                IN THE COURT OF APPEALS OF TENNESSEE
                             AT MEMPHIS
                                January 19, 2011 Session

          MARRIOTT APPLEWHITE v. JAMES BLANCHARD, JR.

               Direct Appeal from the Circuit Court for Shelby County
                   No. CT-000510-05     Karen R. Williams, Judge


               No. W2010-00343-COA-R3-CV - Filed February 1, 2011


The trial court awarded a directed verdict to the Defendant in this tort action arising out of
an automobile accident. We reverse and remand for further proceedings.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.

Valerie Smith, Memphis, Tennessee, for the appellant, Marriott Applewhite

Hope B. Calabro, Memphis, Tennessee, for the appellee, James Blanchard, Jr.

                                         OPINION

        This lawsuit arises from a July 2004 automobile accident in Memphis. In January
2005, Plaintiff Marriott Applewhite (Ms. Applewhite) filed a complaint in the Circuit Court
for Shelby County alleging that, on July 17, 2004, she suffered injuries and damages
proximately caused by the negligence of Defendant James Blanchard, Jr. (Mr. Blanchard).
In her complaint, Ms. Applewhite alleged that she was operating a Jeep Cherokee and
traveling eastbound on Carolina Ave.; that she proceeded through a green traffic light at the
intersection of Carolina and Third Street; and that her vehicle and a Dodge Ram operated by
Mr. Blanchard collided. She further alleged that Mr. Blanchard was traveling north on Third
Street, and that he had unlawfully entered the intersection after proceeding through a red
traffic light. She asserted eleven acts of negligence on the part of Mr. Blanchard. She also
asserted Mr. Blanchard had violated sections 21-87 (duty to devote full time and attention
to operating vehicle), 21-88 (duty to drive at safe speed, maintain lookout, and keep vehicle
under control), 21-128 (reckless driving) and 21-371 (traffic-control legend generally) of the
Ordinances of the City of Memphis, and Tennessee Code Annotated § 55-8-110 (traffic
control signals) and § 55-10-205 (reckless driving), and that these violations constituted
negligence per se. Ms. Applewhite prayed for compensatory damages in the amount
$75,000.1 Mr. Blanchard answered, denying Ms. Applewhite’s allegations of negligence and
asserting the doctrine of comparative fault.

        A jury trial was held March 23-24, 2009. Mr. Blanchard moved for a directed verdict
at the close of Ms. Applewhite’s proof, and renewed his motion at the close of all the proof.
In so moving, Mr. Blanchard asserted that Ms. Applewhite had failed to demonstrate that he
had acted negligently. He also argued that Ms. Applewhite was at least 50% at fault. The
trial court granted Mr. Blanchard’s motion by order entered April 17, 2009, and denied Ms.
Applewhite’s motion for a new trial by order entered January 15, 2010. Ms. Applewhite filed
a timely notice of appeal to this Court.

                                          Issue Presented

       Ms. Applewhite presents the following issue for our review:

       Can a trial court grant a directed verdict when there were lingering questions
       regarding apportionment of fault, conflicting testimony regarding the color of
       a traffic light, questions of credibility of witnesses regarding material issues
       of fact, for all of which reasonable minds could draw more than one
       conclusion?

                                             Discussion

       The trial court’s disposition of a motion for a directed verdict involves a question of
law concerning whether sufficient evidence has been presented to create an issue for the jury
to decide. Underwood v. HCA Health Servs. of Tennessee, Inc., 892 S.W.2d 423, 425 (Tenn.
Ct. App. 1994)(citations omitted). When considering a motion for directed verdict, the court
may not weigh the evidence or evaluate witness credibility. Id. Rather, the trial court must
look to all the evidence, taking the strongest legitimate view of it in favor of the opponent
of the motion, disregarding countervailing evidence, and draw all reasonable inferences in
the opponent’s favor. The motion must be denied if there is any dispute as to any material
determinative evidence or any doubt as to the conclusion to be drawn from the evidence as
a whole. Goodale v. Langenberg, 243 S.W.3d 575, 582 (Tenn. Ct. App. 2007)(citations
omitted). The unique facts of each case determines the range of reasonable inferences which


       1
      Ms. Applewhite also served her complaint on unnamed uninsured/underinsured motorist carrier
GEICO General Insurance Company, and GEICO intervened in the matter to assert its subrogation interest.

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may be drawn from the facts. Underwood, 892 S.W.2d at 425 (citations omitted). “An
inference is reasonable and legitimate only when the evidence makes the existence of the fact
to be inferred more probable than the nonexistence of the fact. Any lesser test would permit
the jury to rest its verdict on impermissible speculation and conjecture.” Id. at 426. The trial
court should grant a motion for directed verdict “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.” Eaton v. McLain, 891 S.W.2d 587, 590
(Tenn. 1994). We apply the same standard on appeal. Underwood, 892 S.W.2d at 425.

