                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                   February 15, 2001 Session

                  RICK RICHARDS v. TRACI RENAE DOMALIK

                      Appeal from the Circuit Court for Hawkins County
                             No. 5028J    John K. Wilson, Judge

                                      FILED APRIL 10, 2001

                                  No. E2000-01882-COA-R3-CV


This is a tort action arising out of an accident involving a bicycle and an automobile. The plaintiff
was riding his bicycle on the shoulder of the highway facing traffic. The driver of the automobile
was to the plaintiff’s left and was preparing to turn right out of the premises of a restaurant onto the
highway. As the plaintiff moved to his left and started to pass in front of the automobile, the
vehicles collided and the plaintiff was injured. The plaintiff brought this action seeking to recover
compensatory damages. The jury returned a verdict for the defendant, finding the plaintiff 75% at
fault. The plaintiff appeals, asserting, inter alia, that the jury charge was erroneous and that this
error warrants a new trial. We vacate the judgment below and remand for a new trial.


            Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                 Vacated; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HERSHCEL P. FRANKS , and
D. MICHAEL SWINEY, JJ., joined.

Phillip L. Boyd, Rogersville, Tennessee, for the appellant, Rick Richards.

Suzanne S. Cook, Kingsport, Tennessee, for the appellee, Traci Renae Domalik.

                                              OPINION

                                                   I.

         The accident that led to this litigation occurred on, or near, the right-of-way of State Highway
66 in Rogersville. At the site of the accident, Highway 66 is a two-lane highway running north and
south. The traffic lanes are separated by a center turn lane and are bordered on each side by a paved
shoulder, each shoulder appearing in the photographs to be somewhat less than the width of one of
the traffic lanes. A solid white line separates each shoulder from its adjacent traffic lane. There are
a number of fast-food restaurants and other businesses on the east side of Highway 66.
        On May 24, 1997, the plaintiff, Rick Richards, and his son were riding their bicycles along
the east shoulder of Highway 66, facing traffic. The defendant, Traci Renae Domalik, was
attempting to leave the premises of the Pizza Plus restaurant located on the east side of Highway 66.
She intended to turn right and proceed north on Highway 66. As Richards and his son approached
the Pizza Plus restaurant on their left, Richards noticed Domalik’s vehicle stop and start several
times as it moved in the direction of the highway. Domalik was looking to her left for traffic
proceeding north and did not see Richards approaching from her right. Richards, however, did see
Domalik’s vehicle. As they approached Domalik, Richards told his son to “watch the car because
[he] didn’t know what she was going to do.” Although he could have stopped, he did not, nor did
he attempt to attract Domalik’s attention in any way.

        As Richards approached, Domalik’s vehicle was four to six feet from the shoulder. Having
decided to pass Domalik, Richards, instead of staying on the shoulder, swung into the parking lot
closer to the front of Domalik’s vehicle. At the same time, Domalik let her foot off the brake and
her vehicle moved forward, striking Richards on his left leg with the left side of her bumper. The
impact apparently1 occurred in the paved area of the premises of the restaurant.

       At trial, Richards acknowledged his deposition testimony to the effect that, earlier in the day,
he and his son were riding in the same direction as traffic “like I am supposed to.” He admitted that
he was familiar with the area, knew that it was a busy area, and was aware that cars could pull out
suddenly from the business establishments along the highway. Although he answered at trial in the
negative when asked if he knew whether Domalik had seen him approaching, he also stated that he
“figured” she had.

        At trial, Richards sought, by way of various motions and special requests for jury charges,
(1) to prohibit Domalik from questioning him concerning whether his bicycle was equipped with
bells, whistles, or horns; (2) to exclude evidence relating to the fact that Richards was riding his
bicycle facing oncoming traffic; (3) to secure a charge to the jury that he was not required to ride
with traffic; and (4) to obtain a charge that the Rules of the Road, see T.C.A. § 55-8-101 et seq., do
not apply to the facts of his case in light of the location of the accident.

