                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  October 1, 2002 Session


          RHANDIE PARKER, ET AL. v. WANDA McDANIEL, ET AL.

                     Appeal from the Circuit Court for Grainger County
                        Nos. 6837 & 6838     O. Duane Slone, Judge

                                 FILED DECEMBER 3, 2002

                                No. E2001-03110-COA-R3-CV



Shannon Dale Welch (“Welch”) and Stacy Ann Brooks (“Brooks”) were the only two occupants in
an automobile traveling at a high rate of speed when it collided with a vehicle driven by Rhandie
Parker (“Parker”). Parker’s brother-in-law, Hershel D. Williams (“Williams”), was a passenger in
his vehicle. As a result of the accident, Parker claimed $27,100 in property damage, medical
expenses of $8,241.52, and personal injuries. Williams claimed medical expenses totaling $9,545.38
and personal injuries. Parker’s wife, Janice Parker (“Ms. Parker”), asserted a claim for loss of
consortium. A jury returned a verdict against Welch in favor of Parker for $35,000, and awarded
Ms. Parker nothing. Williams was awarded $29,000. All three Plaintiffs appeal with the primary
issue being the adequacy of the verdict. We affirm.


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


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

R. Jackson Rose, Harrogate, Tennessee, for the Appellants Rhandie and Janice Parker, and Hershel
D. Williams.

John T. Johnson, Knoxville, Tennessee, for the Appellee Wanda McDaniel, Administratrix of the
Estate of Shannon Welch.

Gregory F. Coleman and Michael A. Myers, Knoxville, Tennessee, for the Appellee Curtis Mayford
Brooks, Jr., Administrator of the Estate of Stacy Ann Brooks.
                                              OPINION


                                             Background

                These consolidated lawsuits arise out of an automobile accident which occurred on
September 7, 1997, in Grainger County, Tennessee. Plaintiffs allege a vehicle driven by either
Welch or Brooks was traveling at a high rate of speed and collided with the vehicle driven by Parker
and in which Williams was a passenger. Plaintiffs claim both Welch and Brooks were under the
influence of alcohol at the time. Since Welch and Brooks died as a result of the automobile accident,
Plaintiffs sued their estates. Parker sought compensation for personal injuries and damage to his
vehicle, and his wife sought damages for loss of consortium. Williams sought damages for personal
injuries.

                Parker testified at some length. On the night of the accident, he had been to the
English Mountain Dragway, something he did regularly until the accident. Parker owns a drag racing
car and participates in 1/8 of a mile drag races. A 1/8 of a mile drag race takes approximately 6
seconds and Parker reaches a speed of up to 108 miles per hour. Parker testified he was pulling a
trailer containing his drag racing car and traveling about 30 to 35 miles per hour. He was observing
on-coming traffic and noticed a vehicle traveling at a high rate of speed attempt to pass another
vehicle. This vehicle then hit Parker’s vehicle head-on. He recalled seeing a “blond-headed girl”
in the passenger seat prior to the impact. Parker testified the value of his vehicle prior to the accident
was $28,200, and the vehicle sold for $1,100 after the accident.

                 Parker was treated for his injuries at the Morristown-Hamblen Hospital emergency
room. He was released from the emergency room after approximately three hours and went to see
Dr. Manning the next day. Dr. Manning eventually referred him to Dr. Hyde, who prescribed
physical therapy, among other things. Parker was supposed to have physical therapy on 11
occasions, but due to inclement weather and his having the flu, he attended only two sessions.
Fortunately, his daughter worked at the physical therapy center and was able to administer the
physical therapy to Parker at home. Parker testified he was “bruised and beat pretty bad” from the
accident. He had a fracture in his back and some fractured ribs. He still had pain at the time of the
trial from the fractured ribs, and his back was a constant problem. Parker stated his injuries restrict
a lot of his activities, although he continues to drag race. His medical bills incurred from the
accident totaled $8,241.52.

               Parker owned a farm with 28 cattle at the time of the accident. He sold the cattle to
a neighbor because he was not able to take care of them after the accident. He occasionally operates
a bulldozer which he uses for logging. He has to obtain the services of someone to help him operate
the bulldozer because he has difficulties operating it since the accident. Parker and Ms. Parker own
the Villa Motel in Claiborne County. Parker is unable to stock the convenience store located in the
motel and no longer participates in its upkeep because of his injuries sustained in the accident.



