               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                 May 26, 2016 Session

                 JAMES BOSHEARS v. CLEAVE C. BROOKS

                Appeal from the Circuit Court for Anderson County
                   No. B4LA0094     Donald Ray Elledge, Judge


                            No. E2015-01915-COA-R3-CV
                                FILED-JULY 6, 2016


This appeal arises from a negligence case brought after an automobile accident. James
Boshears (“Boshears”) was a passenger in a vehicle driven by his girlfriend that was
struck by a vehicle driven by Cleave C. Brooks (“Brooks”). Boshears sued Brooks in the
Circuit Court for Anderson County (“the Trial Court”). Boshears alleged that Brooks
was negligent in operating his vehicle. Brooks asserted that he suffered a stroke
immediately prior to the accident, that he lost consciousness, and that, consequently, he
could not be found negligent. The case was tried to a jury. The jury found that Brooks
was not at fault. Boshears appealed to this Court. On appeal, Boshears argues that the
Trial Court erred in charging the jury with sudden emergency when comparative fault
was not raised by Brooks. Boshears also asserts that the Trial Court erred in charging the
jury on both sudden emergency and loss of consciousness. We affirm the judgment of
the Trial Court.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Timothy L. Baldridge, Knoxville, Tennessee, for the appellant, James Boshears.

Dallas T. Reynolds, III, Knoxville, Tennessee, for the appellee, Cleave C. Brooks.
                                       OPINION

                                      Background

               The accident at the heart of this appeal occurred in Oak Ridge, Tennessee
on April 29, 2013. Boshears was a passenger in a vehicle driven by his girlfriend, Nicole
Penchion (“Penchion”). The pair were heading east on Pennsylvania Avenue near its
intersection with N. Tulane Avenue and Providence Road when Brooks, who was driving
to the west, turned left and collided with Boshears and Penchion.

             In April 2014, Boshears filed suit against Brooks in the Trial Court for
negligence. Boshears sought recovery for injuries he allegedly sustained in the accident.
Brooks filed an answer in opposition, in which he did not allege any comparative fault.
The matter was tried before a jury in May 2015.

               Brooks was 78 years old on the day of the accident. Brooks had been blind
in his left eye since childhood. He also suffered from hearing loss. On the day of the
accident, Brooks had driven himself to see his eye doctor to report blurry vision. Brooks’
eye doctor referred him to the emergency room. Brooks proceeded to the emergency
room. The accident occurred shortly after Brooks was discharged from the emergency
room. Brooks testified that he went unconscious while driving and woke up in an
ambulance. Brooks was transported to UT Medical Center following the accident.

               It was Brooks’ defense that he had a stroke which resulted in an
unforeseeable loss of consciousness leading to the accident. Testimony was elicited
regarding the state Brooks was in immediately after the accident. Two police officers
who observed Brooks immediately following the accident testified. One officer said
Brooks appeared “out of it,” and the other stated Brooks appeared “shaken.” Penchion
stated that Brooks looked all right to her. Boshears testified that he saw Brooks clutching
his chest and staring at the steering wheel. Boshears stated that Brooks had his turn
signal activated. Penchion could not recall whether Brooks’ turn signal was on or off.

               Brooks offered the deposition testimony of Dr. Elzbieta E. Gornisiewicz, a
neurologist who first saw Brooks in May 2013. In response to a hypothetical question,
Dr. Gornisiewicz opined that Brooks had suffered a stroke and gone unconscious right
before the accident. Dr. Gornisiewicz testified that a CT scan taken of Brooks on the day
of the accident, but before the accident, was negative for ischemic activity indicating a
stroke. However, a CT scan taken on the day of the accident, but after the accident, was
positive for findings consistent with a stroke.

                                            -2-
             Boshears, for his part, sought to impeach Brooks’ credibility by eliciting
testimony on cross-examination tending to show that Brooks had suffered vision
problems for years, and that, essentially, he had no business driving on the day of the
accident. Boshears also attempted to cast doubt on whether Brooks had been
unconscious during the accident, or, whether Brooks even had suffered a stroke at all.

             The Trial Court instructed the jury as follows, in relevant part:

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

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

             A sudden loss of consciousness or physical incapacity experienced
      while driving which is not reasonably foreseeable is a defense to a
      negligent action. One who is ill or incapacitated at times may be
      negligently driving at all when he or she is aware that the sudden
      incapacitation could likely occur at any moment. To constitute a defense,
      the defendant must establish that the sudden loss of consciousness or
      physical capacity to control the vehicle was not reasonably foreseeable to a
      prudent person.      As a result, the defense is not available under
      circumstances in which defendant was made aware of facts sufficient to
      lead a reasonably prudent person to anticipate that driving in that condition
      would likely result in an accident.

