                 IN THE COURT OF APPEALS OF TENNESSEE

                                                     FILED
DIANE F. DECKER and                    )   C/A NO. 03A01-9704-CV-00143
GEORGE H. DECKER,                      )              October 20, 1997
                                       )
          Plaintiffs-Appellants,       )             Cecil Crowson, Jr.
                                       )             Appellate C ourt Clerk
                                       )
v.                                     )   APPEAL AS OF RIGHT FROM THE
                                       )   KNOX COUNTY CIRCUIT COURT
                                       )
                                       )
                                       )
SUSAN E. OROSZ and                     )
ERIC J. BERGMAN,                       )
                                       )   HONORABLE DALE C. WORKMAN,
          Defendants-Appellees.        )   JUDGE




For Appellants                                For Appellees

W. MORRIS KIZER                               KEITH F. BLUE
Gentry, Tipton, Kizer & McLemore              Jenkins & Jenkins
Knoxville, Tennessee                          Knoxville, Tennessee




                           OPINION




VACATED AND REMANDED                                            Susano, J.

                                   1
            In its present posture, this is a negligence action by

the original plaintiffs seeking damages allegedly arising out of

a two-vehicle accident at the intersection of Cumberland Avenue

and Stadium Drive in Knoxville.       The jury returned a verdict in

favor of the defendants, Susan E. Orosz and her husband, Eric

Bergman.    The plaintiffs, Diane F. Decker and her husband, George

H. Decker, appealed, raising the following issues:



            1. Did the trial court err in denying the
            Deckers’ motion for directed verdict on the
            issue of Ms. Orosz’ liability?

            2. Did the trial court err in denying the
            Deckers’ motion to set aside the judgment and
            to have judgment entered in accordance with
            their motion for directed verdict?

            3. Did the trial court err in denying the
            Deckers’ motion for new trial?

            4. Is there any material evidence to support
            the special verdict of the jury that Ms.
            Orosz was not negligent?



For ease of reference, the two drivers involved in the accident,

Ms. Decker and Ms. Orosz, will be referred to, respectively, as

“the plaintiff” and “the defendant.”



            The accident occurred shortly before 9:00 a.m. on March

29, 1994.    The plaintiff, a student at the University of

Tennessee-Knoxville, was on her way to class; the defendant, an

employee at the College of Veterinary Medicine on the same

campus, was going to work.    Both were proceeding west on

Cumberland Avenue.    The plaintiff was in the left-hand turn lane,

intending to turn left onto Stadium Drive.      The defendant was

immediately to the right of the plaintiff, in a lane for vehicles

proceeding straight ahead.    She had originally intended to go

                                  2
straight, but changed her mind, after which she turned into the

plaintiff’s lane of traffic, striking the right front part of the

plaintiff’s vehicle.



              The plaintiff sued the defendant1 for damages.            The

defendant and her husband filed a counterclaim for damages.                   At

the conclusion of all the proof, the plaintiff moved for a

directed verdict “on the issue of liability.”             The trial court

granted the plaintiff’s motion as to the counterclaim, finding no

evidence of negligence on the part of the plaintiff.2               The trial

court denied the motion as to the original complaint, remarking

that “[t]he jury’s got to decide whether this defendant was

negligent.”



              We will address first the failure of the trial court to

grant the plaintiff’s motion for a directed verdict on the issue

of the defendant’s liability.



              The standards applicable to a court’s evaluation of a

motion for directed verdict in a negligence case are well

established.       In Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994),

the Supreme Court had occasion to state these standards:



              In ruling on the motion, the court must take
              the strongest legitimate view of the evidence
              in favor of the non-moving party. In other
              words, the court must remove any conflict in
              the evidence by construing it in the light
              most favorable to the non-movant and
              discarding all countervailing evidence. The


     1
       Ms. Orosz’s husband, Eric Bergman, was sued on the theory that she was
driving a family purpose vehicle. The defendant and her husband admitted this
fact at trial.
     2
         The defendant and her husband have not appealed this ruling.

                                        3
          court may grant the motion 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.
          (Citations omitted.) If there is any doubt
          as to the proper conclusions to be drawn from
          the evidence, the motion must be denied.
          (Citation omitted.)



Id. at 590.



          In the instant case, the plaintiff alleges, among other

acts of negligence, that the defendant violated certain statutes,

which are as follows:



          Whenever any roadway has been divided into
          two (2) or more clearly marked lanes for
          traffic, the following rules, in addition to
          all others consistent herewith, shall apply:

          (1) A vehicle shall be driven as nearly as
          practicable entirely within a single lane and
          shall not be moved from such lane until the
          driver has first ascertained that such
          movement can be made with safety;...



T.C.A. § 55-8-123.



          No person shall...turn a vehicle from a
          direct course or move right or left upon a
          roadway, unless and until such movement can
          be made with reasonable safety.



T.C.A. § 55-8-142(a).



          Every driver who intends to start, stop or
          turn, or partly turn from a direct line,
          shall first see that such movement can be
          made in safety,...




                                4
T.C.A. § 55-8-143(a).    It was and is the plaintiff’s position

that the defendant violated these code sections and that her

violations were the proximate cause of the accident and the

injuries and damages claimed by the plaintiff and her husband.



