                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   JULY 22, 2004 Session

        BRIAN DEAS, ADMINISTRATOR v. STATE OF TENNESSEE

                   Direct Appeal from the Tennessee Claims Commission
                   No. 20-100-413   Nancy Miller-Herron, Commissioner



                  No. W2003-02891-COA-R3-CV - Filed November 19, 2004


This case involves a wrongful death action filed against the State of Tennessee in the Tennessee
Claims Commission pursuant to Tennessee Code Annotated section 9-8-307(a)(1)(I) and (J).
Appellant is the administrator of the estate of the deceased driver of an automobile involved in a
collision with another vehicle on a state highway. Following a hearing, the Commissioner ruled that
the state was negligent under section 9-8-307(a)(1)(I) in inspecting and maintaining the section of
highway at issue, the shoulder of the highway did not constitute a dangerous condition under section
9-8-307(a)(1)(J), the Appellant failed to prove that the condition of the highway was the proximate
cause of the decedent’s untimely death, and the Appellant was not entitled to recover because
decedent’s negligence in causing the accident was at least fifty percent (50%). The Appellant filed
a notice of appeal to this Court, arguing that the Commissioner’s findings constitute error. For the
reasons stated herein, we affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Claims Commission Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and DAVID R. FARMER , J., joined.

Everett B. Gibson, Memphis, TN; Patrick J. Smith, Columbus, OH, for Appellant

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Rebecca
Lyford, Assistant Attorney General, Nashville, TN, for Appellee
                                                       OPINION

                               Factual Background and Procedural History


            On September 28, 1999, Leslie Yovan (“Decedent”), a young attorney from Ohio, was
traveling westbound on Highway 57 in McNairy County, Tennessee, on her way to the Memphis
airport to catch a return flight to Ohio. Mr. James Chaney (“Mr. Chaney”) was driving his
employer’s truck eastbound on Highway 57 on his way to a factory. Shortly after rounding a curve
on Highway 57, Decedent’s right tires entered onto the shoulder of the highway. While attempting
to steer back onto the paved surface, Decedent lost control of her vehicle and drove into the path of
Mr. Chaney’s truck. Mr. Chaney was unable to stop in time and collided with the passenger side of
Decedent’s car, resulting in her death.

       Highway 57 is a state highway constructed and maintained by the Tennessee Department of
Transportation (“TDOT”), a department of the State of Tennessee. The American Association of
State Highway and Transportation (“AASHTO”) creates standards governing, among other things,
the shoulders of roadways. The AASHTO standards require that the shoulder of the roadway remain
level with the paved surface traversed by motor vehicles. These standards have been adopted by
TDOT and applied to Tennessee’s state highway system. At the time of this accident, the shoulder
on Highway 57 where this accident occurred was gravel.1 Over time, the gravel along the highway
would dissipate due to normal wear and settlement. Throughout any given year, TDOT would
readjust the gravel shoulder along Highway 57 in order to make it flush with the paved surface. In
addition to the gravel shoulders, this particular stretch of highway did not have any signs posted
warning motorists of a drop-off along the shoulder.

      On September 12, 2000, Brian Deas (“Administrator”), the duly appointed administrator of
Decedent’s estate, filed a wrongful death action against TDOT with the Tennessee Claims
Commission.2 Administrator alleged that TDOT’s negligence in constructing and maintaining
Highway 57, as well as its failure to warn motorists of a drop-off, combined to cause the death of
Decedent. Specifically, Administrator alleged that the depth of the drop-off on this particular stretch


         1
          In July 2000, TDOT paved the shoulders along Highway 57 where this accident occurred. According to Stan
Reynolds, a TDOT crew manager working in McNairy County at the time, the paving effort was part of a larger initiative
launched by the state in 1994 to save costs associated with continuously readjusting the gravel shoulders along the state’s
highways. The state offered no objection to Mr. Reynolds’ testimony regarding the paving initiative at trial.

