### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE June 14, 199 9 Session RANDALL DEWAYNE HENLEY, ET AL 

### . v. RUSSELL D ALE

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 a

n early morning, drunken joyride by four teenagers that ended when their sport utilityvehicle overturned. One of the passengers who was injured when hewas thrown from the
v ehicle sue d the driver and his father in the Circuit Court for Franklin County seeking $200,000. A jury assessed the passenger’s damages and a ttributed 75% of the fault to the driver and 25% of the fault to t he passen ger. In accordance with the jury’s ve rdict, the trial court awarded the passenger a $34,125 judgment against thedriver and his fa

ther. On this appe al, the dr

iver and his father take issue with (1) the allocation of less than 50% of the fault to the passenge r, (2) the lack of evidenc e to support the application of the family purpose doctrine, (3) the awa rds for permanent impairm ent and future medical expenses, and (4) the trial cour t’s refusal to give two requested instructi ons. We have determined that the only reversible error in the proceeding involves the jury’s decision to award the passenger $20,000 for futu re medic al expen ses. Accordingly, we affirm the jury’s verdict

as to liability and a

llocation of fault. With

regard to the damage awa

rd, we su ggest a remittitur which, if accepted, will reduce the pa ssenger’s judgment to $19,125. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med in Par

t and Vacated in Part
W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILL IAM B. C AIN , J., joined. Paul Campbell, Jr., Chattanooga, Tenness ee, for the appe llants, Ke nneth D. A

macher and Russell Dale Amacher.
Robert S. Peters, Winchester, Tennessee, for the appelle es, Randall Dewayne Henley and Debora h Henley.
OPINION
I.
In mid-1995, Russell

Dale (“ Rusty”) A

macher and his br

other, Ch ris Amacher, were living in Franklin County with their grandmother because their parents were going throug h a divorce. Although he was only sixteen, Mr. A ma cher had received institutionalized treatment for a lcohol abuse on two occasions. Relations between Rusty Amacher and his par ents had become strained.1 A perso n’s ab ility to dr ive is pres umed to be s uffi cient ly i mpaired t o const itute aviol ati on of Tenn. Code Ann. § 55- 10- 401 (a)(1 ) (19 98) if the alc oho l con tent in the pe rson’ s bl ood at t he ti me is “t

en-hundre dths of one per cent (.10%) or m ore.” Tenn. Cod e Ann . § 55-10-40 8(a) (1998).

2 M r. He nley ’s m othe r joine d him as a pla intiff be cau se he wa s a m inor wh en th e suit w as first filed

. By the t i me o f t ri al , Mr. He nl ey ha d r ea ch ed t he ag e o f maj or i t y a nd hi s mot he r vo l un t ar i l y d i s mi s s ed he r cl ai m. -2- On the night of June 27, 1995, Rusty Amache r borrow ed his brother’s 1 987 GMC Jimmy and pickedup Randall DeWayne Henley at approximately 7:00 p.m. Mr. Henle y, then seventeen years old, had been friends with Mr. Amacher since the se venth grade and knew abo ut Mr. Am acher’s struggle with alcohol. Th e two b oys decided that they were “going to hang out the whole night.” Accordingly, they began the evening by obtaining a pint of Fighting Cockwhiskey a nd driving

to Al Tripp’s house where they drank the whiskey and c hased 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 discov ered that another friend, Charlie T awater , was also there. Messrs. Bryant and Tawater wer e 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.
Som e 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 wh ich of the boys would drive. When Mr. Amacher insisted that he was able to dr ive, his three f riends acq uiesced because he was providing the ca r. Accordingly, the boys set out from Mr. Bryant’s house with Mr. Amacher driving, Mr. Hen l ey in the f ront pass enger’ s seat, a

nd Messrs

. Bryant and Tawater in the rear sea t.
Just over one mile beyo nd the cit

y limits of E still Spring s, Mr. Ama cher’serratic

drivin g prompted Mr. Bryant to dem and that h e pull over and stop the car. When Mr. Amache r turned aro und to talk with Mr. Bryant, he drove the car off the road. W hen he attempted to return to the roadway, Mr. Amacher over corrected and c aused 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 re vealed a blood alcohol content of .24%. 1

Mr. Henley h ad his inju

red knee surgica lly reco nstructe d in August 1995. In June 1996, he andhis mother 2 filed suit

against Mr. Amacher and his father seeking $200,000 in dama ges for the i njuries he sustained when the was thrown from the vehicle in June 1995. Mr. Ama cher and hi s father denied liability, asserting that Mr. Henley was aware of Mr. A macher’s intoxication and that Mr. Henley had assumed the risk of riding with Mr. Amacher. Mr. Amac her’s father

also asserted that he was not lia

ble beca use he ha d not conse

nted to hisson’s use

of the ve hicle and becau se 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. Amache r had been driving the vehicle for a fa mily purpo se on June

28, 1995. T

he jury de

termined that M r. Henl ey’s damages3 Specif ical ly, the jury awarded M r. Henley $19,000 for pas t medical expense s, $20,000 for f uture medical exp ense s, $1,5 00 f or p ast pain and suffe ring , and $5,0 00 f or p erm ane nt im pairm ent.

4 $45,500 × 75% = $34,125. -3- amounted to $45,500, 3 that Mr. Amacher was 75% at fault, and that Mr. Henley was 25% at fa ult. Accordingly, the trial

court en tered a judgment a

gainst Mr. Amache

r and his f

ath er for $34, 125. 4 After mo ving unsuc cessfully for a new trial , Mr. Amac her and h is father perfected this ap

peal.
II. T HE R EQUES TED J URY I NSTRUCT IONS
We turn first to the assertion by Mr. Amacher and his f ather that the trial court erred by refusing to give two requested instructions regarding a passenge r’s obliga tion to protect his or her own safety

when the operato r of a moto

r vehicl e is intoxicated. These proposed instructions, based on cases pr

edating t he Tenne ssee Supr

emeCourt’s adoption of its system of modified comparative fault, essentially instructed the jury that a passenger whoknowingly rode with an intoxicated driver was solely responsible for his or her own injuries. We have determined that the trial cour tcorrectly decline d to give these instr uctions.
A.
The chief defense of Mr. Amacher and his father to Mr. Henley’s complaint for damageswas that Mr. Henley was solely responsible for the injury he sustained on June 28, 1995, b e cause he decided to ride in a

motor vehicle being drivenby 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 fir st reque sted instr uction wa s:
I instruct you that the la

w of Tennessee isthat when one gets into an automobile which is to be operated by a drunken driver, such person ta kes his lif e in his ha

nds.
The sec ond requ ested ins truction w as:

I instruct you that the law of Tennessee is that as a g enera l pro position, a guest-passenger is precluded from recovering fo r injuries sustaine d in an aut omobile a

ccident where th e intoxic a ted 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 ha v e known of the drive r’s intoxi cation a

t the time the guest-passenger volunteered to ride in the automobile.
Whether or not the gue st

passenger is contributorily negligent in riding in the automobile of the defend ant 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 ord inarily pr udent man

under the circumst ances.5 This portion of the charge con forms substantially to T.P.I. 3- Civil 5.30 (3d ed. 1997 ). -4- The trial court declined to givethese requested instructions. It concluded that “the charge straight from the charge book that defines the obligation of a guest passenge r i n a vehicle” was adequa te and thus refused to “inject specific facts into . . . my charge .” Accordingly, the trialcourt instructed the jury , in part, that:

In summary, both Randall Henley and Russell Amacher had a duty to exe

rcise re asonable

care w ith rega

rd to the ac tual and potential dangers existing from the weather, the road, the traffic, and othe r condition s, including their p ersonal condition s, and to f

ollo w the traffic laws as I have instructed you. Now, a passenger has a

duty to tak

e action for self protection from dan ger 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 pa sseng er could have prevent ed the ha rm. 5
On this appe al, Mr. Ama cher an d his father assert that their requested instructions were correct statements of the law and that they were applicable to the evidence that had beenpresented. Accordingly, they asse

rt that the

y were p rejudic ed by the t

rial court’s r efusal to

give thes e instructi ons.
B.
Juries have the exclusive prerogative to de cide 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 (Ten n. 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. Mye rs 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 soundnes s of every jury’s verdict rests on the fairness a nd accuracy of

the trial court’sinstructi ons. Ladd v. Honda Motor Co. , 939 S.W.2d at 94.
A trial court’s instructions must be complete and accura te and mus tfairly r

eflect t he parti es’ claims and defenses. Cole v. Woods , 548 S.W.2 d 640, 642 (Tenn. 197 7); Washington v. 822 Corp. , 43 S.W.3d 491 , 493 (Te

nn. Ct. App . 2000); Hughes v. Lumbermens Mut. Cas. Co. , 2 S.W.3d 218, 226 (Tenn. Ct . App. 199 9). Acc ordingly, trial cou rts should ca

refully consider each jury instruction proposedby 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 cor

rect sta tement of the law, a

nd (4) if its substance is n ot already c ontained in another portion of the charge. Richardson v. Miller , 44 S.W.3d 1, 27 (Tenn. Ct. App. 20 00); Ladd v. Honda6 Assumpti on of the risk and con tributo ry n eglig enc e w ere d istinct leg al do ctrine s. Wils on v. Moudy , 22 Tenn. App. 356, 372, 123 S. W.2d 828, 838 (1938). Assumpti on of t he ri sk re quire s act ual knowl edge of t

he danger and a
con sciou s dec ision to subm it to it. Contri butory ne gli gence, on the ot her hand, does not

requi re act

ual knowl edge of the danger but rat

her consis ts of c onduct that departs f rom the reasonable s tandard of car e. Underwood v. Wa ters lides of Mid-America, Inc. , 823 S. W.2d 171, 179 (Tenn. Ct. App. 1991). Even though t he doctrine s ar e dis ti nc t, the y are entire ly com patib le. Duncan v . Ferre ll , 5 8 Tenn. App. 133, 161, 427 S. W.2d 36, 48 (1967) . I n fact , by 1992, the doctr ine of assumption of t he risk had become the “pract ical equivalent ” of the d octrin e of contri butory negligence. Cha ttanoo ga 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- 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, a nd (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 (Ten

n. 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 eve ry way, In re Esta te of Elam , 738 S.W.2d at 174; Ingram v. Earthman , 993 S.W.2 d at 636, a nd we will

not invalidateinstructions 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, 44 6 (Tenn. 1992); Woods v. Herman Walldorf & Co. , 26 S.W.3d 868, 878 (Ten

n. Ct. App. 1999); Hughes v. Lumbermens Mut. Cas. Co. , 2 S.W.3d at 225. Whenthe denial of a

requested instruction that could have been given prejudices the rights of the party who requested the instru ction, thiscourt must vacate the judgment. Nashville, C. & St. L. Ry. v. Jackson , 187 Tenn. 202, 206-07, 213 S.W.2d116, 117 ( 1948); Souter v. Cracker Barrel Old Country Store, Inc. , 895 S.W.2d 681, 684 (Tenn. Ct. App. 1994).
C.
The proprie

ty of the trial court’s refusal to give the instructions requested by Mr. Amacher andhi s fa ther requires us to revisit the effects of the Tenne ssee Supreme Court’s adoption of the current system of modified comparativefault. Prior to the advent of modified c omparat

ive faul t in 1992, a passenger who knowingly rode with an intoxicated driver c ouldnot, as a general matter, recover damages for injuries caused by the driver’s negligence. The law considered these p assengers to be taking

their live s in their

own hands , Schwartz v. Johnson , 152 Tenn. 586, 592, 280 S.W. 32, 3 3 (1926), and left them to live with the consequences of their decision to take a chance on th e driver’s ability to drive. Hicks v. Herb ert , 173 Tenn. 1, 6, 113 S.W.2d 1197, 1199 (1938). Accordingly, the cour

ts repeatedly held that

either the doctrine of proximate contributory negligence or the doctrine of implied assumption of the ris k preven ted passe ngers who knowingl

y rode with an intoxicateddriver from recovering damages fr om 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 defe nse). 6
The Tenness ee Supre

me Court’ s decisio n in McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992), imported the principles of comparative fault into our common law and heralded the demi se of both the doctrine of contributory negligence and the doctrine of implied assumption of the risk. In McInty re , the Court abandoned the common-law “all-or-nothing” doctrine of contribu tory-6-

negligence as “outmoded and unjust” and signaled that the McInty re decision would affect numerous other heretof ore settl ed legal

principle s surrounding to rt l itigation. McIntyre v. Balentine , 833 S.W.2d at 56-57; see also Conroy v. Ci ty of Dic kson , 49 S .W.3d 868, 872 (Tenn. Ct. App. 2001) (characterizingthe McInty re de cision as one that “swept away the doctrine of contributory negligence and many of its ancillary doctrines”).
Two years after deciding McIntyr e v. Balentine , the Tennessee Supreme Court abandoned the doctrine

of implied

assumption

of the ris k, notin g t hat: “[i]t would be ironic indeed if, after abolishing the all-or-nothing proposition of co ntributory negligence in McInty re , we wer e to rein state it here using the vehicle of assumption of risk.” Perez v. McConkey , 872 S.W.2d 897, 905 (Tenn. 1994)