             The following is a nonexclusive list of factors that you may rely
      upon to determine whether loss of consciousness was foreseeable. Number
      one, the extent of the driver’s awareness and knowledge of the condition
      that caused the sudden incapacity. Number two, whether the driver had
      sought medical advice or was under a physician’s care for a condition when
      the accident occurred. Number three, when the driver had been prescribed
      and was taking medication for a condition. Number four, when a sudden



                                            -3-
        incapacity had previously occurred while driving. Number five, the
        frequency, extent, duration of incapacity episodes prior to the accident
        while driving and otherwise. Number six, the temporal relationship with
        the prior incapacitating episodes to the accident. Number seven, a
        physician’s guide or advice regarding driving, if any. Number eight,
        medical opinions regarding the nature of the driver’s condition and
        adherence to treatment, the foreseeability of the incapacitation, and
        potential advance warnings that the driver would have experienced
        immediately prior to the incident.

The jury determined that Brooks was not at fault for the accident. Boshears filed a
motion for a new trial, alleging, among other things, error in the Trial Court’s charging
the jury with both the sudden emergency doctrine and loss of consciousness. The Trial
Court denied Boshears’ motion for a new trial and affirmed the jury verdict. Boshears
filed an appeal to this Court.

                                               Discussion

              Although not stated exactly as such, Boshears raises the following two
issues on appeal: 1) whether the Trial Court erred in charging the jury with Tennessee
Pattern Jury Instruction 3.08, Sudden Emergency, when Brooks did not raise comparative
fault; and, 2) whether the Trial Court erred in charging the jury with both sudden
emergency and loss of consciousness.

             We first address whether the Trial Court erred in charging the jury with
Tennessee Pattern Jury Instruction 3.08, Sudden Emergency, when Brooks did not raise
comparative fault. Our Supreme Court explained the sudden emergency doctrine in
McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995) as follows:

        The sudden emergency doctrine, which has now been subsumed into
        Tennessee’s comparative fault scheme, Eaton v. McLain, 891 S.W.2d 587,
        592 (Tenn. 1995), recognizes that a person confronted with a sudden or
        unexpected emergency which calls for immediate action is not expected to
        exercise the same accuracy of judgment as one acting under normal
        circumstances who has time for reflection and thought before acting. See
        Young v. Clark, 814 P.2d 364, 365 (Colo.1991); see also Prosser and
        Keeton on the Law of Torts, § 196.1
1
  “[T]he basis of the rule is merely that the actor is left no time for adequate thought, or is reasonably so
disturbed or excited that the actor cannot weigh alternative courses of action, and must make a speedy
decision, based very largely upon impulse or guess. Under such circumstances, the actor cannot
reasonably be held to the same accuracy of judgment or conduct as one who has had the full opportunity
                                                    -4-
              The doctrine no longer constitutes a defense as a matter of law but, if
       at issue, must be considered as a factor in the total comparative fault
       analysis. Accordingly, the doctrine of sudden emergency does not negate
       defendant’s liability in the case before us as a matter of law.

McCall, 913 S.W.2d at 157 (footnote in the original).

              This Court had the opportunity to discuss the applicability of the sudden
emergency doctrine in Ross v. Vanderbilt University Medical Center, 27 S.W.3d 523
(Tenn. Ct. App. 2000). In Ross, the plaintiff went to the emergency room because of a
cut on her finger. The emergency room physician, Dr. Morgan, injected the plaintiff’s
finger with Lidocaine in order to numb it. Then:

       Almost immediately thereafter, Plaintiff, who was lying on a gurney,
       complained that she felt ill and her arm jerked up and her eyes rolled back
       in her head. Dr. Morgan testified that she walked about four feet across the
       room toward the door, yelled for help, and then returned at which point
       Plaintiff’s body began to jerk. Dr. Morgan put her body over Plaintiff’s
       body. Despite Dr. Morgan’s actions, Plaintiff fell off the gurney on which
       she lay and onto the floor head first. Dr. Morgan remembered it taking
       only a couple of seconds before other medical staff arrived too late to help
       her keep Plaintiff from falling....

              Dr. Wright subsequently diagnosed Plaintiff as having suffered from
       a vasovagal reaction which occurs when a person’s blood pressure abruptly
       lowers. Vasovagal reactions are often accompanied by a fainting episode
       and can, if a person faints, be accompanied by jerking movements that
       resemble seizures.... He stated that, though he saw a lot of hospital patients
       and visitors grow faint, a fainting episode is “really uncommon” for
       someone who is lying on a stretcher. Moreover, only ten to thirty percent
       of those that faint during a vasovagal reaction also experience convulsions.