        The jury returned a verdict finding Richards 75% at fault and Domalik 25% at fault.
Richards now appeals, arguing that the trial court made several errors in its rulings of law and that
there is no material evidence to support the jury verdict. Domalik responds that the jury verdict is
supported by material evidence and that the trial court’s errors, if any, were harmless.




       1
           W e say apparently because the record does not reflect the precise boundaries of the right-of-way of Highway
66.

                                                          -2-
                                                  II.

                                                  A.

        Richards first argues that the trial court erred in allowing Domalik to question him as to
whether his bicycle was equipped with bells, whistles, or horns. He argues that such questioning
sent a message to the jury that he was under a legal duty to have such accoutrements, which “duty,”
according to Richards, is not to be found at common law or as a part of the statutory law. Domalik
responds that the questions were proper and did not convey the message claimed by Richards.

         Our review of the record persuades us that Domalik is correct. We find no suggestion in the
questioning of Richards that the plaintiff was under a statutory duty to have his bike equipped with
horns, bells, or whistles. The questioning on this subject was limited in nature and there is nothing
in the evidence, argument, or jury instructions that could have led the jury to reasonably believe that
failure to have horns, bells, or whistles on a bicycle constitutes a per se violation of some statutory
law about which the jury received no instruction from the court. On the subject of common law
negligence, we find that the line of questioning under discussion is relevant to the issue of whether
Richards attempted to warn Domalik of his presence. This line of inquiry was a proper prelude to
proving that Richards did not warn Domalik that he was approaching from her right. Thus, we find
no error in the trial court’s overruling of Richards’ objection to this line of questioning. However,
even if the trial court’s ruling on this issue was error, such error, given the evidence in this case,
would not constitute one “involving a substantial right [that] more probably than not affected the
judgment.” Tenn. R. App. P. 36(b).

                                                  B.

         The essence of Richards’ remaining issues on appeal is that the jury was not properly charged
regarding the standard of care applicable to his conduct. He asserts that the jury was instructed as
to certain statutes that do not apply to his conduct. He also argues that the error was compounded
when the trial court refused to charge other statutes that have the effect of excepting his conduct out
of the statutes that were erroneously charged. Domalik, on the other hand, asserts that the trial court
gave a proper charge to the jury, and that, even if errors were made in the charge, they are not such
as to warrant a new trial. For the reasons stated below, we find that the trial court erred in charging
the jury as to two statutes that were not applicable to the facts of this case. Since these two statutes
should not have been charged to the jury, we focus on the effect of this error rather than specifically
addressing the “error” of failing to tell the jury why the two statutes are not applicable to the
plaintiff’s conduct.

        This Court has previously held that

               [t]he rule in Tennessee is that the trial court should instruct the jury
               upon every issue of fact and theory of the case raised by the pleadings
               and supported by the proof. More specifically, where a special


                                                  -3-
                  instruction that has been requested is a correct statement of the law,
                  is not included in the general charge, and is supported by the evidence
                  introduced at trial, the court should give the instruction. When the
                  denial of a request which ought to have been given prejudices the
                  rights of the requesting party, the judgment should be reversed.

Underwood v. Waterslides of Mid-America, 823 S.W.2d 171, 178 (Tenn. Ct. App. 1991) (citations
omitted). In addition to this rule requiring the inclusion of applicable instructions, it is also clear that
jury instructions “should not contain inaccurate or inapplicable statements of legal principles that
might tend to confuse the jury.” Ingram v. Earthman, 993 S.W.2d 611, 636 (Tenn. Ct. App. 1998).

        Among the instructions that Richards asked the trial court to charge are the statutory
definitions of “bicycle,” “highway,” “laned roadway,” and “roadway.” The trial court denied this
request, saying that “it’s covered basically in the general charge.”