. Thus, inste ad of re taining the

doctrine of implied

assumption

of the ris k as a sep arate defense, the Court

decreed that “the reaso nablene ss of a pa rty’s co nduct in c onfronting 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. M cLain , 891 S.W.2d 587, 592 (Tenn. 1994). In the light of the McInty re and Perez decisions, intoxicated drivers can no longer use the se doctr ines as a shield against d amages s uits brought by their passenge rs.
D. In light of the state of

the law when this case was tried, there ar e two reasons why the trial court properly declined

to give the special instructions requested by Mr. Amacher and his fathe r. First, because the adoption of comparative fault eviscerated the doctrines of contributory negligence andimplied assumption of the risk, a passenger who k nowingly r

ides with a

n intoxica ted drive r is no longer precluded as a matter of law fr om recovering damages from the driver for injuries caused by the d river’snegligence. Now , the rea sonableness of the passenge r’s cond uct in light

of th e known risk asso ciated with riding in a vehic le driven by an intoxic ated dri ver must be compa red with the negligence of the intoxicated driver. Second, the trial cour t’s general instruction involving a passenger’s duty of self-protection correc tly sum marizes 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. T HE A PPORTIONMENT OF F AULT B ETWEEN M ESS RS . H ENLEY AND A MACH ER Next, Mr. Amacher

and his father argue that the jury erred by a llocating only 25% of the fault to Mr. Henley. They insist that Mr. Henley’s own evidence demonstrate s overwhelmingly that he failedto use re asonable

care to protect himself a

nd that he

was “gui lty of mor e than 50% fault.” Therefore, t hey argu e th at 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 c ourts and juries in the curren t system of

modified c omparat

ive faul t.
A.7 Th is mo tion is co mm only referr ed to as a mot ion for a judgment

notwit hsta nding the verdi ct or a motion f

or 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 ha ve d ecide d the que stions o f fact re levan t to . . . [the fault] i ssue.”); Ho ward v. Nor

wood , No. M1999-00838-COA-R3-CV, 2000 WL 679228, a t *8 ( Tenn. Ct . App . May 25 , 2 000 ) ( No Ten n. R. A pp. P . 11 a pplic ation filed); LaRue v. 1817 Lake, Inc. , 966 S.W .2d 423, 427 (Tenn. Ct. App . 1997). -7- In addition to being go verned by the substantive principles of comparative fault, an intoxicateddriver’ s defens es based on his or he

r passen ger’s negligence

mu st comply wit

h comparative fault’s procedural principles. Chief among these procedural principles is that in a vast majority of cases, the comparison and allocati on 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 7 85, 789 (Tenn. 2000 ); Tur ner v. Jordan , 957 S.W.2d 815, 824 (Tenn. 1997); Prince v. St. Thomas Hosp. , 945 S.W.2d 731, 735 (T enn . Ct. App. 1996). The task of comparing andallocating fault may be taken from the jury only when it can be de termined 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. M

cLain , 891 S.W.2d at 589; Kim v. Boucher , 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001).
The procedural avenues forobtaining a decision that the plaintiff’s fault exceeds the defe ndant’s as a m atter of law are governed by the Te nnessee 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. 1 998); Norris v. P ruitte , No. 01A01-9709-CV-00506, 1998 WL 19 88563, at *3 (Tenn. Ct. App. Aug. 24, 1998) (No Tenn. R. App. P. 11 application filed).
The courts’ preroga

tives reg arding th

e alloca tion of fa ult become more circumscribed once the question o f 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.2 d 754, 762 (Tenn. Ct. App. 1998 ). Appellatecourts a re gover ned by the same restrictions, Win stead 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 Te nn. R. A pp. P. 11 ap plication filed); Allen v. Payne , No. 03A01-99 03-CV-00 067, 1999 W L 1076922, at *1 (Te

nn. Ct. App. Nov. 30, 1999) (No Tenn. R. A

pp. P. 11 ap

plication filed), a nd by the st

andardsof revie

w applica ble to jury

verdict s.
B.
The standards for reviewing a jury’s allocation of fa ult to negligent parties oug ht to b e straightforward. Because allocating fault

is essentially a fact question, 8 one would assume that the appella te courts would review a jury’s fault allocation using Tenn. R. App. P. 1 3(d)’s fam iliar standardof 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 a nd grant a new tria l only if there is no material evidence to support the verdict. Appellate courts have, in fact, employed Tenn.9 Turner v. Jordan , 957 S.W .2d a t 824 ; Moss v. Sankey , 54 S. W.3d 296, 299 (Ten n. Ct. A pp. 2 001 ); Milli ken

v. Cry e- Li eke Re a ltors , No . M 199 9-0 007 1-C OA -R3 -CV , 200 1 W L 7 476 38, a t *9 (Ju ly 5, 2 001 ), perm. app. denied , (Tenn. De c. 10 , 200 1); Moore v. J ohnson , No. E2000-00385-COA-R3-CV, 2000 WL 1424930, at *2 ( Tenn. Ct . App. Sep t. 26, 2 000 ), perm. app. denied , (Tenn. M ar. 19, 2001); Fox v. Food Lion, Inc. , No E191 1- 000 15- COA- R3- CV, 2000 W L 1 424 805 , at *4 ( Ten n. Ct. A pp. S ept. 2 1, 20 00) (No Ten n. R. A pp. P . 11 a pplic ation filed).

10 Cross v. City o

f Me mp his , 20 S. W.3d 642, 64 3 (Tenn. 20 00); Varner v . Per ryman , 969 S. W.2d 410, 411 (Tenn. Ct. App . 1997).

11 Tag gart v. Ri chards , 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 Co ln v. Ci ty of

Savannah , 966 S.W.2d at 44; Nied erge ses v. G iles Co unty , No. M2000 -0 042 8- COA- R3- CV, 2001 WL 747647, at *1 (Ten n. Ct. A pp. Ju ly 5, 2 001 ) (No Ten n. R. A pp. P . 11 a pplic ation filed); Griggs v. Mix on , No. 02A01-9504-CV-00087, 1996 W L 444104, at *4 (Tenn. Ct. App. Aug. 6, 1996) (No Tenn. R. App. P. 11 appli cati on filed); Nichols v. Metropolitan Go v’t , No . 01A 01- 950 9-C V-0 039 3, 19 96 W L 3 879 01, a t *7 (T enn . Ct. App. Jul y 12, 1996) (N o Tenn . R. App. P. 11 app licati on filed). -8- R. App. P. 13(d)’s standard to review allocations of fault by juries 9 and by trial courts sitting without juries. 10

In 1995, the Tennessee Sup reme Cour

t appear ed to intro duce a se

cond, les s familia

r, st andard 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 i nvolving a jury’s allocation of fault, the Court stated:

Although it is true that the trier of fact ha s consi derable l atitude in allocating percentages of fault to negligent parties, . .

. appella te courts may alter those findings if they a re clea rly erroneous. Wright v. City of Kn oxville , 898 S.W.2d 177, 181 (Tenn. 1995). Both the Tennessee Supreme Court andthis court

have since employed this so-called “clearly er roneous” standard

to review allocations of fault by juries, 11 as well a s alloca tions of fa

ult by tria l courts f ollowing be

nch tria ls. 12
Five years after deciding Wright v. City of Knox ville , the TennesseeSupreme Court decided to expressly limit the application of its freshly minted “clearly erroneou s” standar d to jury tr ials. The vehicle

the Court c

hose wasan appe al inanother non-jury case in which this court had affirmed the trial court’s allocation of 100% of the faul tto 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 cle arly er roneous, the Court a

nnounce d that its Coln v. Savannah decision should be “clarif ied” and that henc eforth, “the cle arlyerroneous language of Wright v. City of Knox ville

.

