000 for her injuries.

                                                        2
                                              III. DISCUSSION

         In construing an insurance contract, it is well-settled in Florida that "a court must first examine the

natural and plain meaning of a policy's language." Key v. Allstate Ins. Co., 90 F.3d 1546, 1548-49 (11th

Cir.1996). A court should read an insurance policy as a whole, and endeavor to give each provision its full

meaning and operative effect. Dahl-Eimers v. Mutual of Omaha Life Ins. Co., 986 F.2d 1379, 1381 (11th

Cir.1993). Where the existence or nonexistence of coverage is clear from the unambiguous terms of the

policy, the court must give those terms the effect their plain meaning dictates. See Key, 90 F.3d at 1549.

         If, however, the relevant policy language is susceptible to multiple reasonable interpretations, one

providing coverage and another denying it, the insurance policy is ambiguous. Dahl-Eimers, 986 F.2d at

1381. If an insurance policy is ambiguous, a court must resolve the ambiguity against the drafter of the policy

in favor of coverage. Golden Door Jewelry Creations, Inc. v. Lloyds Underwriters Non-Marine Assoc., 117

F.3d 1328, 1337 (11th Cir.1997). Although courts must avoid "adding hidden meanings, terms, conditions,

or unexpressed intentions" to policy provisions, a court should find ambiguity if any real doubt exists as to

the proper construction of a policy provision when its terms are given their plain meaning. Key, 90 F.3d at

1549.

        Auto-Owner's argues vigorously that the district court erred in interpreting the insurance policy as

ambiguous and open to several reasonable interpretations. Auto-Owner's claims that its policy's limiting

language covers the type of accident at issue. Further, Auto-Owner's argues that the plain meaning of the

policy language is simply that "one occurrence" is equal to one accident, and maintains that the accident

involving the Miata and the rig consisted of only one occurrence. See Weimer v. Country Mutual Ins. Co.,

211 Wis.2d 848, 565 N.W.2d 595 (1997) (holding that the insurer of a dump-truck with an attached trailer

was not liable to the injured party for the dual amount of the policy limit due to express limiting language in

the policy to that effect).

                                                       3
        Auto-Owner's directs this court to a number of non-binding state court opinions that hold where two

or more related automobiles, insured through the same company, are involved in a single accident the insured

party is not entitled to recover the policy limit of each automobile involved, but can only recover the policy

limit of one automobile, or the policy limit of one accident. See, e.g., Shamblin v. Nationwide Mutual Ins.

Co., 175 W.Va. 337, 332 S.E.2d 639 (1985) (holding that the insurer of three vehicles traveling in a convoy,

whose citizens band (CB) radio communications caused an accident and injuries, was not responsible for

paying the policy limit available on all three automobiles due to express limiting language in the policy); Suh

v. Dennis, 260 N.J.Super. 26, 614 A.2d 1367 (1992) (holding that the insurer of two automobiles was not

liable to the injured party for the policy amount on both cars because of express, limiting language in the

policy, where employees were racing the cars ultimately causing the accident).

        Auto-Owner's additionally claims that the district court's grant of summary judgment for Anderson

was erroneous because it failed to consider the insurance policy as a whole, giving each provision an

operative effect. See Dahl-Eimers, 986 F.2d at 1381. Auto-Owner's claims that the district court failed to

follow the principles of construction, failed to attribute the plain and ordinary meanings to the undefined

terms in the insurance policy and failed to consult the dictionary for definitions of purportedly ambiguous

terms. See Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 831 (Fla.1997).

        Anderson responds that Auto-Owner's argument that the current common law trend in this

country—to disallow the recovery of two policy limits for two automobiles involved in one accident—is

unpersuasive. Anderson rebuts each of the cases Auto-Owner's relies upon through showing that the policy

language contains very specific limiting provisions, unlike the language in Auto-Owner's policy. Each policy

Auto—Owners referenced contained some form of the following explicit language: "Regardless of the

number of ... vehicles involved in the accident ... the company's liability is limited." Anderson argues that

Auto-Owner's policy simply does not contain the traditional limiting language that forecloses recovery.

                                                      4
         Anderson additionally responds that the plain meaning interpretation of the policy language clearly

provides coverage in the amount of $750,000 for each of the two vehicles involved in the accident, resulting

in total coverage available to her of $1,500,000. Thus, the issue of whether two separate vehicles involved

in a single accident constitutes one or two occurrences for purposes of insurance policy payout appears to be

an unsettled question of Florida law.

        Accordingly, we certify the following question to the Supreme Court of Florida:

        CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO SECTION 25.031, FLORIDA

STATUTES, AND RULE 9.150, FLORIDA RULES OF APPELLATE PROCEDURE.

        TO THE SUPREME COURT OF FLORIDA AND ITS HONORABLE JUSTICES:

        This panel of the United States Court of Appeals for the Eleventh Circuit concludes that this case

involves an unanswered question of state law that is determinative of this appeal, and we can find no clear,

controlling precedent in the decisions of the Supreme Court of Florida. Therefore, we certify the following

question of law based on the facts and procedural history recited above, to the Supreme Court of Florida for

instructions.

        Style of case: Karen Anderson, Plaintiff-Appellee, v. Auto-Owners Insurance Company, Defendant-

Appellant, Case No. 97-3270.

        Movant: Auto-Owners Insurance Company. See Fla. R.App. P. 9.150(d).

        Statement of Facts: We incorporate our statement of facts from above.

        Question to be certified to the Supreme Court of Florida:

        Whether the tractor-trailer rig should be treated as a single covered automobile, under the policy
        language forming the basis of the present dispute, or whether the single accident resulting in
        Anderson's injuries constituted two occurrences within the meaning of the policy.

