                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                          August 7, 2003 Session

      ELAINE H. DEATHERIDGE, ET UX. v. RICHARD T. BARKSDALE

                   A Direct Appeal from the Circuit Court for Davidson County
                   No. 01C-1475     The Honorable Marietta M. Shipley, Judge



                      No. M2003-00032-COA-R3-CV - Filed December 23, 2003


        Plaintiffs brought action against driver for damages arising from a rear-end automobile
collision. Defendant raised affirmative defense of sudden emergency caused by a “phantom” non-
party defendant’s placing duct work in the roadway. The jury found that Defendant was not at fault.
Plaintiffs appeal. We affirm.


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

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

Terrance E. McNabb; James R. Omer & Associates, Nashville, For Appellants, Elaine H.
Deatheridge and Louise D. Deatheridge

William B. Jakes, III, Nashville, For Appellee, Richard T. Barksdale

                                                     OPINION

       The accident at issue in this case occurred on May 21, 1998, at the intersection of Lombardy
Drive and Hillsboro Pike in Nashville, Tennessee. The vehicle driven by Elaine Deathridge was
stopped at a red light when it was struck from the rear by a vehicle owned and driven by Richard T.
Barksdale (“Barksdale,” “Defendant,” or “Appellee”).

       On May 16, 20011, Elaine Deathridge and her husband, Louis (together with Elaine
Deathridge, the “Deathridges,” “Plaintiffs,” or “Appellants”) filed a Complaint against Barksdale.
The Complaint reads, in relevant part, as follows:



         1
          The suit was originally filed within one year of the accident date and voluntarily dismissed. The instant suit
was timely filed under the saving statute.
                          5. Defendant was then and there negligent in that he (a) failed
                  to maintain the vehicle he was operating under due and reasonable
                  control; (b) operated his vehicle at a speed which was excessive under
                  the conditions then and there existing; (c) failed to maintain a due and
                  proper lookout ahead in the direction in which he was driving, and in
                  particular for the car in which Plaintiff was an occupant; (d) failed to
                  bring his vehicle under control and to slow the same when there was
                  sufficient time and distance for him to do so before striking the rear
                  of Plaintiff’s automobile; (e) failed to see that which was there to be
                  seen and take proper action with respect thereto; (f) failure to take
                  necessary evasive action when it was evident that a collision was
                  about to occur.

                          6. Defendant was further then and there guilty of negligence
                  per se in that he violated one or more of the statutes of the State of
                  Tennessee, including, but not limited to, the following statute:

                           T.C.A. 55-8-124: Following too closely. (a) The
                           driver of a motor vehicle shall not follow another
                           vehicle more closely than is reasonable and prudent,
                           having due regard for the speed of such vehicles and
                           the traffic upon and the condition of the highway.

       Mrs. Deathridge seeks damages for personal injury. Mr. Deathridge seeks damages for loss
of consortium and services of his wife. Barksdale filed his Answer on August 14, 2001. In his
Answer, Barksdale admitted “that his vehicle struck the vehicle being operated by plaintiff but
[denies] that there was any violent crash as alleged,” and raised, as an affirmative defense, the
placing of “duct work material” in the roadway by a phantom non-party defendant.

       The case was tried to a jury on November 4, 5, and 6, 2002. The jury found that Barksdale
was not at fault. An Order of Judgment was entered on the jury verdict on November 18, 2002. The
Deathridges filed a Motion for New Trial on November 21, 2002.2 Barksdale filed a Response to
the Motion for New Trial. The Motion for New Trial was heard on December 6, 2002 and was
denied by Order entered on December 17, 2002.

         The Deathridges appeal and raise five issues for review as stated in their brief:

                  1. Whether the Trial Judge properly performed her function as a
                  Thirteenth juror in denying Plaintiffs’ motion for a new trial.



         2
          Pursuant to Tenn. R. App. P. 3(e), Plaintiffs’ Motion for New Trial specifically mentioned each of the issues
presented on appeal.

                                                         -2-
              2. Whether the jury verdict is contrary to the weight of the evidence.