         2
           The Tennessee General Assembly created the Tennessee Claims Commission and vested it with the authority
to hear monetary claims filed against the state based upon the conduct of state employees. Tenn. Code Ann. §§ 9-8-301,
-305 (2003); see also Stewart v. State, 33 S.W .3d 785, 790 (Tenn. 2000). The Commission has exclusive jurisdiction
to hear claims pertaining to negligence in the design, inspection, and maintenance of state highways, as well as suits
alleging the existence of a dangerous condition on such highways. Tenn. Code Ann. § 9-8-307(a)(1)(I)–(J) (2003). “For
causes of action arising in tort, the state shall only be liable for damages up to the sum of three hundred thousand dollars
($300,000) per claimant and one million dollars ($1,000,000) per occurrence.” Tenn. Code Ann. § 9-8-307(e) (2003).



                                                            -2-
of highway caused Decedent to lose control of her car and enter into the path of Mr. Chaney’s truck.
The state filed an answer alleging as an affirmative defense that Decedent’s negligence in operating
her vehicle barred recovery under Tennessee’s comparative fault system.3

        Commissioner Nancy Miller-Herron held a hearing on Administrator’s claim on June 10,
2003, and she issued her ruling on October 23, 2003. The greatest area of contention between the
parties during the proceedings below concerned the exact depth of the drop-off on this particular
stretch of highway and whether the drop-off or driver error caused the Decedent to lose control of
her vehicle. After hearing all the testimony and reviewing the exhibits offered by the parties, the
Commissioner noted in her judgment that the testimony and exhibits reflected a wide divergence of
possible depths, ranging from less than one inch up to nine inches. The Commissioner’s judgment
contained the following findings of fact and conclusions of law: (1) the shoulder drop-off on
Highway 57 had a depth of between two and three inches; (2) this two to three inch drop-off did not
constitute a “dangerous condition” under section 9-8-307(a)(1)(J); (3) the drop-off was not the
proximate cause of Decedent’s death; and (4) Decedent was at least fifty percent (50%) at fault in
causing the accident, thereby barring recovery under Tennessee’s comparative fault system.

         Administrator filed an appeal to this Court and presents the following issues for our review:

I.       Whether the state’s negligence in maintaining the shoulder of the highway under section 9-8-
         307(a)(1)(I) of the Tennessee Code, including the failure to warn motorists of a low shoulder,
         is the proximate cause of Decedent’s death;
II.      Whether the condition of the highway shoulder under the facts presented in this case
         constitutes a “dangerous condition” under section 9-8-307(a)(1)(J) of the Tennessee Code;
III.     Whether a presumption of due care applies to Decedent’s act of driving onto the shoulder of
         the highway;
IV.      Whether the “sudden emergency doctrine” should apply when the operator of a motor vehicle
         allows her vehicle to cross over the fog line and onto the shoulder of the highway, and there
         is no competent proof that she was negligent in doing so; and
V.       Whether the evidence preponderates against the Commissioner’s finding of negligence of at
         least fifty percent (50%) on the part of Decedent.

                                              Standard of Review

       The legislature provided that the decisions of the Tennessee Claims Commission are
appealable to this Court as follows:

                  The decisions of the individual commissioners or, when rendered,
                  decisions of the entire commission regarding claims on the regular


         3
            “The state may assert any and all defenses, including common law defenses, which would have been available
to the officer or employee in an action against such an individual based upon the same occurrence.” Tenn. Code Ann.
§ 9-8-307(d) (2003).

                                                         -3-
                  docket may be appealed to the Tennessee court of appeals pursuant
                  to the same rules of appellate procedure which govern interlocutory
                  appeals and appeals from final judgments in trial court civil actions
                  ....

Tenn. Code Ann. § 9-8-403(a)(1) (2003). Accordingly, we are bound by the following standard of
review:
             Since this is a nonjury case, we review the case de novo upon the
             record with a presumption of correctness of the findings of fact by the
             Commission. Unless the evidence preponderates against the findings
             we must affirm, absent error of law.