        The phrasing of this question is not intended to limit the Supreme Court in considering the issue

presented or the manner in which it gives its answer. See Dorse v. Armstrong World Ind., Inc., 798 F.2d

                                                     5
1372, 1377-78 (11th Cir.1986). The entire record in this case and the briefs of the parties will be transmitted

to the Supreme Court of Florida for assistance in answering this question.

        QUESTION CERTIFIED.

                                                      6


                 Not for Publication in West's Federal Reporter
                Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                         For the First Circuit

No. 04-1287

                               JAMES H. HART,

                          Plaintiff, Appellant,

                                       v.

               VERIZON COMMUNICATIONS, INC., ET AL.,

                         Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]

                                    Before

                      Torruella, Lynch and Lipez,
                            Circuit Judges.

     James H. Hart on brief pro se.
     John P. McLafferty, Victoria Woodin Chavey and Day, Berry &
Howard LLP on brief for appellees.

                               March 29, 2005
            Per Curiam.    Pro se plaintiff-appellant James H. Hart

("Hart") appeals from a judgment entered after a jury verdict

denying him relief under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a), for his sexual harassment claim, alleging

various trial errors.      Hart also appeals from the prior dismissal

of his other claims.      We affirm.1

            Hart, who was represented by counsel at trial, did not

object to the alleged trial errors.          Accordingly, our review is

only for plain error.       Microfinancial, Inc. v. Premier Holidays

Int'l, Inc., 385 F.3d 72, 81 (1st Cir. 2004).           Hart first argues

that the court erred by allowing defendant Verizon Communications,

Inc. ("Verizon") to introduce evidence of Hart's conviction for

operating a motor vehicle under the influence ("OUI"). In response

to Hart's pre-trial motion to preclude use of this conviction, the

court had initially limited Verizon's cross-examination to the

facts of his OUI arrest and prohibited Verizon from eliciting the

fact of his conviction. In response to questions about his arrest,

however, Hart volunteered that a juror had told him "You have

grounds for a mistrial."        Hart later said that the arrest was

upsetting   but   the   trial   "was    vindication   for   me   after   what

     1
       We do not address defendants' separate contention that
Hart's appeal fails because of his brief's flagrant failure to
comply with the procedural requirements of the Federal Rules of
Appellate Procedure.     A pro se party is not insulated from
complying with those rules. Ahmed v. Rosenblatt, 118 F.3d 886, 890
(1st Cir. 1997). Because Hart's appeal lacks substantive merit, we
elect to proceed on that basis.

                                   -2-
happened."     The court then permitted Verizon to inquire into the

result of that trial, without objection from Hart's counsel.

Because Hart opened the door to the actual result of his OUI trial,

the court did not err in allowing the inquiry into his conviction.

See, e.g., Beck v. Haik, 377 F.3d 624, 642 (6th Cir. 2004) (holding

that testimony of drowning victim's mother that victim "wasn't

convicted" when asked on cross-examination in civil rights action

whether he had ever gotten into trouble opened door to question

regarding whether victim had ever gone to prison).                Hart also

argues that the court erred by allowing evidence of a prior

conviction for contempt.      Verizon, however, never offered evidence

of that conviction.

             Hart next argues that the court erred by excluding the

testimony and/or affidavits of certain present and former Verizon

employees.    Hart never called any of them as witnesses or sought to

introduce any of their affidavits.           Accordingly, there was no

error.   See, e.g., Andrews v. Bechtel Power Corp., 780 F.2d 124,

140   (1st   Cir.   1985)   (noting   that   claim   of   error   cannot   be

predicated upon evidence which is never actually offered to court).

             Hart further argues that the court erred in allowing an

improper comment by the court's clerk.        There is no record of this

comment in the trial transcript.        Nor did Hart ever bring it to the

district court's attention.      Thus, the court could not have erred

                                      -3-
in failing to address an allegation articulated for the first time

on appeal.

          Hart also argues that the court violated his due process

rights by dismissing his other claims prior to trial without

holding a hearing, despite his request for oral argument.                       Hart

contends that he should have been afforded a hearing because he was

proceeding   pro se      at   the   time.    A    pro     se   plaintiff   is    not

automatically entitled to a hearing.               Here, Hart presented his

position in writing in his opposition to defendants' motion to

dismiss, and, more importantly, has not pointed to any relevant

factual question     or    legal    theory   that   he     was   precluded      from

bringing to the court's attention by lack of a hearing.               Thus, this

claim has no merit.

          We   add   a    few   comments.        Hart's    brief   makes   vague,

fragmentary and passing references to some other claims.                   We need

not consider them.        See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990) (noting that issues raised in perfunctory manner

are deemed waived).       Also, Hart attaches to his brief a court order

dismissing a second action against Verizon.               This action was filed

while the present case against Verizon was pending and dismissed on

res judicata grounds after final judgment had entered in this case.

Hart appealed from the dismissal of the second action, but the

appeal was dismissed after he failed to file an opening brief.

                                      -4-
While Hart appears to be seeking a second bite at the apple, that

second action is not properly before us.

          Hart's motion for oral argument is denied.

          The judgment of the district court is summarily affirmed.

See Loc. R. 27(c).

                               -5-


Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/12/2016 08:24 AM CST

                                                        - 708 -
                                           Nebraska A dvance Sheets
                                            292 Nebraska R eports
                                                   STATE v. PERRY
                                                  Cite as 292 Neb. 708

                                        State of Nebraska, appellee, v.
                                         Detron L. Perry, appellant.
                                                    ___ N.W.2d ___

                                        Filed February 12, 2016.   No. S-14-506.

