IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 14, 1999 Session

RANDALL DEWAYNE HENLEY, ET AL. v. RUSSELL DALE 

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 an early morning, drunken joyride by four teenagers that ended when their sport

utility vehicle overturned. One of the passengers who was injured when he was thrown from the

vehicle sued the driver and his father in the Circuit Court for Franklin County seeking $200,000.

A jury assessed the passenger’s damages and attributed 75% of the fault to the driver and 25% of

the fault to the passenger. In accordance with the jury’s verdict, the trial court awarded the

passenger a $34,125 judgment against the driver and his father. On this appeal, the driver and his

father take issue with (1) the allocation of less than 50% of the fault to the passenger, (2) the lack

of evidence to support the application of the family purpose doctrine, (3) the awards for permanent

impairment and future medical expenses, and (4) the trial court’s refusal to give two requested

instructions. We have determined that the only reversible error in the proceeding involves the jury’s

decision to award the passenger $20,000 for future medical expenses. Accordingly, we affirm the

jury’s verdict as to liability and allocation of fault. With regard to the damage award, we suggest

a remittitur which, if accepted, will reduce the passenger’s judgment to $19,125.

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

Vacated in Part

WILLIAM C.KOCH,JR., J., delivered the opinion of the court, in which BEN H.CANTRELL,P.J.,M.S.,

and WILLIAM B. CAIN, J., joined.

Paul Campbell, Jr., Chattanooga, Tennessee, for the appellants, Kenneth D. Amacher and Russell

Dale Amacher.

Robert S. Peters, Winchester, Tennessee, for the appellees, Randall Dewayne Henley and Deborah

Henley.

OPINION

I.

In mid-1995, Russell Dale (“Rusty”) Amacher and his brother, Chris Amacher, were living

in Franklin County with their grandmother because their parents were going through a divorce.

Although he was only sixteen, Mr. Amacher had received institutionalized treatment for alcohol

abuse on two occasions. Relations between Rusty Amacher and his parents had become strained.
1

A person’s ability to drive is presumed to be sufficiently impaired to constitute a violation of Tenn. Code Ann.

§ 55-10-401(a)(1) (1998) if the alcohol content in the person’s blood at the time is “ten-hundredths of one percent

(.10%) or more.” Tenn. Code Ann. § 55-10-408(a) (1998).

2Mr. Henley’s mother joined him as a plaintiff because he was a minor when the suit was first filed. By the

time of trial, Mr. Henley had reached the age of majority and his mother voluntarily dismissed her claim.

-2-

On the night of June 27, 1995, Rusty Amacher borrowed his brother’s 1987 GMC Jimmy and

picked up Randall DeWayne Henley at approximately 7:00 p.m. Mr. Henley, then seventeen years

old, had been friends with Mr. Amacher since the seventh grade and knew about Mr. Amacher’s

struggle with alcohol. The two boys decided that they were “going to hang out the whole night.”

Accordingly, they began the evening by obtaining a pint of Fighting Cock whiskey and driving to

Al Tripp’s house where they drank the whiskey and chased 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 discovered that another

friend, Charlie Tawater, was also there. Messrs. Bryant and Tawater were 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.

Some 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

which of the boys would drive. When Mr. Amacher insisted that he was able to drive, his three

friends acquiesced because he was providing the car. Accordingly, the boys set out from Mr.

Bryant’s house with Mr. Amacher driving, Mr. Henley in the front passenger’s seat, and Messrs.

Bryant and Tawater in the rear seat. 

Just over one mile beyond the city limits of Estill Springs, Mr. Amacher’s erratic driving

prompted Mr. Bryant to demand that he pull over and stop the car. When Mr. Amacher turned

around to talk with Mr. Bryant, he drove the car off the road. When he attempted to return to the

roadway, Mr. Amacher overcorrected and caused 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 revealed a blood alcohol content of .24%.1

Mr. Henley had his injured knee surgically reconstructed in August 1995. In June 1996, he

and his mother2 filed suit against Mr. Amacher and his father seeking $200,000 in damages for the

injuries he sustained when the was thrown from the vehicle in June 1995. Mr. Amacher and his

father denied liability, asserting that Mr. Henley was aware of Mr. Amacher’s intoxication and that

Mr. Henley had assumed the risk of riding with Mr. Amacher. Mr. Amacher’s father also asserted

that he was not liable because he had not consented to his son’s use of the vehicle and because 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. Amacher had been driving the

vehicle for a family purpose on June 28, 1995. The jury determined that Mr. Henley’s damages
3

Specifically, the jury awarded Mr. Henley $19,000 for past medical expenses, $20,000 for future medical

expenses, $1,500 for past pain and suffering, and $5,000 for permanent impairment.