         The court charged the jury, in pertinent part, as follows:

                  The Court’s going to read to you certain statutes concerning law as it
                  pertains to the roads in the State of Tennessee. Tennessee Code
                  Annotated, 55-8-115, driving on right side of roadway upon all
                  roadways is sufficient when a vehicle shall be driven upon the right
                  half of the roadway. 55-8-136, drivers shall exercise due care
                  notwithstanding the foregoing provisions to this chapter. Every
                  driver of a vehicle shall exercise due care to avoid colliding with any
                  pedestrian upon any roadway, and that one won’t be applicable here,
                  except that the Court – just disregard that, because it talks about
                  pedestrians, ladies and gentlemen. I apologize. 55-8-172, traffic law
                  apply to persons riding a bicycle. Every person riding a bicycle upon
                  the roadway is granted all the rights and is subject to all the duties
                  applicable to the drivers of a vehicle by this chapter. Any person who
                  drives any vehicle in willful or wanton disregard for the safety of
                  persons or property commits reckless driving. The Court has charged
                  you with the statutes concerning the driving on roads in the State of
                  Tennessee in this case.

As can be seen, the trial court only charged the jury with respect to two statutes by their Code
numbers: T.C.A. § 55-8-115 (1998) and T.C.A. § 55-8-172 (1998).2

         T.C.A. § 55-8-115 provides, in pertinent part, as follows:



         2
           The trial court’s charge also refers to T.C.A. § 55-8-136, but the court, after mentioning it to the jury, noted
that it was not applicable to the facts of this case.

                                                           -4-
                   (a) Upon all roadways of sufficient width, a vehicle shall be driven
                   upon the right half of the roadway....

                                                      *   *     *

                   (b) Upon all roadways any vehicle proceeding at less than the normal
                   speed of traffic at the time and place and under the conditions then
                   existing shall be driven in the right-hand lane then available for
                   traffic, or as close as practicable to the right-hand curb or edge of the
                   roadway, except when overtaking and passing another vehicle
                   proceeding in the same direction or when preparing for a left turn at
                   an intersection or into a private road or driveway.

(Emphasis added). A “vehicle,” as defined in the Rules of the Road, includes a bicycle. See T.C.A.
§ 55-8-101(72) (Supp. 2000).3

       T.C.A. § 55-8-172 provides, in pertinent part, as follows:

                   (a) Every person riding a bicycle upon a roadway is granted all of the
                   rights and is subject to all of the duties applicable to the driver of a
                   vehicle by this chapter and chapter 10, parts 1-5 of this title, except
                   as to special regulations in §§ 55-8-171 -- 55-8-177, and except as to
                   those provisions of this chapter and chapter 10, parts 1-5 of this title
                   which by their nature can have no application.

(Emphasis added).

        As can be seen, each of the statutes charged to the jury by Code number applies to persons
traveling on a roadway. Significantly, a roadway is defined as excluding the shoulder of the road:

                   “Roadway” means that portion of a highway improved, designed or
                   ordinarily used for vehicular travel, exclusive of the berm or shoulder.
                   In the event a highway includes two (2) or more separate roadways,
                   “roadway” refers to any such roadway separately but not to all such
                   roadways collectively.

T.C.A. § 55-8-101(50) (Supp. 2000) (Emphasis added). A “highway,” as that word is used in T.C.A.
§ 55-8-101(50), is defined as “the entire width between the boundary lines of every way when any

       3
           T.C.A. § 55 -8-101(72) p rovides as follows:

                   “Vehicle” means every device in, upon or by which any person or property is or
                   may be transported or drawn upon a highway, exc epting dev ices used ex clusively
                   upon station ary rails or track s....

                                                          -5-
part thereto is open to the use of the public for purposes of vehicular travel.” T.C.A. § 55-8-101(22)
(Supp. 2000). Thus, the two statutes charged to the jury only apply to travel on roadways and
expressly do not apply to travel on the shoulder of a highway, the portion of the highway upon which
the plaintiff was bicycling as he approached the site of the accident.