              3. Whether the Trial Judge erred in instructing the jury on sudden
              emergency.

              4. Whether the Trial Judge erred in instructing the jury that a
              “phanton person’s” violation of T.C.A. § 55-8-170 was negligence
              per se.

              5. The Trial Judge erred in failing to direct a verdict for Plaintiffs.

                      Whether the Trial Judge properly performed her
                        function as a Thirteenth juror in denying
                            Plaintiffs’ motion for a new trial.

       The Deathridges contend that the statements by the trial judge, in denying their
Motion for New Trial, denote an implicit acknowledgment that the court “deferred to the
judgment of the jury without making an independent decision on the issues, and thereby failed to
perform her duty as a thirteenth juror.” We quote from the record:

              MR. MCNABB: ...[W]e don’t think that the verdict is supported by
              the evidence. And that’s–you’re the thirteenth juror, if you agree, you
              can give us a new trial.

              *                                 *                                 *

              THE COURT: ...legal cause of an injury is a cause to the natural
              continuous sequence produces the injury without which the injury
              would not have occurred. Well, that assumes, I mean it’s clear that
              Mr. Barksdale was probably at fault for the fact that her car was hit
              from the rear.

                      But I’m not exactly sure that we provide in all of our jury
              instructions whether he could also be at fault for the injury that she
              suffered and, you know, I don’t know, maybe we need to ask ten
              questions so we can go through each one of these things.

                      It’s very–there was a very, well, tortured opinion that Judge
              Koch wrote on this, you know, whether you should have a whole
              different set of questions when the issue is the injury, when the issue
              is the extent of the injury, not necessarily whether the accident was
              caused by the Plaintiff.



                                                -3-
        And at that point, you know, it made me wonder whether we
should extend–he has a whole list of questions that could perhaps be
used in place of what are the suggested jury instructions, when we try
to make it real simple.

        I mean we simplify it because the process is hard enough to
do the comparison when they never heard of it before. And so rather
than, you know, I don’t know, maybe we need to do is he at fault for
the accident happening, yes or no.

         Is the non-party at fault. And then, what do you do with that.
Okay. So then do you go to the next set of questions, is the defendant
at fault for producing the actual injury to the plaintiff, and the same
would be is he at fault for–is the non-party at fault for producing the
injury.

         Now, maybe that would answer the question that was posed
in this case because it does create a real dilemma. I mean she wasn’t
at fault. I mean we’re not comparing her and the driver. And I mean
there was, you don’t even assert that.

MR. JAKES: No, it wasn’t even raised.

THE COURT: Right. So, you know, if you just take a literal reading
of what it means to be at fault, then it was negligence, the negligence
was the legal cause of the injury and the damage.

        Now, we don’t distinguish between the accident and the
injury. And we don’t distinguish between damage to anything the
Plaintiff was in and her problem now.

        Since we have so few trials, you know, now, most of them are
about something like this. You know, maybe we really need to revise
our jury verdict form to provide for this possibility.

        Now, the Plaintiffs, on the other hand, would probably dispute
that because then that highlights what the actual dispute is between
the parties that the Jury may be totally unaware of because you had so
much stuff before the trial, the wranglings that we had, and the
medical expenses, and why the doctor changed his mind and all of
that.




                                 -4-
                        So I guess maybe it’s the one last frontier in comparative
                 negligence to try to get it down so that there’s nothing with the
                 process that we can’t fix.

                         And so, you know, on the just face of it, if I take the whole
                 thing together, the issue was the fact she didn’t go for three months,
                 and blah, blah, blah, and that is always so hard for juries to
                 understand.

                        They just–they’re just suspicious about that. And it’s so
                 unfortunate because she, my gosh, she just suffered terribly having all
                 these back injuries. But it’s hard for them to make that connection
                 when they wait for three months.

