                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                September 21, 2004 Session

             MARSHA RICKETTS v. SARA M. ROBINSON, ET AL.

                 Direct Appeal from the Circuit Court for Weakley County
                         No. 3815    William B. Acree, Jr., Judge


                  No. W2004-00004-COA-R3-CV - Filed November 4, 2004


This is an appeal from a jury verdict finding that all parties involved were without fault in an
automobile accident. We affirm.

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

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

Bruce Conley, Union City, Tennessee, for the appellant, Marsha Ricketts.

Kyle C. Atkins, Humboldt, for the appellee, Sara M. Robinson.

Fred N. McLean, Paris, Tennessee, for the appellee, Larry Pentecost.

                                           OPINION

                                     Statement of the Facts

        On the morning of December 18, 2000, the defendant, Sara Robinson (“Ms. Robinson”)
was traveling south on Rock Hill Road, near Sharon, Tennessee. The road was covered with
some degree of snow and ice. As Ms. Robinson was driving up a hillside section of the road, her
van began to lose traction and slide. She again attempted to drive up the hill, but, when her
efforts failed, she decided to back the van down the hill. The van, however, continued to slide,
but Ms. Robinson was able to stop the van half-way down the hill.

       While Ms. Robinson was stopped half-way up the incline, the defendant, Larry Pentecost
(“Mr. Pentecost”), also traveling south on Rock Hill Road, approached Ms. Robinson’s vehicle
from behind. As Mr. Pentecost approached the scene, he stopped his telephone truck, set out
warning cones, and walked up the hill to assist Ms. Robinson. Mr. Pentecost attempted to back
the van down the hill, but the van continued to slide. The left rear of the van began to slide
sideways towards the centerline of the road. Mr. Pentecost stopped the van with the back left
quarter panel coming to rest approximately one and one-half feet to two feet into the northbound
lane.

        Shortly afterwards, the plaintiff, Marsha Ricketts (“Ms. Ricketts”), traveling north on
Rock Hill Road, crested the hill and saw the defendant’s van stopped partially crossing the
centerline. To avoid colliding with Ms. Robinson’s van, Ms. Ricketts drove her sports utility
vehicle into the ditch on the east side of the road. Ms. Ricketts’ vehicle came to rest in the ditch
at a point roughly even with Ms. Robinson’s van. Ms. Ricketts was able to drive her vehicle out
of the ditch. Mr. Pentecost, with the help of a neighbor near the scene, physically turned Ms.
Robinson’s van around, directing it north, and Ms. Robinson drove away.

                                                Procedural History

        On December 14, 2001, Ms. Ricketts filed a complaint against Ms. Robinson and Mr.
Pentecost (collectively “Defendants”) seeking damages for injuries resulting from the accident.
In her complaint, Ms. Ricketts alleged that Defendants negligently maintained control of Ms.
Robinson’s vehicle and, as a result of their negligence, proximately caused Ms. Ricketts’ injuries.
Ms. Ricketts based her claim on theories of common law negligence and statutory negligence per
se.1


         1
          In support of her claims for negligence per se, Ms. Ricketts alleged that Defendants violated certain sections
of the Tennessee Code, including, but not limited to, the following:

         Upon all roadways of sufficient width, a vehicle shall be driven upon the right side of the roadway .
         ...

Tenn. Code Ann. § 55-8-115(a).

         Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon
         roadways having width for not more than one (1) line of traffic in each direction, each driver shall give
         to the other at least one-half (½) of the main-traveled portion of the roadway as nearly as possible.

Id. § 55-8-116.

         No vehicle shall at any time be driven to the left side of the roadway under the following conditions:
                  (1) W hen approaching the crest of a grade or upon a curve in the highway where the driver’s
         view is obstructed within three hundred feet (300') or such distance as to create a hazard in the event
         another vehicle might approach from the opposite direction[.]

Id. § 55-8-120(a)(1).

         W henever 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[.]

                                                                                                             (continued...)

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        The case was tried before a jury. Prior to trial, the court submitted proposed jury
instructions to the parties. Ms. Ricketts filed a motion seeking to modify certain instructions,
including an objection to an “unavoidable accident” charge and a request for an instruction that a
motorist has a right to assume that a roadway will be clear. At the close of the proof, Ms.
Ricketts moved for directed verdict on the issue of liability, which the trial court denied. After
hearing all the evidence and being instructed by the judge on the applicable law, the jury returned
a verdict attributing zero percent (0%) fault to all the parties.