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                 Parker acknowledged on cross-examination that while it was dark outside and he only
saw the oncoming car a “split second” before impact, he did see a blond headed female in the
passenger seat. He was treated by Dr. Manning three times during the first month after the accident,
and he told Dr. Manning he was improving. Parker admitting stating in a deposition that he had
attended all of his therapy sessions and this testimony was not “totally accurate.” The last time he
was treated by Dr. Hyde was approximately three years prior to the trial. Parker stated he does not
incur any pain while drag racing, even though the drag racing car goes from 0 to 108 miles per hour
in six seconds. He drag raced in 1998, 1999, and 2000. He is able to unhook the trailer once he
arrives at the race track. Parker claimed he did not tell his vocational rehabilitation expert, Julian
Nadolsky (“Nadolsky”), that he had not been drag racing, and Nadolsky’s report is wrong if it states
Parker has not been drag racing. Parker testified he made income from logging, bulldozing and
cattle prior to the accident. However, he admitted none of this alleged income was reported on his
income tax returns. Parker acknowledged he was making a claims for loss of income from these
enterprises, but he could not state the amount of income he claims to have lost.

               Williams testified as well. He does not recall seeing anything prior to the accident.
He remembers being in the emergency room but was not admitted to the hospital. Williams stated
he had ruptured discs from the seat belt he was wearing. He also suffers from post traumatic stress
syndrome related to the accident. Prior to the accident, he worked six or seven days a week for a
cleaning business he and his first wife owned. Their net income in 1996 was $20,068, and
$18,071.49 in 1997. He has not worked in the cleaning business or anywhere else since the accident.
Williams testified he is unable to work and draws social security disability in the amount of $503
per month. He continues to accompany Parker to the drag races and assists him when necessary.
He has a considerable amount of pain from the accident. Williams stated he is physically unable to
perform any of the work he was qualified to perform before the accident. He occasionally goes
walking with his wife and has gone fishing a couple of times. For the most part, the injuries from
the accident prevent him from doing anything.

                Williams acknowledged, on cross-examination, that he was treated and released from
the emergency room and never was admitted to the hospital. He admitted having his neck and back
adjusted by a chiropractor prior to the accident and having been prescribed Paxil prior to the accident
because he was burned out and working too much. In his pre-trial deposition, however, he denied
being treated for depression prior to the accident. He acknowledged knowing a year before the
accident his wife intended on leaving him, but claims the stress he is under currently is related
completely to the accident. He does not recall telling Nadolsky he was unable to assist Parker in
drag racing after the accident. The business he and his now ex-wife operated was her business.
Williams claimed the business was originally in his name, but his ex-wife secretly changed the
business license prior to leaving him. He claims he was unaware she had changed the license and
that the business was in her name, even though he signed several tax returns which stated the
business was hers. The income from the business was reported as income to his then wife, not as
income to Williams. Williams admitted reporting no income on his income tax returns for three or
four years prior to the accident. He has not applied for a job since the accident. None of his
physicians have told him not to work. He has not been treated by Dr. Hyde for two and one-half


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years. Williams stated in his deposition that he never had any injuries before the accident, but later
was shown medical records from his chiropractor where he complained of pain in his neck, back,
and leg prior to the accident. Williams told Dr. McKnight, in February of 1999, that he was able to
go hiking and he and his new wife were hanging wall paper and painting. According to Dr.
McKnight’s medical records, Williams described his life as happy and cheery, he was sleeping good,
and every day felt like a spring day since he started taking Zoloft for depression and remarried.
Williams’ medical expenses resulting from the accident totaled $9,545.38.

                Nadolsky testified on behalf of both Parker and Williams. As to Parker, Nadolsky
testified he has an eighth grade education, although he reads at the High School level. Relying on
Parker’s education level, work experience, medical restrictions resulting from the accident, etc.,
Nadolsky opined Parker had a 55% vocational impairment as a result of the accident. According to
Nadolsky, if Parker did return to the job market performing a job he still could undertake, he would
earn between $12,000 and $18,000 per year. Nadolsky was “quite clear” Parker told him he no
longer drag raced. Nadolsky also agreed if Parker had started the logging business after the accident,
then that was inconsistent with what he had been told. In reaching his conclusion as to vocational
disability, Nadolsky admitted it was very important for him to receive an accurate history on the
person’s physical capabilities, work history, etc. Nadolsky testified it was his understanding Parker
was working 40 hours a week after the accident compared to 90 hours per week before the accident.
With regard to Williams, Nadolsky testified he was 100% vocationally disabled as a result of the
accident. Nadolsky testified Williams told him he was no longer able to assist Parker with drag
racing.