                       And then, you know, I don’t know why the doctor changed his
                 mind. There’s absolutely no reason for him to say it wasn’t a cause–

                 *                                           *                                 *

                 THE COURT: Well, okay, on the whole thing, if I’m just going with
                 the question, if I can support the jury’s verdict, not on whether he
                 caused the accident, but on whether we’re looking at it as a whole, I
                 find as thirteenth juror that I can support this verdict. Okay.

                        But I do think it really presents a question that we have to
                 consider is how do we want to slice and dice it so that we know that’s
                 the answer because it is very confusing.

                         And I’m sorry that you-all had to go through all this, and
                 come in at a late time. And for Ms. McCord [sic], I’m sure it’s just
                 not, there’s no way she can ever understand this decision. So, it’s
                 very hard for her, and I’m sorry for her that she has to go through this.
                 Okay. Thank you.3

       When the trial court is called upon to act as the thirteenth juror upon the filing of a
motion for a new trial, the trial court must be independently satisfied with the verdict of the jury.
Cumberland Tel. and Tel. Co. v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (Tenn. 1904). The
Supreme Court's opinion reads in part:




        3
         W e quote from the record more extensively than do Appellants for the purpose of placing the trial court’s
comments in their full context.

                                                       -5-
               The rule in civil cases is that, if the circuit judge is dissatisfied with
               the verdict of the jury, it is his duty to set it aside and grant a new
               trial, and that upon its being made to appear to this court, from
               statements made by the circuit judge in passing upon the motion for
               new trial, that he was really not satisfied with the verdict, it becomes
               the duty of this court, when it has acquired jurisdiction of the cause,
               to do what the circuit judge should have done; that is, to grant a new
               trial on the ground of the dissatisfaction of that judicial officer with
               the verdict. [Citations omitted.]

               *                *              *                *               *

               The reasons given for the rule are, in substance, that the circuit judge
               hears the testimony, just as the jury does, sees the witnesses, and
               observes their demeanor upon the witness stand; that, by his training
               and experience in the weighing of testimony, and the application of
               legal rules thereto, he is especially qualified for the correction of any
               errors into which the jury by inexperience may have fallen, whereby
               they have failed, in their verdict, to reach the justice and right of the
               case, under the testimony and the charge of the court; that, in our
               system, this is one of the functions the circuit judge possesses and
               should exercise – as it were, that of a thirteenth juror. So it is said
               that he must be satisfied, as well as the jury; that it is his duty to
               weigh the evidence, and, if he is dissatisfied with the verdict of the
               jury, he should set it aside....

               Id. at 804-05.

        If the trial judge, when acting as the thirteenth juror, simply approves the verdict without
any comment, it is presumed by an appellate court that he or she has performed his or her
function adequately. Miller v. Doe, 873 S.W.2d 346 (Tenn. Ct. App. 1993). Where the trial court
makes comments in the course of reviewing a motion for a new trial, we will review those
comments, but we do not review those comments to see if we agree with the trial court’s
reasoning but rather to determine whether the trial court properly reviewed the evidence and was
satisfied or dissatisfied with the verdict. Id. at 347. If the trial judge makes comments which
indicate that he or she has misconceived his or her duty or clearly has not followed it, this Court
must reverse and remand the case for a new trial. Id.

        In asserting that the trial judge failed to adequately perform her duty as thirteenth juror,
Appellants rely, in part, upon our Supreme Court’s decision in Holden v. Rannick, 682 S.W.2d
903 (Tenn. 1984). In Holden, the Court determined that the following comments from the trial
court, when considered as a whole, indicated that the trial judge misconceived his duty as the
thirteenth juror:


                                                   -6-
               THE COURT: Well, of course, Mr. Jones, the Court doesn’t
               substitute its judgment for that of the jury where the issue is fairly
               presented to the jury and in this case frankly I think it was. As I recall
               Dr. Rannick testified that this lady had an unholy and unnatural fear
               of having cancer.

               *                 *             *                *               *

               MR. JONES: May I ask if your Honor agrees with the verdict of the
               jury?

