# FILED December 19, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT JACK SON

JAMES R. ROSE and wife, ) STELLA KAY

ROSE, ) ) Plaintiff s/Appella nts, ) Henderson Law No. 93- 343

) vs. ) ) DENNIS R. R

ICE, JANIC E RICE and ) Appeal No. 02A01-9509-CV-00198 JOHN DOE, ) ) Defend ants/Appe

llees. )

APPEAL FROM THE CI RCUIT COURT OF HENDERSON COUNTY AT LEXI NGTON, TENNESSEE

THE HONORABLE CHARL ES McPHERSON, JUDGE

For the P laintiff s/Appella nts : For the Defendants/Appellees Paul Todd Nicks Dennis R. Rice and Janice Rice : Jackson, Tennessee Carthel L. Smith, Jr. Lexington, Tennessee For the Defendant/Appellee John Doe : S. Craig Kennedy Selmer, Tennessee

REVERSED A ND REMAN DED

HOLL Y KIRBY L

IL LARD, JUDGE

CONCUR:
W. FRANK CR

AWFORD, P. J., W.S.
ALAN E. H IG

HER S, J.OPINION

This is a neg ligenc e case

involving the head-on collisionof two vehicles. Appellants James and Stella Rose were struck by the ca r of Appe llees Dennis and Janice Rice when Dennis Rice applied his brakes to avoid hitting a vehicle which turned across his lane. The trial c ourt granted summary judgme

nt in favor of the Rices. We reverse. On the ni gh t of April

4, 1992, Jame s and Stell a Rose we re trav eling w estbound o n U.S. Highway 412. Stella Rose was driving, and James Rose was asleep in the seat beside her. They came arounda curve and started up a hill. As they rounded the curve, Stell a Rose saw the vehicle of Appellee John Doe (“ Doe”), an uniden tified dr iv er, sig nali ng to turn left onto Pine Crest Road, which was on the crest of the hill. There was one ca r between the Roses and

the vehicle with its turn signal on. Stella Rose did not notice any car s approaching in the eastbound lane. She slowed down but thought the car with the turn signal on would have time to turn befor e she would have to stop. At that time, Dennis and Janice Rice were traveling eastbound on U.S. Hig hway 412 at a

bout fifty miles per hour, with Dennis Rice driving. Dennis Rice saw thre e vehicl es in

the oncoming lane. The first two were approaching. The t hir d was the John Doe vehicle, with its turn signal on as thou gh it were g oing to

turn onto Pine Crest Road. In his deposition, Rice estimated that the John Doe vehicle was probably about eighty

or one hundred

feet away when he first saw it. The first two vehicles drove past the Rices. Then Doe turned in front of Rice, a move which he had not expected, causing Rice to slam on his brakes to avoid a collision. Rice testified that he appa rently turned hi s wheels a little to the left. He managed to barely avoid hitting Doe’s vehicle, and the car in front of the Roses pas sed by

in its lane . Rice the

n took his f

oot off the brake , and his ve hicle be gan to fishtail. Rice ag ainslammed on his bra kes, but hi s vehicle

entere d the othe

r lane a nd crash ed into the Roses’ vehicle. The John Doe vehicle was never found, nor was the driver ever identified. The Roses sued the Rice s a nd Doe, alleging that Dennis Rice had fa iled to keep a proper lookout, had failed to keep controlof his vehicle, and had not acted reasonably

in the events leading up to the accident. At the hearing on the Rices’ motion for summary judgme

nt, the trial court found that Stella Rose negated any

allegations of

negligence on Rice’s par

t by stating

in her deposition that there was nothing Dennis Rice could have done to prevent the a ccident. The court also foundthat the sudden emergency

doctrine applied. Cons equentl y, the trial court g ranted the Rices’ motion for summary judgment. The Roses now appeal the grant of summary judgment. A trial court