                Janice Parker is Parker’s wife and Williams’ sister. Ms. Parker testified to the
increased responsibility she had in running the motel after her husband was injured in the accident.
She also testified to having to care for her husband after the accident and the continuing effects it
has had on the marriage since that time. Her husband still helps with the motel and store although
he can not do as much as he did prior to the accident.

                Dr. Hyde, an orthopedic surgeon, treated both Parker and Williams. With regard to
Parker, an MRI was performed which revealed a ruptured disc at the L4-5 level and a bulging disc
at the L5-S1 level. After Parker had reached maximum medical improvement, Dr. Hyde advised him
to avoid lifting in excess of 35 to 40 pounds and to avoid repetitive bending, twisting and stooping
activities. Dr. Hyde concluded Parker had a 10% permanent partial medical impairment to the body
as a whole as a result of the accident. An MRI scan also was performed on Williams. The results
of that scan revealed three disc protrusions, at the C3-4, C4-5, and C5-6 levels. When Williams
reached maximum medical improvement, Dr. Hyde instructed him not to lift in excess of 30 pounds
and to avoid repetitive motion activities. Dr. Hyde concluded Williams had sustained a 15%
permanent partial medical impairment to the body as a whole resulting from the automobile accident.

               Prior to the jury being charged, Plaintiffs’ counsel requested a jury instruction on
negligent entrustment. The Trial Court refused to so charge the jury. After deliberations, the jury
determined Welch was 100% at fault for the accident. The jury assessed damages in favor of Parker


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in the amount of $35,000 for property damage and personal injuries. Williams was awarded $29,000
for personal injuries. Ms. Parker was awarded nothing. In light of the jury’s verdict as to who was
responsible for the accident, the Trial Court dismissed the claims against Brooks’ estate.

                All three Plaintiffs filed a motion for a new trial challenging the adequacy of the
jury’s verdict. They also claimed the Trial Court erred in not charging the jury with regard to
negligent entrustment and in dismissing the claim against Brooks’ estate. The final argument made
by Plaintiffs in this motion was that the Trial Court erred in giving Plaintiffs’ counsel a total of 15
minutes to make closing argument, but giving counsel for each defendant 15 minutes for a total of
30 minutes. Although not contained in the record, it appears the Trial Court overruled the motion
for a new trial, and Plaintiffs appeal on all of these issues.


                                              Discussion

                Acting as the thirteenth juror, a trial court is empowered to set aside a jury verdict and
order a new trial. If a trial court determines that the amount of the verdict is excessive or inadequate,
it may suggest a remittitur or an additur in lieu of granting a new trial. Overstreet v. Shoney’s, Inc.,
4 S.W.3d 694, 718 (Tenn. Ct. App. 1999). This procedure avoids the expense and delay of
conducting a new trial. Id. Here, the Trial Court approved the jury verdict.

                         However, when a trial court approves a jury verdict, appellate
                courts may only review the record to determine whether it contains
                material evidence to support the jury’s verdict. See Tenn. R. App. P.
                13(d); Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823
                (Tenn. 1994); Whitaker v. Harmon, 879 S.W.2d 865, 867 (Tenn. Ct.
                App. 1994). Appellate courts do not reweigh the evidence and
                consider where the preponderance lies. Instead, they determine
                whether there is any material evidence to support the verdict, and, if
                there is, they must affirm the judgment. See Reynolds v. Ozark Motor
                Lines, Inc., 887 S.W.2d at 823; Pullen v. Textron, Inc., 845 S.W.2d
                777, 780 (Tenn. Ct. App. 1992).

                         The jury bears primary responsibility for awarding damages
                in a personal injury action, followed closely by the trial court in its
                role as thirteenth juror. See Coffey v. Fayette Tubular Products, 929
                S.W.2d 326, 328 (Tenn. 1996); Sholodge Franchise Sys., Inc. v.
                McKibbon Bros., Inc., 919 S.W.2d at 41. When a trial court approves
                a verdict awarding damages in a personal injury action, our review is
                subject to the rule that if there is any material evidence to support the
                jury’s award, it should not be disturbed. See Hunter v. Burke, 958
                S.W.2d 751, 757 (Tenn. Ct. App. 1997).



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Overstreet, 4 S.W.3d at 718.

