                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     June 14, 1999 Session

         RANDALL DEWAYNE HENLEY, ET AL. v. RUSSELL DALE
                      AMACHER, ET AL.

                      Appeal from the Circuit Court for Franklin County
                          No. 9780-CIV     Buddy D. Perry, Judge


                   No. M1999-02799-COA-R3-CV - Filed January 28, 2002


This appeal involves an early morning, drunken joyride by four teenagers that ended when their sport
utility vehicle overturned. One of the passengers who was injured when he was thrown from the
vehicle sued the driver and his father in the Circuit Court for Franklin County seeking $200,000.
A jury assessed the passenger’s damages and attributed 75% of the fault to the driver and 25% of
the fault to the passenger. In accordance with the jury’s verdict, the trial court awarded the
passenger a $34,125 judgment against the driver and his father. On this appeal, the driver and his
father take issue with (1) the allocation of less than 50% of the fault to the passenger, (2) the lack
of evidence to support the application of the family purpose doctrine, (3) the awards for permanent
impairment and future medical expenses, and (4) the trial court’s refusal to give two requested
instructions. We have determined that the only reversible error in the proceeding involves the jury’s
decision to award the passenger $20,000 for future medical expenses. Accordingly, we affirm the
jury’s verdict as to liability and allocation of fault. With regard to the damage award, we suggest
a remittitur which, if accepted, will reduce the passenger’s judgment to $19,125.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Paul Campbell, Jr., Chattanooga, Tennessee, for the appellants, Kenneth D. Amacher and Russell
Dale Amacher.

Robert S. Peters, Winchester, Tennessee, for the appellees, Randall Dewayne Henley and Deborah
Henley.

                                             OPINION

                                                  I.

       In mid-1995, Russell Dale (“Rusty”) Amacher and his brother, Chris Amacher, were living
in Franklin County with their grandmother because their parents were going through a divorce.
Although he was only sixteen, Mr. Amacher had received institutionalized treatment for alcohol
abuse on two occasions. Relations between Rusty Amacher and his parents had become strained.
       On the night of June 27, 1995, Rusty Amacher borrowed his brother’s 1987 GMC Jimmy and
picked up Randall DeWayne Henley at approximately 7:00 p.m. Mr. Henley, then seventeen years
old, had been friends with Mr. Amacher since the seventh grade and knew about Mr. Amacher’s
struggle with alcohol. The two boys decided that they were “going to hang out the whole night.”
Accordingly, they began the evening by obtaining a pint of Fighting Cock whiskey and driving to
Al Tripp’s house where they drank the whiskey and chased it with a soft drink.

        After stopping by a young lady’s house in Tullahoma, the two boys drove to Jeremy Bryant’s
house in Estill Springs. They stopped along the way to purchase a case of beer. When they arrived
at Mr. Bryant’s house at approximately 3:00 a.m. on June 28, 1995, they discovered that another
friend, Charlie Tawater, was also there. Messrs. Bryant and Tawater were seventeen years old.
Messrs. Amacher and Henley awakened Messrs. Bryant and Tawater, and the four boys sat around
talking and drinking beer until approximately 5:30 a.m. Messrs. Bryant and Tawater each consumed
two or three beers, and Messrs. Amacher and Henley consumed the rest of the case.

       Some time before daylight, the boys decided to go horseback riding. Messrs. Bryant and
Tawater, sensing that Mr. Amacher was intoxicated, offered to drive, and a discussion ensued about
which of the boys would drive. When Mr. Amacher insisted that he was able to drive, his three
friends acquiesced because he was providing the car. Accordingly, the boys set out from Mr.
Bryant’s house with Mr. Amacher driving, Mr. Henley in the front passenger’s seat, and Messrs.
Bryant and Tawater in the rear seat.

       Just over one mile beyond the city limits of Estill Springs, Mr. Amacher’s erratic driving
prompted Mr. Bryant to demand that he pull over and stop the car. When Mr. Amacher turned
around to talk with Mr. Bryant, he drove the car off the road. When he attempted to return to the
roadway, Mr. Amacher overcorrected and caused the vehicle to overturn. Mr. Henley was thrown
from the car and seriously injured the ligaments in his right knee. A test of the alcohol in a sample
of Mr. Amacher’s blood taken a short time later revealed a blood alcohol content of .24%.1

        Mr. Henley had his injured knee surgically reconstructed in August 1995. In June 1996, he
and his mother2 filed suit against Mr. Amacher and his father seeking $200,000 in damages for the
injuries he sustained when the was thrown from the vehicle in June 1995. Mr. Amacher and his
father denied liability, asserting that Mr. Henley was aware of Mr. Amacher’s intoxication and that
Mr. Henley had assumed the risk of riding with Mr. Amacher. Mr. Amacher’s father also asserted
that he was not liable because he had not consented to his son’s use of the vehicle and because his
son was not using the vehicle for a family purpose on the morning of June 28, 1995.

       Following a trial in October 1998, a jury determined that Mr. Amacher had been driving the
vehicle for a family purpose on June 28, 1995. The jury determined that Mr. Henley’s damages



         1
          A perso n’s ab ility to drive is presumed to be sufficiently impaired to constitute a violation of Tenn. Code Ann.
§ 55-10-401 (a)(1) (1998) if the alcoho l content in the person’s blood at the time is “ten-hundredths of one percent
(.10%) or m ore.” Tenn. Cod e Ann . § 55-10-40 8(a) (1998).
         2
           Mr. Henley’s mother joined him as a plaintiff because he was a m inor wh en the suit w as first filed. By the
time of trial, Mr. Henley had reached the age of majority and his mother voluntarily dismissed her claim.

                                                            -2-
amounted to $45,500,3 that Mr. Amacher was 75% at fault, and that Mr. Henley was 25% at fault.
Accordingly, the trial court entered a judgment against Mr. Amacher and his father for $34,125.4
After moving unsuccessfully for a new trial, Mr. Amacher and his father perfected this appeal.

                                                II.
                                  THE REQUESTED JURY INSTRUCTIONS

         We turn first to the assertion by Mr. Amacher and his father that the trial court erred by
refusing to give two requested instructions regarding a passenger’s obligation to protect his or her
own safety when the operator of a motor vehicle is intoxicated. These proposed instructions, based
on cases predating the Tennessee Supreme Court’s adoption of its system of modified comparative
fault, essentially instructed the jury that a passenger who knowingly rode with an intoxicated driver
was solely responsible for his or her own injuries. We have determined that the trial court correctly
declined to give these instructions.

                                                        A.

        The chief defense of Mr. Amacher and his father to Mr. Henley’s complaint for damages was
that Mr. Henley was solely responsible for the injury he sustained on June 28, 1995, because he
decided to ride in a motor vehicle being driven by a person he knew to be intoxicated. Accordingly,
Mr. Amacher and his father requested the trial court to include two specific instructions in its charge
to the jury. The first requested instruction was:

                           I instruct you that the law of Tennessee is that when one gets
                   into an automobile which is to be operated by a drunken driver, such
                   person takes his life in his hands.

The second requested instruction was:

                           I instruct you that the law of Tennessee is that as a general
                   proposition, a guest-passenger is precluded from recovering for
                   injuries sustained in an automobile accident where the intoxicated
                   condition of the driver of the automobile in which the passenger was
                   riding was the proximate cause of the accident, if the guest-passenger
                   knew or should have known of the driver’s intoxication at the time
                   the guest-passenger volunteered to ride in the automobile.

                           Whether or not the guest passenger is contributorily negligent
                   in riding in the automobile of the defendant is not to be determined
                   on the circumstances as they appear to the guest-passenger, but is to
                   be determined by comparing the guest-passenger’s conduct with that
                   of an ordinarily prudent man under the circumstances.

        3
           Specifically, the jury awarded M r. Henley $19,000 for past medical expenses, $20,000 for future medical
exp enses, $1,5 00 for past pain and suffering, and $5,0 00 for perm anent im pairm ent.
        4
            $45,500 × 75% = $34,125.