                1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion to
                    suppress based on a claimed violation of the Fourth Amendment, an
                    appellate court applies a two-part standard of review. Regarding histori-
                    cal facts, an appellate court reviews the trial court’s findings for clear
                    error, but whether those facts trigger or violate Fourth Amendment
                    protections is a question of law that an appellate court reviews indepen-
                    dently of the trial court’s determination.
                2.	 Constitutional Law: Search and Seizure. The Fourth Amendment to
                    the U.S. Constitution and article I, § 7, of the Nebraska Constitution
                    guarantee against unreasonable search and seizure.
                3.	 Constitutional Law: Warrantless Searches: Search and Seizure.
                    Warrantless searches and seizures are per se unreasonable under the
                    Fourth Amendment, subject only to a few specifically established
                    and well-delineated exceptions, which must be strictly confined by
                    their justifications.
                4.	 Warrantless Searches: Search and Seizure: Proof. In the case of a
                    search and seizure conducted without a warrant, the State has the burden
                    of showing the applicability of one or more of the exceptions to the war-
                    rant requirement.
                5.	 Warrantless Searches: Probable Cause. Probable cause, standing
                    alone, is not an exception that justifies the search of a person without
                    a warrant.
                6.	 Criminal Law: Police Officers and Sheriffs: Arrests: Probable
                    Cause. Under Nebraska law, a person may be arrested without a war-
                    rant when an officer has probable cause to believe the person either
                    has committed a felony or has committed a misdemeanor in the offi-
                    cer’s presence.
                                    - 709 -
                       Nebraska A dvance Sheets
                        292 Nebraska R eports
                               STATE v. PERRY
                              Cite as 292 Neb. 708

 7.	 Arrests: Probable Cause. Probable cause must be particularized with
     respect to the person being arrested.
 8.	 Probable Cause: Words and Phrases. Probable cause is a flexible,
     commonsense standard that depends on the totality of the circumstances.
 9.	 Probable Cause: Appeal and Error. An appellate court determines
     whether probable cause existed under an objective standard of reason-
     ableness, given the known facts and circumstances.
10.	 Probable Cause: Words and Phrases. Probable cause means less than
     evidence which would justify condemnation.
11.	 Criminal Law: Search and Seizure: Probable Cause: Police Officers
     and Sheriffs: Motor Vehicles: Controlled Substances. The odor of
     marijuana, alone or in combination with other factors, creates probable
     cause for an officer to infer that one or all of the occupants of a vehicle
     had recently committed the crime of possessing a controlled substance,
     thus providing probable cause for an arrest and a valid search of the
     person incident thereto.
12.	 Arrests: Probable Cause: Controlled Substances. The odor of mari-
     juana in an area will not inevitably provide probable cause to arrest all
     those in proximity to the odor.
13.	 Search and Seizure: Arrests: Search Warrants: Warrants: Probable
     Cause. A search without a warrant before an arrest, also without a war-
     rant, is valid as an incident to the subsequent arrest if (1) the search is
     reasonably contemporaneous with the arrest and (2) probable cause for
     the arrest exists before the search.

   Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Affirmed.
  Thomas C. Riley, Douglas County Public Defender, L.
Robert Marcuzzo, and Natalie M. Andrews for appellant.
  Douglas J. Peterson and Jon Bruning, Attorneys General,
and Austin N. Relph, for appellee.
  Wright, Connolly, Cassel, and Stacy, JJ., and Inbody,
Judge.
   Stacy, J.
   After a stipulated bench trial, the district court for Douglas
County found Detron L. Perry guilty of possession of a con-
trolled substance. Perry appeals, arguing the court erred in
                             - 710 -
                  Nebraska A dvance Sheets
                   292 Nebraska R eports
                        STATE v. PERRY
                       Cite as 292 Neb. 708

overruling his motion to suppress evidence found during a
search of his person. We find no reversible error and affirm.
                            I. FACTS
   On September 5, 2012, law enforcement officers Chris
Brown and Mike Sundermeier of the Omaha Police Department
were on patrol in the area of 35th and Hamilton Streets in
Omaha, Nebraska. They observed a vehicle traveling east-
bound on Hamilton Street. It turned northbound onto 35th
Street without using a turn signal, and when the brakes were
applied, the officers noticed the vehicle’s left taillight was
not functioning.
   The officers initiated a traffic stop. Brown approached the
driver’s side of the car, and Sundermeier approached the pas-
senger side. Perry was driving, and his brother Devaughn
Perry (Devaughn) was the front seat passenger. When Perry
rolled down his window to speak with the officers, Brown
immediately detected the odor of burnt marijuana coming from
the vehicle. Brown described the odor as “a little faint,” but
he knew it was burnt marijuana because he had smelled it fre-
quently when making traffic stops.
   After noticing the odor, Brown saw Sundermeier talking
to Devaughn. Brown noticed Devaughn kept putting his right
hand between his right leg and the door. Brown then heard
Sundermeier tell Devaughn to keep his hands on his lap, but
Devaughn was not complying. When Devaughn eventually
brought his hands up, Brown saw the top part of a twisted plas-
tic baggie in Devaughn’s right hand. At about the same time,
Sundermeier opened the vehicle door and grabbed Devaughn’s
right hand, because he feared Devaughn was holding a weapon.
Sundermeier discovered a baggie containing a white rocklike
substance in Devaughn’s hand. Devaughn was then removed
from the vehicle and placed under arrest.
   Brown then asked Perry to step out of the vehicle. Perry
complied, and Brown searched Perry’s person. Brown found
what appeared to be crack cocaine in Perry’s front pocket.
                              - 711 -
                   Nebraska A dvance Sheets
                    292 Nebraska R eports
                         STATE v. PERRY
                        Cite as 292 Neb. 708

