                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                            August 30, 2001 Session

    MARTHA McELROY v. NORMA SHARP and VICTORIA L. SHARP

                   Direct Appeal from the Circuit Court for Knox County
                   No. I-763-99    Hon. Dale C. Workman, Circuit Judge

                                      FILED OCTOBER 8, 2001

                                 No. E2000-02708-COA-R3-CV



The Trial Court allocated fault between vehicle operators involved in the accident. Defendants
appeal the allocation. We affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Jerry M. Martin, Knoxville, Tennessee, for Appellants.

B. Chase Kibler, Knoxville, Tennessee, for Appellee.


                                            OPINION

               In this action arising from a motor vehicle accident, the only issue raised on appeal
is whether the Trial Judge properly allocated the percentage of fault to the respective motor vehicle
operators.

                The parties were involved in a motor vehicle accident on January 31, 1998. Plaintiff
was backing out of a private driveway onto a two lane main road, intending to travel in a westbound
direction. She stopped and looked in both directions before backing out, but did not see defendants’
vehicle approaching from the east. Plaintiff’s vision toward the east was obstructed by a large bush.
Defendant was traveling eastbound on the main road at 45 miles per hour, where the speed limit was
40 miles per hour. Sharp was looking down to insert a cassette into a tape player and did not see
plaintiff’s vehicle before impact. She stated to the investigating officers that she was not paying
attention when the impact occurred. She did not attempt to swerve or brake prior to the impact, and
neither driver’s view of the other was obstructed.
                Plaintiff sued for her damages and defendant counter-claimed for her damages. The
Circuit Court determined that plaintiff was 45% at fault and defendants were 55% at fault for the
accident, and judgment was entered for plaintiff in accordance with the formula for recovery under
the comparative negligence doctrine. Defendants have appealed.

                The scope of our review in non-jury cases is de novo with a presumption of
correctness of the trial court’s findings of fact, unless the evidence preponderates otherwise. Cross
v. City of Memphis, 20 S.W.3d 642, 644 (Tenn. 2000); Tenn. R. App. P. 13(d). Generally, the
determination of proximate causation is a question of fact. However, the issue may be determined
by the court as a matter of law, in situations “where the facts are established by evidence free from
conflict, and the inference from the facts is so certain that all reasonable men, in the exercise of free
and impartial judgment, must agree upon it.” Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn. 1994).
But cases are rare where comparative negligence is reviewed as a matter of law. 57B Am.Jur.2d
Negligence §1282 (1989).

               Evidence weighing against the defendant in this case was the failure of defendant
operator to keep a proper lookout ahead and to see what was to be seen and take proper action.
Hogan v. Reese, 1998 WL 430627, Tenn. Ct. App. No. 01-A-01-9801-CV-00023, July 31, 1998.
Moreover, the consequences of a driver’s momentary diverting attention from the road has been held
to be a factor of proximate causation. Hadley v. Morris, 249 S.W.2d 295, 298 (Tenn. Ct. App.
1951).

                On allocation of fault, the Eaton court outlined general principles to guide juries and
trial courts:

                [T]he percentage of fault assigned to each party should be dependent upon all the
                circumstances of the case, including such factors as: (1) the relative closeness of the
                causal relationship between the conduct of the defendant and the injury to the
                plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as
                whether the party knew of the risk, or should have known of it; (3) the extent to
                which the defendant failed to reasonably utilize an existing opportunity to avoid the
                injury to the plaintiff; (4) the existence of a sudden emergency requiring a hasty
                decision; (5) the significance of what the party was attempting to accomplish by the
                conduct, such as an attempt to save another’s life; and (6) the party’s particular
                capacities, such as age, maturity, training, education and so forth.

Eaton, at 892 S.W.2d at 592.

                 The fact that one driver has the right-of-way is not, by itself, sufficient to ground
liability of the non-yielding driver as a matter of law. Right-of-way is a factor, but not the sole
determinative issue of proximate cause. Each driver has a duty to exercise due care in the operation
of their vehicle, and the negligence of both drivers may combine together to proximately cause an
accident. Nash-Wilson Funeral Home, Inc., v. Greer, 417 S.W.2d 562 (Tenn. Ct. App. 1966).


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Exercise of due care requires a driver to keep a reasonably careful lookout, so as to avoid collision
with persons and other vehicles:

                If the party coming out of the driveway is violating the law, and the party driving the
                automobile along the highway is likewise violating the law, by not keeping a lookout
                ahead, or by not driving his car in a careful manner, . . . and both violations occur at
                the time of the injury, this constitutes a jury question, and not one in which the Court
                should direct a verdict, because even though both parties be violating the law, it is
                still a question for the jury to determine what the proximate cause of the collision
                resulting in the injury was, and the violation of which one constituted the proximate
                cause, . . .

                ...

                The driver of a motor vehicle has the duty to keep a proper lookout and watch where
                he is driving, even though he is rightfully on the highway and has the right of way;
                he is bound to take notice of the road, to observe conditions along the way, and to
                know what is in front of him for a reasonable distance. He must look not only
                straight ahead, but laterally, to discover whether there is danger of collision with the
                side of his car. Am.Jur. 5A Section 265.

Lowe v. Irvin, 373 S.W.2d 623, 629, 632 (Tenn. Ct. App. 1963). Similarly, failing to keep a proper
lookout and to take action to avoid the consequences of another driver’s negligence, has been held
to be a failure to exercise due care. See Hale v. Rayburn, 264 S.W.2d 230 (Tenn. Ct. App. 1953).

                 The trier of fact has considerable latitude in the allocation of the percentage of fault
in negligence cases. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); also see Griggs
v. Mixon, 1996 WL 44104, No. 02A01-9504-CV-00087 (Tenn. Ct. App. Aug. 6, 1996). In the
instant case the Judge, as the trier of fact, onerated defendant with 55% of the fault for the accident.
Defendant’s attention was diverted by her attempt to insert a cassette tape. She admitted to the
officer that she wasn’t paying attention. She made no attempt to brake or swerve to avoid McElroy’s
vehicle. Thus, the evidence does not preponderate against the finding that despite plaintiff’s
negligence in failing to yield to an oncoming driver, defendants’ negligence was the greater of the
two. We find that the evidence does not preponderate against the Trial Judge’s allocation of fault.

               We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to the defendants, Norma and Victoria L. Sharp.



                                                        _________________________
                                                        HERSCHEL PICKENS FRANKS , J.



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