                                                       -3-
        The trial court declined to give these requested instructions. It concluded that “the charge
straight from the charge book that defines the obligation of a guest passenger in a vehicle” was
adequate and thus refused to “inject specific facts into . . . my charge.” Accordingly, the trial court
instructed the jury, in part, that:

                           In summary, both Randall Henley and Russell Amacher had
                   a duty to exercise reasonable care with regard to the actual and
                   potential dangers existing from the weather, the road, the traffic, and
                   other conditions, including their personal conditions, and to follow
                   the traffic laws as I have instructed you.

                           Now, a passenger has a duty to take action for self protection
                   from danger only if, number one, when it is apparent that the
                   passenger can no longer rely upon the driver for protection as when
                   the driver’s conduct shows incompetence to drive or when the driver
                   is unmindful and does not know of a danger known to the passenger,
                   and, number two, if the passenger becomes aware of the danger at a
                   time and under a circumstance when the passenger could have
                   prevented the harm.5

        On this appeal, Mr. Amacher and his father assert that their requested instructions were
correct statements of the law and that they were applicable to the evidence that had been presented.
Accordingly, they assert that they were prejudiced by the trial court’s refusal to give these
instructions.

                                                            B.

       Juries have the exclusive prerogative to decide all of the disputed factual issues submitted
to them based on the legal principles provided by the trial court. Ingram v. Earthman, 993 S.W.2d
611, 635 (Tenn. Ct. App. 1998); Ladd v. Honda Motor Co., 939 S.W.2d 83, 93 (Tenn. Ct. App.
1996). The trial court’s instructions are the sole source of the legal principles to be used by the jury
to guide its deliberations. State ex rel. Myers v. Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385,
388 (1961); Grissom v. Metropolitan Gov’t, 817 S.W.2d 679, 685 (Tenn. Ct. App. 1991). Thus, the
soundness of every jury’s verdict rests on the fairness and accuracy of the trial court’s instructions.
Ladd v. Honda Motor Co., 939 S.W.2d at 94.

          A trial court’s instructions must be complete and accurate and must fairly reflect the parties’
claims and defenses. Cole v. Woods, 548 S.W.2d 640, 642 (Tenn. 1977); Washington v. 822 Corp.,
43 S.W.3d 491, 493 (Tenn. Ct. App. 2000); Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d 218,
226 (Tenn. Ct. App. 1999). Accordingly, trial courts should carefully consider each jury instruction
proposed by the parties and should grant any requested instruction (1) if it is supported by the
evidence, (2) if it embodies a theory actually relied upon during the trial by the requesting party, (3)
if it is a correct statement of the law, and (4) if its substance is not already contained in another
portion of the charge. Richardson v. Miller, 44 S.W.3d 1, 27 (Tenn. Ct. App. 2000); Ladd v. Honda


       5
           This portion of the charge con forms substantially to T.P.I. 3- Civil 5.30 (3d ed. 1997 ).

                                                           -4-
Motor Co., 939 at 102-03. However, they may appropriately decline to give a requested instruction
(1) if it is not supported by the evidence, (2) if its substance is already covered in the charge, and (3)
if it is incorrect or incomplete in any respect. Ingram v. Earthman, 993 S.W.2d at 636.

        A trial court’s instructions should be viewed as a whole. In re Estate of Elam, 738 S.W.2d
169, 174 (Tenn. 1987); Abbott v. American Honda Motor Co., 682 S.W.2d 206, 209 (Tenn. Ct. App.
1984). We do not expect these instructions to be perfect in every way, In re Estate of Elam, 738
S.W.2d at 174; Ingram v. Earthman, 993 S.W.2d at 636, and we will not invalidate instructions if
they fairly define the legal issues in the case and do not mislead the jury. Otis v. Cambridge Mut.
Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992); Woods v. Herman Walldorf & Co., 26 S.W.3d
868, 878 (Tenn. Ct. App. 1999); Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d at 225. When the
denial of a requested instruction that could have been given prejudices the rights of the party who
requested the instruction, this court must vacate the judgment. Nashville, C. & St. L. Ry. v. Jackson,
187 Tenn. 202, 206-07, 213 S.W.2d 116, 117 (1948); Souter v. Cracker Barrel Old Country Store,
Inc., 895 S.W.2d 681, 684 (Tenn. Ct. App. 1994).

                                                          C.

        The propriety of the trial court’s refusal to give the instructions requested by Mr. Amacher
and his father requires us to revisit the effects of the Tennessee Supreme Court’s adoption of the
current system of modified comparative fault. Prior to the advent of modified comparative fault in
1992, a passenger who knowingly rode with an intoxicated driver could not, as a general matter,
recover damages for injuries caused by the driver’s negligence. The law considered these passengers
to be taking their lives in their own hands, Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32,
33 (1926), and left them to live with the consequences of their decision to take a chance on the
driver’s ability to drive. Hicks v. Herbert, 173 Tenn. 1, 6, 113 S.W.2d 1197, 1199 (1938).
Accordingly, the courts repeatedly held that either the doctrine of proximate contributory negligence
or the doctrine of implied assumption of the risk prevented passengers who knowingly rode with an
intoxicated driver from recovering damages from the driver. Wilson v. Tranbarger, 218 Tenn. 208,
227, 402 S.W.2d 449, 457 (1965) (recognizing the defenses of contributory negligence and
assumption of the risk); Harvey v. Wheeler, 57 Tenn. App. 642, 646, 423 S.W.2d 283, 285 (1967)
(recognizing the contributory negligence defense).6

        The Tennessee Supreme Court’s decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.
1992), imported the principles of comparative fault into our common law and heralded the demise
of both the doctrine of contributory negligence and the doctrine of implied assumption of the risk.
In McIntyre, the Court abandoned the common-law “all-or-nothing” doctrine of contributory


         6
           Assumption of the risk and contributo ry negligence were distinct legal doctrines. Wilson v. Moudy, 22 Tenn.
App. 356, 372, 123 S.W.2d 828, 838 (1938). Assumption of the risk requires actual knowledge of the danger and a
con sciou s decision to subm it to it. Contributory negligence, on the other hand, does not require actual knowledge of
the danger but rather consists of conduct that departs from the reasonable standard of care. Underwood v. Wa terslides
of Mid-America, Inc., 823 S.W.2d 171, 179 (Tenn. Ct. App. 1991). Even though the doctrines are distinct, they are
entirely com patible. Duncan v. Ferre ll, 58 Tenn. App. 133, 161, 427 S.W.2d 36, 48 (1967). In fact, by 1992, the
doctrine of assumption of the risk had become the “practical equivalent” of the doctrin e of contributory negligence.
Cha ttanooga G as. Co. v. Underwood, 38 Tenn. App. 142, 157, 270 S.W .2d 6 52, 6 59 (195 4); John Bouchard & Sons
Co. v. Keaton, 9 Te nn. A pp. 4 67, 4 81 (192 8).

                                                         -5-
negligence as “outmoded and unjust” and signaled that the McIntyre decision would affect numerous
other heretofore settled legal principles surrounding tort litigation. McIntyre v. Balentine, 833
S.W.2d at 56-57; see also Conroy v. City of Dickson, 49 S.W.3d 868, 872 (Tenn. Ct. App. 2001)
(characterizing the McIntyre decision as one that “swept away the doctrine of contributory
negligence and many of its ancillary doctrines”).

         Two years after deciding McIntyre v. Balentine, the Tennessee Supreme Court abandoned
the doctrine of implied assumption of the risk, noting that: “[i]t would be ironic indeed if, after
abolishing the all-or-nothing proposition of contributory negligence in McIntyre, we were to reinstate
it here using the vehicle of assumption of risk.” Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn.
1994). Thus, instead of retaining the doctrine of implied assumption of the risk as a separate
defense, the Court decreed that “the reasonableness of a party’s conduct in confronting a risk should
be determined under the principles of comparative fault.” Perez v. McConkey, 872 S.W.2d at 905;
see also Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 91 (Tenn. 2000). It should now be beyond
reasoned debate that the common-law doctrines of contributory negligence and implied assumption
of the risk “no longer have any independent existence, and thus cannot be invoked to completely bar
recovery by the plaintiff.” Eaton v. McLain, 891 S.W.2d 587, 592 (Tenn. 1994). In the light of the
McIntyre and Perez decisions, intoxicated drivers can no longer use these doctrines as a shield
against damages suits brought by their passengers.

                                                  D.