Sanders v. State, 783 S.W.2d 948, 951 (Tenn. Ct. App. 1989) (quoting Learue v. State, 757 S.W.2d
3, 6 (Tenn. Ct. App. 1987)); see also Tenn. R. App. P. 13(d) (2003). “Because the [Commissioner]
is in a better position to weigh and evaluate the credibility of the witnesses who testify orally, we
give great weight to the [Commissioner’s] findings on issues involving credibility of witnesses.”
Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996) (citing Gillock v. Bd. of Prof’l
Responsibility, 656 S.W.2d 365, 367 (Tenn. 1983)). “[W]hen we review factual findings under
Tenn. R. App. P. 13(d), we will not reverse findings that hinge on the witnesses’ credibility unless
the record contains clear, concrete, and convincing evidence necessarily negating witness
credibility.” Pool v. State, 987 S.W.2d 566, 569 (Tenn. Ct. App. 1998).

                                             Proximate Causation

           On appeal, Administrator argues that the Commissioner erred in failing to find that the
negligent maintenance of the highway shoulder by the state was the proximate cause of Decedent’s
death. At trial, both sides conceded that Decedent overcorrected as she drove her vehicle back onto
the roadway. The parties disagree, however, on what caused Decedent to overcorrect.

          In order for Administrator to prove a cause of action based on the state’s negligence, he
must prove the following elements:

                  (1) a duty of care owed by the defendant to the plaintiff; (2) conduct
                  falling below the applicable standard of care amounting to a breach
                  of that duty; (3) an injury or loss; (4) causation in fact; and (5)
                  proximate, or legal, cause.4

McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991) (citations omitted). “[I]t is not enough
to prove the existence of a dangerous condition on the highway, pursuant to Tenn. Code Ann. § 9-8-
307(a)(1)(J), or to prove that the State negligently approved, constructed, and maintained the


         4
          W e are not asked on appeal to examine the Commissioner’s finding that the state was negligent in maintaining
the roadway at issue under section 9-8-307(a)(1)(I) of the Tennessee Code.

                                                         -4-
highway, pursuant to Tenn. Code Ann. § 9-8-307(a)(1)(I).” Belcher v. State, No. E2003-00642-
COA-R3-CV, 2003 Tenn. App. LEXIS 827, at *15–16 (Tenn. Ct. App. Nov. 25, 2003). The plaintiff
must also prove that those conditions were the cause-in-fact and the proximate cause of the accident.
Id. at *16. Our supreme court has formulated the following three-prong test for determining whether
a defendant’s negligence constitutes a proximate cause of the plaintiff’s injury:

                  (1) the tortfeasor’s conduct must have been a “substantial factor” in
                  bringing about the harm complained of; and (2) there is no rule or
                  policy that should relieve the wrongdoer from liability because of the
                  manner in which the negligence has resulted in the harm; and (3) the
                  harm giving rise to the action could have reasonably been foreseen or
                  anticipated by a person of ordinary intelligence and prudence.

McClenahan, 806 S.W.2d at 775 (citations omitted).

         The evidence presented in this case clearly demonstrated that a drop-off existed in the
shoulder of the roadway where the accident occurred. The testimony from Administrator’s own
witnesses, however, undermines the contention that this drop-off was a substantial factor in causing
Decedent to overcorrect. Administrator’s expert, Dr. Leighton Sissom (“Dr. Sissom”), testified that
Decedent overcorrected because the drop-off put pressure on the wheels of Decedent’s vehicle as
she attempted to re-enter the roadway. He also stated, however, that he would expect to find
evidence of “scrubbing” on the tires and pavement where this contact occurred. When asked if he
found any evidence of “scrubbing” in this case, Dr. Sissom testified that he had nothing other than
Mr. Chaney’s statements that the vehicle’s tires rubbed against the pavement. Dr. Sissom also
testified that over-correction depends on many factors, and he could not state at what depth a drop-
off would cause an over-correction. Mr. Nate Lenow, a private investigator hired by Administrator
to investigate this accident, testified that he went to the scene of the accident on October 11, 1999.
Mr. Lenow testified that he saw some markings on the pavement, but could not say that they came
from the Decedent’s car. Mr. Lenow also went to view Decedent’s car after this accident and stated
that he looked for cuts and scrapes on the tires, but he saw none. Jimmy Lambert (“Trooper
Lambert”), a state trooper with the Tennessee Highway Patrol, investigated this accident. Trooper
Lambert testified that he found yaw marks where Decedent attempted to re-enter the roadway, and
he found that Decedent’s vehicle started sliding sideways before it came back onto the pavement.
Administrator alleges on appeal that there is no evidence showing Decedent applied her brakes and
that the Commissioner failed to consider the testimony of Mr. Chaney, the only eye-witness.5