should grant a motion for summary judgment when the movant demonstrates2

that there areno genu

ine issue s of mater

ial fact and that t he moving

party is entitle d to a judgment
as a matter of law. Tenn. R. Civ. P. 56.0 3. The party mov ing for summary judgment bears the burden of demonstrating that no genuine issue of materia l fact exists. Byrd v. Ha ll , 847 S.W.2d 208, 211 (Tenn. 1 993). On a

motion for

summary judgmen t, the trial court and

the appe llate cou rt must take t he stronge st legitimate view of the ev

idence in favor o f the nonm oving pa rty , allow all
reasona ble inferences in favor of that party , and discard all countervailing evidence. Id. at 210-11. The phrase "genuine issue," as statedin Rul e 56.03, refers to genuine, factual issues and does not include issues involving

legal c onclusion s to be dra wn from th

e facts
. Id. at 211. In Byrd , the Court said: Once it is shown b y the moving party that ther e is no genuine issue of mater ial fact , the nonmovi ng party

must then demonstrate, by af fidavits or discovery ma

terials, that there is a genuine, mater

ial fact dispute to

warran t a trial. In thi s rega

rd, Rule 56.05 provides that the n onmoving party cannot simply

rely upon his ple adings but m ust set forth specific

facts showing that

there is a genuine issue of

materia l fact fo r trial. "If he doe s not so respond, summary judg ment . . . shall be entered against him." Id. (citations omitted). Summary judgmen t is only appropriate

when the case can be decided on the legal issues alone. Id. at 210. Since only questions of law ar e involved, there is no presumption of
correctness regarding a trial cour t's grant of summary

judgment. Carvell

v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). Review of the grant of summary judgment is, therefore, de novo on the record. On appeal, the Roses contend that there are g enuine issues of material fact which ren der summary judgment inappropriate. First, they asse rt that there is a factual issue as to whether there
was adequate time for the John Doe vehicle to turn without Rice’s sudden application of brakes and the ensuing

events. St

ella Rose testified in her deposition that she thought there was plenty of time for the Joh

n Doe veh

icle to tur n without he

r having to stop and

that it never crossed

her mind that the Rices’ vehicle would hit the John Doe vehicle. Dennis Rice, however, stated that he applie d his brakes immediately when the c ar turned in front of him, thatthere was only

about one hundred feet betweenh is car and

the John Doe

vehicle when he f

irst saw it , that he m

issed hitti ng it by

inches, and that the whole event took place in seconds. Based on the pa rties’ deposition testimony, there appears to be a genui ne iss ue of m ateri al fact as to w hethe r ther e was en ough distance between the Rices and Doe for Rice to have prevented the accident.3

The Roses also assert that there is a genuine issue of mater ial fact as to whether Rice acted reasonably

after he averted colliding with the Doe ve hicle. In his deposition, Dennis Rice stated: When I let off the

brakes , I los t control. My c ar start ed fishta iling, ju st weaving back an d forth. I locked up

my brakes a gain, a nd I w as in

the left-hand lane when I hit them in the truck. * * * A: Anti-lock

brakes; I didn’t

have that on my ca

r. But I’m sure I

probably turned the wheel, but I w ent compl etely straight, had it lo ck ed down, slid. Then I went -- I missed the

car [John Do e’s vehi cle]. I barely misse d it. And I

let off my

brakes. I lost contr ol, and the car just started fishtailing. And then I locked it up, locked the brakes up again when I

seen [sic] it was going left of center. Therefore, Rice avoidedhitting the John Doe vehicle and was sliding straight; he then took his foot off the brake, lost control, and then locked up the brakes. Rice’s deposition testimony indicate s a factual issue as to

whether , under th

e circu mstance s, he acted as a reasonably prudent person when he took his foot off the brakeand then locked up the brakes after the car beg an fishtailing. Rice’s deposition testimony

also indicates that he may have had his arm around his wife at the time of the accident, and there would be a factu al issue a s to whethe r this con tributed t o his loss of control of the vehicle. The trial court noted statements by Stel la Rose in her depo sition and