Brown then placed Perry in handcuffs and searched him again.
During this search, Brown found pills in Perry’s front right
coin pocket he suspected were “ecstasy.” Perry showed the
officers his identification and was cooperative throughout the
traffic stop.
   The officers took Perry and Devaughn to the police cruiser.
Perry’s vehicle was then searched, and the officers discov-
ered a marijuana cigarette in the center console and a firearm
underneath the front passenger seat. Subsequent field tests
revealed that the suspected crack cocaine found on both Perry
and Devaughn was fake crack cocaine, known as gank. The
pills discovered in Perry’s pocket were found to be a form
of “ecstasy.”
   The State formally charged Perry with unlawful posses-
sion of a controlled substance (benzylpiperazine, a form of
“ecstasy”), a Class IV felony. Prior to trial, Perry moved to
suppress the evidence obtained during his search and arrest. At
the hearing on the motion to suppress, the officers testified to
the above facts.
   The court overruled Perry’s motion to suppress. It found that
the officers could have arrested Perry for the taillight violation
and impliedly concluded the search of Perry’s person was a
search incident to an arrest. The court further found that the
smell of marijuana coming from the vehicle provided probable
cause to search the vehicle. In ruling on the motion to sup-
press, the court made a finding that Perry “was no[t] coopera-
tive and gave a false name.”
   Following the suppression hearing, the court held a stipu-
lated bench trial. The State offered into evidence a transcript
of the hearing on the motion to suppress and a laboratory
report documenting that the pills found on Perry were in fact
“ecstasy.” Perry then renewed the objections raised in his
motion to suppress. The court ultimately found the search was
valid, reasoning the smell of marijuana, combined with the
officers’ knowledge that the passenger was furtively holding
a baggie of suspected drugs, provided probable cause to arrest
                                     - 712 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                                STATE v. PERRY
                               Cite as 292 Neb. 708

Perry. Perry was found guilty of unlawful possession of a con-
trolled substance and sentenced to probation for a term of 4
years. He timely filed this direct appeal.

               II. ASSIGNMENTS OF ERROR
   Perry assigns, restated and consolidated, that the district
court erred in (1) finding he was uncooperative with police
and gave a false name during the traffic stop and (2) overrul-
ing his motion to suppress evidence found during the search of
his person.

                  III. STANDARD OF REVIEW
   [1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.1
Regarding historical facts, we review the trial court’s findings
for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.2

                        IV. ANALYSIS
                 1. Search Incident to A rrest
   [2,3] Perry argues the evidence obtained during the search
of his person must be suppressed because the search vio-
lated his constitutional rights. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska
Constitution guarantee against unreasonable search and sei-
zure.3 Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few

 1
      State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014); State v. Matit, 288
      Neb. 163, 846 N.W.2d 232 (2014).
 2
      Id.
 3
      State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015); State v. Nuss, 279
      Neb. 648, 781 N.W.2d 60 (2010).
                                     - 713 -
                         Nebraska A dvance Sheets
                          292 Nebraska R eports
                                STATE v. PERRY
                               Cite as 292 Neb. 708

specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.4
   [4] The search here was conducted without a warrant. Thus,
to be valid, it must fall within one of the warrantless search
exceptions recognized by this court.5 The State has the burden
of showing the applicability of one or more of the exceptions
to the warrant requirement.6
   Before addressing the applicability of any exception to the
instant case, we pause to address the effect of our recent deci-
sion in City of Beatrice v. Meints.7 In that case, we acknowl-
edged we had often been imprecise when describing the excep-
tions to the warrant requirement and had incorrectly noted
that “probable cause” was such an exception.8 Meints clarified
that probable cause, standing alone, is not an exception to the
search warrant requirement “as applied to real property.”9
   [5] For precisely the reason articulated in Meints—a prob-
able cause exception to the warrant requirement would swallow
the rule—we now clarify that probable cause, standing alone,
is not an exception that justifies the search of a person without
a warrant. To the extent our prior cases indicate otherwise, they
are disapproved.10
   A valid arrest based on probable cause that a person
is engaged in criminal activity is allowed by the Fourth

 4
      State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
 5
      See id.
 6
      Id.
 7
      City of Beatrice v. Meints, 289 Neb. 558, 856 N.W.2d 410 (2014), cert.
      denied ___ U.S. ___, 135 S. Ct. 2388, 192 L. Ed. 2d 166 (2015).
 8
      See, State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010); State v. Gorup,
      275 Neb. 280, 745 N.W.2d 912 (2008); State v. Eberly, 271 Neb. 893, 716
      N.W.2d 671 (2006); State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659
      (2006); State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
 9
      City of Beatrice v. Meints, supra note 8, 289 Neb. at 567, 856 N.W.2d
      at 417.
10
      See cases cited supra note 8.
                                      - 714 -
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                           292 Nebraska R eports
                                 STATE v. PERRY
                                Cite as 292 Neb. 708

Amendment, and if an arrest is made based upon probable
cause, a full search of the person may be made incident to
that arrest.11
   [6,7] The question here, then, is whether the officers had
probable cause to arrest Perry. Under Nebraska law, a person
may be arrested without a warrant when an officer has prob-
able cause to believe the person either has committed a felony
or has committed a misdemeanor in the officer’s presence.12
Probable cause must be particularized with respect to the per-
son being arrested.13

              (a) Probable Cause to Arrest Perry
   The trial court ultimately analyzed whether the officers
had probable cause to arrest Perry under the framework of
Maryland v. Pringle.14 In that case, a car with three occupants
was stopped at 3:16 a.m. for speeding. When the driver was
asked for his license and registration, he opened the glove
compartment and an officer saw a large amount of rolled-up
money inside. The officer had the driver step out of the vehicle
and issued him a warning. He then asked for consent to search
the vehicle, and the driver gave it. The search revealed $763
in cash and five plastic baggies containing cocaine. The bag-
gies were found between a raised armrest and the back seat of
the vehicle.
   The officer questioned all three occupants of the vehicle
about the drugs and money, but none offered any information.
All three were placed under arrest and taken to the police