. . [should be] limited to jury cases.” Cross v. City of Memph is , 20 S.W.3d at 645. Applying Tenn. R. App. P. 13(d)’s standard of review, the Court concluded that the evidenc e preponderate d 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 “clear ly erroneous” standard to review a jury’ s allocation of fault place the l ower courts and the litigant s in a quandary. Did the Court intend to a

dopt two sta

ndards of review? If the Cou

rt did intend to adopt two standards of review, what sort

of revie w does the

“clear ly erroneous” standard-9-

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 cas e? I f not, what criteri a should be used to determine which of the two standard s to use in a particular case? After caref ully reviewing Wright v. City of Kno xville , 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) w hen it first used the ter

m “clea rly erroneous” in Wright v. City of Knox ville

. The “clearly erroneous” standard of revie w plays a significa nt role in a

ppellate jurisprudence in the federal courts and the courts of many other sta

tes. Beca use the Se venth Ame

ndment pr

events federa l appella te court s from re

litigating facts found by a jury, Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. , 369 U.S. 3 55, 358-5 9, 82 S. Ct. 78 0, 783 (19 62), all that fe deral a

ppellate courts can do is to determine whether there is any competent and substantive evidenc e in the record that t ends to support the verdict. Mortensen v. United States , 322 U.S. 3 69, 374, 64 S. Ct. 1037 , 1040 (1944). S ubstantiv e evidence is evi dence a dequate to support the jury’s conclusi on even if it is also possi

ble to draw a contraryconclusion from the same evidence . Johnson v. Paradise Valley Unified Sc

h. 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 de t ermine whethe r a fairminded juror could reach the verdict render ed. Williams v. First Gov’t Mortgage & Inv. Corp. , 225 F.3d 738, 744 (D.C. Cir. 2 000). Ac cordingl y , federal appellate courts can overturn a jury ver dict on evidenti ary grou

nds o nly when there is a complete absence of proba tive 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 factua l fi ndings of a

district c ourt judge

following

a bench trial. Review of th

ese dec isions is governed by Fed. R. Civ. P. 52(a) which provides, in part, that

[f]in di ngs of fact, whether based on oral or doc umentary evidence, shallnot 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 witne sses.
More than fifty years ago, Judge Le arned H and noted the futility of attempting to def ine the “ clearly errone ous” 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 U nited States Supreme Court later explained that
If the district court’s account of the evidence is plausible i n l ight of the record viewed

in its entirety, the court of appeals may not revers e it even though convince

d that had it been sit

ting as the

trier of fact, it would have we

ighed the evidenc e diffe

rently. W

here the re are tw o permissib le vi e ws of the evidence, the factfinder’ s choice between them can not be cle arly er

roneous.13 Ca udill v. Mrs. Grissom’s Sal ads, 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 (18 95) ; Beal v. Doe , 987 S.W .2d 41, 46-47 (Tenn. Ct. App . 1998). -10- Anderson v. City of B esseme r City , 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985). A federal appella te court, a pplying Fed . R. Civ. P. 52(a), will conclude that a district court judge’s finding of fact is clearly erroneous when, although there is evidenc e to support it, the reviewing court reviews all the ev idence a

nd is “ left with the definite and firm conviction that a mistake has been co mmit ted.” 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 C ir. 2001); Adams County Reg’l Water Dist. v. Village of Manchester , 226 F.3d 513, 517 (6th Cir. 2000).
The difference between the sta ndards for reviewing a jury’s verdict and a district court judge’s findings o f fact a

re proba bly easie r to artic ulate than to implement. McCarthy v. New York City Technica l Coll. of City Univ. of N. Y. , 202 F.3d 161, 168 n.1 (2d Cir. 2000) (Newman, J., concurring). However, the federal courts gene rally acknowledge that

a jury’sverdict

is entitled t

o somewhat “more deference than a tr ial 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. Constr uction Labo rers Pens ion Trust , 508 U.S. 602, 623, 113 S. Ct. 2264, 2280 (1993); Robert L. Stern, Note, Review of Find ings of Ad ministrators, Judges and Juries: A Comparative Analysis , 58 H arv. L. Rev. 70, 86 (1944). As Judge Hand noted, a reviewing court “willhesitate less to reverse the finding o f a judge than that of . . . a jury.” United States v. Aluminum Co. of Am. , 148 F.2d at 433.
We have det ermined t hat the Te nnessee Supreme C ourt, by it s use of the term “c learly erroneou s” in connec tion with the review of a jury’s allocation of fault, did not intend to replace Tenn. R. App. P. 13(d)’s standar d for reviewing th

e eviden tiary fou ndation of

jury ver dicts with the standardof revie

w used by t

he fede ral appe llate courts to review district

court judges’ findings of fact. In light of the fundamental nature of the right totrial by ju

ry and the judiciar y’s obliga tion to guardand defe

nd this righ

t, 13 we are confident that

the Tennessee Sup

reme Cour

t did not inte

nd to make it easier

for Tenn essee’ s judges to

second- guess a jury’s factualdeterminations regarding the fault of n egligent parties.
The right toa

jury trial, as it existed at common law, is the single most important contribution of Anglo-Am

erican jurisprud ence. I t is prese rved and protect ed by Ten n. Const. a

rt. 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 ajury 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 c onstitut ional dimension of the right to a jury trial, Tennessee’s courts are reluctant to second-guess a jury’s verdict. Their reluctanc e is refle cte d 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 evidenceor make its own credibility determinations. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822 , 823 (Te nn. 1994) ; Moss v. Sankey , 54 S.W.3d at 299. In addition, the reviewing14 Tenn. R. App. P. 13(d )’s material evidence standard is si milar to the federal court s’ s ubstanti al evidence

sta ndard. In the fede ral courts, a ver dict tha t is not su ppo rted b y sub stantial e vide nce is clearly erron eou s. In re Westcap Enters. , 230 F.3d 717 , 725 (5th Cir. 20 00) ; Irvi ng v. United St ates , 49 F .3d 8 30, 8 35 ( 1st C ir. 199 5); Pioneer Hi-Bred Int’l v. Holden Found. Seeds, I nc. , 35 F .3d 1 226 , 123 5 (8 th Cir. 1 994 ); Duty v. United Stat es of Am., Dep’t of Inte rior , 735 F.2d 1012, 1015 (6t h Cir. 1984). However, t he conv erse is not nec essaril y true becaus e the concept s of l acking material evide nce and bei ng cle arl y errone ous are not syno nym ous
. Ca se v. M orrisette , 475 F.2 d 1300, 1307- 08 (D. C. Cir. 197 3). A fede ral ap pellate cou rt ma y set as ide a fin ding of fac t, even if it is supp orted by su bstan tial evid enc e, if the court has a definite and firm convicti on that a mist ake has been made. 9A Ch arles A. Wright & A rthur R. Miller, Federal Practi ce and Procedure § 2585, at 577 n.20 (2d ed. 19 95). We h av e c on cl ud ed t ha t t he Te nn es s ee Su pr eme Court did n ot inten d to p erm it Tennessee’s appellat e courts to set as ide a j ury’s al locati on of fault that i s supported by
ma terial ev iden ce sim ply b ecau se they hav e a de finite an d firm con viction that so me sort of mista ke h as be en m ade

.