                                                        Issues

         Ms. Ricketts appealed and has presented for our review the following issues:

         (1)         Whether the court erred in not granting a directed verdict on the issue of
                     liability at the conclusion of the evidence.

         (2)         Whether the trial court erred in instructing the jury, as requested by
                     Defendants, on the issue of unavoidable accident.

         (3)         Whether the trial court erred in failing to instruct the jury, as requested by
                     the Plaintiff, that a motorist has the right to assume that her passage will
                     not be blocked with the illegal placement of another vehicle, and the
                     motorist is not required to maintain such control of her vehicle as to stop
                     before striking an obstruction which she has the right to assume will not be
                     there.

                                                Law and Analysis

                             (1) Trial Court’s Failure to Grant Directed Verdict

       When deciding a motion for directed verdict, the standard the trial court and appellate
court must use is well settled. The Tennessee Supreme Court stated the standard as follows:

         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


         1
          (...continued)
Id. § 55-8-123.

         No vehicle shall be turned so as to proceed in the opposite direction upon any curve, or upon the
         approach to or near the crest of a grade, where such vehicle cannot be seen by the driver of any other
         vehicle approaching from either direction within five hundred feet (500').

Id. § 55-8-141(a).



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       any conflict in the evidence by construing it in the light most favorable to the non-
       movant and discarding all countervailing evidence. The 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. If there is any doubt as to the proper conclusions to be
       drawn from the evidence, the motion must be denied.

Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn. 1994)(citations omitted).

         From the record in this case, it appears that the evidence was clearly susceptible to more
than one interpretation. At trial, the jury heard controverted evidence regarding the orientation
and position of the van in the roadway; the condition of the roadway; the speed of Ms. Ricketts’
vehicle; the distance from the crest of the hill to the point where the van was stopped; and the
amount of roadway clearance between the van and the ditch. Defendants presented testimony
that Ms. Ricketts was driving at a speed of forty to forty-five miles per hour as she came over the
hill, an arguably unreasonable speed based upon the road conditions. Defendants testified that
Ms. Robinson’s van was only extended approximately two feet across the centerline. Defendants
further testified that had Ms. Ricketts been driving at a slower speed, she could have stopped
before reaching the van or safely driven between the van and the ditch. Viewing the evidence in
the light most favorable to the non-moving party, we find the trial court did not err in denying the
motion for a directed verdict.

                            (2) Unavoidable Accident Jury Instruction

        Ms. Ricketts argues on appeal that she was prejudiced by the trial court instructing the
jury on the unavoidable accident doctrine. As part of its entire charge, the trial court instructed
the jury as follows:

               An unavoidable or inevitable accident is such an occurrence or happening
       that under all attending 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 result of an accident, the accident is deemed to have been an
       unavoidable or inevitable one.

        The trial court has a duty to instruct the jury on every factual issue and theory of the case
presented by the parties. Cole v. Woods, 548 S.W.2d 640, 642 (Tenn. 1977); see also Grissom v.
Metro. Gov’t of Nashville, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991). Whether a jury
instruction is proper is a mixed question of law and fact, “determined from the theories of the
parties, the evidence in the record and the law applicable thereto.” Solomon v. First Am. Nat’l
Bank of Nashville, 774 S.W.2d 935, 940 (Tenn. Ct. App. 1989). We have stated the particular
standard we use to examine a trial court’s jury charge as follows:


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         We review the jury charge in its entirety to determine whether the trial judge
         committed reversible error. Jury instructions are not measured against the
         standard of perfection. The charge will not be invalidated if it “fairly defines the
         legal issues involved in the case and does not mislead the jury.” Furthermore, a
         particular instruction must be considered in the context of the entire charge.

City of Johnson City v. Outdoor West, Inc., 947 S.W.2d 855, 858 (Tenn. Ct. App. 1996)
(citations omitted).

        Tennessee has long recognized the doctrine of unavoidable accident. Nelson v.
Richardson, 626 S.W.2d 702 (Tenn. Ct. App. 1981). An unavoidable accident has been defined
as an event that, “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.” Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn. Ct. App. 1994)(quoting
7A Am. Jur. 2d Automobiles and Highway Traffic § 397, at 607–08)). Since the adoption of
comparative fault in Tennessee, however, an instruction on the doctrine of unavoidable accident
has become, in large part, unnecessary. Id. at 869. In Whitaker, this Court stated, an
“‘unavoidable accident’ in its simplest terms is nothing more than a lack of negligence on the
part of any party.” Id. Further, the Whitaker court stated, an “adequate instruction on negligence
alone is sufficient and an ‘unavoidable accident’ charge is unnecessary except in, perhaps, the
most unusual circumstance.” Id.