         In light of the state of the law when this case was tried, there are two reasons why the trial
court properly declined to give the special instructions requested by Mr. Amacher and his father.
First, because the adoption of comparative fault eviscerated the doctrines of contributory negligence
and implied assumption of the risk, a passenger who knowingly rides with an intoxicated driver is
no longer precluded as a matter of law from recovering damages from the driver for injuries caused
by the driver’s negligence. Now, the reasonableness of the passenger’s conduct in light of the
known risk associated with riding in a vehicle driven by an intoxicated driver must be compared with
the negligence of the intoxicated driver. Second, the trial court’s general instruction involving a
passenger’s duty of self-protection correctly summarizes a passenger’s duties and does not on its face
mislead the jury. Accordingly, after reviewing the trial court’s instructions as a whole, we decline
to find that the trial court erred by declining to include the instructions requested by Mr. Amacher
and his father in its charge to the jury.

                                      III.
         THE APPORTIONMENT OF FAULT BETWEEN MESSRS. HENLEY AND AMACH ER

        Next, Mr. Amacher and his father argue that the jury erred by allocating only 25% of the fault
to Mr. Henley. They insist that Mr. Henley’s own evidence demonstrates overwhelmingly that he
failed to use reasonable care to protect himself and that he was “guilty of more than 50% fault.”
Therefore, they argue that there is no evidence to support the jury’s decision to allocate less than
50% of the fault to Mr. Henley. This argument misapprehends the role of courts and juries in the
current system of modified comparative fault.

                                                  A.


                                                 -6-
        In addition to being governed by the substantive principles of comparative fault, an
intoxicated driver’s defenses based on his or her passenger’s negligence must comply with
comparative fault’s procedural principles. Chief among these procedural principles is that in a vast
majority of cases, the comparison and allocation of fault is a question of fact to be decided by the
finder-of-fact, that is the jury or the trial court sitting without a jury. Brown v. Wal-Mart Discount
Cities, 12 S.W.3d 785, 789 (Tenn. 2000); Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997);
Prince v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996). The task of comparing
and allocating fault may be taken from the jury only when it can be determined beyond question (or
alternatively, when reasonable minds cannot differ) that the plaintiff’s fault is equal to or greater than
the defendant’s. Staples v. CBL & Assocs., Inc., 15 S.W.3d at 91-92; Eaton v. McLain, 891 S.W.2d
at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001).

        The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the
defendant’s as a matter of law are governed by the Tennessee Rules of Civil Procedure. On one
hand, a disputed comparative fault question will generally be submitted to the jury. The question
may also be raised using (1) a motion for summary judgment under Tenn. R. Civ. P. 56, (2) a motion
for directed verdict governed by Tenn. R. Civ. P. 50.01, and (3) a post-trial motion for a judgment
as a matter of law governed by Tenn. R. Civ. P. 50.02.7 Coln v. City of Savannah, 966 S.W.2d 34,
44 (Tenn. 1998); Norris v. Pruitte, No. 01A01-9709-CV-00506, 1998 WL 1988563, at *3 (Tenn.
Ct. App. Aug. 24, 1998) (No Tenn. R. App. P. 11 application filed).

         The courts’ prerogatives regarding the allocation of fault become more circumscribed once
the question of fault has been submitted to and decided by the jury. While the trial courts retain the
power to grant additurs and remittiturs with regard to the jury’s assessment of the damages, they
cannot adjust the jury’s allocation of fault in any way. Turner v. Jordan, 957 S.W.2d at 824; Fye
v. Kennedy, 991 S.W.2d 754, 762 (Tenn. Ct. App. 1998). Appellate courts are governed by the same
restrictions, Winstead v. Goodlark Reg’l Med. Ctr., Inc., No. M1997-00209-COA-R3-CV, 2000 WL
343789, at *6 (Tenn. Ct. App. Apr. 4, 2000) (No Tenn. R. App. P. 11 application filed); Allen v.
Payne, No. 03A01-9903-CV-00067, 1999 WL 1076922, at *1 (Tenn. Ct. App. Nov. 30, 1999) (No
Tenn. R. App. P. 11 application filed), and by the standards of review applicable to jury verdicts.

                                                              B.

         The standards for reviewing a jury’s allocation of fault to negligent parties ought to be
straightforward. Because allocating fault is essentially a fact question,8 one would assume that the
appellate courts would review a jury’s fault allocation using Tenn. R. App. P. 13(d)’s familiar
standard of review for findings of fact by juries in civil actions. Under Tenn. R. App. P. 13(d), the
reviewing courts would be able to set aside a jury’s allocation of fault and grant a new trial only if
there is no material evidence to support the verdict. Appellate courts have, in fact, employed Tenn.


          7
              This mo tion is co mm only referred to as a motion for a judgment notwithstanding the verdict or a motion for
a jnov.

          8
          Staples v. CBL & Assocs., Inc., 15 S.W.3d at 92 (v acating a summ ary judgm ent concluding that the plaintiff
was more than 50% at fault because “a jury shou ld have decide d the questions o f fact relevan t to . . . [the fault] issue.”);
Howard v. Norwood, No. M1999-00838-COA-R3-CV, 2000 WL 679228, at *8 (Tenn. Ct. App. May 25, 2000) (No
Ten n. R. A pp. P . 11 application filed); LaRue v. 1817 Lake, Inc., 966 S.W .2d 423, 427 (Tenn. Ct. App . 1997).

                                                              -7-
R. App. P. 13(d)’s standard to review allocations of fault by juries9 and by trial courts sitting without
juries.10

        In 1995, the Tennessee Supreme Court appeared to introduce a second, less familiar, standard
of review for fault allocations in a case where the Court disagreed with a trial court’s allocation of
fault following a bench trial. Citing a decision by the Supreme Court of Minnesota involving a
jury’s allocation of fault, the Court stated:

                          Although it is true that the trier of fact has considerable
                  latitude in allocating percentages of fault to negligent parties, . . .
                  appellate courts may alter those findings if they are clearly erroneous.

Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Both the Tennessee Supreme Court
and this court have since employed this so-called “clearly erroneous” standard to review allocations
of fault by juries,11 as well as allocations of fault by trial courts following bench trials.12

         Five years after deciding Wright v. City of Knoxville, the Tennessee Supreme Court decided
to expressly limit the application of its freshly minted “clearly erroneous” standard to jury trials.
The vehicle the Court chose was an appeal in another non-jury case in which this court had affirmed
the trial court’s allocation of 100% of the fault to the defendant on the ground that the trial court’s
decision was not “clearly erroneous.” Instead of concluding that the trial court’s allocation of fault
had, in fact, been clearly erroneous, the Court announced that its Coln v. Savannah decision should
be “clarified” and that henceforth, “the clearly erroneous language of Wright v. City of Knoxville .
. . [should be] limited to jury cases.” Cross v. City of Memphis, 20 S.W.3d at 645. Applying Tenn.
R. App. P. 13(d)’s standard of review, the Court concluded that the evidence preponderated against
the trial court’s allocation of fault and allocated 20% of the fault to the plaintiff.

