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.
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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.
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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 
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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.

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“[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 
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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.
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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 
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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.
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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.
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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