Decker v. Orosz ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
DIANE F. DECKER and ) C/A NO. 03A01-9704-CV-00143
GEORGE H. DECKER, ) October 20, 1997
)
Plaintiffs-Appellants, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
v. ) APPEAL AS OF RIGHT FROM THE
) KNOX COUNTY CIRCUIT COURT
)
)
)
SUSAN E. OROSZ and )
ERIC J. BERGMAN, )
) HONORABLE DALE C. WORKMAN,
Defendants-Appellees. ) JUDGE
For Appellants For Appellees
W. MORRIS KIZER KEITH F. BLUE
Gentry, Tipton, Kizer & McLemore Jenkins & Jenkins
Knoxville, Tennessee Knoxville, Tennessee
OPINION
VACATED AND REMANDED Susano, J.
1
In its present posture, this is a negligence action by
the original plaintiffs seeking damages allegedly arising out of
a two-vehicle accident at the intersection of Cumberland Avenue
and Stadium Drive in Knoxville. The jury returned a verdict in
favor of the defendants, Susan E. Orosz and her husband, Eric
Bergman. The plaintiffs, Diane F. Decker and her husband, George
H. Decker, appealed, raising the following issues:
1. Did the trial court err in denying the
Deckers’ motion for directed verdict on the
issue of Ms. Orosz’ liability?
2. Did the trial court err in denying the
Deckers’ motion to set aside the judgment and
to have judgment entered in accordance with
their motion for directed verdict?
3. Did the trial court err in denying the
Deckers’ motion for new trial?
4. Is there any material evidence to support
the special verdict of the jury that Ms.
Orosz was not negligent?
For ease of reference, the two drivers involved in the accident,
Ms. Decker and Ms. Orosz, will be referred to, respectively, as
“the plaintiff” and “the defendant.”
The accident occurred shortly before 9:00 a.m. on March
29, 1994. The plaintiff, a student at the University of
Tennessee-Knoxville, was on her way to class; the defendant, an
employee at the College of Veterinary Medicine on the same
campus, was going to work. Both were proceeding west on
Cumberland Avenue. The plaintiff was in the left-hand turn lane,
intending to turn left onto Stadium Drive. The defendant was
immediately to the right of the plaintiff, in a lane for vehicles
proceeding straight ahead. She had originally intended to go
2
straight, but changed her mind, after which she turned into the
plaintiff’s lane of traffic, striking the right front part of the
plaintiff’s vehicle.
The plaintiff sued the defendant1 for damages. The
defendant and her husband filed a counterclaim for damages. At
the conclusion of all the proof, the plaintiff moved for a
directed verdict “on the issue of liability.” The trial court
granted the plaintiff’s motion as to the counterclaim, finding no
evidence of negligence on the part of the plaintiff.2 The trial
court denied the motion as to the original complaint, remarking
that “[t]he jury’s got to decide whether this defendant was
negligent.”
We will address first the failure of the trial court to
grant the plaintiff’s motion for a directed verdict on the issue
of the defendant’s liability.
The standards applicable to a court’s evaluation of a
motion for directed verdict in a negligence case are well
established. In Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994),
the Supreme Court had occasion to state these standards:
In ruling on the motion, the court must take
the strongest legitimate view of the evidence
in favor of the non-moving party. In other
words, the court must remove any conflict in
the evidence by construing it in the light
most favorable to the non-movant and
discarding all countervailing evidence. The
1
Ms. Orosz’s husband, Eric Bergman, was sued on the theory that she was
driving a family purpose vehicle. The defendant and her husband admitted this
fact at trial.
2
The defendant and her husband have not appealed this ruling.
3
court may grant the motion only if, after
assessing the evidence according to the
foregoing standards, it determines that
reasonable minds could not differ as to the
conclusions to be drawn from the evidence.
(Citations omitted.) If there is any doubt
as to the proper conclusions to be drawn from
the evidence, the motion must be denied.
(Citation omitted.)
Id. at 590.
In the instant case, the plaintiff alleges, among other
acts of negligence, that the defendant violated certain statutes,
which are as follows:
Whenever any roadway has been divided into
two (2) or more clearly marked lanes for
traffic, the following rules, in addition to
all others consistent herewith, shall apply:
(1) A vehicle shall be driven as nearly as
practicable entirely within a single lane and
shall not be moved from such lane until the
driver has first ascertained that such
movement can be made with safety;...
T.C.A. § 55-8-123.
No person shall...turn a vehicle from a
direct course or move right or left upon a
roadway, unless and until such movement can
be made with reasonable safety.
T.C.A. § 55-8-142(a).
Every driver who intends to start, stop or
turn, or partly turn from a direct line,
shall first see that such movement can be
made in safety,...
4
T.C.A. § 55-8-143(a). It was and is the plaintiff’s position
that the defendant violated these code sections and that her
violations were the proximate cause of the accident and the
injuries and damages claimed by the plaintiff and her husband.