15 Mr. Am acher cannot argue now that the trial court err ed by fail ing to fi nd that Mr. Henley was 50% or mo re at fault as a ma tter of law . He c onc ede s th at he c ould not seek ajudgment a s a matt er of law underTenn. R. Civ. P. 50.02 becaus e he fa il ed to r enew his motion f or a di rect ed verdi ct a t the close o f all the p roo f. Cortez v. Alutech, Inc. , 941 S.W .2d 8 91, 8 94 ( Ten n. Ct. A pp. 1 996 ); Grisso m v . Me tropo lita n Gov ’t , 81 7 S.W.2d at 683. In addition, Mr. Am acher has not argued on appeal that the jury’s verdic t ref

lect s passi on, prejudi ce, or capr ice. -11- court must take the stron gest

legitimate

view of th

e evidence that f

avors the verdict , disrega

rd all contrary evidenc e, and a

llow all re asonable

infere nces tosustain the verdict. Barnes v. Goodyear Tire & Rubber Co. , 48 S.W.3d 698, 704 (Tenn. 200 0); Forreste r v. Stock still , 869 S.W.2d 328, 329 (Tenn. 1994). If the reviewing court finds material evidenc e supporting the verdict, it must decline to disturb the judgment. Alexander v. Armentrout , 24 S.W.3d 2 67, 273 (Tenn. 2000 ). Only when it determines that the record does not contain material evidence to support the jury’s verdict ca n the reviewing court set the judgment aside. Turner v. Jordan , 957 S.W.2 d at 824; Jackson v. Pa tton , 952 S.W.2d 404 , 405 (Te nn. 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 factualdeterminations 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 decision s employin g Tenn. R. App. P. 13(d) to review a jury’s fault allocation. In the absenceof a more definitive explanation by the Court of what “ clearly

errone ous” means, we have concluded

that the Court’s referenc e to a jury’sallocati on of fault as “cle arlyerroneous” should be construedharmoniously with the traditional review standards in Tenn. R. App. P. 13(d). Therefore, in the context of appellate revi ew of a j ury’s allocation of fault, a conclusion that the jury’s allo cation of fault is “clearly erroneous” means nothing more tha n that the reviewing court ha s reviewed the entire record and has concluded tha t there is no material evidence to support the jury’s allocation. 14
C.
We now apply

these pr inciples t o the jury ’s decis io n to al locate 75% of the fault to Mr. Amacher and 25% of the fault to Mr. Henley. The only challenge to this d

ecision c urrently availab le to Mr. Amacher is that

the record contains no material evidence to support the jury’s allocation of fault. 15 Accord

ingly, our sole task under Te nn. R. App. P. 13( d) is to examine the ent ire rec ord to determine whether it contains any material evidence that supports the j ury’s a llocation of fault between Messrs. Henley and Amacher

.16 Ea st Ten n., Va . & G a. R .R. v. S mith , 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); Wils on v. Gadd , 4 Tenn. App. 582, 584 (19 27).

18 Me mp his St. Ry . v. No rris , 108 Ten n. 63 2, 63 4, 69 S.W . 325 , 326 (19 02) ; Goodm an v. Balthrop Const r. Co. , 626 S.W .2d 2 1, 24 (Ten n. Ct. Ap p. 19 81) ; Clinard v. Penni ngton , 59 Tenn. A pp. 128, 135 , 438 S.W .2d 748, 751 (1968).

19 Th is is not a n ew pro pos ition. Over on e century ago, the Tenness ee Supreme Court reviewed a jury’ s verdict fo r a n emp lo yee who wa s t hr own from a ra il road hand- car when t he wooden handle on the lever he was usi ng broke. (con tinue d...) -12- Our review of theevidence is tempered by our recognition that we should not l

ightly take

it upon ourselves to assume the resp onsibility f

or deter mining liab ility 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 (19 40). We are not a jury of three with the pre rogative to re-weigh the evidence, Whaley v. Rheem Mfg. Co. , 900 S.W.2 d 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, 2 06 S.W.2d 8 97, 901 (1 947); Davis
v. Wi lson , 522 S.W.2d 872, 875 (Tenn. Ct. App. 1974). Nor are we empowered to substitute our judgmentfor 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 ju ry did not we igh the evidence w ell 17 or if we determine that we would have rea ched a different conclusion had we been members of the jury. 18
The facts of this case are straightforwar d, and the t estimony of

the four occupants of the vehicle does not di ffer in a

ny mater ial respect. The facts show cle arly tha t 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. Amache

r neglige ntly deci ded to drive when h e knew or should re asonably

have known that

he was too intoxicated to operate a motor vehicle safely. Mr. Henley was negligent beca use he decided to ride in a vehicle being operated by Mr. Amacher when he knew or should rea sonably have known that Mr. Amacher was too intoxicated to drive. The evidenc e also shows that both Mr. Amacher’s negligence andMr. Henley’s negligence caused Mr. Henle y’s injuries. Mr. Henley would not have been injured h ad Mr. Ama cher not lost control of the vehicle and caused it to flip over. Likewise, Mr. Henley would not have been inj ured had he decided against riding with Mr. Amacher that morning.
Since both Mr. Amacher and Mr. Henley were at fault, the Te nnessee Supreme Court’s systemof modified comparative fault required the jury, a s the trie r-of-f act, to a llocate t he fault betweenthem. The jury decide d that Mr. Amacher was comparatively more at fa ult than Mr. Henley. Thus, the question boils down to whet her there is a ny mater ial evide nce in the record to support the jury’s conclusion that Mr. Amacher was comparatively more at fault. The answ er is yes

. The trier of fact has considerable latitude in allocating fa ult to the negligent parties. Wright
v. City of Knox

ville , 898 S.W.2 d at 181; Patterson ex rel. Patterson v. Dunn , No. 02A01-9710-CV00256, 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, even19 (.. .continued)

The employee pr esent ed evi dence that t he handl e was made of de fective wood; while the railroad assert ed tha t the han dle was not defect ive. The Court decl ined to “di sturb t he finding” even t

hough it concluded that the record contained evidence from which the jury could have concl uded that t he wooden handle was not m ade of de fectiv e w ood