        The unanswered questions arising from the Tennessee Supreme Court’s invocation of the
“clearly erroneous” standard to review a jury’s allocation of fault place the lower courts and the
litigants in a quandary. Did the Court intend to adopt two standards of review? If the Court did
intend to adopt two standards of review, what sort of review does the “clearly erroneous” standard

         9
           Turner v. Jordan, 957 S.W .2d at 824 ; Moss v. Sankey, 54 S.W.3d 296, 299 (Ten n. Ct. A pp. 2 001 ); Milliken
v. Crye-Lieke Realtors, No. M199 9-0007 1-C OA -R3-CV , 200 1 W L 7476 38, at *9 (Ju ly 5, 2001 ), perm. app. denied,
(Tenn. Dec. 10, 200 1); Moore v. Johnson, No. E2000-00385-COA-R3-CV, 2000 WL 1424930, at *2 (Tenn. Ct. App.
Sept. 26, 2 000 ), perm. app. denied, (Tenn. M ar. 19, 2001); Fox v. Food Lion, Inc., No E1911-00015-COA-R3-CV, 2000
WL 1424 805 , at *4 (Ten n. Ct. A pp. S ept. 21, 20 00) (No Ten n. R. A pp. P . 11 application filed).
         10
           Cross v. City o f Memp his, 20 S.W.3d 642, 643 (Tenn. 20 00); Varner v. Perryman, 969 S.W.2d 410, 411
(Tenn. Ct. App . 1997).
         11
          Taggart v. Richards, No. 03A01-9707-CV-00262, 1997 WL 677954, at *2 (Tenn. Ct. App. No v. 3, 1997),
perm. app. denied, (Tenn. M ay 26, 199 8).
         12
            Coln v. City of Savannah, 966 S.W.2d at 44; Nied ergeses v. G iles Co unty, No. M2000-00428-COA-R3-CV,
2001 WL 747647, at *1 (Ten n. Ct. A pp. Ju ly 5, 2001 ) (No Ten n. R. A pp. P . 11 application filed); Griggs v. Mixon, No.
02A01-9504-CV-00087, 1996 W L 444104, at *4 (Tenn. Ct. App. Aug. 6, 1996) (No Tenn. R. App. P. 11 application
filed); Nichols v. Metropolitan Go v’t, No. 01A 01-950 9-CV-0 039 3, 19 96 W L 3879 01, at *7 (T enn . Ct. App. July 12,
1996) (N o Tenn . R. App. P. 11 app lication filed).

                                                           -8-
envision and how does this standard differ from Tenn. R. App. P. 13(d)’s material evidence
standard? Does the Court envision the application of both standards in each case? If not, what
criteria should be used to determine which of the two standards to use in a particular case? After
carefully reviewing Wright v. City of Knoxville, Coln v. City of Savannah, and Cross v. City of
Memphis, we have determined that the Tennessee Supreme Court did not intend to depart from the
material evidence standard of review in Tenn. R. App. P. 13(d) when it first used the term “clearly
erroneous” in Wright v. City of Knoxville.

         The “clearly erroneous” standard of review plays a significant role in appellate jurisprudence
in the federal courts and the courts of many other states. Because the Seventh Amendment prevents
federal appellate courts from relitigating facts found by a jury, Atlantic & Gulf Stevedores, Inc. v.
Ellerman Lines, Ltd., 369 U.S. 355, 358-59, 82 S. Ct. 780, 783 (1962), all that federal appellate
courts can do is to determine whether there is any competent and substantive evidence in the record
that tends to support the verdict. Mortensen v. United States, 322 U.S. 369, 374, 64 S. Ct. 1037,
1040 (1944). Substantive evidence is evidence adequate to support the jury’s conclusion even if it
is also possible to draw a contrary conclusion from the same evidence. Johnson v. Paradise Valley
Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001).

        Federal appellate courts do not lightly disturb jury verdicts. McGill v. Munoz, 203 F.3d 843,
845 (D.C. Cir. 2000). They do not weigh the evidence, but rather they determine whether a fair-
minded juror could reach the verdict rendered. Williams v. First Gov’t Mortgage & Inv. Corp., 225
F.3d 738, 744 (D.C. Cir. 2000). Accordingly, federal appellate courts can overturn a jury verdict
on evidentiary grounds only when there is a complete absence of probative facts to support the
conclusions reached by the jury. Dennis v. Denver & Rio Grande W. R.R., 375 U.S. 208, 210, 84
S. Ct. 291, 293 (1963).

        The Seventh Amendment does not place the same constraints to appellate review of the
factual findings of a district court judge following a bench trial. Review of these decisions is
governed by Fed. R. Civ. P. 52(a) which provides, in part, that

               [f]indings of fact, whether based on oral or documentary evidence,
               shall not be set aside unless clearly erroneous, and due regard shall be
               given to the opportunity of the trial court to judge the credibility of
               the witnesses.

More than fifty years ago, Judge Learned Hand noted the futility of attempting to define the “clearly
erroneous” concept precisely. United States v. Aluminum Co. of Am., 148 F.2d 416, 433 (2d Cir.
1945). In an effort to clarify the standard, the United States Supreme Court later explained that

               If the district court’s account of the evidence is plausible in light of
               the record viewed in its entirety, the court of appeals may not reverse
               it even though convinced that had it been sitting as the trier of fact, it
               would have weighed the evidence differently. Where there are two
               permissible views of the evidence, the factfinder’s choice between
               them cannot be clearly erroneous.




                                                  -9-
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985). A federal
appellate court, applying Fed. R. Civ. P. 52(a), will conclude that a district court judge’s finding of
fact is clearly erroneous when, although there is evidence to support it, the reviewing court reviews
all the evidence and is “left with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542
(1948); see also Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 318 (4th Cir. 2001);
Adams County Reg’l Water Dist. v. Village of Manchester, 226 F.3d 513, 517 (6th Cir. 2000).

        The difference between the standards for reviewing a jury’s verdict and a district court
judge’s findings of fact are probably easier to articulate than to implement. McCarthy v. New York
City Technical Coll. of City Univ. of N.Y., 202 F.3d 161, 168 n.1 (2d Cir. 2000) (Newman, J.,
concurring). However, the federal courts generally acknowledge that a jury’s verdict is entitled to
somewhat “more deference than a trial court’s findings and thus that the clearly erroneous standard
gives a reviewing court greater freedom than the substantive evidence standard. Concrete Pipe &
Prods. of Cal., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 623, 113 S. Ct. 2264,
2280 (1993); Robert L. Stern, Note, Review of Findings of Administrators, Judges and Juries: A
Comparative Analysis, 58 Harv. L. Rev. 70, 86 (1944). As Judge Hand noted, a reviewing court
“will hesitate less to reverse the finding of a judge than that of . . . a jury.” United States v.
Aluminum Co. of Am., 148 F.2d at 433.

        We have determined that the Tennessee Supreme Court, by its use of the term “clearly
erroneous” in connection with the review of a jury’s allocation of fault, did not intend to replace
Tenn. R. App. P. 13(d)’s standard for reviewing the evidentiary foundation of jury verdicts with the
standard of review used by the federal appellate courts to review district court judges’ findings of
fact. In light of the fundamental nature of the right to trial by jury and the judiciary’s obligation to
guard and defend this right,13 we are confident that the Tennessee Supreme Court did not intend to
make it easier for Tennessee’s judges to second-guess a jury’s factual determinations regarding the
fault of negligent parties.

        The right to a jury trial, as it existed at common law, is the single most important contribution
of Anglo-American jurisprudence. It is preserved and protected by Tenn. Const. art. I, § 6 and is one
of the fundamental rights placed beyond legislative interference. Tipton v. Harris, 7 Tenn. (Peck)
414, 419-20 (1824). Accordingly, litigants in civil cases to which the right to a jury trial attaches
have a constitutional right to have all disputed issues of fact decided by a jury. Finks v. Gillum, 38
Tenn. App. 304, 312, 273 S.W.2d 722, 726 (1954); Morgan v. Tennessee Cent. Ry., 31 Tenn. App.
409, 422, 216 S.W.2d 32, 37 (1948).

        Because of the constitutional dimension of the right to a jury trial, Tennessee’s courts are
reluctant to second-guess a jury’s verdict. Their reluctance is reflected in Tenn. R. App. P. 13(d)
which requires a reviewing court to examine the entire record to determine whether it contains any
material evidence that supports the verdict. During this examination, the reviewing court may not
weigh the evidence or make its own credibility determinations. Reynolds v. Ozark Motor Lines, Inc.,
887 S.W.2d 822, 823 (Tenn. 1994); Moss v. Sankey, 54 S.W.3d at 299. In addition, the reviewing


         13
            Caudill v. Mrs. Grissom’s Salads, Inc., 541 S.W.2d 101, 106 (Ten n. 19 76); Paducah, Tenn. & Ala. R.R. v.
Mu zzell, 95 T enn . 200 , 201 , 31 S .W. 999 , 999 (1895); Beal v. Doe, 987 S.W .2d 41, 46-47 (Tenn. Ct. App . 1998).