               THE COURT: Yes, I do. The Court as I say does not substitute its
               judgment for that of the Plaintiff [sic] I would just as readily have
               agreed with the verdict the other way. The verdict neither way
               would have shocked the Court frankly. I thought the issues were very
               fairly put to the jury. I thought each side had a fair and full day in
               court and the jury made its decision and I approved the verdict,
               expressly approved the verdict so I respectfully overrule.

               Id. at 905 (emphasis added).

The Court reasoned that the trial judge’s unequivocal statements that the court does not substitute
its judgment for that of the jury, and that he would have also agreed with a contrary verdict, were
“inconsistent with his duty to weigh the evidence and pass on the issues.” Id. The Court said:

               The trial judge stated that he expressly approved the verdict. It
               appears from the context of that statement, however, that he approved
               the verdict because he felt that the case was fairly presented and he
               was not shocked by the verdict, rather than because he reached the
               same verdict as the jury after independently weighing the evidence
               and passing upon the issues. Twice the trial judge stated that the
               court does not substitute its judgment for that of the jury. Those
               statements reveal a mistaken belief on his part that he was under no
               duty to pass upon the issues.

               Id. at 905-906.

        Although the trial judge’s comments in the case at bar are somewhat confusing, we are
unable to find that the judge improperly deferred to the judgment of the jury or failed to express
exact approval of the rendered verdict. Unlike the trial judge in Holden, the judge did not state
that she could have just as easily approved a contrary verdict. The trial judge does not appear to
be dissatisfied with the jury’s verdict in this case; rather, through her circumlocutory comments,


                                                   -7-
the trial judge appears to be suggesting avenues for better presenting issues to a jury in terms of
clarity and simplicity. In the end, however, the trial judge clearly notes her satisfaction with the
verdict by stating that “I find as thirteenth juror that I can support this verdict.”

         Considered in their entirety, the judge’s comments do not constitute a failure to carry out
the duties required of a judge in his or her role as a thirteenth juror and, therefore, do not warrant
a remand for new trial. The judge made no comments that could be construed as an
inappropriate deferral to the jury’s verdict or an unwillingness to invade the province of the jury.
Cf. Miller v. Doe, 873 S.W.2d 346, 348-49 (Tenn. Ct. App. 1993) (trial judge’s statement that
“I’m not inclined to interfere with the verdict of the jury...” deemed an impermissible deferral to
the jury’s verdict); Sherlin v. Roberson, 351 S.W.2d 700, 701 (Tenn. Ct. App. 1976) (holding
that trial judge’s statement that he could not say the jury reached the right verdict amounted to
impermissible deference to the jury’s verdict as the judge was “disclaiming any opinion of his
own”). Related to the concept of inappropriate deferral, the record contains no statements by the
trial judge to suggest that she misunderstood or was unaware of her duty to independently weigh
the evidence on the record. See Heath v. Memphis Radiological Prof’l Corp., 2001 WL
1381278, at *4 (Tenn. Ct. App. Nov. 6, 2001) (finding that there was no evidence in the record to
indicate that the trial judge failed to conduct an independent review of the evidence strengthened
by the fact that the judge never stated that he was “not at liberty to substitute his judgment for
that of the jury, as in Holden”); cf. Miller, 873 S.W.2d at 349 (“There is nothing in this record to
indicate that the trial court approved the verdict for the reason that he had independently weighed
the evidence, had passed on the issues presented to the jury, and reached the same verdict as the
jury did.”).

        The record supports a finding that the trial judge was aware of the duties required of her
in her role as thirteenth juror, and we conclude that she sufficiently carried out these duties.
This issue is, therefore, without merit.

                              Whether the jury verdict is contrary
                                to the weight of the evidence.

        It is well settled that the Court of Appeals does not re-weigh the evidence or reevaluate
witnesses’ credibility in an appeal from a jury verdict. Grissom v. Metropolitan Gov't of
Nashville, 817 S.W.2d 679 (Tenn. Ct. App.1991). This Court, on appeal, is required to take the
strongest legitimate view of the evidence favoring the prevailing party, discard all contrary
evidence, allow all reasonable inferences to uphold the jury’s verdict and set aside the jury
verdict only when there is no material evidence to support it. Tenn. R. App. P 13(d); see also
Smith County v. Eatherly, 820 S.W.2d 366 (Tenn. Ct. App.1991)); Glover v. Oakwood Terrace
Associated II, 816 S.W.2d 43 (Tenn. Ct. App.1991). From our review of the entire record, we
find that there is sufficient evidence from which the jury could have found this was an
unavoidable accident and that there was no proximate negligence on the part of Barksdale.
Consequently, this issue is without merit.