       “The State has a duty to exercise reasonable care under all the attendant circumstances in
planning, designing, constructing and maintaining the State system of highways.” Goodermote v.


         5
            Mr. Chaney’s deposition testimony was introduced as an exhibit at the proceeding before the Commissioner
since he lives in Texas and was unable to attend the trial. As such, we “may make an independent assessment of the
credibility of the documentary proof . . . without affording deference to the trial court’s findings.” Wells v. Tenn. Bd.
of Regents, 9 S.W .3d 779, 783–84 (Tenn. 1999).

                                                          -5-
State, 856 S.W.2d 715, 720 (Tenn. Ct. App. 1993) (citing Tenn. Code Ann. § 9-8-307(a)(1)(I)). This
policy is reflected in the industry standards adopted by TDOT, as testified to by the state’s own
witness, requiring that the shoulders of state highways remain flush with the traveling surface.
Although one representative from TDOT testified that TDOT received no complaints concerning the
drop-off from Highway 57 prior to this accident, another TDOT employee stated that they have to
“pull” the gravel shoulders two to three times per year to keep it level with the roadway.

               The foreseeability requirement is not so strict as to require the
               tortfeasor to foresee the exact manner in which the injury takes place,
               provided it is determined that the tortfeasor could foresee, or through
               the exercise of reasonable diligence should have foreseen, the general
               manner in which the injury or loss occurred. “The fact that an
               accident may be freakish does not per se make it unpredictable or
               unforeseen.” It is sufficient that harm in the abstract could reasonably
               be foreseen.

McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (citations omitted). While an accident
of this nature is clearly foreseeable based upon the inferences to be drawn from the testimony of the
state’s own witnesses, Administrator failed to demonstrate that the shoulder of the highway was a
substantial factor in bringing about this accident under the test formulated in McClenahan. Cf.
Goodermote, 856 S.W.2d at 722–23.

          Our review of the record reveals that the Commissioner thoroughly reviewed and weighed
each witnesses’ testimony regarding the cause of this accident. Issues of proximate causation are
left to the discretion of the trier of fact. McClenahan, 806 S.W.2d at 775. “Resolving the conflicting
testimony of experts falls within the province of the trier of fact.” Atkins v. State, No. E2003-01255-
COA-R3-CV, 2004 Tenn. App. LEXIS 240, at *16 (Tenn. Ct. App. Apr. 14, 2004) (citing State v.
Flake, 88 S.W.3d 540 (Tenn. 2002)). The Commissioner’s opinion clearly indicates that she
considered Mr. Chaney’s testimony by assessing its effect on Dr. Sissom’s conclusions. The
evidence in this case does not preponderate against the Commissioner’s finding that Administrator
failed to prove by a preponderance of the evidence that the drop-off between the shoulder and the
roadway was the proximate cause of Decedent’s death.

                       The Shoulder Drop-off as a Dangerous Condition

          Administrator asserts that the Commissioner failed to consider the depth of the drop-off
along the entire 150 foot section of Highway 57 at issue in this case. According to Administrator,
the Commissioner only considered the evidence relating to the depth of the drop-off where
Decedent’s vehicle re-entered the roadway. Administrator argues the Commissioner failed to take
into account Mr. Chaney’s testimony, showing that the drop-off where Decedent’s vehicle first
entered the shoulder was much deeper.