11
      See, United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d
      427 (1973); Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed.
      2d 685 (1969); State v. Evans, 223 Neb. 383, 389 N.W.2d 777 (1986).
12
      Neb. Rev. Stat. § 29-404.02 (Reissue 2008); State v. Evans, supra note 11.
13
      Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979);
      State v. Evans, supra note 11.
14
      Maryland v. Pringle, 540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769
      (2003).
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station. At the station, the front seat passenger confessed the
drugs were his and informed police the other two did not
know about them. After the passenger was charged with drug
possession, he moved to suppress his confession. He argued
it was the fruit of an illegal arrest because the officer lacked
probable cause to arrest him.
   The U.S. Supreme Court noted that a warrantless arrest
of an individual in a public place for a felony, or a misde-
meanor committed in the officer’s presence, is consistent with
the Fourth Amendment if the arrest is supported by probable
cause. It reasoned that once the officer found the five plastic
baggies containing cocaine, he had probable cause to believe a
felony had been committed. It focused its analysis on whether
the officer had probable cause to believe the passenger com-
mitted that crime.
   [8-10] In doing so, the Court in Pringle noted that “the
probable-cause standard is ‘“a practical, nontechnical concep-
tion”’ that deals with ‘“the factual and practical considerations
of everyday life on which reasonable and prudent men, not
legal technicians, act.”’”15 It further noted that probable cause
is “‘a fluid concept—turning on the assessment of probabili-
ties in particular factual contexts—not readily, or even use-
fully, reduced to a neat set of legal rules.’”16 Similarly, we
have noted that probable cause is a flexible, commonsense
standard that depends on the totality of the circumstances.17
We determine whether probable cause existed under an objec-
tive standard of reasonableness, given the known facts and
circumstances.18 Probable cause “‘means less than evidence
which would justify condemnation.’”19

15
      Id., 540 U.S. at 370.
16
      Id., 540 U.S. at 370-71.
17
      State Matit, supra note 1.
18
      Id.
19
      Maryland v. Pringle, supra note 14, 540 U.S. at 371.
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   The Court in Pringle reasoned that to determine whether
an officer had probable cause to arrest an individual, it had to
examine the events leading up to the arrest and then decide
“‘whether these historical facts, viewed from the standpoint
of an objectively reasonable police officer, amount to’ prob-
able cause.”20 It reasoned that because the drugs and money
were in the car and none of the three occupants offered any
information about their ownership, it was “an entirely reason-
able inference from these facts that any or all three of the
occupants had knowledge of, and exercised dominion and
control over, the cocaine.”21 Thus, a reasonable officer could
conclude there was probable cause to believe the passenger
committed the crime of possession of cocaine, either solely
or jointly. As part of the rationale, the Court noted that the
occupants “were in a relatively small automobile,” not a pub-
lic place.22 It reasoned that passengers in a car “‘will often
be engaged in a common enterprise with the driver, and have
the same interest in concealing the fruits or the evidence of
their wrongdoing.’”23 It noted that the “quantity of drugs
and cash in the car indicated the likelihood of drug dealing,
an enterprise to which a dealer would be unlikely to admit
an innocent person with the potential to furnish evidence
against him.”24
   In reaching the conclusion in Pringle, the Court distin-
guished both Ybarra v. Illinois25 and United States v. Di Re.26
In Ybarra, an investigator obtained a search warrant authoriz-
ing the search of a tavern and the bartender thereof, based

20
      Id.
21
      Id., 540 U.S. at 372.
22
      Id., 540 U.S. at 373.
23
      Id.
24
      Id.
25
      Ybarra v. Illinois, supra note 13.
26
      United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948).
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on allegations the bartender had been observed with heroin
packets. The search was conducted in the late afternoon,
when 13 or fewer customers were present. One officer patted
down each of the customers. When he patted down one cus-
tomer, Ventura Ybarra, he felt a “‘cigarette pack with objects
in it.’”27 He later returned and refrisked Ybarra and seized
the cigarette pack. Inside, he found tinfoil packets contain-
ing heroin.
   Ybarra was charged with the unlawful possession of a con-
trolled substance. He moved to suppress the contraband found
on his person, arguing the warrant did not authorize a search
of his person. The Court held that where the standard is prob-
able cause, a search or seizure of a person must be supported
by probable cause particularized with respect to that person. It
found none existed with respect to Ybarra, in that the police
had no reason to believe he was committing, had committed,
or was about to commit any criminal offense.
   In Di Re, an informant told an investigator that he had an
appointment to buy counterfeit gasoline coupons from a man
referred to as “Buttitta” at a specific place. The investigator
went to the place and found a vehicle occupied by Buttitta, the
informant, and Michael Di Re. The informant possessed coun-
terfeit gasoline coupons and told the investigator at the scene
that he obtained them from Buttitta. The investigator arrested
all three and took them to the police station.
   At the station, Di Re was searched and counterfeit gaso-
line coupons were found on his person. He was subsequently
charged for possessing them, and moved to suppress the con-
traband, arguing the search was not justified by a search
incident to a lawful arrest. The Court concluded there was no
probable cause to justify the arrest. It reasoned that to have
probable cause to arrest Di Re for a felony, the police needed
information implicating him in either possessing or knowing