. East Ten n., Va . & G a. R .R. v. S mith , 77 T enn . at 689

. -13- though he was only sixteen, was quite familiar with the effects of a lcohol becaus e he had been drinking since he was twelve years old. He had rece ived institutional treatment on two occasions for alcohol abuse, and therefore, by June 28, 1995, drinking wa s much more than a youthfu l experiment

for him. Despite his knowledge of the effect s that alco hol had on him, Mr. Amacher went on a ten-hour drinking binge with Mr. Henley. After staying up all night and drink

ing half of a pint of whi skey and

approximatelytwo six packs of beer, Mr. Amacher insisted that he could drive a motor ve

hicle safely at 5:30 in the morning and brushed aside his companions’ suggestions that he should let someone else drive. These essentially u ndisputed fa cts provided the jury with a material factual foundation for concluding that Mr. Amacher’ s fault exc eeded Mr. Henle y’s. Accordingly, we find no merit in Mr. Amacher’s argum e nt that the record contains no material evidenc e to suppor

t the jury’ s alloca

tion of 75% of the fa

ult to him.
IV. T HE D AMAG E A WARDS FOR P ERMAN ENT I MPAIRMENT AND F UTURE M EDICAL E XPENSES
We turn now to the issue of damages. Mr. Amacher maintains that there is no mater ial evidence to support the jury’s decision to award Mr. Henley $5,000 for the permanent impairment of his knee a nd $20,000

for his future medical expenses. We have concluded that the recor d contains material evidence supporting the jury’s award for per manent impairment. However, we have also concluded

that the record does not

contain material evidence to support the jury’s award for future medical e xpenses.
A.
The existence and amount of damages in a personal inj ury acti o n are que stions of f act. Spence v. Allstate Ins. Co. , 883 S.W.2d 586, 594 (Tenn. 1 994); 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. 199 9); 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 anddefinite

enough to

enable t he trier -of-fa ct to make a reasonable a ssess ment of the claimant’s damages. Provident Life & Accident Ins. Co. v. Globe Indemn. Co. , 156 Tenn. 571, 576, 3 S.W.2d 10 57, 1058 ( 1928); Airline Constr., In c. v. Bar r , 807 S.W.2d 247 , 274 (Ten n. 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 specu lative, a da mage award must lack a

factua l foundat ion estab lishing with

somecertain

ty that the c laimant w as, in fa ct, 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. P erry , 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-14-

v. Harris , 902 S.W.2 d 941, 944 (Tenn. Ct. App. 1995 ). Thus, o nce the t rial cou rt appro ves a

jury’s damage award, the revi ewing courts may n ot substitut e their ju dgment for that of the jury. McC ullough 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 fi ndings, a re viewing court may second-guess a jury only when the rec ord contains no material evidence to supportthe jury’s verdict. Coffey v. Fayette Tubular Pro ds. , 929 S.W.2d 326, 331 n.2 (Tenn. 1996); Benson v. Tennessee Valley Electric Co-op , 868 S.W.2d 6 30, 640 (T enn. 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 rega rd to the r emediesavailab le to reviewing courts when they conclude that

there is no material evidence to support the jury’s decision. Because reviewing courts may not mod

ify a jury ’s alloca

tion of fa ult, gran ting a new

tr ial is the only proper remedy when the cour

t determines that th

e alloca tion of fa ult is not supported by material evidence. It is not so with damages. When

a damage

award isnot suppor

ted by mat

erial ev idence, 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. 1 994); United Brake Sys., Inc. v. American Envt’l Prot., Inc. , 963 S.W.2 d 749, 760 (Tenn. Ct. A pp. 1997) ; Baker
v. Bates , 4 Tenn. Civ. App. (Higgins)175, 178 ( 1913). Th e reviewing cour

t’s remitt itur powe r is notlimited to circumstances where the size of th e verdict reflects passion, prejudice, or caprice. It may also be invoked when the verdict is excessive for any othe r reason. Grant v. L ouisville & Nashville Ry. , 129 Tenn. 398, 409, 165 S.W. 963, 965 (1914).
B. Damages for Per manent Im

pairment
Mr. Henle

y injured his right kn

ee when he was th

rown from the GMC Jim

my early on the morni ng of June 28, 1995. His knee was surgically reconstructed by a n orthopaedic surgeo n i n Nashville who later observed:

Even thoug h we can reconstruct the ligaments and actua lly do very well, we can’ t put ligame nts i n l ike God made them. They’re not perfect. The joints are not perfect. The ligaments that were torn on the inside of

his knee h ave to he al secondarily. T hat d oesn’t c reate a normal ligament . In addition, we took about half of his outside ca rtila ge out and that’s important for distributing weight-bearing forces

. When you have a devastatingknee injury, you’remore like ly to get arthritis in the future and that may be ten or fifteen years. So even though we

reconst ructed it and he’ s doing well , that doesn’t mean his k

nee is pe rfect.
The surge on opined that the condition of Mr. Henley’s knee following the wreck a nd surgi ca l reconst ruction c onstituted

a perma nent impa irment.
Mr. Amacher elected not to present expert medical evidence to contradict the opinion of Mr. Henley’s s urgeon. H e relied instead on evidence regar ding Mr. Henley’s physical condition between the time of the

wreck a nd the tria l. He pro ved that M

r. Henle y had play ed footba

ll during h

is senior20 Mr. Amacher plac es much emphasi s on another cas e in which we set a side a ver dict t hat included damages of permanent impairment. In t he discuss ion of the l ack of any mat er ia l e vi den ce of permane nt imp ai rme nt , we noted thatthe plaintif

f’s treat ing physician never gav e the plaintiff a dis abil it y rat ing. Sanders v. Johns on , 859 S. W.2d at 332 (st ati ng that “no dis abil it y rat ing was gi ven by Dr. Slutsky” ). This obs ervation s hould not be twi ste d i nto a pronouncementwe did n ot m ake

. The holding in the c ase was that the i ssue of permanent

impair ment shoul d never ha ve been submit ted t o the jury bec ause the plai ntif f came forward with no material evidence to s upport his cl aim that he was perm ane ntly impair ed. We di d not hold that the issue o f perm ane nt im pairm ent sh ould not h ave gon e to the jury sim ply bec ause the p laintiff’s tre ating phy sician d id no t give him a spe cific an atom ical im pairm ent ra ting. -15- year of high school and that he had been named theteam’s ou tstanding defensi ve linema

n. He als o provedtha t f

ollowing hi s high scho ol gradua tion, Mr. Henley ha

d taken a job with Da

nley’s Ai r Conditioning that required a great deal of physical exertio n. He als o proved that Mr. Henley had not required medical attention for his knee since he c ompleted his rehabilitation following surgery.
All of the evidence brought forward by Mr. Amac her regarding M r. Henley’s residual impairme nt was ce rtainly relevant. The jury was entitled to consider this evidence along with the unequivocal testimony of Mr. Henley’s treating orthopaedic surgeon that Mr. Henle y’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

providesthe mater

ial evide nce needed to sustain the jury’s d etermination that the June 28, 1995 wreck left Mr. Henley per manently impaired. Accordingly, we have no basis for setting aside the $5,000 damage award f or permanent

impairment for lack of mate

rial evid ence to s upport it. Anticipating this resul

t, Mr. Ama

cher ar gues that the award for permanent impa irment sho uld be set aside because Mr. Henley’s surgeon d id no t undertake to ascribe a specific ana tomical im pairmentr ating to Mr. Henley’s knee. This argument must also fail. A finding of permanent impairment

must be based on expert proof. Sanders v. Johns on , 859 S. W.2d 329, 331 (Ten n. 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 spec ific ana tomical imp airment r

ating is un

necessa ry in cases of t his sort to establish that an injury is permanent. See Cleek v. Wal-Mart Stores, Inc. , 19 S.W.3d 770, 774 (Tenn. 200 0); Walker v. Saturn Corp. , 986 S.W.2d