                                                        -10-
court must take the strongest legitimate view of the evidence that favors the verdict, disregard all
contrary evidence, and allow all reasonable inferences to sustain the verdict. Barnes v. Goodyear
Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000); Forrester v. Stockstill, 869 S.W.2d 328, 329
(Tenn. 1994). If the reviewing court finds material evidence supporting the verdict, it must decline
to disturb the judgment. Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000). Only when
it determines that the record does not contain material evidence to support the jury’s verdict can the
reviewing court set the judgment aside. Turner v. Jordan, 957 S.W.2d at 824; Jackson v. Patton,
952 S.W.2d 404, 405 (Tenn. 1997); Next Generation, Inc. v. Wal-Mart, Inc., 49 S.W.3d 860, 863
(Tenn. Ct. App. 2000).

         Fault allocations do not differ substantively from the other sorts of factual determinations that
juries routinely make. The Tennessee Supreme Court, in Turner v. Jordan, explicitly endorsed using
Tenn. R. App. P. 13(d)’s standard to review a jury’s allocation of fault and has repeatedly let stand
this court’s decisions employing Tenn. R. App. P. 13(d) to review a jury’s fault allocation. In the
absence of a more definitive explanation by the Court of what “clearly erroneous” means, we have
concluded that the Court’s reference to a jury’s allocation of fault as “clearly erroneous” should be
construed harmoniously with the traditional review standards in Tenn. R. App. P. 13(d). Therefore,
in the context of appellate review of a jury’s allocation of fault, a conclusion that the jury’s
allocation of fault is “clearly erroneous” means nothing more than that the reviewing court has
reviewed the entire record and has concluded that there is no material evidence to support the jury’s
allocation.14

                                                                C.

         We now apply these principles to the jury’s decision to allocate 75% of the fault to Mr.
Amacher and 25% of the fault to Mr. Henley. The only challenge to this decision currently available
to Mr. Amacher is that the record contains no material evidence to support the jury’s allocation of
fault.15 Accordingly, our sole task under Tenn. R. App. P. 13(d) is to examine the entire record to
determine whether it contains any material evidence that supports the jury’s allocation of fault
between Messrs. Henley and Amacher.


          14
            Tenn. R. App. P. 13(d )’s material evidence standard is similar to the federal courts’ substantial evidence
standard. In the fede ral courts, a verdict tha t is not su ppo rted b y sub stantial evidence is clearly erron eou s. In re Westcap
Enters., 230 F.3d 717 , 725 (5th Cir. 20 00); Irving v. United States, 49 F .3d 8 30, 8 35 (1st Cir. 199 5); Pioneer Hi-Bred
Int’l v. Holden Found. Seeds, Inc., 35 F .3d 1 226 , 123 5 (8th Cir. 1 994 ); Duty v. United States of Am., Dep’t of Interior,
735 F.2d 1012, 1015 (6th Cir. 1984). However, the converse is not necessarily true because the concepts of lacking
material evidence and being clearly erroneous are not syno nym ous. Case v. M orrisette, 475 F.2d 1300, 1307-08 (D.C.
Cir. 197 3). A federal appellate court ma y set aside a fin ding of fact, even if it is supported by su bstan tial evidence, if
the court has a definite and firm conviction that a mistake has been made. 9A Ch arles A. Wright & A rthur R. Miller,
Federal Practice and Procedure § 2585, at 577 n.20 (2d ed. 19 95). We have concluded that the Tennessee Supreme
Court did n ot inten d to p erm it Tennessee’s appellate courts to set aside a jury’s allocation of fault that is supported by
ma terial evidence sim ply b ecau se they have a de finite an d firm conviction that some sort of mistake has been m ade.
          15
             Mr. Am acher cannot argue now that the trial court erred by failing to find that Mr. Henley was 50% or mo re
at fault as a ma tter of law . He conc edes that he could not seek a judgment as a matter of law under Tenn. R. Civ. P.
50.02 because he failed to renew his motion for a directed verdict at the close o f all the p roof. Cortez v. Alutech, Inc.,
941 S.W .2d 8 91, 8 94 (Ten n. Ct. A pp. 1 996 ); Grisso m v. Metropo litan Gov ’t, 817 S.W.2d at 683. In addition, Mr.
Am acher has not argued on appeal that the jury’s verdict reflects passion, prejudice, or caprice.

                                                               -11-
        Our review of the evidence is tempered by our recognition that we should not lightly take it
upon ourselves to assume the responsibility for determining liability or non-liability in tort actions
because the Constitution of Tennessee has assigned this task to the jury. Smith v. Sloan, 189 Tenn.
368, 374, 225 S.W.2d 539, 541 (1949); Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 538,
136 S.W.2d 495, 496 (1940). We are not a jury of three with the prerogative to re-weigh the
evidence, Whaley v. Rheem Mfg. Co., 900 S.W.2d 296, 300 (Tenn. Ct. App. 1995); Lowe v.
Preferred Truck Leasing, Inc., 528 S.W.2d 38, 41 (Tenn. Ct. App. 1975), or to determine where the
“truth” lies. D.M. Rose & Co. v. Snyder, 185 Tenn. 499, 508, 206 S.W.2d 897, 901 (1947); Davis
v. Wilson, 522 S.W.2d 872, 875 (Tenn. Ct. App. 1974). Nor are we empowered to substitute our
judgment for the jury’s, Grissom v. Modine Mfg. Co., 581 S.W.2d 651, 652 (Tenn. Ct. App. 1978),
even if we conclude that the evidence might well have supported a different conclusion,16 or that the
jury did not weigh the evidence well17 or if we determine that we would have reached a different
conclusion had we been members of the jury.18

         The facts of this case are straightforward, and the testimony of the four occupants of the
vehicle does not differ in any material respect. The facts show clearly that both Mr. Amacher and
Mr. Henley acted negligently on June 28, 1995 when they set out to go horseback riding at 5:30 a.m.
Mr. Amacher negligently decided to drive when he knew or should reasonably have known that he
was too intoxicated to operate a motor vehicle safely. Mr. Henley was negligent because he decided
to ride in a vehicle being operated by Mr. Amacher when he knew or should reasonably have known
that Mr. Amacher was too intoxicated to drive. The evidence also shows that both Mr. Amacher’s
negligence and Mr. Henley’s negligence caused Mr. Henley’s injuries. Mr. Henley would not have
been injured had Mr. Amacher not lost control of the vehicle and caused it to flip over. Likewise,
Mr. Henley would not have been injured had he decided against riding with Mr. Amacher that
morning.

       Since both Mr. Amacher and Mr. Henley were at fault, the Tennessee Supreme Court’s
system of modified comparative fault required the jury, as the trier-of-fact, to allocate the fault
between them. The jury decided that Mr. Amacher was comparatively more at fault than Mr.
Henley. Thus, the question boils down to whether there is any material evidence in the record to
support the jury’s conclusion that Mr. Amacher was comparatively more at fault. The answer is yes.

         The trier of fact has considerable latitude in allocating fault to the negligent parties. Wright
v. City of Knoxville, 898 S.W.2d at 181; Patterson ex rel. Patterson v. Dunn, No. 02A01-9710-CV-
00256, 1999 WL 398083, at *15 (Tenn. Ct. App. June 16, 1999) (No Tenn. R. App. P. 11 application
filed); Taggart v. Richards, 1997 WL 677954, at *2.19 The evidence shows that Mr. Amacher, even

         16
              East Tenn., Va . & G a. R.R. v. Smith, 77 Tenn. 68 5, 689 (188 2).

         17
           In re P adg ett’s W ill, 54 Tenn. Ap p. 1, 9, 387 S.W .2d 3 55, 3 59 (196 4); Wilson v. Gadd, 4 Tenn. App. 582,
584 (19 27).

         18
           Me mp his St. Ry. v. Norris, 108 Ten n. 63 2, 63 4, 69 S.W . 325 , 326 (1902); Goodm an v. Balthrop Constr. Co.,
626 S.W .2d 2 1, 24 (Ten n. Ct. Ap p. 19 81); Clinard v. Pennington, 59 Tenn. A pp. 128, 135 , 438 S.W .2d 748, 751 (1968).
         19
          This is not a n ew proposition. Over on e century ago, the Tennessee Supreme Court reviewed a jury’s verdict
for an employee who was thrown from a railroad hand-car when the wooden handle on the lever he was using broke.
                                                                                                        (con tinued...)