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 fault.

Accordingly, the trial court entered a judgment against Mr. Amacher and his father for $34,125.4

After moving unsuccessfully for a new trial, Mr. Amacher and his father perfected this appeal.

II.

THE REQUESTED JURY INSTRUCTIONS

We turn first to the assertion by Mr. Amacher and his father that the trial court erred by

refusing to give two requested instructions regarding a passenger’s obligation to protect his or her

own safety when the operator of a motor vehicle is intoxicated. These proposed instructions, based

on cases predating the Tennessee Supreme Court’s adoption of its system of modified comparative

fault, essentially instructed the jury that a passenger who knowingly rode with an intoxicated driver

was solely responsible for his or her own injuries. We have determined that the trial court correctly

declined to give these instructions.

A.

The chief defense of Mr. Amacher and his father to Mr. Henley’s complaint for damages was

that Mr. Henley was solely responsible for the injury he sustained on June 28, 1995, because he

decided to ride in a motor vehicle being driven by 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 first requested instruction was:

I instruct you that the law of Tennessee is that when one gets

into an automobile which is to be operated by a drunken driver, such

person takes his life in his hands.

The second requested instruction was:

I instruct you that the law of Tennessee is that as a general

proposition, a guest-passenger is precluded from recovering for

injuries sustained in an automobile accident where the intoxicated

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 have known of the driver’s intoxication at the time

the guest-passenger volunteered to ride in the automobile.

Whether or not the guest passenger is contributorily negligent

in riding in the automobile of the defendant 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 ordinarily prudent man under the circumstances.
5

This portion of the charge conforms substantially to T.P.I. 3- Civil 5.30 (3d ed. 1997).

-4-

The trial court declined to give these requested instructions. It concluded that “the charge

straight from the charge book that defines the obligation of a guest passenger in a vehicle” was

adequate and thus refused to “inject specific facts into . . . my charge.” Accordingly, the trial court

instructed the jury, in part, that:

In summary, both Randall Henley and Russell Amacher had

a duty to exercise reasonable care with regard to the actual and

potential dangers existing from the weather, the road, the traffic, and

other conditions, including their personal conditions, and to follow

the traffic laws as I have instructed you.

Now, a passenger has a duty to take action for self protection

from danger 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 passenger could have

prevented the harm.5

On this appeal, Mr. Amacher and his father assert that their requested instructions were

correct statements of the law and that they were applicable to the evidence that had been presented.

Accordingly, they assert that they were prejudiced by the trial court’s refusal to give these

instructions.

B.

Juries have the exclusive prerogative to decide 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 (Tenn. 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. Myers 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

soundness of every jury’s verdict rests on the fairness and accuracy of the trial court’s instructions.

Ladd v. Honda Motor Co., 939 S.W.2d at 94. 

A trial court’s instructions must be complete and accurate and must fairly reflect the parties’

claims and defenses. Cole v. Woods, 548 S.W.2d 640, 642 (Tenn. 1977); Washington v. 822 Corp.,

43 S.W.3d 491, 493 (Tenn. Ct. App. 2000); Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d 218,

226 (Tenn. Ct. App. 1999). Accordingly, trial courts should carefully consider each jury instruction

proposed by 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 correct statement of the law, and (4) if its substance is not already contained in another

portion of the charge. Richardson v. Miller, 44 S.W.3d 1, 27 (Tenn. Ct. App. 2000); Ladd v. Honda
6

Assumption of the risk and contributory negligence were distinct legal doctrines. Wilson v. Moudy, 22 Tenn.