204, 207 (Tenn. 199 8) (both cases holding tha

t a speci fic ana

tomical imp airment r

ating is notalways indispensable to a finding of permanent voca

tional impa irment). Thus, Mr. Henley’s surgeon was not required give Mr. Henley a specific anatomical impairment ra tin g 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 damage s 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 reco vered isthe reasonable cost of the medical services that will pr

obably be incurred because of the lingering ef fects of the injuries caused bythe negligent person. Reed v. Wimmer , 465 S.E.2d 199, 210 (W. Va. 1995). To remove awards for21 Damage awards for fut ure medical expenses cann ot be base d on spec ulation

. Ma rche tti v. Ramirez , 688 A.2d 1325, 1328 (Conn. 199 7); Futrel l v. Scott Truck & Trac tor Co. , 629 So. 2 d 44 9, 45 8 (L a. Ct. A pp. 1 993 ); Fa as v. S tate , 672 N.Y.S. 2d 145, 147 (Ap p. D iv. 19 98) ; Ham merschmidt v. Mignogna , 685 N.E.2d 281, 285 (Ohio Ct. App . 1996).

22 T.P.I . 3-Ci vil 14.11.
23 Blumenshi ne v. Ba ptiste , 869 P.2d 470, 473 (Alaska 1994) (r equiring proof of a reasonabl e probabili ty that the futur e m edica l treatm ent w ill occu r); Ham ernick v. Bach , 779 A.2d 806, 812 (Conn. App. Ct. 2001) (holdi ng that determinati ons of future m edical exp enses m ust be base d on reas onable probabi li ti es, not poss ibilities); Kloster Cruise, Ltd. v. Grubbs , 762 So. 2d 552, 556 ( Fla. Dist Ct. App. 2000) (requiring proof that future medical expen ses are more pro bab le than not); Mo litor v. Ja ime yfield , 622 N.E. 2d 1250, 1253 (Il l. App. Ct. 1993) (requir ing that future medical expenses be p rov ed w ith a rea sonabl e degree of me dical c ertain ty); Symington v. Mayo , 5 90 N. W.2d 450 , 4 52 ( N.D. 1999) (requir ing a reas onable medical certain ty that fu ture m edica l servic es are nece ssary ); Reed v. Wimmer , 465 S. E.2d at 210 (se tt ing as ide a n award for futur e medi cal expenses where no physician t esti fied t hat the pl ainti ff would need additional medical treatment).

24 So me courts have quant ifi ed the requir ed probabili ty by holding that it mean s more than a fi fty pe rcent chance. Pustjovs ky v. Rapi d-Ameri can 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., c onc urrin g); see als o Sebroski v. United St ates , 111 F. Supp. 2d 681, 686 (D. Md. 1999) (req uiring that the re m ust be mo re ev iden ce fav orin g the likeliho od o f futu re m edica l treatm ent th an ag ainst it).

25 We hav e set asid e aw ards f or fu ture m edica l exp ense s wh en th e plaint iff has pres ented no proof of the pro bab le cost

of t he ser vices or when the est imate of the fu ture c ost is too spec ulative

. Cochran v. Lowe , No. 03A01- (con tinue d...) -16- future medical expenses from the realm of speculation, 21 persons seeking future medical expenses must present evidence

(1) that a dditional m

edical tr eatment i s reason ably cer tain to be required in the future and (2) that will enable the trier-o r-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 expe nses is, in the language of the TennesseePattern J

ury Instr uctions, 22 evidence that additional medical treatment is “rea son ably certain to be req uired in the future.” This “reasonable cer tainty” 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 under go future me dical treatment for the injuries caused by the defendant’s negligence. 23 It does not, however, require proof of future medicaltreatment to an absolute or metaphysical certainty. Reyes v. Greatway Ins. Co. , 582 N.W.2d 48 0, 485 (W

is. Ct. App. 1998). Ra

ther, the “reaso nable

certainty” standard requires the plaintiff to prove that he or she will, more probably than not, need these medica l servi ces in the future. Futrell v. Scott Truck & Tractor Co. , 629 So. 2d a t 458; Fibreboard Corp. v. Pool , 8 1 3 S.W.2d 658, 681 (Tex. App. 1991). 24
The trier-of-fact must have some factual ba sis for reasonably estimating the cost of the future medical expenses. Lynden, Inc. v. Walker , 30 P.3d 609 , 620 (Ala ska 2001) ; Bull Street Church of Christ v. Jensen , 504 S.E.2d 1, 7 (Ga. Ct. A pp. 1998) ; Mendralla v. Weaver Corp. , 703 A.2d 480, 485 (Pa. Super. Ct. 1997). Accordingly, the second component of a claim for f uture medical expenses is evidence regarding the cost of the medical ser vices. Sherbahn v. Kerkove , 987 P.2d 195, 198 (Alas ka 19 99); District of Columbia v. Howell , 607 A.2d 501, 506 (D.C. 1992) ; Mossman v. Amana Soc’y , 494 N.W.2d 67 6, 679 (Io wa 1993) ; Quinn v. Wal-Mart Stores, Inc. , 774 So. 2d 1093, 1099 (La . Ct. App. 2 000); Myers v. Hearth Techs., Inc. , 621 N.W.2d at 793. 2525 (.. .continued)

9809-CV-00292, 1999 WL 233382, at *2 (Tenn. Ct. App. Apr. 16, 1999) (No Tenn. R. App. P. 11 appli cati on fil ed) (sugges ti ng a remittit

ur because the plaintiff presen ted n o pr oof of the futur e cos t of m edica tions); Bowers v. Cit y of Chatt anooga , 855 S.W.2d 583, 587 (Tenn. Ct. App. 1992) ( vacat ing an a ward for futur e medicalexpense s for multidisciplinary rehabil itat ion because the plaintiff’ s psychologis t conceded that he cou ld not give a reason able 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 alme r v. Norfolk-S outhe rn Ry. , No. 03A01-9309-CV-00313, 1994 WL 111037, at * 3 ( Tenn. Ct Ap p. M ar. 30 , 199 4), perm. app. denie d (Tenn. Aug. 22, 1994) (st ating t

hat the jury is not pr ecluded from awarding damages for future medical expenses when no evidence regar ding the cost

of these e xpe nses i s offere d). The Palmer case in volv ed a $ 400 ,000 gen eral v erdic t for a p ainfu l, debil it ati ng wrist

injury s uffered on the j ob, and i t i s notcle ar fr om the rec ord what porti on of thi s verdict , if any, was for fu ture m edica l exp ense s. Th is cou rt vac ated th e jud gm ent an d or dere d a n ew trial on othe r gro und s.