        In this case, it is undisputed that Ms. Applewhite stopped at a red traffic light at
Carolina and Third Street, and that she proceeded east through the intersection after the light
turned green. It also is undisputed that Ms. Applewhite collided with the rear left side of a
16-foot flat-bed trailer attached to Mr. Blanchard’s truck, and that Mr. Blanchard was
transporting between 1,800 and 3,500 pounds of baled cardboard on the trailer. At the trial
of this matter, Ms. Applewhite testified that she did not see Mr. Blanchard’s vehicle prior to
the impact. It is not disputed, however, that the accident occurred on a clear, sunny day, and
that Ms. Applewhite’s view was not impeded.

        Mr. Blanchard testified that he was traveling northbound on Third Street at the time
of the accident; that he saw Ms. Applewhite’s vehicle near the center lane of traffic on
Carolina, facing east; and that “[a]t some point” the traffic light changed from green to
yellow “after [he] got under there.” Mr. Blanchard further testified that he “knew it was
going to change” when he was approaching the intersection; that he was traveling under the
speed limit; and that “[w]hen [he] got through the intersection, [his] trailer was back there,
and the next thing [he] knew, it got hit . . .” Upon cross-examination, however, Mr.
Blanchard testified that he saw the light turn yellow as he approached the intersection. When
asked whether he “saw the light turn yellow,” Mr. Blanchard replied, “as I got closer, the
light turned yellow.” When asked whether he sped up to go through the yellow light, Mr.
Blanchard replied, “Yes.”

        The only other proof regarding the actions of the parties at the time of the accident
was the testimony of Roger Ferrell (Mr. Ferrell), a truck driver and eye-witness who was
traveling in the eastbound lane of Carolina. Mr. Ferrell testified that he came to a stop at the
red traffic light, and that Ms. Applewhite “pulled right up beside of [him] on the left side.”
Mr. Ferrell testified that Ms. Applewhite came to a complete stop at the red light, that they
sat at the light for at least 30 seconds, and that he saw Mr. Blanchard’s pick-up truck and
trailer traveling northbound on Third Street. Mr. Ferrell testified that Ms. Applewhite
proceeded through the light after it had turned green, and that he “thought she was going to
miss him.” Mr. Ferrell testified that Ms. Applewhite was not going “real fast” and that she
waited a reasonable time before proceeding through the green light. He further testified that

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Ms. Applewhite crossed three lanes of traffic before striking Mr. Blanchard’s trailer, and that
Mr. Blanchard had not cleared the intersection when the light turned green for the traffic
traveling on Carolina. Mr. Ferrell testified that Ms. Applewhite struck the very tail end of
Mr. Blanchard’s trailer, and that he did not observe that Ms. Applewhite attempted to swerve
or try to brake to avoid the collision. Mr. Ferrell further testified that he did not know the
color of the light governing the traffic on Third Street when Mr. Blanchard proceeded
through it; that Mr. Blanchard was traveling at about 30 miles an hour; and that Mr.
Blanchard did not appear to either speed up or slow down.

        The trial court granted Mr. Blanchard’s motion for directed verdict on the basis that
“[t]he law provides that a driver is still required to use reasonable care under the
circumstances and should not proceed through an intersection if the driver, using reasonable
care, sees or should see that another vehicle is in the intersection or so near to it that a
collision is likely unless the driver slows or stops.” In its order, the trial court stated that
“Defendant’s testimony was that he was in the intersection when the light governing the
intersection through which he was traveling turned yellow.” We note, however, that Mr.
Blanchard’s testimony regarding the color of the traffic light was inconsistent, and that Mr.
Blanchard stated that he knew the light was about to change as he approached the
intersection. We agree with Ms. Applewhite that the color of the traffic light governing
Third Street when Mr. Blanchard proceeded through the intersection is a disputed issue of
fact for the finder of fact in this case.

        Under the doctrine of comparative fault as adopted in Tennessee, a plaintiff who is
at least 50% at fault may not recover in a negligence action. McIntyre v. Balentine, 833
S.W.2d 52, 57 (Tenn.1992). When there is material evidence to support a finding of
negligence, however, it is for the jury to compare and allocate fault. Braswell v. Lowe’s
Home Centers, Inc., 173 S.W.3d 41, 43 (Tenn. Ct. App. 2005)(citation omitted). In light of
the undisputed fact that Mr. Blanchard’s vehicle was in the intersection when the light
governing the traffic on Carolina turned green, and Mr. Blanchard’s testimony that the light
governing Third Street was either yellow or about to turn yellow, whether Mr. Blanchard
acted negligently when he proceeded through the light hauling a 16 foot trailer carrying at
least a ton of cargo is a question of fact for the jury. Additionally, notwithstanding the duty
imposed on every driver to exercise reasonable care to avoid a collision, upon review of the
record in this case, we find that reasonable minds could disagree on whether Ms. Applewhite
failed to exercise reasonable care and, if so, the degree to which this failure contributed to
the damages in this case. Finally, even assuming both parties acted negligently, the
allocation of fault is a question for the jury.




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                                          Holding

      In light of the foregoing, the trial court’s award of a directed verdict in favor of Mr.
Blanchard is reversed. Costs of this appeal are taxed to the Appellee, James Blanchard, Jr.




                                                   _________________________________
                                                   DAVID R. FARMER, JUDGE




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