App. 356, 372, 123 S.W.2d 828, 838 (1938). Assumption of the risk requires actual knowledge of the danger and a

conscious decision to submit to it. Contributory negligence, on the other hand, does not require actual knowledge of

the danger but rather consists of conduct that departs from the reasonable standard of care. Underwood v. Waterslides

of Mid-America, Inc., 823 S.W.2d 171, 179 (Tenn. Ct. App. 1991). Even though the doctrines are distinct, they are

entirely compatible. Duncan v. Ferre ll, 58 Tenn. App. 133, 161, 427 S.W.2d 36, 48 (1967). In fact, by 1992, the

doctrine of assumption of the risk had become the “practical equivalent” of the doctrine of contributory negligence.

Chattanooga Gas. Co. v. Underwood, 38 Tenn. App. 142, 157, 270 S.W.2d 652, 659 (1954); John Bouchard & Sons

Co. v. Keaton, 9 Tenn. App. 467, 481 (1928). 

-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, and (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 (Tenn. 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 every way, In re Estate of Elam, 738

S.W.2d at 174; Ingram v. Earthman, 993 S.W.2d at 636, and we will not invalidate instructions 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, 446 (Tenn. 1992); Woods v. Herman Walldorf & Co., 26 S.W.3d

868, 878 (Tenn. Ct. App. 1999); Hughes v. Lumbermens Mut. Cas. Co., 2 S.W.3d at 225. When the

denial of a requested instruction that could have been given prejudices the rights of the party who

requested the instruction, this court must vacate the judgment. Nashville, C. & St. L. Ry. v. Jackson,

187 Tenn. 202, 206-07, 213 S.W.2d 116, 117 (1948); Souter v. Cracker Barrel Old Country Store,

Inc., 895 S.W.2d 681, 684 (Tenn. Ct. App. 1994).

C.

The propriety of the trial court’s refusal to give the instructions requested by Mr. Amacher

and his father requires us to revisit the effects of the Tennessee Supreme Court’s adoption of the

current system of modified comparative fault. Prior to the advent of modified comparative fault in

1992, a passenger who knowingly rode with an intoxicated driver could not, as a general matter,

recover damages for injuries caused by the driver’s negligence. The law considered these passengers

to be taking their lives in their own hands, Schwartz v. Johnson, 152 Tenn. 586, 592, 280 S.W. 32,

33 (1926), and left them to live with the consequences of their decision to take a chance on the

driver’s ability to drive. Hicks v. Herbert, 173 Tenn. 1, 6, 113 S.W.2d 1197, 1199 (1938).

Accordingly, the courts repeatedly held that either the doctrine of proximate contributory negligence

or the doctrine of implied assumption of the risk prevented passengers who knowingly rode with an

intoxicated driver from recovering damages from 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 defense).6

The Tennessee Supreme Court’s decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.

1992), imported the principles of comparative fault into our common law and heralded the demise

of both the doctrine of contributory negligence and the doctrine of implied assumption of the risk.

In McIntyre, the Court abandoned the common-law “all-or-nothing” doctrine of contributory
-6-

negligence as “outmoded and unjust” and signaled that the McIntyre decision would affect numerous

other heretofore settled legal principles surrounding tort litigation. McIntyre v. Balentine, 833

S.W.2d at 56-57; see also Conroy v. City of Dickson, 49 S.W.3d 868, 872 (Tenn. Ct. App. 2001)

(characterizing the McIntyre decision as one that “swept away the doctrine of contributory

negligence and many of its ancillary doctrines”). 

Two years after deciding McIntyre v. Balentine, the Tennessee Supreme Court abandoned

the doctrine of implied assumption of the risk, noting that: “[i]t would be ironic indeed if, after

abolishing the all-or-nothing proposition of contributory negligence in McIntyre, we were to reinstate

it here using the vehicle of assumption of risk.” Perez v. McConkey, 872 S.W.2d 897, 905 (Tenn.

1994). Thus, instead of retaining the doctrine of implied assumption of the risk as a separate

defense, the Court decreed that “the reasonableness of a party’s conduct in confronting 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. McLain, 891 S.W.2d 587, 592 (Tenn. 1994). In the light of the

McIntyre and Perez decisions, intoxicated drivers can no longer use these doctrines as a shield

against damages suits brought by their passengers.

D.

In light of the state of the law when this case was tried, there are two reasons why the trial

court properly declined to give the special instructions requested by Mr. Amacher and his father.