27
      Ybarra v. Illinois, supra note 13, 444 U.S. at 88.
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that the coupons were counterfeit. It noted there was no evi-
dence of a conspiracy, because there was no evidence Di Re
was even in the car when the informant obtained the coupons
from Buttitta or that he even knew the transaction occurred.
It noted that the meeting occurred during the day in a public
place and that even if Di Re had seen the exchange of papers,
he likely would not have known what they were or that they
were counterfeit. It further noted that the informant specifi-
cally implicated Buttitta, but gave no indication that Di Re was
involved. It therefore concluded the officer lacked probable
cause to arrest Di Re, and thus the search incident to the arrest
was invalid.
   The Eighth Circuit has also decided a similar case using
the Maryland v. Pringle framework. In U.S. v. Chauncey,28
the defendant was driving a vehicle stopped by an officer for
having expired license plate tags. The defendant stepped from
the vehicle and approached the officer. When questioned, he
told the officer the vehicle had recently been purchased by
his passenger and produced a bill of sale. When the officer
then approached the passenger side of the car, he noticed a
strong odor of raw marijuana and saw the passenger closing a
drawstring bag in her lap. He seized the bag, confirmed it con-
tained marijuana, and handcuffed both the defendant and the
passenger while he searched the vehicle. The defendant was
searched, but no contraband was found on his person. When
the vehicle was searched, the officer found marijuana seeds
and stems, a scale, and several sandwich bags. Both the driver
and the passenger were arrested.
   The defendant was subsequently charged with possession
with intent to distribute, and he moved to suppress, argu-
ing his arrest was made without probable cause. The court
disagreed. It reasoned that the case fell somewhere between
Pringle and Di Re. It noted that like Di Re, there was evidence

28
      U.S. v. Chauncey, 420 F.3d 864 (8th Cir. 2005).
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tending to point to the passenger, as the marijuana was located
in her purse. But it also reasoned that like Pringle, there was
evidence to suggest the defendant was engaged in a common
enterprise with the passenger. It noted that the smell of mari-
juana in the car was quite strong, so that the defendant had
to have been aware of it in the vehicle. It also noted that the
seeds, stems, and scale found inside the vehicle indicated the
drug activity was open and notorious, so the defendant reason-
ably was aware of it. It thus concluded there was sufficient
evidence to suggest to an objectively reasonable officer that
the defendant was involved in the commission of a crime, and
his arrest was supported by probable cause.
   We have applied the Maryland v. Pringle framework in at
least one similar case. In State v. Voichahoske29 the defendant
was a passenger in a car occupied by the driver and two oth-
ers. The vehicle was stopped for speeding, and the officer
had the driver come to his patrol car while he checked on her
license and insurance. The driver lied about her name and
said the car belonged to her cousin. The cousin was a person
known to the officer for being involved with narcotics. The
driver told the officer she did not know the back seat pas-
sengers, but identified the defendant, the front seat passenger,
by name. The officer knew the defendant was also suspected
of being involved in narcotics. While talking to the driver, the
officer observed the passengers in the car continuously mov-
ing around.
   The officer left the driver in the patrol car and went to talk
to the passengers. They gave slightly contradictory versions
of their travel plans. One of the back seat passengers was
unable to hold still and continuously rubbed her vaginal area,
complaining she had just started her menstrual cycle. This
caused the officer to suspect she might be hiding contraband.
The officer returned to his patrol car and asked the driver’s

29
      State v. Voichahoske, supra note 8.
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permission to search the vehicle. She refused, so he called for
a canine unit. One arrived 12 minutes later. The dog alerted to
both the passenger side door and the driver’s side door. The
passengers were then removed from the vehicle.
   The passengers were questioned, and the defendant even
tually confessed he had lied about the driver’s identity and
was hiding her driver’s license in his wallet. The passengers
were taken to a police station and searched. The defendant
had a marijuana pipe in his sock and a bag of white powder
in his rectum. The defendant was charged with possessing a
controlled substance, and he moved to suppress the evidence
found on his person.
   In an analysis that perhaps did not clearly differentiate
between probable cause to search the defendant and probable
cause to arrest him, we discussed Pringle and whether there
was probable cause “sufficiently particularized” to the defend
ant.30 In this respect, we noted that the dog’s alert provided
probable cause that someone in the car possessed drugs. We
also noted the defendant lied about the driver’s identity and
concealed her identification in his wallet. We further noted
the passengers in the car had time to conceal evidence on
their persons, and we found the officers had probable cause to
believe drugs would be found on the defendant under a com-
mon enterprise theory.
   The threshold issue here is whether the officers had prob-
able cause to believe Perry was involved in a crime so as to
conduct a valid arrest without a warrant. We analyze this issue
under the framework provided by the U.S. Supreme Court in
Maryland v. Pringle.31 We find that the facts known to the
officers at the time of the arrest were (1) the odor of burnt
marijuana coming from the vehicle as soon as the driver’s
window was rolled down, (2) the presence of two individuals

30
      Id. at 76, 709 N.W.2d at 671.
31
      Maryland v. Pringle, supra note 14.
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in the front seat of the vehicle, (3) the vehicle passenger’s
noncooperation with officers and attempt to hide the contents
of the baggie in his hand from the officers, and (4) the dis-
covery that the baggie contained what appeared to be crack
cocaine, a controlled substance.
   [11] The appellate courts of this State have consistently
held that the odor of marijuana, alone or in combination with
other factors, creates probable cause for an officer to infer
that one or all of the occupants of a vehicle had recently com-
mitted the crime of possessing a controlled substance, thus
providing probable cause for an arrest and a valid search of
the person incident thereto.32 This line of cases is in accord
with various other jurisdictions.33 The general rationale is
based on common sense—the odor of marijuana indicates
marijuana likely is present in the car, which makes it likely
the car’s occupants are committing the crime of possess-
ing marijuana.34
   Perry argues there is no precedential value in our prior
cases holding the smell of marijuana emanating from a vehi-
cle provides probable cause to search the occupants thereof,
because the cases were decided at a time when possession
of any quantity of marijuana was a crime. He contends that
because possession of less than an ounce of marijuana is now
only an infraction,35 the mere smell of marijuana is not suf-
ficient probable cause that a crime is being or has been com-
mitted and does not justify an arrest. We disagree.