                                                 -6-
       Tennessee Code Annotated section § 9-8-307(a)(1)(J) does not set forth what will qualify as
a “dangerous condition.” Sweeney v. State, 768 S.W.2d 253, 255 (Tenn. 1989). In Sweeney, our
supreme court stated that the following factors should be considered when determining whether a
“dangerous condition” exists on a state highway under the statute: (1) the physical aspects of the
roadway, (2) the frequency of accidents on a particular stretch of roadway, and (3) the testimony of
expert witnesses in arriving at this factual determination. Id. (citing Holmes v. Christopher, 435
So.2d 1022 (La. App. 4th Cir. 1983)).

        Regarding the physical aspects of the roadway, the Commissioner’s findings do state that her
focus was upon the point where Decedent’s vehicle reentered the roadway. The emphasis on this
location, however, is warranted given the evidence presented in this case. As noted by the
Commissioner, the testimony from all of the witnesses regarding the exact depth of the shoulder was
very contradictory. Mr. Chaney, the only eye-witness to the accident, testified on direct examination
that the drop-off where Decedent’s car first left the roadway was approximately six to eight inches.
On cross-examination, however, Mr. Chaney admitted that he could not accurately state what the
depth of the drop-off was because he did not walk over and inspect or measure the drop-off
following the accident, but merely viewed it from a distance. In addition, none of the witnesses who
investigated this accident, including Administrator’s own expert, was able to determine the exact
location of where Decedent’s vehicle left the roadway. There was also conflicting testimony
regarding the shape of the drop-off and its potential effect on Decedent’s vehicle.

        Mr. Richard Lambert, who lives along this particular stretch of Highway 57, testified
regarding the frequency of accidents. Mr. Lambert testified that five to six accidents have occurred
along the highway over a period of thirteen years, but he could not say what caused the other wrecks.
Mr. Lambert stated that of all the accidents that did occur on this particular stretch of roadway, none
of those vehicles overcorrected and crossed into the other lane of traffic. Mr. Stan Reynolds, a TDOT
employee, testified that prior to this accident he was not aware of anyone being injured in an
automobile accident due to a drop-off on the shoulder of this particular highway.

        The crucial factor, based upon the testimony of Administrator’s own expert witness, was the
point at which the vehicle’s tires made contact with the drop-off to produce an over-correction. Dr.
Sissom, in an attempt to show the importance of the drop-off’s effect on Decedent’s second attempt
to re-enter the roadway, provided the following testimony:

               Q.      All right. Now, let’s turn to the opinions you stated on the
                       second page of Trial Exhibit 16. What happened after the
                       vehicle driven by Ms. Yovan left the pavement and ended up
                       on the shoulder in your opinion?
               A.      My belief is she experienced this startle factor that I talked
                       about a moment ago. When the vehicle went off the
                       pavement, suddenly she startled, got to do something (sic).
                       Tried to steer left. According to the deposition of Mr.
                       Chaney, saw that she didn’t succeed. Tried to steer left again.


                                                 -7-
                        Did succeed, but had done it too much — had steered too
                        much by that time and came back up on the roadway. In the
                        meantime traveled some two seconds, according to Mr.
                        Chaney, at whatever her speed was on the shoulder of the
                        road.

Administrator directs our attention to Mr. Chaney’s testimony that after the accident he walked over
to the ambulance and was able to observe the depth and condition of the shoulder. Mr. Chaney’s
own testimony, describing how the Decedent overcorrected on her second attempt to re-enter the
roadway, strengthens the Commissioner’s reliance on the location where Decedent’s car re-entered
the roadway to resolve the critical factual issue; whether the tires of Decedent’s vehicle hitting the
drop-off or driver error caused the accident at the moment of over-correction.

       After thoroughly reviewing the record in this case, we cannot say that the evidence
preponderates against the Commissioner’s factual finding that the drop-off where Decedent re-
entered the roadway was not a dangerous condition under section 9-8-307(a)(1)(J).

                                         Comparative Fault

        We note that the final issues raised by Administrator on appeal focus upon the
        Commissioner’s application of Tennessee’s comparative fault system.