                                                 -8-
                        Whether the Trial Judge erred in instructing
                              the jury on sudden emergency.

        Appellants assert that the trial court erred because “[h]aving sudden emergency in the
instructions twice called undue attention to this part of the jury instructions.” The relevant
portions of the Jury Instructions read as follows:

                                        T.P.I.-CIVIL 3.08

                                   SUDDEN EMERGENCY

                   A person who is faced with a sudden or unexpected emergency
               that calls for immediate action is not expected to use the same
               accuracy of judgment as a person acting under normal circumstances
               who has time to think and reflect before acting. A person faced with
               a sudden emergency is required to act as a reasonably careful person
               placed in a similar position. A sudden emergency will not excuse the
               actions of a person whose own negligence created the emergency.

                  If you find there was a sudden emergency that was not caused by
               any fault of the person whose actions you are judging, you must
               consider this factor in determining and comparing fault.

               *                                  *                              *

                                        T.P.I.-CIVIL 3.52

                   ADDITIONAL FACTORS FOR COMPARING FAULT

                   The percentage of fault assigned to any person depends upon all
               of the circumstances of the case. The conduct of each person may
               make that person more or less at fault, depending upon all of the
               circumstances. In order to assist you in making this decision, you
               may consider the following factor(s) and you may also consider any
               other factors that you find to be important under the facts and
               circumstances. But the determination of fault on the part of any
               person and the determination of the relative percentage of fault, if
               any, are matters for you alone to decide.

               1. Whose conduct more directly caused the injury to the plaintiff;




                                               -9-
               2. How reasonable was the person’s conduct in confronting a risk, for
               example, did the person know of the risk or should the person have
               known of it;

               3. Did the person fail to reasonably use an existing opportunity to
               avoid an injury to another;

               4. Was there a sudden emergency requiring a hasty decision;

               5. What was the significance of what the person was attempting to
               accomplish by the conduct.

        When these sections mentioning sudden emergency are viewed in the context of the entire
Jury Instructions, it does not appear that the trial court unduly emphasized Defendant’s
arguments based upon sudden emergency. Contrary to Appellants’ argument, the trial court did
not charge the jury twice on sudden emergency. The second mention of sudden emergency is
found in the charge on “additional factors for comparing fault.” This latter charge simply
mentions the words “sudden emergency” as one of five factors to be considered by the jury in
determining the applicable percentages of fault, if any. Furthermore, the trial court clearly
instructed the jury that all of the instructions were to be considered as a whole and that the
instructions should not be taken to indicate an opinion of the court on factual matters. When
taken as a whole, we find that the Jury Instructions on sudden emergency were proper in light of
the theories propounded by the parties. However, even if we allow that the trial court erred in
mentioning the doctrine of sudden emergency a second time, we find that the error was harmless.
This issue is, therefore, without merit.

                         Whether the Trial Judge erred in instructing
                        the jury that a “phanton person’s” violation of
                            T.C.A. § 55-8-170 was negligence per se.

       T.C.A. § 55-8-170 reads, in relevant part, as follows:

               55-8-170. Putting glass, nails and other substances on highway
               prohibited–Penalty.– (a) No person shall throw or deposit upon any
               highway any glass bottle, glass, nails, tacks, wire, cans or any other
               substance likely to injure any person, animal or vehicle upon such
               highway.
               (b) Any person who drops, or permits to be dropped or thrown, upon
               any highway any destructive or injurious material shall immediately
               remove the same or cause it to be removed.