          The plaintiff and the defendant were the only witnesses

to the accident; however, neither party saw the other before

their cars collided.    The plaintiff testified that as she

approached the intersection in the left-hand turn lane, she

observed that the traffic light at the intersection was red.      She

said that she had almost brought her car to a complete stop when

it was struck in the right front side by the left front of the

defendant’s vehicle.    The parties agree that after the collision,

the plaintiff’s vehicle was still in the turn lane and the

defendant’s vehicle was partly in the turn lane and partly in the

through-traffic lane.



          The defendant admitted that the “driver’s side front

corner of [her] vehicle collided with the passenger side front

wheel and front fender of [the plaintiff’s] vehicle.”    When asked

if she could tell the jury anything that the plaintiff had done

to cause the accident, the defendant responded, “[n]o, sir, I

can’t.”



          The plaintiff testified that the defendant volunteered

at the scene of the accident that the collision was her fault.

When asked about this at trial, the defendant responded:



          I don’t know if I implied it or if I said it.
          Honestly, I don’t.



                                  5
          The defendant testified regarding what took place when

she made a decision to turn left at Stadium Drive rather than

going straight through the intersection:



          Q. And upon deciding you’re going to make a
          left on Stadium, are you moving or stopped at
          that point, as you’re thinking about this?

          A. I was -- I was at a complete stop.

          Q. And in what lane?

          A. I was in the left-hand [through-traffic]
          lane.

                           *     *   *

          Q. All right, And what did you do then once
          you changed your mind and you were going to
          make a left onto Stadium Drive.

          A. Okay, after -- I remember after I looked
          at the clock and made the decision, then I
          put my blinker on to get into the left-hand
          turn lane. Then I looked into the --

          Q. Which blinker did you put on?

          A. My left.

          Q. All right.

          A. Okay, then I looked into the rear view
          mirror and looked straight behind me and I
          did not see anyone coming. Then I looked in
          the mirror on the left by the driver’s seat,
          didn’t see anyone there, and then gave a
          quick glance up ahead, still didn’t see
          anyone, and then slowly took my foot off the
          clutch so I could go into this lane. So, I
          had just started turning the wheel of the
          car, and taking my foot off the clutch when
          the accident occurred.



When the defendant made her decision to change lanes, she was

stopped behind other traffic in the through-traffic lane, waiting

for the red light to change.




                                 6
            When the evidence is viewed “in the light most

favorable to the non-movant,”3 i.e., the defendant, see Eaton,

891 S.W.2d at 590, it is subject to only one reasonable

interpretation -- the defendant changed lanes at a time when such

a movement could not “be made with reasonable safety.”             See

T.C.A. § 55-8-142(a).      It is obvious to us, as the plaintiff

argues, that the defendant was negligent in failing to make sure

that the plaintiff was not in her “blind spot.”           Before making

her lane change, the defendant checked her back and side mirrors;

what she failed to do was look back over her left shoulder to

assured herself that a vehicle was not to her left in the area

that could not be viewed through the side and back mirrors.              This

was a clear violation of T.C.A. § 55-8-142(a).           That violation

was the proximate cause of the collision between the two cars.



            In this case, it was conceded by the defendant, and

found by the trial court, that the plaintiff was not guilty of

any negligence.     Thus, logically, we are presented with an

accident that was either caused by the defendant’s negligence or

was unavoidable in nature.       An “unavoidable accident” has been

defined by this court as follows:



            An unavoidable or inevitable accident is such
            an occurrence or happening as, under all
            attendant circumstances and conditions, could
            not have been foreseen or anticipated in the
            exercise of ordinary care as the proximate
            cause of injury by any of the parties
            concerned. In other words, where there is no
            evidence that the operator of the motor
            vehicle was negligent in any way, or that he
            could have anticipated the resulting

     3
       For example, in taking this view of the evidence, we have ignored Ms.
Decker’s testimony that the defendant admitted fault at the scene of the
accident. A reasonable inference from Ms. Orosz’ testimony is that she did not
intend to admit fault.

                                      7
               accident, the accident is deemed to have been
               an unavoidable or inevitable one for which no
               recovery may be had.



Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn.App. 1994) (citing

from 7A Am.Jur.2d, Automobiles and Highway Traffic § 397, pp.607-

08).       To state the rule is to demonstrate that it does not

describe the facts in this case.          When measured against this

definition, the evidence in this case cannot reasonably be

interpreted in such a way as to conclude that the collision was

unavoidable.       On the contrary, it seems to us that the evidence,

even when viewed in a light most favorable to the defendant,

clearly demonstrates negligence on the part of the defendant that

proximately caused this collision.          This accident could have been

avoided had the defendant ascertained that the plaintiff was to

her left in the “blind spot.”        According to her testimony, she

did not do that.



               We believe that the plaintiff was entitled to a

directed verdict on the issue of the defendant’s liablity.4

Accordingly, we vacate the trial court’s judgment entered on the

jury’s verdict for the defendant, and remand this case for the

entry of a verdict for the plaintiff on the issue of the

defendant’s liability, and for a new trial limited solely to the

damages, if any, to which the plaintiff and her husband are

entitled.       Costs on appeal are taxed against the appellees.



                                           __________________________
                                           Charles D. Susano, Jr., J.



       4
       Because of our disposition of plaintiff’s first issue, we do not find
it necessary to reach the other issues raised on this appeal.

                                      8
CONCUR:



__________________________
Houston M. Goddard, P.J.



(Separate Dissenting Opinion)
Herschel P. Franks, J.




                                9