32
      See, State v. Masters, 216 Neb. 304, 343 N.W.2d 744 (1984); State v.
      Watts, 209 Neb. 371, 307 N.W.2d 816 (1981); State v. Daly, 202 Neb. 217,
      274 N.W.2d 557 (1979); State v. Clark, 21 Neb. App. 581, 842 N.W.2d
      151 (2013); State v. Reha, 12 Neb. App. 767, 686 N.W.2d 80 (2004).
33
      E.g., Blake v. State, 772 So. 2d 1200 (Ala. Crim. App. 2000); Brunson v.
      State, 327 Ark. 567, 940 S.W.2d 440 (1997); State v. Mitchell, 167 Wis.
      2d 672, 482 N.W.2d 364 (1992); Ford v. State, 37 Md. App. 373, 377 A.2d
      577 (1977).
34
      See Blake v. State, supra note 33.
35
      See Neb. Rev. Stat. § 28-416(13) (Supp. 2015).
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   A Minnesota appellate court has addressed the logical
fallacy of Perry’s argument. In State v. Ortega,36 an officer
approaching a stopped vehicle smelled burnt marijuana com-
ing from the passenger compartment. The district court found
probable cause for the search, based on a 1973 Minnesota
Supreme Court case holding the odor of marijuana pro-
vides an officer with probable cause to suspect criminal
activity.37 The defendant argued that the case was no longer
precedential, because at the time it was decided, posses-
sion of any amount of marijuana was a criminal offense, but
Minnesota had since changed its laws, and possession of a
small amount of marijuana was only a petty misdemeanor.
The court reasoned the change in the law was immaterial,
because “[t]he probable-cause standard is merely a test to
determine objective constitutional reasonableness, and regard-
less of the quantity of marijuana observed, the presence of
any amount logically suggests that there may be more.”38 It
held the officer had probable cause to arrest and search the
defendant “upon smelling the odor of marijuana emanating
from within the vehicle.”39
   We agree with this rationale. Objectively, the smell of burnt
marijuana tells a reasonable officer that one or more persons in
the vehicle recently possessed and used the drug. The officer
need not know whether the amount possessed is more than
1 ounce in order to have probable cause to suspect criminal
activity in the vehicle.
   [12] Of course, the odor of marijuana in an area will
not inevitably provide probable cause to arrest all those in
proximity to the odor.40 Here, the odor is simply one of the

36
      State v. Ortega, 749 N.W.2d 851 (Minn. App. 2008).
37
      See State v. Wicklund, 205 N.W.2d 509 (Minn. 1973).
38
      State v. Ortega, supra note 36, 749 N.W.2d at 854.
39
      Id.
40
      See 2 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth
      Amendment § 3.6(b) (5th ed. 2012).
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factors analyzed under the Maryland v. Pringle framework.
In addition to the odor of marijuana emanating from the vehi-
cle, the arresting officers knew there were two individuals in
the front seat of a vehicle, the passenger was not complying
with directions from the officers and was hiding his hands,
and a baggie the passenger held in his hand contained a sub-
stance that appeared to be crack cocaine. A reasonable officer
with knowledge of all of these facts could conclude both
occupants of the vehicle had knowledge of the presence of the
marijuana and the suspected cocaine and exercised dominion
over both, and thus the officer could have probable cause to
arrest both occupants for drug possession. We note that prob-
able cause does not require evidence sufficient to convict—
only that which would lead to a reasonable inference of guilt.41
We conclude that on the totality of the facts known to them at
the time of the search of Perry’s person, the officers had suf-
ficient probable cause, particularized to Perry, to arrest Perry
for drug possession.
                  (b) Search Incident to Arrest
   [13] The initial search of Perry’s person was done before
he was formally arrested. A search without a warrant before
an arrest, also without a warrant, is valid as an incident to the
subsequent arrest if (1) the search is reasonably contemporane-
ous with the arrest and (2) probable cause for the arrest exists
before the search.42 Here, probable cause existed before the
search, and Perry’s arrest was made immediately thereafter,
making it reasonably contemporaneous with the search. The
evidence found during the search was admissible, and the dis-
trict court properly denied Perry’s motion to suppress.
                 2. Finding of Noncooperation
   For the sake of completeness, we note that Perry also assigns
as error the district court’s finding that he was uncooperative

41
      See Maryland v. Pringle, supra note 14.
42
      State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991).
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during the traffic stop. We review this finding of historical fact
for clear error.43
   The record shows it was the passenger, Devaughn, and not
Perry, who was uncooperative with officers and gave a false
name. The district court thus clearly erred in finding it was
Perry who acted in this manner. This error, however, did not
affect the propriety of the court’s ultimate holding, which
we affirm.
                       V. CONCLUSION
   For the foregoing reasons, we find the district court properly
denied Perry’s motion to suppress. We affirm his conviction
and sentence of 4 years’ probation.
                                                     A ffirmed.
   Heavican, C.J., and Miller-Lerman, J., participating on
briefs.
   McCormack, J., not participating.