First, because the adoption of comparative fault eviscerated the doctrines of contributory negligence

and implied assumption of the risk, a passenger who knowingly rides with an intoxicated driver is

no longer precluded as a matter of law from recovering damages from the driver for injuries caused

by the driver’s negligence. Now, the reasonableness of the passenger’s conduct in light of the

known risk associated with riding in a vehicle driven by an intoxicated driver must be compared with

the negligence of the intoxicated driver. Second, the trial court’s general instruction involving a

passenger’s duty of self-protection correctly summarizes 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.

THE APPORTIONMENT OF FAULT BETWEEN MESSRS. HENLEY AND AMACHER

Next, Mr. Amacher and his father argue that the jury erred by allocating only 25% of the fault

to Mr. Henley. They insist that Mr. Henley’s own evidence demonstrates overwhelmingly that he

failed to use reasonable care to protect himself and that he was “guilty of more than 50% fault.”

Therefore, they argue that 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 courts and juries in the

current system of modified comparative fault.

A.
7

This motion is commonly referred to as a motion for a judgment notwithstanding the verdict or a motion for

a jnov.

8

Staples v. CBL & Assocs., Inc., 15 S.W.3d at 92 (vacating a summary judgment concluding that the plaintiff

was more than 50% at fault because “a jury should have decided the questions of fact relevant to . . . [the fault] issue.”);

Howard v. Norwood, No. M1999-00838-COA-R3-CV, 2000 WL 679228, at *8 (Tenn. Ct. App. May 25, 2000) (No

Tenn. R. App. P. 11 application filed); LaRue v. 1817 Lake, Inc., 966 S.W.2d 423, 427 (Tenn. Ct. App. 1997).

-7-

In addition to being governed by the substantive principles of comparative fault, an

intoxicated driver’s defenses based on his or her passenger’s negligence must comply with

comparative fault’s procedural principles. Chief among these procedural principles is that in a vast

majority of cases, the comparison and allocation 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 785, 789 (Tenn. 2000); Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997);

Prince v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996). The task of comparing

and allocating fault may be taken from the jury only when it can be determined 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. McLain, 891 S.W.2d

at 589; Kim v. Boucher, 55 S.W.3d 551, 556-57 (Tenn. Ct. App. 2001).

The procedural avenues for obtaining a decision that the plaintiff’s fault exceeds the

defendant’s as a matter of law are governed by the Tennessee 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. 1998); Norris v. Pruitte, No. 01A01-9709-CV-00506, 1998 WL 1988563, at *3 (Tenn.

Ct. App. Aug. 24, 1998) (No Tenn. R. App. P. 11 application filed).

The courts’ prerogatives regarding the allocation of fault become more circumscribed once

the question of 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.2d 754, 762 (Tenn. Ct. App. 1998). Appellate courts are governed by the same

restrictions,Winstead 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 Tenn. R. App. P. 11 application filed); Allen v.

Payne, No. 03A01-9903-CV-00067, 1999 WL 1076922, at *1 (Tenn. Ct. App. Nov. 30, 1999) (No

Tenn. R. App. P. 11 application filed), and by the standards of review applicable to jury verdicts.

B.

The standards for reviewing a jury’s allocation of fault to negligent parties ought to be

straightforward. Because allocating fault is essentially a fact question,8

 one would assume that the

appellate courts would review a jury’s fault allocation using Tenn. R. App. P. 13(d)’s familiar

standard of 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 and grant a new trial 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 at 824; Moss v. Sankey, 54 S.W.3d 296, 299 (Tenn. Ct. App. 2001); Milliken

v. Crye-Lieke Realtors, No. M1999-00071-COA-R3-CV, 2001 WL 747638, at *9 (July 5, 2001), perm. app. denied,

(Tenn. Dec. 10, 2001); Moore v. Johnson, No. E2000-00385-COA-R3-CV, 2000 WL 1424930, at *2 (Tenn. Ct. App.

Sept. 26, 2000), perm. app. denied, (Tenn. Mar. 19, 2001); Fox v. Food Lion, Inc., No E1911-00015-COA-R3-CV, 2000

WL 1424805, at *4 (Tenn. Ct. App. Sept. 21, 2000) (No Tenn. R. App. P. 11 application filed). 