                Many traditional, common-law tort concepts lost their independent
                existence after the Tennessee Supreme Court embraced the doctrine
                of comparative fault in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.
                1992). In the years since the McIntyre decision, the contributory
                negligence doctrine, the last clear chance doctrine, the sudden
                emergency doctrine, the rescue doctrine, and the doctrine of
                secondary implied assumption of the risk have been merged into the
                comparative fault scheme and are simply factors to consider when
                apportioning fault among the parties.

Winstead v. Goodlark Reg’l Med. Ctr., Inc., No. M1997-00209-COA-R3-CV, 2000 Tenn. App.
LEXIS 230, at *8–9 (Tenn. Ct. App. Apr. 4, 2000) (citations omitted); see also McCall v. Wilder,
913 S.W.2d 150, 157 (Tenn. 1995). Therefore, we combine these issues and discuss them
collectively in this section of the opinion.

        Administrator first argues that the Commissioner failed to consider whether a presumption
of due care existed as to Decedent’s action in driving onto the shoulder of the roadway.
Administrator first raised the issue with the trial court in his post-trial brief, but the Commissioner’s
opinion does not state whether she considered this doctrine when allocating the fault between the
parties. Since the Commissioner made no factual findings regarding this issue, we review the record



                                                  -8-
de novo to determine whether the presumption of due care should be taken into consideration when
allocating fault. Brooks v. Brooks, 992 S.W.2d 403, 404–05 (Tenn. 1999).

        Administrator relies on our supreme court’s decision in Memphis Light, Gas & Water v.
Goss, where the court stated that “[i]n the absence of any proof as to what caused [a driver] to veer
her car onto the . . . shoulder of the road, the presumption is that she was exercising proper care for
her own safety but such presumption is no evidence of [the defendant’s] negligence.” Memphis
Light, Gas & Water Div. v. Goss, 494 S.W.2d 766, 769 (Tenn. 1973) (citing Stinson v. Daniel, 414
S.W.2d 7, 9 (Tenn. 1967)). “[T]he presumption of due care is a rebuttal presumption and one of
fact.” Id. at 770. “The presumption of due care has application only in the absence of evidence,
either direct or circumstantial, showing how the injury was received, and the presumption disappears
when such evidence is produced.” Keith v. Keith, 741 S.W.2d 911, 913 (Tenn. Ct. App. 1987)
(citing Nichols v. Smith, 111 S.W.2d 911 (Tenn. 1937)); see also Seahorn v. Karr, 242 S.W.2d 331,
334 (Tenn. Ct. App. 1951).

        Conversely, “Tennessee has long recognized that the doctrine of res ipsa loquitur is
applicable to certain automobile accidents.” Hudson v. Stepp, 393 S.W.2d 301, 302 (Tenn. Ct. App.
1965). In setting forth the parameters of the doctrine as it applies to automobile accidents, we have
stated:
                         The maxim res ipsa loquitur means that the facts of the
                occurrence evidence negligence; the circumstances unexplained
                justify an inference of negligence. In the principle of proof employed,
                a case of res ipsa loquitur does not differ from an ordinary case of
                circumstantial evidence. Res ipsa loquitur is not an arbitrary rule but
                rather a “common sense appraisal of the probative value of
                circumstantial evidence.” Boykin v. Chase Bottling Works, [222
                S.W.2d 889, 896 (Tenn. Ct. App. 1949)].
                         This maxim does not generally apply to motor vehicle
                accidents, but it may apply to such an accident where the
                circumstances causing it were within driver’s control and the accident
                was such as does not usually occur without negligence. So where a
                motor vehicle, without apparent cause, runs off the road and causes
                harm, the normal inference is that the driver was negligent, and res
                ipsa loquitur is usually held to apply.

Sullivan v. Crabtree, 258 S.W.2d 782, 784 (Tenn. Ct. App. 1953). The application of the res ipsa
loquitur doctrine merely permits the fact finder “to choose the inference of defendant’s negligence
in preference to other permissible or reasonable inferences.” Id. at 785.

