                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 3, 2001 Session

              PAULA C. BENCRISCUTTO v. LAMESIA SIMMONS

                     Appeal from the Circuit Court for Davidson County
                         No. 97C-2980     Walter C. Kurtz, Judge

                   BROOKE A. LUCAS v. LAMESIA SIMMONS

                     Appeal from the Circuit Court for Davidson County
                         No. 98C-2605     Walter C. Kurtz, Judge


                     No. M2000-01816-COA-R3-CV - Filed June 1, 2001


This consolidated appeal concerns a multiple vehicle automobile collision which occurred during
interstate rush hour traffic in Nashville. Lamesia A. Simmons' vehicle came into contact with the
rear portion of Paula C. Bencriscutto's vehicle during an attempted lane change. This impact
then caused the Bencriscutto vehicle to come into contact with Brooke A. Lucas' vehicle.
Lawsuits were instituted in the Circuit Court of Davidson County by both Lucas and Bencriscutto
against Simmons to recover damages associated with the collision. These suits were
consolidated for trial and this subsequent appeal. At the close of the Plaintiffs’ proof the court
directed a verdict in favor of the plaintiffs and against Simmons. The issue of damages was then
submitted to the jury with a verdict of $9,947.69 being returned in favor of Bencriscutto and in
the amount of $5,482.50 for Lucus. Ms. Simmons appeals insisting that the trial court erred in
granting the directed verdict. We affirm the action of the trial court in directing the verdict and
the damage award.

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

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

Michael P. Mills and Ernest Sykes, Jr., Nashville, Tennessee, for the Appellant, Lamesia A.
Simmons.

Philip D. Irwin, Nashville, Tennessee, for the Appellee, Paula C. Bencriscutto.
J. Mitchell Grissim, Jr., Nashville, Tennessee for the Appellee, Brooke A. Lucas.


                                            OPINION
       The facts as to how this multiple vehicle collision occurred are not disputed. The
conclusion as to whether those facts justify the trial court in directing a verdict as to the liability
of Ms. Simmons are stringently contested.

        In this case the Plaintiffs established by their proof that on March 3, 1997 it had been
raining and the roadways were wet. Interstate I-40 traffic was heavy at 8:00 a.m. as the height of
rush hour traffic attempted to reach their downtown Nashville destinations. The location of the
collision was near the Charlotte Avenue exit of I-40 east. This location is shortly after the merge
of I-265 with I-40 and the traffic had been reduced to three east bound lanes. The traffic was
described as busy stop-and-go rush hour traffic. All three of these parties were traveling in the
center lane. The outside merge lane was congested to the point that traffic was barely moving.
The center lane was congested but moving. The inside lane was less congested and traffic was
flowing more quickly. Traffic in front of Ms. Lucus stopped suddenly, she then stopped. Ms.
Bencriscutto suddenly stopped in response to the Lucus stop.

        Ms. Simmons was called by the plaintiffs as an adverse party witness and testified that
she did not usually drive this route at this time of the day and wasn’t familiar with these traffic
conditions. Ms. Simmons stated that she was attempting to switch into the left hand lane when
the accident occurred. Immediately prior to the collision Ms. Simmons initiated her left turn
signal light, checked her mirror and then looked over her shoulder to check the blind spot to her
left. When she redirected her line of vision to her front and turned back around, the vehicles in
front of her had come to a complete stop. Ms. Simmons slammed on her brakes and tried to
move both to the left and right but was unable to because of traffic. Thereafter, she impacted
with the Bencriscutto vehicle, whose vehicle then impacted the Lucus vehicle.

        At the conclusion of the plaintiffs’ proof, Ms. Simmons presented no other proof. The
trial court was then presented with a motion for directed verdict which he granted. In
commenting on the motion, the Court reflected that it is a misunderstanding of the law to
conclude that the mere hitting of someone’s vehicle from the rear would make that person guilty
of fault. The court stated that such a person would not be at fault if they had no reason to
anticipate the stopping of the preceding vehicle. The court then concluded that such stopping is
not unanticipated in this rush hour traffic situation and that Ms. Simmons was under a duty to
maintain a safe distance, which duty was breached. The court then granted the directed verdict
request.

        It is the position of Ms. Simmons that she was operating her vehicle at the appropriate
speed of approximately 40 to 45 miles per hour and that her actions in attempting to change lanes
did not breach the standard of care required of a reasonable, prudent person. She asserts that her
conduct was not negligent. She insists that the issue of negligence was a jury issue and that the
jury should have been allowed to consider her defense of fair distraction or unavoidable accident.

         This appeal asserts that the trial judge abused his discretion in granting the directed
verdict as a verdict should not be directed during or after trial except where reasonable minds


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could draw but one conclusion. Holmes v. Wilson 551 S.W.2d 682,685 (Tenn.1977). Ms.
Simmons insists that reasonable minds could conclude that she acted with due care under the
attendant circumstances and that the jury should have been allowed to decide this issue. In
reviewing a motion for directed verdict, the trial court must take the strongest legitimate view of
the evidence in favor of the non-moving party, allowing all reasonable inferences in favor of that
party, disregarding all countervailing evidence, and deny the motion where there is any doubt as
to the conclusions to be drawn from the whole evidence. Gann v. Harvester Co. of Canada, LTD,
712 S.W.2d 100,105 (Tenn.1986).