               Following her fall in Defendant’s emergency room, Plaintiff
       experienced changes in personality and problems with her memory and
       dexterity. She was eventually diagnosed with a traumatic brain injury as a
       result of her fall in the emergency room.


to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable
person could possible [sic] have made after due deliberation.” Prosser and Keeton on the Law of Torts, §
196.
                                                  -5-
Ross, 27 S.W.3d at 525. In discussing the sudden emergency doctrine, this Court rejected
the plaintiff’s argument that sudden emergency has no application when a defendant does
not allege comparative fault on the part of the plaintiff. Id., at 527-528; see also Olinger
v. Univ. Med. Ctr., 269 S.W.3d 560 (Tenn. Ct. App. 2008).

               The case of White v. Premier Medical Group, 254 S.W.3d 411 (Tenn. Ct.
App. 2007) involved the propriety of a jury instruction in a medical malpractice case. In
White, the defendants successfully sought to have the jury charged on the defense of
superseding cause. Id., at 415. Following a jury verdict in favor of the defendants, the
plaintiffs claimed on appeal that the trial court erred in giving that particular instruction.
We ultimately concluded that the jury instruction was appropriate. In so doing we
discussed the requisite amount of proof needed to support a jury instruction and the
applicable standard of review. We stated:

               It is proper for a court to charge the law upon an issue of fact within
       the scope of the pleadings upon which there is evidence, which even though
       slight, is “sufficient to sustain a verdict.” Reynolds v. Ozark Motor Lines,
       Inc., 887 S.W.2d 822, 823 (Tenn. 1994); Norman v. Fisher Marine, Inc.,
       672 S.W.2d 414, 421 (Tenn. Ct. App. 1984); Ringer v. Godfrey, 362
       S.W.2d 825, 827 (Tenn. Ct. App. 1962); Monday v. Millsaps, 264 S.W.2d 6
       (Tenn. Ct. App. 1953); Hurt v. Coyne Cylinder Co., 956 F.2d 1319, 1326
       (6th Cir. 1992). For the evidence to be “sufficient to sustain a verdict,”
       there must be evidence which is “material” to the issue. Turner v. Jordan,
       957 S.W.2d 815, 824 (Tenn. 1997); Crabtree Masonry Co. v. C & R
       Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978); City of Chattanooga v. Rogers,
       299 S.W.2d 660 (Tenn. 1956); D.M. Rose & Co. v. Snyder, 206 S.W.2d 897
       (Tenn. 1947).

              The Tennessee Supreme Court has described “material evidence” as
       “evidence material to the question in controversy, which must necessarily
       enter into the consideration of the controversy and by itself, or in
       connection with the other evidence, be determinative of the case.”
       Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905); Fuller v.
       Tennessee-Carolina Transp. Co., 471 S.W.2d 953, 956 (Tenn. Ct. App.
       1970). Black’s Law Dictionary defines “material evidence” as “evidence
       having some logical connection with the consequential facts or the issues.”
       Black’s Law Dictionary 459 (7th ed. 2000); see Smith v. Tennessee
       Furniture Indus., Inc., 369 S.W.2d 721, 728 (Tenn. 1963). This Court has
       described “material evidence” to be “such relevant evidence as a reasonable
       mind might accept as adequate to support a rational conclusion and such as

                                             -6-
      to furnish a reasonably sound basis for the action under consideration.”
      Sexton v. Anderson County, 587 S.W.2d 663, 666 (Tenn. Ct. App. 1979)….

             When determining whether there is material evidence sufficient to
      sustain a verdict, the appellate courts “do not determine the credibility of
      witnesses or weigh evidence on appeal from a jury verdict.” Reynolds, 887
      S.W.2d at 823. Instead, the appellate courts “are limited to determining
      whether there is material evidence to support the jury’s verdict.” Id. If we
      determine the record contains material evidence supporting the verdict, we
      are not to disturb the verdict. Id.

             Accordingly, without judging the credibility of witnesses or
      weighing the evidence, we must determine whether there is any material
      evidence sufficient to sustain the defense of superseding cause. To make
      this determination, we must identify the superseding cause contended by
      Defendants and determine whether there is any material evidence in the
      record that pertains to each element of this defense.

White, 254 S.W.3d at 416-17 (footnote omitted). We also note that “[w]e should not set
aside a jury’s verdict because of an erroneous instruction unless it affirmatively appears
that the erroneous instruction actually misled the jury.” Grandstaff v. Hawks, 36 S.W.3d
482, 497 (Tenn. Ct. App. 2000).