                                                            -12-
though he was only sixteen, was quite familiar with the effects of alcohol because he had been
drinking since he was twelve years old. He had received institutional treatment on two occasions
for alcohol abuse, and therefore, by June 28, 1995, drinking was much more than a youthful
experiment for him. Despite his knowledge of the effects that alcohol had on him, Mr. Amacher
went on a ten-hour drinking binge with Mr. Henley. After staying up all night and drinking half of
a pint of whiskey and approximately two six packs of beer, Mr. Amacher insisted that he could drive
a motor vehicle safely at 5:30 in the morning and brushed aside his companions’ suggestions that
he should let someone else drive. These essentially undisputed facts provided the jury with a
material factual foundation for concluding that Mr. Amacher’s fault exceeded Mr. Henley’s.
Accordingly, we find no merit in Mr. Amacher’s argument that the record contains no material
evidence to support the jury’s allocation of 75% of the fault to him.

                                      IV.
   THE DAMAG E AWARDS FOR PERMAN ENT IMPAIRMENT AND FUTURE MEDICAL EXPENSES

        We turn now to the issue of damages. Mr. Amacher maintains that there is no material
evidence to support the jury’s decision to award Mr. Henley $5,000 for the permanent impairment
of his knee and $20,000 for his future medical expenses. We have concluded that the record contains
material evidence supporting the jury’s award for permanent impairment. However, we have also
concluded that the record does not contain material evidence to support the jury’s award for future
medical expenses.

                                                           A.

        The existence and amount of damages in a personal injury action are questions of fact.
Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); Beaty v. McGraw, 15 S.W.3d 819,
827 (Tenn. Ct. App. 1998). The party seeking damages has the burden of proving them. Overstreet
v. Shoney’s, Inc., 4 S.W.3d 694, 703 (Tenn. Ct. App. 1999); Inman v. Union Planters Nat’l Bank,
634 S.W.2d 270, 272 (Tenn. Ct. App. 1982). While damages need not be proven with mathematical
precision, the proof of damages must be concrete and definite enough to enable the trier-of-fact to
make a reasonable assessment of the claimant’s damages. Provident Life & Accident Ins. Co. v.
Globe Indemn. Co., 156 Tenn. 571, 576, 3 S.W.2d 1057, 1058 (1928); Airline Constr., Inc. v. Barr,
807 S.W.2d 247, 274 (Tenn. Ct. App. 1990). Damages cannot be based on conjecture and
speculation. Overstreet v. Shoney’s, Inc., 4 S.W.3d at 703. To be deemed speculative, a damage
award must lack a factual foundation establishing with some certainty that the claimant was, in fact,
damaged. Church v. Perales, 39 S.W.3d 149, 172 (Tenn. Ct. App. 2000); Jennings v. Hayes, 787
S.W.2d 1, 3 (Tenn. Ct. App. 1989).

       Unless a personal injury claim is tried to a trial court sitting without a jury, determining the
amount of damages is primarily the jury’s prerogative. Transports, Inc. v. Perry, 220 Tenn. 57, 67,
414 S.W.2d 1, 5 (1967); Grandstaff v. Hawks, 36 S.W.3d 482, 499 (Tenn. Ct. App. 2000); Buchanan


         19
            (...continued)
The employee presented evidence that the handle was made of defective wood; while the railroad asserted that the
han dle was not defective. The Court declined to “disturb the finding” even though it concluded that the record contained
evidence from which the jury could have concluded that the wooden handle was not m ade of de fective wood . East
Tenn., Va . & G a. R.R. v. Smith, 77 T enn . at 689 .

                                                         -13-
v. Harris, 902 S.W.2d 941, 944 (Tenn. Ct. App. 1995). Thus, once the trial court approves a jury’s
damage award, the reviewing courts may not substitute their judgment for that of the jury.
McCullough v. Johnson Freight Lines, Inc., 202 Tenn. 596, 606, 308 S.W.2d 387, 392 (1957);
Hunter v. Burke, 958 S.W.2d 751, 757 (Tenn. Ct. App. 1997). As with any of the jury’s other factual
findings, a reviewing court may second-guess a jury only when the record contains no material
evidence to support the jury’s verdict. Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 331 n.2
(Tenn. 1996); Benson v. Tennessee Valley Electric Co-op, 868 S.W.2d 630, 640 (Tenn. Ct. App.
1993); Moore v. Bailey, 628 S.W.2d 431, 434 (Tenn. Ct. App. 1981).

        Assessing damages and allocating fault are similar in the sense that they are both issues of
fact. They are dissimilar, however, with regard to the remedies available to reviewing courts when
they conclude that there is no material evidence to support the jury’s decision. Because reviewing
courts may not modify a jury’s allocation of fault, granting a new trial is the only proper remedy
when the court determines that the allocation of fault is not supported by material evidence. It is not
so with damages. When a damage award is not supported by material evidence, reviewing courts
are encouraged to use their remittitur authority under Tenn. Code Ann. § 20-10-102(b) (1994) rather
than to simply order a new trial. Thrailkill v. Patterson, 879 S.W.2d 836, 840 (Tenn. 1994); United
Brake Sys., Inc. v. American Envt’l Prot., Inc., 963 S.W.2d 749, 760 (Tenn. Ct. App. 1997); Baker
v. Bates, 4 Tenn. Civ. App. (Higgins) 175, 178 (1913). The reviewing court’s remittitur power is
not limited to circumstances where the size of the verdict reflects passion, prejudice, or caprice. It
may also be invoked when the verdict is excessive for any other reason. Grant v. Louisville &
Nashville Ry., 129 Tenn. 398, 409, 165 S.W. 963, 965 (1914).

                                             B.
                              Damages for Permanent Impairment

       Mr. Henley injured his right knee when he was thrown from the GMC Jimmy early on the
morning of June 28, 1995. His knee was surgically reconstructed by an orthopaedic surgeon in
Nashville who later observed:

               Even though we can reconstruct the ligaments and actually do very
               well, we can’t put ligaments in like God made them. They’re not
               perfect. The joints are not perfect. The ligaments that were torn on
               the inside of his knee have to heal secondarily. That doesn’t create
               a normal ligament. In addition, we took about half of his outside
               cartilage out and that’s important for distributing weight-bearing
               forces. When you have a devastating knee injury, you’re more likely
               to get arthritis in the future and that may be ten or fifteen years. So
               even though we reconstructed it and he’s doing well, that doesn’t
               mean his knee is perfect.

The surgeon opined that the condition of Mr. Henley’s knee following the wreck and surgical
reconstruction constituted a permanent impairment.

        Mr. Amacher elected not to present expert medical evidence to contradict the opinion of Mr.
Henley’s surgeon. He relied instead on evidence regarding Mr. Henley’s physical condition between
the time of the wreck and the trial. He proved that Mr. Henley had played football during his senior

                                                 -14-
year of high school and that he had been named the team’s outstanding defensive lineman. He also
proved that following his high school graduation, Mr. Henley had taken a job with Danley’s Air
Conditioning that required a great deal of physical exertion. He also proved that Mr. Henley had not
required medical attention for his knee since he completed his rehabilitation following surgery.

        All of the evidence brought forward by Mr. Amacher regarding Mr. Henley’s residual
impairment was certainly relevant. The jury was entitled to consider this evidence along with the
unequivocal testimony of Mr. Henley’s treating orthopaedic surgeon that Mr. Henley’s knee injury
was a permanent impairment. We may not at this juncture weigh the evidence ourselves. No matter
how we might have weighed the evidence had we been members of the jury or had we been
presiding at a bench trial, the surgeon’s testimony provides the material evidence needed to sustain
the jury’s determination that the June 28, 1995 wreck left Mr. Henley permanently impaired.
Accordingly, we have no basis for setting aside the $5,000 damage award for permanent impairment
for lack of material evidence to support it.