        At the close of the evidence, the trial court addressed Ms. Ricketts’ objection to the
proposed unavoidable accident instruction. In that colloquy, the trial judge explained that he was
going to charge unavoidable accident because “it look[ed] like to [him] from hearing the
evidence that she got in trouble when she got halfway up the hill and couldn’t go up or down.”
In addition to charging unavoidable accident, the trial court gave the jury a complete instruction
on the legal principles of negligence and comparative fault. The trial court, utilizing the
Tennessee Pattern Jury Instructions,2 instructed the jury that whether certain instructions applied
depended on the factual conclusions reached by the jury. After deliberating, the jury returned a
verdict of zero percent (0%) fault as to all parties.

       On appeal, Ms. Ricketts argues that she was prejudiced by the inclusion of the
unavoidable accident instruction. She argues that the instruction did not apply to the facts of this


         2
         The trial court included Tennessee Pattern Jury Instruction, Civil 15.11, titled All Instructions Not Necessarily
Applicable, which states as follows:

         The Court has given you various rules of law to help guide you to a just and lawful verdict. W hether
         some of these instructions will apply will depend upon what you decide are the facts. The Court’s
         instructions on any subject [including instructions on damages], must not be taken by you to indicate
         the Court’s opinion of the facts you should find or the verdict you should return.

T.P.I.— Civil 15.11.

                                                           -5-
case because Ms. Robinson could have foreseen or anticipated the difficulties she experienced
when she consciously attempted to drive up the hill while the road conditions were questionable.
Ms. Ricketts further argues that the jury’s verdict of zero percent (0%) fault, in effect, shows that
the jury believed the accident was unavoidable and no party was at fault. The jury’s verdict of
zero percent (0%) fault indicates either they found this accident to be unavoidable, or, just as
easily, that they found neither party carried their burden of proving negligence on the part of the
other party. This Court, however, can only speculate as to the jury members’ thought processes.

        The trial court’s instructions thoroughly and fairly defined the legal principles respecting
comparative fault. In light of the evidence in this case and in context of the entire charge, we
find the trial court did not err in instructing the jury on the unavoidable accident doctrine.

                            (3) Failure to Instruct Jury that Motorist
                       has Right to Assume that Passage will not be Blocked

        Ms. Ricketts argues that the trial court erred by failing to charge the jury that a motorist
has a right to assume that her passage will not be blocked, and that a motorist is not required to
maintain such control of her vehicle as to stop before striking an obstruction which she has a
right to assume will not be there. In forming her proposed instruction, Ms. Ricketts relied on
language excerpted from the cases of Barr v. Charlie, 387 S.W.2d 614, 617 (Tenn. 1965) and
Fontaine v. Mason Dixon Freight Lines, 357 S.W.2d 631, 634 (Tenn. Ct. App. 1962). It is
important to note that both of these cases were contributory negligence cases decided before
Tennessee’s adoption of comparative fault. In addressing Ms. Ricketts’ proposed special
instruction, the trial judge stated that he did not think the charge was proper. The trial court
reasoned that the jury instructions included the many rules of the road regarding a motorist’s
right-of-way, which formed a basis for the plaintiff’s complaint.

        In general, a trial court should give a requested jury instruction if it is supported by the
evidence, embodies the party’s theory, and is an accurate statement of the law. Tallent v. Fox,
141 S.W.2d 485, 497 (Tenn. Ct. App. 1940). Where the trial court fully and fairly charges the
jury on the applicable law, the denial of a special request for an additional jury instruction will
not be reversed on appeal. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 445 (Tenn.
1992). Without determining whether the proposed instruction in this case was a correct
statement of the law, we find the trial court’s charge, read as a whole, fully addressed the
applicable law controlling this issue raised by Ms. Ricketts.



                                             Conclusion

       For the foregoing reasons, we affirm the trial court’s judgment. Costs of this appeal are




                                                  -6-
taxed against the appellant, Ms. Marsha Ricketts, and her surety, for which execution may issue
if necessary.
                                                    ___________________________________
                                                    DAVID R. FARMER, JUDGE




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