        In applying this standard to this case we are mindful that these are situations in which
accidents occur without the fault of any party. In these situations, which have been called
“unavoidable accidents”, the circumstances of the incident lead to the conclusion that all parties
were complying with their respective duties of care. Therefore, the question of whether an
accident was unavoidable is properly raised as part of the inquiry into whether either party acted
negligently and not as an affirmative defense. This principal is best stated in Whitaker v.
Harmon, 879 S.W.2d 865, 870 (Tenn.App. 1994), where the Court stated, “We are aware that
there are cases which recite that ‘unavoidable accident’ is an affirmative defense. See, i.e.
Nelson v. Simpson, 826 S.W.2d 483 (Tenn. App. 1991) Such assertions, however, are mere dicta.
We believe, however, that “unavoidable accident” in its simplest terms is nothing more than a
lack of negligence on the part of any party which is a proximate cause of the accident or
damage. . .”

        Similarly the concept of “fair distraction” envisions a driver that is diligently keeping a
lookout ahead to such a degree that some activity in his or her view distracts his or her “lateral
vision”, Hadley v. Morris 249 S.W.2d 295, 298, (Tenn. 1952). Therefore, “fair distraction” is
also a circumstance that the trier of fact can conclude establishes that the standard of care of the
driver has been met and that no negligence has occurred.

        The issue we must decide is whether these circumstances were raised such that the trial
court erred in directing this verdict. Ms. Simmons’ testimony indicates that, in the exercise of
reasonable care, she anticipated slower traffic or traffic that was stopped in front of her on the
day of this collision and for that reason she was attempting to change lanes of travel. Therefore,
the stopping of the Bencriscutto and Lucas vehicles were to be anticipated. The predicate for
“unavoidable accident” is the encountering of a dangerous situation which in the exercise of
reasonable care the driver had no reason to expect. This essential factor is missing in the facts
established by the proof. The “fair distraction” circumstance envisions a driver that is diligently
keeping a lookout ahead and is distracted in seeing what is to be seen. This predicate is also
missing in this proof.

        The duty of a driver of an automobile is set forth in the often cited case of Hale v.
Rayburn, 37 Tenn. App. 413, 264 S.W.2d 230, 233 (1953). It is a basic requirement of due care
in the operation of an automobile that the driver keep a reasonable careful lookout for traffic,
whether vehicular or pedestrian, “commensurate with the dangerous character of the vehicle and


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the nature of the locality.” Hadley v. Morris, 35 Tenn. App. 534, 249 S.W.2d. 295, 298(1951)
adds to the above requirement the following language, “. . . and to see all that comes within the
radius of his line of vision, both in front and to the side.” The assured clear distance rule has
evolved as the term which represents these legal principles. The assured clear distance rule does
not apply, however, where the motorist encounters a dangerous situation which in the exercise of
reasonable care he had no reason to expect. Strickland Transp. Co. v. Douglas, 264 S.W.2d
233,237 (Tenn. 1953). The trial court determined that Ms. Simmons was negligent in failing to
keep her vehicle under control and to maintain a safe distance between her vehicle and that of
others under the circumstances that existed on the day of the accident. The trial court determined
from the facts that there was but one explanation for the lack of Ms. Simmons seeing the stopped
traffic and that was her turning her attention from the traffic in front of her to look over her
shoulder to the left to accomplish the anticipated lane change.

        We conclude that the standard for granting a directed verdict was properly applied by the
trial court. We conclude that reasonable minds could draw but one conclusion from this proof
and that is that the direct and proximate cause of this collision was Ms. Simmons looking away
from the traffic in front of her vehicle and over her shoulder to traffic in the left lane. The
judgement of the trial court is affirmed.




                                             ___________________________________
                                                  J.S. DANIEL, SPECIAL JUDGE




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                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    April 3, 2001 Session

              PAULA C. BENCRISCUTTO v. LAMESIA SIMMONS

                     Appeal from the Circuit Court for Davidson County
                           No. 97C-2980 Walter C. Kurtz, Judge

                   BROOKE A. LUCAS v. LAMESIA SIMMONS

                       Appeal from Circuit Court for Davidson County
                           No. 98C-2605 Walter C. Kurtz, Judge



                                No. M2000-01816-COA-R3-CV


                                          JUDGMENT


        This cause came on to be heard upon the record on appeal from Davidson County Circuit
Court, the briefs of the parties, and the arguments of counsel. Upon consideration of the entire
record, this court finds and concludes that the trial court's judgment should be affirmed.

        In accordance with the opinion filed contemporaneously with this judgment, it is,
therefore, ordered, adjudged, and decreed that the trial court's judgment be and is hereby
Affirmed, and that the cause be remanded to the trial court for further proceedings consistent
with this court's opinion.

      It is further ordered that the costs of this appeal be taxed to Lamesia Simmons, principal,
and Michael Mills of Mills and Cooper, surety, for which execution may issue if necessary.




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