                 The first six issues raised by Plaintiffs on appeal all center around the adequacy of
the verdict. Parker was awarded damages roughly equal to the damages to his vehicle, in his
opinion, and his medical expenses. Ms. Parker was awarded nothing for her loss of consortium
claim. Williams was awarded roughly three times the amount of his medical expenses. Based on
our review of the testimony and the record as a whole, it is apparent the jury had problems with the
credibility of the various Plaintiffs, in particular with what Parker and Williams told Nadolsky about
their physical limitations, etc. There also were discrepancies in their testimony regarding the income
they earned prior to the accident and the extent of their injuries. Both Parker and Williams appeared
to be less than candid. There is little doubt that the credibility of Plaintiffs (or lack thereof) impacted
the amount of damages awarded by the jury. After a thorough review of the record, we conclude
there is material evidence to support the amount of damages awarded by the jury as to all three
Plaintiffs, and we, therefore, affirm the judgment in this regard.

                 The seventh and eighth issues raised by Plaintiffs on appeal are as follows:

                 7.     The jury should have been charged the special request of
                 Tennessee Pattern Instruction 3 – Civil 12.50, Negligent Entrustment,
                 as requested prior to the trial, in that the circumstantial evidence is
                 unrebutted that Stacy Brooks authorized Shannon Dale Welch to
                 operate her vehicle while he was under the influence of alcohol.

                 8.    There should not have been a directed verdict in favor of the
                 Defendant, Curtis Mayford Brooks, Adm. of the Estate of Stacy
                 Brooks for the reason set out in Issue number 7.

                 With regard to the seventh and eighth issues, the jury charge requested by Plaintiffs
is as follows:

                                         Negligent Entrustment

                         An owner of a motor vehicle is legally responsible for the
                 fault of another if:

                 (1) The owner gives permission to the person to use the vehicle; and

                 (2) The owner knows, or from the facts known to the owner should
                 know, that the user is under the influence of intoxicants or drugs; and;

                 (3) The intoxication of the person permitted to use the vehicle is a
                 legal cause of the injuries to the plaintiff . . .



                                                   -6-
               While the facts are undisputed that Welch had a blood alcohol content of .16 after the
accident and the car belonged to Brooks, there is no proof whatsoever in the record to show Brooks
knew or should have known that Welch was intoxicated. There is no proof where or with whom
Welch was drinking prior to the accident, if Brooks even was aware he had been drinking, whether
there were any visible effects on Welch of the alcohol consumption, etc. Likewise, there was no
expert proof describing the visible physical effects a blood alcohol content of .16 would have had
on Welch or any other individual.

               With respect to legal issues, our review is conducted “under a pure de novo standard
of review, according no deference to the conclusions of law made by the lower courts.” Southern
Constructors, Inc. v. Loudon County Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). We are
unable to conclude simply because Welch had a blood alcohol content of .16, without more, that a
jury question was presented as to whether Brooks negligently entrusted her vehicle to Welch.
Accordingly, we affirm the Trial Court on this issue.

                As stated, the eighth issue is a claim the Trial Court erred in dismissing Brooks’ estate
since Brooks negligently entrusted her vehicle to Welch. In light of our conclusion the Trial Court
did not err in refusing to instruct the jury on negligent entrustment, this issue is moot.

                The final issue on appeal concerns the amount of time Plaintiffs’ counsel was allowed
for closing argument. The length of time allotted for closing argument is a mater within the sound
discretion of the trial court. See Witherspoon v. Ciba-Geigy Corp., 1986 Tenn. App. LEXIS 2773
at *9 (Tenn. Ct. App. Feb. 12, 1986)(“Further we do not believe the trial court abused its discretion
by giving the plaintiffs and each of the defendants the same amount of time for closing arguments
where, as in the instant case, a different cause of action was brought against each defendant.”).
Although the claims against the Defendants were essentially the same, particularly so since negligent
entrustment properly was not charged, the position of the Defendants were not. For example,
Brooks’ estate claimed Brooks was the passenger, whereas Welch’s estate claimed Welch was the
passenger. We have not been provided a transcript of the closing arguments on appeal. Under the
record presented to us, we cannot ascertain if allowing Plaintiffs a total of only 15 minutes for
closing argument in any way impacted their cases. In light of the record before us, we are unable to
conclude the Trial Court abused its discretion in allowing Plaintiff a total of 15 minutes for closing
argument while at the same time allowing each Defendant 15 minutes.




                                                  -7-
                                           Conclusion

                The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial
Court for such further proceedings as may be required, if any, consistent with this Opinion. The
costs on appeal are assessed equally against the Appellants Rhandie Parker and Hershel D. Williams,
and their surety.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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