        In the present case, Administrator’s own expert thwarted the application of a presumption
of due care when he testified as follows:

               Q.      Now, it is her fault that she went off the road; is that correct?


                                                 -9-
                  A.       Well, she was at the wheel, so clearly she was driving the car
                           when it went off the road.
                  Q.       And it was her fault; is that correct?
                  A.       Yes.

The state’s expert testified that he found no evidence Decedent was impaired, and he too attributed
Decedent’s action in leaving the roadway to driver error. Mr. Chaney testified that Decedent, in his
opinion, was not speeding when she ran off the roadway, but he offered no testimony as to why her
vehicle suddenly left the roadway and entered onto the shoulder. Trooper Lambert testified that he
walked back up the roadway about 200 feet from the point where the vehicle re-entered the
pavement, but he did not notice any road hazards that could have caused Decedent to leave the
roadway. Sergeant Tony Scott with the Tennessee Highway Patrol testified that he looked inside
Decedent’s car after the accident and noticed an apple with a fresh bite out of it, suggesting that
Decedent was eating while driving.

        In his brief, Administrator has argued for the application of decisions reached by the appellate
courts of Louisiana. After reviewing these decisions, we have determined that they are unpersuasive
and actually undermine Administrator’s position.6 Based upon our review of the record and
applicable Tennessee law, we find that there is sufficient circumstantial evidence in this case to rebut


         6
          Administrator cited to Rue v. State, 372 So.2d 1197 (La. 1979), and Payne v. Louisiana Department of
Transportation, 424 So.2d 324 (La. Ct. App. 1982). Administrator asserts that these cases stand for the proposition that
“driving onto a shoulder in and of itself is not negligence that bars a recovery for injuries caused by a defective
shoulder.” Subsequent Louisiana cases, however, have effectively overruled Rue and its progeny:
                              The trial judge found that Gantt’s inadvertent straying from the highway
                  did not constitute negligence under Rue v. State Department of Highways, supra.
                  The supreme court in Rue held that inadvertent straying onto the shoulder did not
                  constitute such substandard conduct as to bar a motorist[’]s recovery in a defective
                  shoulder case.
                              Rue is no longer viable in light of the subsequent adoption of comparative
                  fault. . . .W e believe one of the major reasons for the result reached in Rue was the
                  harshness of the total bar to recovery which resulted from the application of
                  contributory negligence. In order to avoid this harsh result, the Court concluded the
                  conduct of the motorist in inadvertently straying off the road did not constitute
                  negligence which would bar recovery. W e believe the major policy considerations
                  behind Rue were . . . to provide the State with an economic incentive to maintain
                  highway shoulders in a safe condition and to place liability upon the State, whose
                  conduct created a far greater risk of harm to others than did the motorist’s conduct.
                  Like the court in Turner, we believe these legitimate interests can now be
                  accomplished by the application of comparative fault, which has the additional
                  advantage of achieving a more equitable result, with each party bearing the burden
                  of its proportionate degree of fault. Accordingly, the rule established in Rue is no
                  longer necessary. For these reasons, we agree with the trial court’s conclusion that
                  such cases are now governed by the comparative fault doctrine [under the Louisiana
                  Code].
Hood v. State, 587 So.2d 755, 759–60 (La. Ct. App. 1991) (citing Motton v. Travelers Ins. Co., 484 So.2d 816 (La. Ct.
App. 1986)); see also Cullivan v. State Farm Mut. Auto. Ins. Co., 428 So.2d 1231, 1238 (La. Ct. App. 1983).

                                                         -10-
the presumption of due care. “[T]he presumption that deceased was acting with due care is
contradicted by the fact that a vehicle under her control veered off the pavement . . . and into the path
of an oncoming vehicle.” Keith v. Keith, 741 S.W.2d 911, 913 (Tenn. Ct. App. 1987). The res ipsa
loquitur doctrine also permits us to infer negligence on the part of Decedent in bringing about the
accident. See Sullivan, 258 S.W.2d at 784.