10Cross v. City of Memphis, 20 S.W.3d 642, 643 (Tenn. 2000); Varner v. Perryman, 969 S.W.2d 410, 411

(Tenn. Ct. App. 1997).

11

Taggart v. Richards, No. 03A01-9707-CV-00262, 1997 WL 677954, at *2 (Tenn. Ct. App. Nov. 3, 1997),

perm. app. denied, (Tenn. May 26, 1998).

12

Coln v. City of Savannah, 966 S.W.2d at 44; Niedergeses v. Giles County, No. M2000-00428-COA-R3-CV,

2001 WL 747647, at *1 (Tenn. Ct. App. July 5, 2001) (No Tenn. R. App. P. 11 application filed); Griggs v. Mixon, No.

02A01-9504-CV-00087, 1996 WL 444104, at *4 (Tenn. Ct. App. Aug. 6, 1996) (No Tenn. R. App. P. 11 application

filed); Nichols v. Metropolitan Gov’t, No. 01A01-9509-CV-00393, 1996 WL 387901, at *7 (Tenn. Ct. App. July 12,

1996) (No Tenn. R. App. P. 11 application filed).

-8-

R. App. P. 13(d)’s standard to review allocations of fault by juries9

 and by trial courts sitting without

juries.10

In 1995, the Tennessee Supreme Court appeared to introduce a second, less familiar, standard

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 involving a

jury’s allocation of fault, the Court stated:

Although it is true that the trier of fact has considerable

latitude in allocating percentages of fault to negligent parties, . . .

appellate courts may alter those findings if they are clearly erroneous.

Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). Both the Tennessee Supreme Court

and this court have since employed this so-called “clearly erroneous” standard to review allocations

of fault by juries,11 as well as allocations of fault by trial courts following bench trials.12

Five years after deciding Wright v. City of Knoxville, the Tennessee Supreme Court decided

to expressly limit the application of its freshly minted “clearly erroneous” standard to jury trials.

The vehicle the Court chose was an appeal in another non-jury case in which this court had affirmed

the trial court’s allocation of 100% of the fault to 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 clearly erroneous, the Court announced that its Coln v. Savannah decision should

be “clarified” and that henceforth, “the clearly erroneous language of Wright v. City of Knoxville .

. . [should be] limited to jury cases.” Cross v. City of Memphis, 20 S.W.3d at 645. Applying Tenn.

R. App. P. 13(d)’s standard of review, the Court concluded that the evidence preponderated 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

“clearly erroneous” standard to review a jury’s allocation of fault place the lower courts and the

litigants in a quandary. Did the Court intend to adopt two standards of review? If the Court did

intend to adopt two standards of review, what sort of review does the “clearly 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 case? If not, what

criteria should be used to determine which of the two standards to use in a particular case? After

carefully reviewing Wright v. City of Knoxville, 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) when it first used the term “clearly

erroneous” in Wright v. City of Knoxville.

The “clearly erroneous” standard of review plays a significant role in appellate jurisprudence

in the federal courts and the courts of many other states. Because the Seventh Amendment prevents

federal appellate courts from relitigating facts found by a jury, Atlantic & Gulf Stevedores, Inc. v.

Ellerman Lines, Ltd., 369 U.S. 355, 358-59, 82 S. Ct. 780, 783 (1962), all that federal appellate

courts can do is to determine whether there is any competent and substantive evidence in the record

that tends to support the verdict. Mortensen v. United States, 322 U.S. 369, 374, 64 S. Ct. 1037,

1040 (1944). Substantive evidence is evidence adequate to support the jury’s conclusion even if it

is also possible to draw a contrary conclusion from the same evidence. Johnson v. Paradise Valley

Unified Sch. 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 determine whether a fairminded juror could reach the verdict rendered. Williams v. First Gov’t Mortgage & Inv. Corp., 225

F.3d 738, 744 (D.C. Cir. 2000). Accordingly, federal appellate courts can overturn a jury verdict

on evidentiary grounds only when there is a complete absence of probative 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

factual findings of a district court judge following a bench trial. Review of these decisions is

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

[f]indings of fact, whether based on oral or documentary evidence,

shall not 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 witnesses.