        The evidence presented at trial reveals that Richards was, prior to impact, traveling on the
shoulder of the highway, and was, at impact, arguably in the Pizza Plus parking lot. Thus, he was
not on a “roadway” either before or at the time of impact. Therefore the statutes charged to the jury
are not applicable.

        As previously stated, instructions to the jury are not to “contain inaccurate or inapplicable
statements of legal principles that might tend to confuse the jury.” Ingram, 993 S.W.2d at 636.
Accordingly, the jury charge with respect to T.C.A. §§ 55-8-115 and -172 was erroneous in the sense
that the statutes do not apply to this case. They should not have been charged to the jury.

       Domalik argues that any error of the trial court in its charge does not warrant a new trial. We
disagree. We find and hold that the trial court’s error warrants the vacating of the trial court’s
judgment under the applicable standard:

                A final judgment from which relief is available and otherwise
                appropriate shall not be set aside unless, considering the whole
                record, error involving a substantial right more probably than not
                affected the judgment or would result in prejudice to the judicial
                process.

Tenn. R. App. P. 36(b).

         In our judgment, the trial court’s error in charging these two statutes – the only statutes upon
which the jury was instructed by Code number – “involv[es] a substantial right [that] more probably
than not affected the judgment.” In this case, we find it very significant that the jury was charged
with respect to two statutes that do not apply to the facts of this case. It is true that the trial court,
in addition to the above quoted charge, instructed the jury on the principles of common law
negligence. We recognize that arguably there is material evidence to support the jury’s conclusion
based upon common law principles of negligence. But we cannot say, with any degree of
confidence, that the jury based its verdict upon the common law and not upon the erroneously
charged statutory law. We simply cannot ignore the fact that the trial court, by charging the jury with
respect to T.C.A. §§ 55-8-115 and -172, erroneously instructed the jury, in effect, that the plaintiff
should have been riding his bicycle with southbound traffic and as far to the right of the roadway as
possible. This was not the case and such a charge was reasonably calculated to confuse the jury as
to the plaintiff’s duty in this case. Accordingly, we find that the erroneous charge warrants a new
trial in this case.




                                                   -6-
                                                  C.

       In order to give the trial court additional guidance on remand, we will now look at another
of Richards’ arguments on appeal; and, in addition, we will address another statute that may be
applicable to this case.

       Richards sought to exclude evidence and argument relating to the fact that he was riding his
bicycle against the flow of traffic. He asked the trial court to charge the jury as follows:

               I charge you that if you find the facts to be that this accident happened
               on private property, then the Rules of the Road do not apply since it
               did not occur on a public roadway. The location of the accident
               which occurred in this case is of great importance and it is up to you
               to determine whether it occurred on public or private property.

               I charge you further that if it occurred on private property, the Rules
               of the Road do not apply and that the duties, liabilities, and
               responsibilities of the respective parties are governed by basic
               principles of common law negligence requiring each person to
               exercise ordinary and reasonable care which ordinarily careful and
               prudent persons would exercise under the same or similar
               circumstances.

The trial court denied this request and charged the jury as follows:

               The common law, that’s the Rules of the Road, will apply to
               accidents that – will and may apply to accidents that occur on private
               property. However, both may apply, that’s the statutes in common
               law, if the accident occurs involving both the traveled public road and
               a private parking area.

We believe that the charge requested by the plaintiff is not entirely correct. Among other
deficiencies, we do not believe it appropriate to use words such as “of great importance” as if to
imply that other matters are of lesser importance. By the same token, we find the trial court’s charge
somewhat confusing in that it equates the common law with statutory law and combines the verbs
of “will” and “may” in the same thought. Accordingly, we find that neither charge is completely
accurate.