43
      See, State v. Smith, supra note 4; State v. Gorup, supra note 8, 279 Neb.
      841, 782 N.W.2d 16 (2010).


               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs February 23, 2015

          VICTOR D. MCMILLER, SR. v. STATE OF TENNESSEE

           Appeal from the Claims Commission for the State of Tennessee
               No. T20110052     William O. Shults, Commissioner

               No. E2014-01006-COA-R3-CV-FILED-APRIL 27, 2015

This appeal arises from inmate Victor D. McMiller, Sr.‟s (“Claimant”) lawsuit against the
State of Tennessee (“the State”) for negligence. According to Claimant, he was injured
when he fell off a bunk bed, and, given his medical status, the State never should have
required him to use a top bunk as it did. The Tennessee Claims Commission found that
the State was predominantly at fault in the incident but that Claimant failed to prove he
actually was injured by the fall, thus defeating the negligence claim. Claimant appeals.
We affirm the judgment of the Claims Commission.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Claims Commission
                           Affirmed; Case Remanded

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Victor D. McMiller, Sr., pro se appellant.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé Blumstein, Solicitor
General; and, Pamela S. Lorch, Senior Counsel, Office of the Attorney General, for the
appellee, the State of Tennessee.
                                 MEMORANDUM OPINION1

                                            Background

              Claimant, an inmate of the Tennessee Department of Correction, filed a
complaint in the Claims Commission alleging negligence on the part of the State relating
to Claimant‟s fall from a bunk bed. On July 8, 2010, Claimant fell while trying to climb
to his top bunk. According to Claimant, the State was negligent in assigning him to a top
bunk given his restricted health assessment classification.

              This matter was tried in November 2013. Numerous witnesses testified
regarding how Claimant came to be assigned a top bunk. The State on appeal, however,
does not dispute the Claims Commission‟s findings regarding fault, and a discussion of
fault is not necessary to our disposition of this appeal. We, therefore, focus on the
medical evidence concerning damages as presented to the Claims Commission.

              The Claims Commission considered the deposition testimony of Dr. Dane
Lee. Dr. Lee treated Claimant. Dr. Lee testified that x-rays of Claimant did not reveal
injuries necessarily resulting from a fall. Rather, Dr. Lee testified that Claimant suffered
from chronic arthritic and osteoarthritic issues. Dr. Lee stated that Claimant had a
congenital spinal condition. Claimant has a long history of degenerative disc disease
with lumbar pain dating back to the early 1990s. In Dr. Lee‟s opinion, none of
Claimant‟s arm weakness or numbness resulted from a fall. Dr. Lee stated that he could
not agree with a reasonable degree of medical certainty that Claimant‟s July 2010 fall
caused him to require back and neck surgery in July and November 2011. Indeed, Dr.
Lee could not attribute any significant injury from the fall to Claimant within a
reasonable degree of medical certainty. Dr. Lee also testified that Claimant‟s need for
pain medication would exist even without the fall given his degenerative disc and
stenosis conditions. Claimant presented no contrary medical proof.

              In April 2014, the Claims Commission entered its final judgment. The
Claims Commission found the State 55% at fault to Claimant‟s 45% for Claimant‟s fall.
However, the Claims Commission also found that Claimant had failed to prove that he
suffered any injury or damages from the fall. The Claims Commission stated in its final
judgment, in part:

1
 Rule 10 of the Rules of the Court of Appeals provides: “This Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum
opinion when a formal opinion would have no precedential value. When a case is decided by
memorandum opinion it shall be designated „MEMORANDUM OPINION,‟ shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.”
                                                  -2-
      [E]ven though the State‟s negligence exceeded by a small degree that of the
      Claimant, we cannot find that Mr. McMiller has established by a
      preponderance of the evidence the causal connection between his fall of
      July 8, 2010, and the conditions which have resulted in two separate
      surgeries and the current condition of Claimant‟s cervical and lumbar spine.

Claimant timely appealed to this Court.

                                      Discussion

              Claimant raises over 20 issues on appeal. Respectfully, however, these
issues as presented are not meaningful for purposes of appellate review. We restate and
consolidate Claimant‟s numerous issues into the following single and dispositive issue:
whether the Claims Commission erred in finding that Claimant failed to prove by a
preponderance of the evidence that he was injured by the fall from his bunk bed.

             Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court's conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).

             As our Supreme Court has explained regarding negligence:

      In order to establish a prima facie claim of negligence, basically defined as
      the failure to exercise reasonable care, a plaintiff must establish the
      following essential elements: “(1) a duty of care owed by defendant to
      plaintiff; (2) conduct below the applicable standard of care that amounts to
      a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5)
      proximate, or legal, cause.”

Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (quoting Giggers v. Memphis
Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009)).

             The evidence in the record on appeal reflects that Claimant suffered from
longstanding medical problems related to his spine. The evidence contained in the
record, including Dr. Lee‟s testimony, does not preponderate against the Claims
Commission‟s finding that Claimant suffered no distinct injury or damages from his fall
from the bunk bed. Rather, it appears, as found by the Claims Commission, that

                                           -3-
Claimant suffers chronic health problems apart from and unrelated to any fall. No
medical proof contradicting Dr. Lee‟s testimony was presented at trial.

              While we are mindful of the inherent hardships the incarcerated Claimant
likely faced in bringing his lawsuit, there simply must be an injury or loss to sustain a
negligence claim. Claimant failed to prove he suffered an injury or loss as a result of the
fall. Therefore, regardless of the State‟s predominant fault in the fall, the absence of an
essential element—injury or loss—serves to defeat Claimant‟s negligence claim against
the State. This being so, we affirm the judgment of the Claims Commission.

                                       Conclusion

              The judgment of the Claims Commission is affirmed, and this cause is
remanded to the Claims Commission for collection of the costs below. The costs on
appeal are assessed against the Appellant, Victor D. McMiller, Sr., and his surety, if any.

                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE

                                            -4-