The plaintiff and the defendant were the only witnesses
to the accident; however, neither party saw the other before
their cars collided. The plaintiff testified that as she
approached the intersection in the left-hand turn lane, she
observed that the traffic light at the intersection was red. She
said that she had almost brought her car to a complete stop when
it was struck in the right front side by the left front of the
defendant’s vehicle. The parties agree that after the collision,
the plaintiff’s vehicle was still in the turn lane and the
defendant’s vehicle was partly in the turn lane and partly in the
through-traffic lane.
The defendant admitted that the “driver’s side front
corner of [her] vehicle collided with the passenger side front
wheel and front fender of [the plaintiff’s] vehicle.” When asked
if she could tell the jury anything that the plaintiff had done
to cause the accident, the defendant responded, “[n]o, sir, I
can’t.”
The plaintiff testified that the defendant volunteered
at the scene of the accident that the collision was her fault.
When asked about this at trial, the defendant responded:
I don’t know if I implied it or if I said it.
Honestly, I don’t.
5
The defendant testified regarding what took place when
she made a decision to turn left at Stadium Drive rather than
going straight through the intersection:
Q. And upon deciding you’re going to make a
left on Stadium, are you moving or stopped at
that point, as you’re thinking about this?
A. I was -- I was at a complete stop.
Q. And in what lane?
A. I was in the left-hand [through-traffic]
lane.
* * *
Q. All right, And what did you do then once
you changed your mind and you were going to
make a left onto Stadium Drive.
A. Okay, after -- I remember after I looked
at the clock and made the decision, then I
put my blinker on to get into the left-hand
turn lane. Then I looked into the --
Q. Which blinker did you put on?
A. My left.
Q. All right.
A. Okay, then I looked into the rear view
mirror and looked straight behind me and I
did not see anyone coming. Then I looked in
the mirror on the left by the driver’s seat,
didn’t see anyone there, and then gave a
quick glance up ahead, still didn’t see
anyone, and then slowly took my foot off the
clutch so I could go into this lane. So, I
had just started turning the wheel of the
car, and taking my foot off the clutch when
the accident occurred.
When the defendant made her decision to change lanes, she was
stopped behind other traffic in the through-traffic lane, waiting
for the red light to change.
6
When the evidence is viewed “in the light most
favorable to the non-movant,”3 i.e., the defendant, see Eaton,
891 S.W.2d at 590, it is subject to only one reasonable
interpretation -- the defendant changed lanes at a time when such
a movement could not “be made with reasonable safety.” See
T.C.A. § 55-8-142(a). It is obvious to us, as the plaintiff
argues, that the defendant was negligent in failing to make sure
that the plaintiff was not in her “blind spot.” Before making
her lane change, the defendant checked her back and side mirrors;
what she failed to do was look back over her left shoulder to
assured herself that a vehicle was not to her left in the area
that could not be viewed through the side and back mirrors. This
was a clear violation of T.C.A. § 55-8-142(a). That violation
was the proximate cause of the collision between the two cars.
In this case, it was conceded by the defendant, and
found by the trial court, that the plaintiff was not guilty of
any negligence. Thus, logically, we are presented with an
accident that was either caused by the defendant’s negligence or
was unavoidable in nature. An “unavoidable accident” has been
defined by this court as follows:
An unavoidable or inevitable accident is such
an occurrence or happening as, under all
attendant circumstances and conditions, could
not have been foreseen or anticipated in the
exercise of ordinary care as the proximate
cause of injury by any of the parties
concerned. In other words, where there is no
evidence that the operator of the motor
vehicle was negligent in any way, or that he
could have anticipated the resulting
3
For example, in taking this view of the evidence, we have ignored Ms.
Decker’s testimony that the defendant admitted fault at the scene of the
accident. A reasonable inference from Ms. Orosz’ testimony is that she did not
intend to admit fault.
7
accident, the accident is deemed to have been
an unavoidable or inevitable one for which no
recovery may be had.
Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn.App. 1994) (citing
from 7A Am.Jur.2d, Automobiles and Highway Traffic § 397, pp.607-
08). To state the rule is to demonstrate that it does not
describe the facts in this case. When measured against this
definition, the evidence in this case cannot reasonably be
interpreted in such a way as to conclude that the collision was
unavoidable. On the contrary, it seems to us that the evidence,
even when viewed in a light most favorable to the defendant,
clearly demonstrates negligence on the part of the defendant that
proximately caused this collision. This accident could have been
avoided had the defendant ascertained that the plaintiff was to
her left in the “blind spot.” According to her testimony, she
did not do that.
We believe that the plaintiff was entitled to a
directed verdict on the issue of the defendant’s liablity.4
Accordingly, we vacate the trial court’s judgment entered on the
jury’s verdict for the defendant, and remand this case for the
entry of a verdict for the plaintiff on the issue of the
defendant’s liability, and for a new trial limited solely to the
damages, if any, to which the plaintiff and her husband are
entitled. Costs on appeal are taxed against the appellees.
__________________________
Charles D. Susano, Jr., J.
4
Because of our disposition of plaintiff’s first issue, we do not find
it necessary to reach the other issues raised on this appeal.
8
CONCUR:
__________________________
Houston M. Goddard, P.J.
(Separate Dissenting Opinion)
Herschel P. Franks, J.
9