       Anticipating this result, Mr. Amacher argues that the award for permanent impairment should
be set aside because Mr. Henley’s surgeon did not undertake to ascribe a specific anatomical
impairment rating to Mr. Henley’s knee. This argument must also fail. A finding of permanent
impairment must be based on expert proof. Sanders v. Johnson, 859 S.W.2d 329, 331 (Tenn. Ct.
App. 1993). However, instead of establishing the permanency of the injury beyond a shadow of a
doubt, Williams v. Daniels, 48 Tenn. App. 112, 121, 344 S.W.2d 555, 563 (1961), it is sufficient to
show that the injury is permanent to a reasonable degree of certainty. Porter v. Green, 745 S.W.2d
874, 877 (Tenn. Ct. App. 1987). Thus, a specific anatomical impairment rating is unnecessary in
cases of this sort to establish that an injury is permanent. See Cleek v. Wal-Mart Stores, Inc., 19
S.W.3d 770, 774 (Tenn. 2000); Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998) (both
cases holding that a specific anatomical impairment rating is not always indispensable to a finding
of permanent vocational impairment). Thus, Mr. Henley’s surgeon was not required give Mr.
Henley a specific anatomical impairment rating to support his conclusion that Mr. Henley was
permanently injured.20

                                                   C.
                                   Damages for Future Medical Expenses

         A person who is injured by another’s negligence may recover damages from the other person
for all past, present, and prospective harm. Restatement (Second) of Torts § 910 (1979). Included
in the prospective harm for which damages may be recovered is the reasonable cost of the medical
services that will probably be incurred because of the lingering effects of the injuries caused by the
negligent person. Reed v. Wimmer, 465 S.E.2d 199, 210 (W. Va. 1995). To remove awards for



         20
            Mr. Amacher places much emphasis on another case in which we set aside a verdict that included damages
of permanent impairment. In the discussion of the lack of any material evidence of permanent impairment, we noted
that the plaintiff’s treating physician never gav e the plaintiff a disability rating. Sanders v. Johnson, 859 S.W.2d at 332
(stating that “no disability rating was given by Dr. Slutsky”). This observation should not be twisted into a
pronouncement we did n ot m ake. The holding in the case was that the issue of permanent impairment should never have
been submitted to the jury bec ause the plaintiff came forward with no material evidence to support his claim that he was
perm anently impaired. We did not hold that the issue o f perm anent im pairm ent should not h ave gon e to the jury sim ply
because the plaintiff’s treating phy sician d id no t give him a specific an atom ical im pairm ent rating.

                                                           -15-
future medical expenses from the realm of speculation,21 persons seeking future medical expenses
must present evidence (1) that additional medical treatment is reasonably certain to be required in
the future and (2) that will enable the trier-or-fact to reasonably estimate the cost of the expected
treatment. Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 793 (Minn. Ct. App. 2001).

        The first component of a claim for future medical expenses is, in the language of the
Tennessee Pattern Jury Instructions,22 evidence that additional medical treatment is “reasonably
certain to be required in the future.” This “reasonable certainty” standard requires more than a mere
likelihood or possibility. Potts v. Celotex Corp., 796 S.W.2d 678, 681 (Tenn. 1990). It requires the
plaintiff to establish with some degree of certainty that he or she will undergo future medical
treatment for the injuries caused by the defendant’s negligence.23 It does not, however, require proof
of future medical treatment to an absolute or metaphysical certainty. Reyes v. Greatway Ins. Co.,
582 N.W.2d 480, 485 (Wis. Ct. App. 1998). Rather, the “reasonable certainty” standard requires the
plaintiff to prove that he or she will, more probably than not, need these medical services in the
future. Futrell v. Scott Truck & Tractor Co., 629 So. 2d at 458; Fibreboard Corp. v. Pool, 813
S.W.2d 658, 681 (Tex. App. 1991).24

        The trier-of-fact must have some factual basis for reasonably estimating the cost of the future
medical expenses. Lynden, Inc. v. Walker, 30 P.3d 609, 620 (Alaska 2001); Bull Street Church of
Christ v. Jensen, 504 S.E.2d 1, 7 (Ga. Ct. App. 1998); Mendralla v. Weaver Corp., 703 A.2d 480,
485 (Pa. Super. Ct. 1997). Accordingly, the second component of a claim for future medical
expenses is evidence regarding the cost of the medical services. Sherbahn v. Kerkove, 987 P.2d 195,
198 (Alaska 1999); District of Columbia v. Howell, 607 A.2d 501, 506 (D.C. 1992); Mossman v.
Amana Soc’y, 494 N.W.2d 676, 679 (Iowa 1993); Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093,
1099 (La. Ct. App. 2000); Myers v. Hearth Techs., Inc., 621 N.W.2d at 793.25

         21
          Damage awards for future medical expenses cann ot be based on speculation . Ma rchetti v. Ramirez, 688 A.2d
1325, 1328 (Conn. 199 7); Futrell v. Scott Truck & Tractor Co., 629 So. 2 d 44 9, 45 8 (La. Ct. A pp. 1 993 ); Faas v. State,
672 N.Y.S.2d 145, 147 (Ap p. Div. 19 98); Ham merschmidt v. Mignogna, 685 N.E.2d 281, 285 (Ohio Ct. App . 1996).

         22
              T.P.I. 3-Civil 14.11.

         23
            Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994) (requiring proof of a reasonable probability that
the future m edica l treatm ent w ill occu r); Ham ernick v. Bach, 779 A.2d 806, 812 (Conn. App. Ct. 2001) (holding that
determinations of future m edical exp enses m ust be based on reasonable probabilities, not possibilities); Kloster Cruise,
Ltd. v. Grubbs, 762 So. 2d 552, 556 (Fla. Dist Ct. App. 2000) (requiring proof that future medical expen ses are more
probab le than not); Mo litor v. Jaimeyfield, 622 N.E.2d 1250, 1253 (Ill. App. Ct. 1993) (requiring that future medical
expenses be proved w ith a reasonable degree of me dical certainty); Symington v. Mayo, 590 N.W.2d 450, 452 (N.D.
1999) (requiring a reasonable medical certain ty that future m edica l services are nece ssary); Reed v. Wimmer, 465 S.E.2d
at 210 (setting aside an award for future medical expenses where no physician testified that the plaintiff would need
additional medical treatment).
         24
            Some courts have quantified the required probability by holding that it mean s more than a fifty percent
chance. Pustjovsky v. Rapid-American Corp., 35 S .W.3d 6 43, 6 52 (Tex . 200 0); Jorda n v. Bero , 210 S.E.2d 618, 640
(W . Va. 197 4) (N eely, J., conc urring); see also Sebroski v. United States, 111 F. Supp. 2d 681, 686 (D. Md. 1999)
(requiring that there m ust be mo re evidence fav oring the likeliho od o f future m edica l treatm ent than ag ainst it).
         25
           W e have set asid e aw ards for future m edica l expenses wh en the plaintiff has presented no proof of the
probab le cost of the services or when the estimate of the future cost is too speculative . Cochran v. Lowe, No. 03A01-
                                                                                                           (con tinued...)

                                                           -16-
       The trier-of-fact enjoys a certain degree of leeway in determining the cost of future medical
expenses. Richardson v. Chapman, 676 N.E.2d 621, 628 (Ill. 1997). Accordingly, the cost of future
medical treatment need not be proved with the same certainty required to prove the cost of past
medical treatment. Willson Safety Prods. v. Eschenbrenner, 788 S.W.2d 729, 733 (Ark. 1990);
Seymour v. Carcia, 604 A.2d 1304, 1306 (Conn. 1992). Instead of precise evidence26 regarding
these anticipated costs, it is sufficient to present estimates of the costs within a reasonable range.
Mendralla v. Weaver, 703 A.2d at 485; Jordan v. Bero, 210 S.E.2d at 637. Thus, in the case of a
permanent injury that will require continuing treatment, evidence of the cost of past medical
treatment can provide evidence of the cost of the future medical treatment as long as the plaintiff has
proved that the future medical treatment will be required and that this treatment is similar to the
treatment that has already been provided. Wal-Mart Stores, Inc. v. Londagin, 37 S.W.3d 620, 627
(Ark. 2001); Marchetti v. Ramirez, 688 A.2d at 1328; Symington v. Mayo, 590 N.W.2d at 452-53;
Gladewater Mun. Hosp. v. Daniel, 694 S.W.2d 619, 621 (Tex. App. 1985).27

       Mr. Henley presented competent evidence that his knee injury is permanent. However,
proving that an injury is permanent does not, by itself, provide a sufficient basis for awarding future
medical expenses. Valley Nat’l Bank v. Haney, 558 P.2d 720, 722 (Ariz. Ct. App. 1976); Spleas v.
Milwaukee & Suburban Transp. Corp., 124 N.W.2d 593, 597 (Wis. 1963). Thus, we must examine
the record to determine whether it contains any material evidence (1) establishing that it is
reasonably certain that Mr. Henley will require additional medical treatment for the knee injury he
sustained on June 28, 1995 and (2) providing a basis for a reasonable trier-of-fact to determine how
much this treatment will probably cost.