More than fifty years ago, Judge Learned Hand noted the futility of attempting to define the “clearly

erroneous” 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 United States Supreme Court later explained that

If the district court’s account of the evidence is plausible in light of

the record viewed in its entirety, the court of appeals may not reverse

it even though convinced that had it been sitting as the trier of fact, it

would have weighed the evidence differently. Where there are two

permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.
13Caudill v. Mrs. Grissom’s Salads, Inc., 541 S.W.2d 101, 106 (Tenn. 1976); Paducah, Tenn. & Ala. R.R. v.

Muzzell, 95 Tenn. 200, 201, 31 S.W. 999, 999 (1895); Beal v. Doe, 987 S.W.2d 41, 46-47 (Tenn. Ct. App. 1998).

-10-

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S. Ct. 1504, 1511 (1985). A federal

appellate court, applying Fed. R. Civ. P. 52(a), will conclude that a district court judge’s finding of

fact is clearly erroneous when, although there is evidence to support it, the reviewing court reviews

all the evidence and is “left with the definite and firm conviction that a mistake has been

committed.” 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 Cir. 2001);

Adams County Reg’l Water Dist. v. Village of Manchester, 226 F.3d 513, 517 (6th Cir. 2000). 

The difference between the standards for reviewing a jury’s verdict and a district court

judge’s findings of fact are probably easier to articulate than to implement. McCarthy v. New York

City Technical Coll. of City Univ. of N.Y., 202 F.3d 161, 168 n.1 (2d Cir. 2000) (Newman, J.,

concurring). However, the federal courts generally acknowledge that a jury’s verdict is entitled to

somewhat “more deference than a trial 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. Construction Laborers Pension Trust, 508 U.S. 602, 623, 113 S. Ct. 2264,

2280 (1993); Robert L. Stern, Note, Review of Findings of Administrators, Judges and Juries: A

Comparative Analysis, 58 Harv. L. Rev. 70, 86 (1944). As Judge Hand noted, a reviewing court

“will hesitate less to reverse the finding of a judge than that of . . . a jury.” United States v.

Aluminum Co. of Am., 148 F.2d at 433.

We have determined that the Tennessee Supreme Court, by its use of the term “clearly

erroneous” in connection with the review of a jury’s allocation of fault, did not intend to replace

Tenn. R. App. P. 13(d)’s standard for reviewing the evidentiary foundation of jury verdicts with the

standard of review used by the federal appellate courts to review district court judges’ findings of

fact. In light of the fundamental nature of the right to trial by jury and the judiciary’s obligation to

guard and defend this right,13 we are confident that the Tennessee Supreme Court did not intend to

make it easier for Tennessee’s judges to second-guess a jury’s factual determinations regarding the

fault of negligent parties.

The right to a jury trial, as it existed at common law, is the single most important contribution

of Anglo-American jurisprudence. It is preserved and protected by Tenn. Const. art. 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 a jury 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 constitutional dimension of the right to a jury trial, Tennessee’s courts are

reluctant to second-guess a jury’s verdict. Their reluctance is reflected 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 evidence or make its own credibility determinations. Reynolds v. Ozark Motor Lines, Inc.,

887 S.W.2d 822, 823 (Tenn. 1994); Moss v. Sankey, 54 S.W.3d at 299. In addition, the reviewing
14

Tenn. R. App. P. 13(d)’s material evidence standard is similar to the federal courts’ substantial evidence

standard. In the federal courts, a verdict that is not supported by substantial evidence is clearly erroneous. In re Westcap

Enters., 230 F.3d 717, 725 (5th Cir. 2000); Irving v. United States, 49 F.3d 830, 835 (1st Cir. 1995); Pioneer Hi-Bred

Int’l v. Holden Found. Seeds, Inc., 35 F.3d 1226, 1235 (8th Cir. 1994); Duty v. United States of Am., Dep’t of Interior,

735 F.2d 1012, 1015 (6th Cir. 1984). However, the converse is not necessarily true because the concepts of lacking

material evidence and being clearly erroneous are not synonymous. Case v. Morrisette, 475 F.2d 1300, 1307-08 (D.C.