              Our review of the case precedent leads us to conclude that it was not
necessary for Brooks to plead the affirmative defense of comparative fault in order for the
Trial Court to charge the jury on sudden emergency. McCall never stated that sudden
emergency has no application outside of cases where comparative fault is alleged. The
adoption of Boshears’ position would lead to illogical and unacceptable results. For
example, assume a case in which the “sudden emergency” without question is not caused
by any individual. An example of this would be a seemingly healthy tree falling across
the road causing the soon to be defendant driver to swerve suddenly into the path of the
soon to be plaintiff driver. The defendant would have no basis to claim comparative fault
of the plaintiff or anyone else, but there could be no doubt that there was indeed a
“sudden emergency” that confronted the defendant driver. The adoption of Boshears’
position would mean that even in such a case of undeniable sudden emergency, the trier
of fact could not consider sudden emergency because the defendant could not and did not
allege comparative fault. McCall held that sudden emergency, if applicable, is simply
one of many factors to be considered by the trier of fact in determining fault. We decline
to depart from our longstanding case law interpreting McCall. We find no error in the
Trial Court’s charging the jury with sudden emergency even though Brooks did not raise
comparative fault as an affirmative defense.
                                            -7-
             We next address whether the Trial Court erred in charging the jury with
both sudden emergency and loss of consciousness. In McCall, our Supreme Court stated:

              The key to establishing the physical capacity or loss of
       consciousness defense is foreseeability. Consequently, the defense would
       be inappropriate if the driver was aware of facts sufficient to cause a
       reasonably prudent person to anticipate that his or her driving might likely
       lead to an accident.

                                           ***

              In determining whether the loss of capacity or consciousness was
       foreseeable, pertinent, nonexclusive considerations would include: the
       extent of the driver’s awareness or knowledge of the condition that caused
       the sudden incapacity; whether the driver had sought medical advice or was
       under a physician’s care for the condition when the accident occurred;
       whether the driver had been prescribed, and had taken, medication for the
       condition; whether a sudden incapacity had previously occurred while
       driving; the number, frequency, extent, and duration of incapacitating
       episodes prior to the accident while driving and otherwise; the temporal
       relationship of the prior incapacitating episodes to the accident; a
       physician’s guidance or advice regarding driving to the driver, if any; and
       medical opinions regarding the nature of the driver’s condition, adherence
       to treatment, foreseeability of the incapacitation, and potential advance
       warnings which the driver would have experienced immediately prior to the
       accident.    These factors, and any other relevant ones under the
       circumstances, would tend to establish whether the duty to exercise
       reasonable care was breached.

McCall, 913 S.W.2d at 155-56.

              Boshears argues on appeal that the Trial Court erred in charging the jury on
both sudden emergency and loss of consciousness. According to Boshears, this
effectively gave Brooks two bites of the apple, so to speak. Most critically, per Boshears,
is that sudden loss of consciousness contains an element of foreseeability that sudden
emergency does not. In other words, Boshears contends that because both instructions
were given jurors merely needed to conclude that the sudden emergency arose, and
Brooks, therefore, was absolved of negligence.



                                            -8-
              Initially, we disagree with Boshears’ characterization of sudden emergency
as charged by the Trial Court, quoted above. The doctrine of sudden emergency does
have provision for fault or negligence on the part of the individual whose conduct is at
issue. The Trial Court stated in its instruction given to the jury: “A sudden emergency
will not excuse the actions of a person whose own negligence created the emergency.” It
is not as though a sudden emergency renders an individual’s otherwise tortious conduct
appropriate. Rather, it is but one consideration that the jury is to take into account.

               Second, this case as presented to the jury contained multiple theories.
Brooks posits the theory that he was rendered unconscious by a stroke, an unforeseeable
event, and he cannot be found at fault for the accident. Boshears on the other hand
advanced a theory at trial that Brooks was conscious and struck Boshears because of
vision problems that were highly foreseeable based upon Brooks’ history of vision
problems. Boshears also questioned whether Brooks’ stroke occurred before the
accident, or, indeed, whether he had a stroke at all. The sudden loss of consciousness
doctrine fits the case theory set forth by Brooks to the jury. The case theory set forth by
Boshears did not accept a loss of consciousness event but instead raised with the jury the
theory that the accident was caused by Brooks’ visual problems which may or may not
have had a sudden onset, or, if Brooks had a stroke, he had warning signs. In short, there
was evidence presented by the parties sufficient to sustain a verdict on this issue of fact,
and giving the instruction on sudden emergency, therefore, was not error. We, therefore,
find no error in the Trial Court’s charging the jury on both sudden emergency and loss of
consciousness.

              Additionally, the record before us on appeal does not reveal to us which
theory the jury ultimately believed to be true. Boshears points to no specific evidence in
the record that the jury was in any way actually misled by the jury instructions. The jury
simply found Brooks to be not at fault. Even if we were to conclude that the Trial Court
erred in charging both sudden emergency and loss of consciousness, we would be unable
to conclude that such error impacted the outcome of the trial, and such error, therefore,
would be harmless. We affirm the judgment of the Trial Court.

                                       Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to
the Trial Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, James Boshears, and his surety, if any.


                                          ____________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE
                                            -9-