        The record contains no material evidence that Mr. Henley will require additional medical
treatment for his knee, let alone the cost of this treatment. When Mr. Henley’s orthopaedic surgeon
last saw him in March 1996, he released Mr. Henley without restrictions and without any plans for
further treatment of any sort. Thus, there is no competent medical evidence that Mr. Henley will
require any additional medical treatment for his knee. In the absence of evidence of a need for




         25
             (...continued)
9809-CV-00292, 1999 WL 233382, at *2 (Tenn. Ct. App. Apr. 16, 1999) (No Tenn. R. App. P. 11 application filed)
(suggesting a remittitur because the plaintiff presented no proof of the future cost of m edica tions); Bowers v. City of
Chattanooga, 855 S.W.2d 583, 587 (Tenn. Ct. App. 1992) (vacating an award for future medical expenses for
multidisciplinary rehabilitation because the plaintiff’s psychologist conceded that he could not give a reasonable cost
projection); Kinc aid v. Lyerla , 680 S.W .2d 4 71, 4 72-73 (Ten n. Ct. A pp. 1 984 ). But see P almer v. Norfolk-S outhern Ry.,
No. 03A01-9309-CV-00313, 1994 WL 111037, at * 3 (Tenn. Ct Ap p. M ar. 30 , 199 4), perm. app. denied (Tenn. Aug.
22, 1994) (stating that the jury is not precluded from awarding damages for future medical expenses when no evidence
regarding the cost of these expenses is offered). The Palmer case in volv ed a $ 400 ,000 general verdict for a p ainfu l,
debilitating wrist injury suffered on the job, and it is not clear from the record what portion of this verdict, if any, was
for fu ture m edica l expenses. This court vacated th e judgm ent an d ordered a new trial on other ground s.

         26
            Precise evidence of the cost of future medical expenses is not required. Roberts v. Williamson, 52 S.W.3d
343 , 350 (Tex . App. 20 01); Patterson v. Horton, 929 P.2d 11 25, 1131 (Wash. Ct. App . 1997).
         27
            For exam ple, a plaintiff whose injury will require continuing medication or therapy may introduce evidence
of the cost already incurred for the sam e m edica tion o r therapy to prove his or he r future expen ses for this medication
or therapy.

                                                             -17-
continuing medical treatment, it is not surprising that the record contains no evidence at all of the
cost of any future medical expenses Mr. Henley might have as a result of his knee injury.28

         We conclude that there is no material evidence in the record to support the jury’s decision
to award Mr. Henley $20,000 for future medical expenses. Accordingly, pursuant to our authority
under Tenn. Code Ann. § 20-10-102(b), we suggest a $20,000 remittitur of the jury’s calculation of
Mr. Henley’s damages which would reduce Mr. Henley’s total recovery from $34,125 to $19,125.
Mr. Henley must elect either to accept or to reject this remittitur. Within thirty days following the
issuance of the mandate in this case, Mr. Henley shall file a written notice in the trial court either
accepting or rejecting this remittitur. If Mr. Henley accepts this remittitur, the trial court shall enter
a judgment against Mr. Amacher and his father for $19,125. If Mr. Henley rejects this remittitur,
the trial court shall enter an order granting Mr. Henley a new trial.

                                            V.
              THE JOINT AND SEVERAL LIABILITY OF MR . AMACHER AND HIS FATHER

        As a final matter, Mr. Amacher’s father, Kenneth Amacher, takes issue with the jury’s use
of the family purpose doctrine to hold him jointly and severally liable for Mr. Henley’s damages.
He insists that the doctrine is inapplicable because he did not know that his son was operating the
vehicle on June 28, 1995, and because his son was not on his business at the time. While both of
these factual assertions may be true, neither is essential to the proper application of the family
purpose doctrine in this case.

        The family purpose doctrine is a judicially-created legal fiction, Thurmon v. Sellers, ___
S.W.3d ___, ___, 2001 WL 256124, at *7 (Tenn. Ct. App. 2001), that has survived the Tennessee
Supreme Court’s adoption of its system of modified comparative fault. Camper v. Minor, 915
S.W.2d 437, 438 (Tenn. 1996). Under this doctrine, the head of a household who provides a motor
vehicle for the use of family members is vicariously liable for any other family member’s negligent
use of that vehicle. Camper v. Minor, 915 S.W.2d at 447. Persons seeking to invoke the family
purpose doctrine must prove: (1) the head of the household furnished and maintained the motor
vehicle for the pleasure and comfort of the other family members, Scates v. Sandefer, 163 Tenn. 558,
564, 44 S.W.2d 310, 311 (1931) and (2) that a family member was operating the vehicle for that
purpose with the owner’s acquiescence. Gray v. Amos, 869 S.W.2d 925, 927 (Tenn. Ct. App. 1993).

        The owner’s consent to the family member’s use of the vehicle may be express or implied.
Camper v. Minor, 915 S.W.2d at 447. The family purpose doctrine’s requirement that the driver be
engaged in the owner’s business does not mean that the driver must have been on a specific errand
for the owner at the time of the incident giving rise to the lawsuit. It means only that the family
member must have been using the vehicle consistently with the head of the household’s purpose for
purchasing it – the pleasure and convenience of the family. Thurmon v. Sellers, ___ S.W.3d at ___,
2001 WL 256124, at *7-8.




         28
           The evidence regarding the cost of Mr. Henley’s reconstructive surgery and post-surgical rehabilitation do
not provide a basis for projecting future medical costs because there is absolutely no evidence that Mr. Henley will be
required to undergo a second reconstructive surgery because of the injury to his knee.

                                                         -18-
        Kenneth Amacher owned the 1987 GMC Jimmy that Mr. Amacher was driving on the
morning of June 28, 1995. While he had purchased the vehicle primarily for the use of Mr.
Amacher’s brother, Chris, Kenneth Amacher knew that Mr. Amacher occasionally drove the vehicle
with his brother’s permission. Kenneth Amacher never forbade Mr. Amacher to drive the vehicle
and never instructed his son, Chris, not to permit Mr. Amacher to drive the vehicle. All this provides
material evidence from which the jury could rationally have concluded: (1) that Kenneth Amacher
is the head of the Amacher family, (2) that he furnished the GMC Jimmy for the use of his two sons
– Chris primarily but also Mr. Amacher, and (3) that Mr. Amacher was using the GMC Jimmy on
the morning of June 28, 1995, for his own pleasure and convenience with his brother’s permission.
Accordingly, the record contains material evidence to support the jury’s application of the family
purpose doctrine to hold Kenneth Amacher jointly and severally liable for Mr. Henley’s injuries.

                                                  VI.

        We affirm the judgment finding that Kenneth Amacher and Russell D. Amacher are jointly
and severally liable to Randall D. Henley for the injury he sustained on June 28, 1995. We also
affirm the jury’s assessment of Mr. Henley’s damages with the exception of its decision to award
Mr. Henley $20,000 for future medical expenses. Because we have concluded that the record does
not contain material evidence to support an award for future medical expenses, we suggest a
remittitur of $20,000 that would, if accepted, reduce Mr. Henley’s judgment from $34,125 to
$19,125. Within thirty days following the issuance of the mandate in this case, Mr. Henley shall file
a written notice in the trial court either accepting or rejecting this remittitur. If Mr. Henley accepts
this remittitur, the trial court shall enter a judgment against Mr. Amacher and his father for $19,125.
If Mr. Henley rejects this remittitur, the trial court shall enter an order granting Mr. Henley a new
trial. We tax the costs of this appeal in equal proportions to Russell D. Amacher and Kenneth
Amacher and their surety and to Randall D. Henley, for which execution, if necessary, may issue.



                                                        _____________________________
                                                        WILLIAM C. KOCH, JR., JUDGE




                                                 -19-