Regarding this statute, the jury was instructed as follows:



                                                -10-
                                     NEGLIGENCE PER SE

               If you find that a party to this action violated the statute just read to
               you, you will find that the violation was negligence. Such a finding
               of negligence, however, does not require a finding against the party
               violating the statute unless you also find that the violation was the
               proximate cause of the injury or damage to another.

        The standard for an appellate court’s review of a trial judge’s jury charge was stated in
City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855 (Tenn. Ct. App. 1996):

               We review the jury charge in its entirety to determine whether the
               trial judge committed reversible error. Otis v. Cambridge Mut. Fire
               Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992); In re Estate of Elam,
               738 S.W.2d 169, 174 (Tenn. 1987); and Grissom v. Metropolitan
               Gov’t of Nashville, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991).
               Jury instructions are not measured against the standard of perfection.
               Grissom, 817 S.W.2d at 685. The charge will not be invalidated if it
               “fairly defines the legal issues involved in the case and does not
               mislead the jury.” Otis, 850 S.W.2d at 446; Grissom, 817 S.W.2d at
               685. Furthermore, a particular instruction must be considered in the
               context of the entire charge. Elam, 738 S.W.2d at 174.

        Appellants assert that the trial court’s instruction to the jury create an inference of
negligence on the part of a “phantom” non-party defendant. Since there was no proof of any
negligence on the part of this phantom party, Appellants assert that this portion of the jury
instructions was in error. We agree.

        The fact that there were two pieces of aluminum duct work on the road at the time of the
accident is undisputed in the record. The “phantom” third party theory was raised as an
affirmative defense in Barksdale’s Answer to the Deathridges’ Complaint. However, the jury did
not reach the question of fault on the part of anyone other than defendant. Thus, any error was
harmless.

                               The Trial Judge erred in failing to
                                 direct a verdict for Plaintiffs

       Appellants assert that the trial court erred in failing to direct a verdict in their favor.
Their contention is based upon the fact that Barksdale admitted fault at the scene of the wreck
and never retracted that admission during his testimony.

       When deciding a motion for directed verdict, both the trial court and the reviewing court
on appeal must look to all the evidence, take the strongest legitimate view of the evidence in


                                                 -11-
favor of the opponent of the motion, and allow all reasonable inferences in favor of that party.
The court must discard all countervailing evidence, and if there is then any dispute as to any
material fact, or any doubt as to the conclusions to be drawn from the whole evidence, the motion
must be denied. See Conatser v. Clarksville Coca-Coal Bottling Co., 920 S.W.2d 646, 647
(Tenn.1995); Hurley v. Tennessee Farmers Mut. Ins. Co., 922 S.W.2d 887, 891
(Tenn.Ct.App.1995).

       We agree with Appellants that Mr. Barksdale admits hitting the Deathridges’ car, to wit:

               And I [Barksdale] all of a sudden, I realized that I’m not going to, you
               know, be able to stop, and I rear-ended Mrs. Deathridge’s car.

        However, our analysis in this case does not end with his admission. As the trial court
correctly charged the jury, fault, in the instance of this case and as defined by Tennessee law, has
two parts: negligence and legal or proximate cause. The particular facts in this case give rise to a
dispute on the issue of negligence. Had there been no duct-work in the roadway, a directed
verdict for Plaintiffs may have been appropriate. However, it is undisputed that there was
material in the roadway at the time of this accident. The presence of that duct-work supports Mr.
Barksdale’s defense of sudden emergency and raises a dispute of material fact as to whether he
acted with reasonable care, given the circumstances. This was a proper question for the jury.
From the record in this case, it appears that the jury found that, under the particular facts of this
case, the defendant-driver was exercising reasonable and ordinary care in the driving of his
vehicle and that a collision with Plaintiffs’ vehicle was an unavoidable accident. The trial court
did not err in denying the motion for a directed verdict.

        For the foregoing reasons, we affirm the Judgment of the trial court. Costs of this appeal
are assessed against the Appellants, Elaine H. Deathridge and Louis D. Deathridge, and their
surety.




                                       __________________________________________
                                       W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                -12-