       Next, Administrator argues that the Commissioner erred in ruling that the “sudden emergency
doctrine” was inapplicable in this case because Decedent contributed to the creation of the alleged
emergency. The Tennessee Supreme Court has described the “sudden emergency doctrine” as
follows:
               The sudden emergency doctrine, which has now been subsumed into
               Tennessee’s comparative fault scheme . . . recognizes that a person
               confronted with a sudden or unexpected emergency which calls for
               immediate action is not expected to exercise the same accuracy of
               judgment as one acting under normal circumstances who has time for
               reflection and thought before acting. . . .The doctrine no longer
               constitutes a defense as a matter of law but, if at issue, must be
               considered as a factor in the total comparative fault analysis.

McCall v. Wilder, 913 S.W.2d 150, 157 (Tenn. 1995). “One who has contributed to the creation of
the alleged emergency cannot rely on the sudden emergency doctrine.” Knowles v. State, 49 S.W.3d
330, 337 (Tenn. Ct. App. 2001) (citing Kowalski v. Eldridge, 765 S.W.2d 746, 749 (Tenn. Ct. App.
1988)).

        Motorists using the roadways in this state have a duty both to maintain control of their
vehicles and to maintain a proper lookout. See Tenn. Code Ann. § 55-8-123(1) (2003). As stated
above, the mere fact that Decedent’s vehicle left the roadway for no apparent reason allows the
Commissioner to infer negligence on the part of the driver. Sullivan, 258 S.W.2d at 784; see also
Cox v. Anderson County Highway Dep’t, No. E1999-01697-COA-R3-CV, 2000 Tenn. App. LEXIS
136, at *23–24 (Tenn. Ct. App. Mar. 7, 2000). As such, it was not error for the Commissioner to
refuse to consider the “sudden emergency doctrine” in the overall comparative fault analysis.
Compare Sullivan v. Crabtree, 258 S.W.2d 782, 784 (Tenn. Ct. App. 1953) and Keith v. Keith, 741
S.W.2d 911, 913 (Tenn. Ct. App. 1987) with Shivers v. Ramsey, 937 S.W.2d 945, 949–50 (Tenn. Ct.
App. 1996).

        We finally turn to Administrator’s argument that the Commissioner erred in finding that
Decedent was 50% or more at fault in causing the accident. (Appellant’s Br. at 24). We review the
Commissioner’s factual findings in this regard de novo with a presumption of correctness. Cross
v. City of Memphis, 20 S.W.3d 642, 645 (Tenn. 2000). Although Dr. Sissom testified that he
believed the condition of the shoulder was the sole cause of Decedent’s accident, he also admitted
that Decedent’s inattentive driving could have caused her to overcorrect. Dr. Sissom stated that a
prudent driver who encountered a drop-off should reduce their speed, gently apply the brakes, and
slowly attempt to re-enter the roadway. He testified that if Decedent had slowed down enough he


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would not expect to see an over-correction. This testimony by Administrator’s expert was supported
by the testimony from the state’s expert. Mr. Grim opined that driver error caused this accident, and
he testified that both the Tennessee and Ohio driver’s manuals advise drivers who encounter a drop-
off to execute the procedure described by Dr. Sissom.

        The trier of fact has considerable discretion when allocating fault among negligent parties.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995); see also Atkins v. State, No. E2003-
01255-COA0-R3-CV, 2004 Tenn. App. LEXIS 240, at *18 (Tenn. Ct. App. Apr. 14, 2004). The
Commissioner, as evidenced by her twenty-six page opinion, thoroughly reviewed the testimony of
the witnesses and each exhibit before reaching her decision in this case. Upon reviewing the record,
we find that the evidence does not preponderate against the Commissioner’s finding that Decedent
was 50% or more at fault in this cause, thereby barring recovery under our comparative fault system.
See McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn. 1992); Cox, 2000 Tenn. App. LEXIS 136, at
*23–24.

                                            Conclusion

               For the reasons stated above, the judgment of the Tennessee Claims Commission in
favor of the State of Tennessee is affirmed. Costs of this appeal are taxed against Appellant, Brian
Deas, and his surety, for which execution may issue if necessary.



                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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