                   IN THE COURT OF APPEALS OF TENNESSEE          FILED
                        EASTERN SECTION AT KNOXVILLE
                                                                    May 30, 1996

                                                                 Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk



ESTER V. HAYES and                        )
CALVIN HAYES,                             )       HAMILTON CIRCUIT
                                          )
       Plaintiffs/Appellees               )       NO. 03A01-9602-CV-00054
                                          )
v.                                        )
                                          )
EUGENE P. GILY and GEOLOGIC               )
AND ENVIRONMENTAL SERVICES,               )
INC.,                                     )
                                          )
       Defendants/Appellants              )       REVERSED and REMANDED




Paul Campbell, Jr., Chattanooga, for the Appellees.

John R. Morgan, Chattanooga, for the Appellants.



                                      OPINION

                                                  INMAN, Senior Judge

       This personal injury action arose from an accident which occurred on

Interstate 75 near Ooltewah on April 19, 1993.

       The defendant Gily was driving a pick-up truck owned by his employer

northwardly on Interstate 75 en route to Knoxville. Loaded in the bed of the truck

were two Rubbermaid 35-gallon containers, each about three feet high with wheels

on the base, and with a lid in place. According to the testimony of Gily, the

containers were secured by ropes. He checked the position of the containers

periodically in his rear view mirror, and all was well until he crossed the bridge at the

Lee Highway-Collegedale exit when he discovered that the containers were no

longer in his truck.

       In the meantime, the plaintiff Mrs. Hayes was driving a Mercedes automobile

southwardly on the left or fast lane of the Interstate, following a truck with tool boxes

on either side. The separating distance is unclear, but she testified that she could
not see around the truck which she followed in the fast lane for about three miles.

The truck suddenly swerved to the right lane without signaling - to avoid a Mazda

which was stopped or barely moving - and Hayes struck the Mazda. It was then that

she saw a container lid “fly up” in front of her car, and she was then struck from the

rear by an automobile driven by Phillips.

       It was not disputed that the containers somehow became loosened in Gily’s

truck and were propelled into traffic.

       The plaintiff alleged various acts of common law and statutory negligence on

the part of Gily and his employer, and alleged that the defendant Phillips was

negligent in failing to keep a proper lookout in the direction he was driving, and failing

to keep his car under control.

       All parties moved for directed verdicts. The trial judge directed a verdict for

the plaintiff and against the defendants Gily and his employer, whose motion for a

new trial being overruled, appeal and present for review various issues, one of which

we believe is dispositive, that being the requirement that the jury fasten 100 percent

of the fault upon Gily and his employer.

       This case is one of comparative fault within the ambit of McIntyre v. Balentine,

833 S.W.2d 52 (Tenn. 1992). The trial judge was of the opinion that the plaintiff was

confronted with a sudden emergency and thus free of any degree of negligence.

       In McCall v. Wilder, et al, 913 S.W.2d 150 (Tenn. 1995) the Supreme Court

held that the sudden emergency doctrine had been subsumed into the comparative

fault scheme although definitively retaining its traditional meaning, citing Eaton v.

McLain, 891 S.W.2d 587 (Tenn. 1993). Under the evidence presented we think the

jury could rationally have found that the plaintiff Hayes was traveling too closely

behind the truck, thus obscuring her vision and disabling her from taking evasive

action to avoid the Mazda, conformably to the action of the truck driver, thereby

allocating some degree of fault to the plaintiff. In a similar vein, the jury might

rationally have considered whether the truck driver who shifted lanes suddenly

without signaling his intention to do so should share in the fault, and whether the

non-suited defendant Phillips (1) was keeping a proper lookout, (2) was in control of



                                            2
his vehicle, and (3) whether he took reasonable measures to avoid running into the

rear of the Hayes automobile.

       In our judgment it was error for the trial judge to direct a verdict fastening 100

percent of the liability upon the defendants thereby taking from the jury its

consideration of allocating percentages of negligence, if the jury chose to do so.

       The defendants moved for directed verdicts also, on the theory that the proof

did not reveal they were guilty of negligence in the manner in which the containers

were secured. We agree with the action of the trial judge in overruling this motion;

and hold that, upon retrial, in the event the plaintiffs prevail, the comparative

negligence of the defendants should also be allocated by the jury.

       Reversed and remanded for a new trial, with costs to the appellees.



                                           __________________________________
                                           William H. Inman, Senior Judge

CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Don T. McMurray, Judge




                   IN THE COURT OF APPEALS OF TENNESSEE

                                            3
                          EASTERN SECTION AT KNOXVILLE




ESTER V. HAYES and                         )
CALVIN HAYES,                              )       HAMILTON CIRCUIT
                                           )
       Plaintiffs/Appellees                )       NO. 03A01-9602-CV-00054
                                           )
v.                                         )
                                           )
EUGENE P. GILY and GEOLOGIC                )
AND ENVIRONMENTAL SERVICES,                )
INC.,                                      )
                                           )
       Defendants/Appellants               )       REVERSED and REMANDED




                                    JUDGMENT



       This appeal came on to be heard upon the record from the Circuit Court of

Hamilton County and briefs filed on behalf of the respective parties. Upon

consideration thereof, this court is of the opinion that there is reversible error in the

trial court’s judgment.

       It is therefore ORDERED and ADJUDGED by this Court that the judgment of

the trial court is reversed. Costs are assessed to the appellee and its surety. The

case is remanded to the Circuit Court of Hamilton County for further proceedings in

accordance with the opinion of this Court and for collection of costs pursuant to

applicable law.



                                      PER CURIAM