26 Precise evide nce of t he cost of fut ure medic al e xpenses is not requi red. Robertsv. Wil li amson , 52 S. W.3d 343 , 350 (Tex . Ap p. 20 01) ; Patte rson v . Horton , 929 P.2d 11 25, 1131 (Wash. Ct. App . 1997).

27 For exam ple, a plainti ff whose inj ury wil l re quire conti nuing medic ati on or therapy may intr oduce evidence of the c ost alr eady i ncurre d for the sam e m edica tion o r thera py to pro ve h is or he r futu re ex pen ses for this medication or the rapy. -17- The trier-of-fact enjoys a certa in degree of leeway in determining the cost of future medical expense s. Richardson v. Chapman , 676 N.E.2d 621, 628 (Ill. 1997). Accordingly, the cost of future medical treatme

nt n eed no t be proved with the s ame cer tainty required to

prove the

cost of pa st 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 evidence 26 regarding these anticipa ted costs , it is suff

icient to p

resent e stimates o f th e costs wi th in a reasonable range. Mendrall a v. Weaver , 703 A.2d

at 485; Jordan v . Bero , 210 S.E.2d at 637. Thus, in the ca se of a permanent

injury that will require continuing treatment, evidence of the c ost of pa st medical treatment can provide evidence of the cost of the futur e medical treatment

as long as the plaintiff has prov edthat the f

uture me dical tre atment wi ll be req uired and that this t

reatmen t is simi lar to th e treatment that has already been provided. Wal-Mart Stores, Inc. v. Londagin , 37 S.W.3d 620, 627 (Ark. 20 01); Marchet

ti 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 p

resented compete

nt evidence that h

is knee in jury is p ermanent . However, proving that an in

jury 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. 19 76); Spleas v. Milwaukee & Suburban Transp. Corp. , 124 N.W.2d 593, 597 (Wis. 1963). Thus, we m ust examine the record to determine whether it contains any mater ial ev i dence ( 1) estab lishing tha t it is reasona bly certain that Mr. Henley will require additional medical trea tment for the knee injury he sustained on June 28, 1995 and (2) providing a basis for a reasonable trier-of -fact to determinehow much this treatment will probably cost.
The record contains no m aterial evidence that Mr. Henley will require a dditional medical treatment for his knee, let alone

the cost of this treatment. When Mr. Henley’s orthopaedic surge on last saw him in March 1996, he released Mr. Henley without restrictions and without any plans for further treatme nt of any s ort. Thus, there is no compete nt medica l evidenc e that Mr. Henley will require any addit

ional med

ical tre atment fo

r his k nee . In the absence of evidence of a need for28 The evide nce regarding t he cost of Mr. Henl ey’s recons truc ti ve sur gery and pos t-s urgic al r ehabil it ati on do not provide a basi s for

proje cti ng futur e medicalcost s beca use there i s abs olut ely no e vidence that Mr. Henley willbe required t o undergo a second reconstructive s urgery because of t he injury t o his knee. -18- continuing medical treatment, it is not surprising that the record contains no evidence at all of the cost of any future medical expenses Mr. Henle y might have as a result of his knee injury. 28

We conclude that there is no material evidenc e in the r

ecord to support the jury’s decision to award Mr. Henley $20,000 for future medical expenses. A ccordingly, 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 damage s which wo uldreduce Mr. Henley’s total recover y from $34,125 to $19,125. Mr. Henley mu st elect e

ither to a ccept or to reject this remit

titur. Wit hin thirty days following the issuance of

the mandat e 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. Henle y a new trial.
V. T HE J OINT AN D S EVERAL L IABILI TY OF M R . A MACHER AND H IS F ATHER As a final matter, Mr. Amacher’s father, Kenneth Amacher, takes issue with the jury’s use of t he family

purpose d

octrine to hold him jointly and s everally liable f or Mr. He nley’s da mages. 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 hi s s on was not on his business at the time. While both of these factua l asserti ons m ay be tru e, neithe r is essen tial to the proper a pplication of the f

amily purpose doctrine in this case.
The family pur

pose doc trin e is a ju dicially-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 a

doption 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 u se of fa

mily membe

rs is vica riously lia ble for a ny other f amily member’s negligent use of that vehicle. Camp er v. Minor , 915 S.W.2 d at 447. Pe rsons see king to invo

ke the fa mily 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 member s, Scates v. Sandefer , 163 Tenn. 558, 564, 44 S.W.2d 310, 311 (1931) and (2) tha t a fami ly 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 drive r be engaged in the owner’s business does notmean that the driver must have been on a specific e rrand for the owner at the time of the incident gi ving rise to the lawsu it. It mea ns only tha

t the fami ly member must have

been using the vehi cle cons istently with the head of

the household’s purpose for purchasing it

– the pleasure and convenience of the f amily. Thurmon v. Sellers , ___ S.W.3d at ___, 2001 WL 256124, at *7-8.-19-

Kenneth Amacher owned the 1987 GMC Jimmy that Mr. A macher was driving on the morning of June 28, 1995. While he had purchased the vehicle primarily forthe use of Mr. Amacher’s brother, Chris, Kenneth Amacher knew that Mr. Amacher occ asionally drove the vehicle with his brother’s permission. Kenneth Amacher never for bade Mr. Amacher

to drive the vehic le andnever instructed his son, Ch

ris, not to p ermit Mr. Amache r to drive the vehic le. All thisprovides material evidence from which the jury could rationally have c oncluded: (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 butalso Mr. Amacher, and (3) that Mr. Amache r 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

containsmateria

l evidenc e to suppor

t the jury’ s applica

tion of the

family purpose d octrine to hold Ke

nneth Ama

cher jointly and se

verally liable fo r Mr. Hen ley’s inju ries.
VI.
We affirm t

he judgme

nt finding that Kenn

eth Amacher and R

ussell D. Amache

r are jo intly andseverally liable to Randall D. Henley for the injury he sustained on June 28, 1995

. We also affirm the jur y’s assessment of Mr. Henley’s damages with the exce ption of its decision to award Mr. Henley $20,000 for future medical expenses. Bec ause we have concluded that the rec ord does notcontain material evidence to sup port an award f or futur e medica l expense s, we sugg est a remittiturof $20,000 that would, if accepted, reduce Mr. He nl e y’s judgme

nt from $3 4,125 to $19,125. Within thirty days following the issuance of the ma ndate in t his case , Mr. Hen

ley shall f ile a written notice in the trial court either accepting or rejecting this remittitur. If Mr. He nley acc epts this remittitur , the tria

l court sh all enter

a judgmen

t against Mr. Amacher and h

is father for $19,125. If Mr. Henley rejects this remittitur, thetrial court shall enter an order granting Mr. Henley a new trial. We tax the costs of this appe al in equa

l proport ions to Russe

ll D. Amach er and K

enneth Amacher and their surety and to Randall D. Henley, f or which execution, if necessary, may issue.

_____________________________ WILLIAM C. KOCH, JR., JUDGE