found tha

t these statemen ts negated her allega

tions of neg li gen ce a gai nst Den ni s R ice . In her depo sition, Mrs . Rose stated: Q:
. . . From what I know about this, there was no pr oblem out there on the roadway at all until this unidentified vehicle turned in front of Mr. Rice; would you agree with that? A: Yes, sir. Q: Now, did you -- based upon those circumstances that you actually

observed that night, do you know of

anything he

could have done, Mr. Rice, to avoid hitting you? A: No, sir. It is well established in Tennessee that, when an interested party in his testimony

makes a material st atementof fac t which negates his right of action, he is bound by that statement unless more favora ble testimony

is forthcoming. Harvey v. Wheeler , 57 Tenn. App. 642, 648, 423 S.W.2d 283, 285 (1967). However, when there exists an explanation for that testi mony , or when other cr edible evidence is presented contrary to the testimony, then the weig ht and credibility of the ne gative4

testimonybecomes a jury question and cannot be determined by the trial court as a matter of law. Id. at 648, 423 S.W.2d at 286. In this case , other po

rtions of S tella

Rose’s deposition, as well as the depositions of the other parties, present enough evidence to explain her testimony and create a genuine que stion of fact for
a jury. As noted above , Stella Rose also testified that there had been enough time for the John Doe vehicle to turn wit

hout her h aving to

stop and th at it did not

occur to her that the Ri ce vehic le would hit the Doe v ehicle. These tw o stateme nts, take n togeth er with he

r earlie r stateme nts, could
reasona bly be seen as meaning that

Rose belie

ved that there was nothing Rice could have done once he started his maneuvers to avoid D oe, not tha t she belie

ved that t here wa s nothing

he could have done before that point. Moreover, Rose could not possibly have “observed that

night” that Rice took his foot off the brakes after missing Doe a nd that this action could have contributed to the accide nt. The statements by

Dennis Rice in his deposition, discussed above, that he took his foot off the brake and then locked up the brakes, indicate issues of cre dibility and fact to be deter mined by a jury
. The trial court also ruled that the sudden emergency doctrine applied, stating at the hearing on the motio n for summa ry judgmen t: But I think even

more impo rtantly

here is th at I d

on’t belie ve reas onable minds could dif

fer tha t based on

the testim

ony of the pla

intiffs a nd Mr. and

Mrs. Rice, but what that Mr. Rice was confronted by a sudden emergency

which was not of his own making, and that n o reason able mind could dif fer but w hat he acted as a reasona bly and ordinary

[sic] prudent person would have acted when conf ronted w ith the same or similar

circumst ances. The Tennessee Supreme Court has discussed the sudden emergency

doctrine since its adoption of comparative fault in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992). In McCall v. Wilder , 913 S.W.2d 150 (Tenn. 1995), the Court stated:

Fi na ll y, defendant’s reliance on the sudden emer gency doctrine is misplaced. The sudden emergency

doctrine, whichhas no w been subsumed into Tennessee’s comparative fault scheme, recognizes tha t a perso n confronted with a sudden or unexpected emergency

which calls for

immediate action is not expected to exercis e the same ac curacy

of judgm ent as one actin g under normal circumstances who has time for reflecti on and thou ght bef ore act ing. The doctrine no longer constitutes a defense a s a matter of law but, if at issue, must be consid

ered asa factor in theto ta l c om pa ra ti ve fa ul t a na lys is . A cc or di ng ly, the doctrine of sudden emerg ency does not negate de

fendant ’s liabilit

y in the case before us as a matter of law. Id. at 157 (cita tions omitte d); see Eaton v . McLain , 891 S.W.2d 587, 592 (Tenn. 1994). Therefore,5

the jury must determine whethe r Rice acted reasonably , considering any sudde n emerge ncy conditions under the facts in this case. The decision of

the trial court granting summary judgment in favor of Appellees is reverse d. The case is remanded for fur ther proceed ings consistent with this Opinion. Costs are assessed ag ai ns t A pp el le es , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

HOLLY KIRBY LILLARD, J.
CONCUR:

W. FRAN K CRAWF ORD, P. J., W.S.
ALAN E. HIGHERS, J.