        We find and hold that on remand the jury should be instructed that if they determine that this
accident occurred on the shoulder of the road or on private property, then “the duties and liabilities
of the respective drivers must be governed by the basic principles of common law negligence
requiring each person to exercise ordinary and reasonable care which an ordinarily careful and
prudent person would exercise under the same or similar circumstances.” Miller v. Berry, 457


                                                 -7-
S.W.2d 859, 862 (Tenn. Ct. App. 1970). We also note that the Miller case indicates that there may
be “widely recognized and established practices used in operating vehicles by reason of the common
or statutory law,” id., that are applicable to private areas off the highway. Just such a “practice” is
found in T.C.A. § 55-10-205 (1998),4 the reckless driving statute, which was charged by the trial
court (although not referred to by Code number) and should be charged again at the new trial. If the
trial court on remand decides that there are other such “established practices,” it should charge the
jury with respect to these practices.

        We note that in addition to arguing that the Rules of the Road do not apply to him because
the accident occurred on private property, Richards argues that T.C.A. § 55-8-175(a)(1) (1998) does
not prohibit him from riding against traffic so long as he is off the “roadway.” That statute provides
as follows:

                   Any person operating a bicycle upon a roadway at less than the
                   normal speed of traffic at the time and place and under the conditions
                   then existing shall ride as close as practicable to the right-hand curb
                   or edge of the roadway….

(Emphasis added). We agree with Richards that this statute does not apply to him because, again
by definition, he was not “operating a bicycle upon a roadway” since he was not on a “roadway” as
that concept is addressed in T.C.A. § 55-8-101(50). As he approached the site of the accident, he
was on the shoulder and not on the roadway. At the time of the collision, he was either on the
extreme left side of the right-of-way or on private property. Lest there be any doubt in the minds of
the jurors as to whether the plaintiff was violating a statute in proceeding as he was, the jury should
be instructed that there is no statute that prohibits the operator of a bicycle from proceeding against
traffic if he or she is off of the roadway. We hasten to add, however, that although there is no statute
prohibiting one from riding a bicycle on the shoulder of the road or on private property facing
oncoming traffic, this does not mean that such a person is excused from exercising due care for his
or her own safety and the safety of others, and the jury should be so instructed.

        While not applicable here, it is clear that if a person chooses to operate a bicycle on the
roadway, not on the shoulder, he or she must proceed with traffic and “as close as practicable to the
right hand curve or edge of the roadway.” T.C.A. § 55-8-175.

       There is another statute that may or may not be applicable to this case depending upon the
location of the collision between the vehicles. T.C.A. § 55-8-131 (1998) provides as follows:




       4
           T.C.A. § 55 -10-205(a) pro vides as follows:

                   Any person who drives any vehicle in willful or wanton disregard for the safety of
                   persons or property commits reckless driving.

                                                          -8-
               The driver of a vehicle about to enter or cross a highway from a
               private road or driveway shall yield the right-of-way to all vehicles
               approaching on the highway.

The jury should be charged on remand that if they find that Richards was “approaching on the
highway,” i.e., on any part of the “width between the boundary lines” of Highway 66, see T.C.A. §
55-8-101(22), just prior to the time of the collision, they should go further and consider Domalik’s
duty under T.C.A. § 55-8-131. The jury should be further charged that if they find, on the other
hand, that Richards, just before the accident, was approaching on private property, T.C.A. § 55-8-
131 is, by its language, not applicable to Domalik’s conduct and should not be considered by the
jury. Since the subject statute contains the words “highway” and “private road or driveway,” the
definitions of those words should also be charged. See T.C.A. §§ 55-8-101(22) and (43) (Supp.
2000).

        There is a caveat to the instruction contained in the preceding paragraph. Our comments
regarding a jury charge on T.C.A. § 55-8-131 are based upon the record now before us. In the final
analysis, whether and how the trial court will charge this statute depends upon the state of the record
before the court immediately preceding its charge to the jury at the new trial.

                                                 III.

       The judgment of the trial court is vacated. Costs on appeal are assessed against the appellee.
This case is remanded to the trial court for a new trial, consistent with this opinion.



                                                        ___________________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




                                                 -9-