Cir. 1973). A federal appellate court may set aside a finding of fact, even if it is supported by substantial evidence, if

the court has a definite and firm conviction that a mistake has been made. 9A Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 2585, at 577 n.20 (2d ed. 1995). We have concluded that the Tennessee Supreme

Court did not intend to permit Tennessee’s appellate courts to set aside a jury’s allocation of fault that is supported by

material evidence simply because they have a definite and firm conviction that some sort of mistake has been made. 

15Mr. Amacher cannot argue now that the trial court erred by failing to find that Mr. Henley was 50% or more

at fault as a matter of law. He concedes that he could not seek a judgment as a matter of law under Tenn. R. Civ. P.

50.02 because he failed to renew his motion for a directed verdict at the close of all the proof. Cortez v. Alutech, Inc.,

941 S.W.2d 891, 894 (Tenn. Ct. App. 1996); Grissom v. Metropolitan Gov ’t, 817 S.W.2d at 683. In addition, Mr.

Amacher has not argued on appeal that the jury’s verdict reflects passion, prejudice, or caprice.

-11-

court must take the strongest legitimate view of the evidence that favors the verdict, disregard all

contrary evidence, and allow all reasonable inferences to sustain the verdict. Barnes v. Goodyear

Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000); Forrester v. Stockstill, 869 S.W.2d 328, 329

(Tenn. 1994). If the reviewing court finds material evidence supporting the verdict, it must decline

to disturb the judgment. Alexander v. Armentrout, 24 S.W.3d 267, 273 (Tenn. 2000). Only when

it determines that the record does not contain material evidence to support the jury’s verdict can the

reviewing court set the judgment aside. Turner v. Jordan, 957 S.W.2d at 824; Jackson v. Patton,

952 S.W.2d 404, 405 (Tenn. 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 othersortsoffactual determinations 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 decisions employing Tenn. R. App. P. 13(d) to review a jury’s fault allocation. In the

absence of a more definitive explanation by the Court of what “clearly erroneous” means, we have

concluded that the Court’s reference to a jury’s allocation of fault as “clearly erroneous” should be

construed harmoniously with the traditional review standards in Tenn. R. App. P. 13(d). Therefore,

in the context of appellate review of a jury’s allocation of fault, a conclusion that the jury’s

allocation of fault is “clearly erroneous” means nothing more than that the reviewing court has

reviewed the entire record and has concluded that there is no material evidence to support the jury’s

allocation.14

C.

We now apply these principles to the jury’s decision to allocate 75% of the fault to Mr.

Amacher and 25% of the fault to Mr. Henley. The only challenge to this decision currently available

to Mr. Amacher is that the record contains no material evidence to support the jury’s allocation of

fault.15 Accordingly, our sole task under Tenn. R. App. P. 13(d) is to examine the entire record to

determine whether it contains any material evidence that supports the jury’s allocation of fault

between Messrs. Henley and Amacher.
16

East Tenn., Va. & Ga. R.R. v. Smith, 77 Tenn. 685, 689 (1882).

17

In re Padgett’s Will, 54 Tenn. App. 1, 9, 387 S.W.2d 355, 359 (1964); Wilson v. Gadd, 4 Tenn. App. 582,

584 (1927).

18

Memphis St. Ry. v. Norris, 108 Tenn. 632, 634, 69 S.W. 325, 326 (1902); Goodman v. Balthrop Constr. Co.,

626 S.W.2d 21, 24 (Tenn. Ct. App. 1981); Clinard v. Pennington, 59 Tenn. App. 128, 135, 438 S.W.2d 748, 751 (1968).

19This is not a new proposition. Over one century ago, the Tennessee Supreme Court reviewed a jury’s verdict

for an employee who was thrown from a railroad hand-car when the wooden handle on the lever he was using broke.

(continued...)

-12-

Our review of the evidence is tempered by our recognition that we should not lightly take it

upon ourselves to assume the responsibility for determining liability 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 (1940). We are not a jury of three with the prerogative to re-weigh the

evidence, Whaley v. Rheem Mfg. Co., 900 S.W.2d 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, 206 S.W.2d 897, 901 (1947); Davis

v. Wilson, 522 S.W.2d 872, 875 (Tenn. Ct. App. 1974). Nor are we empowered to substitute our

judgment for 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

jury did not weigh the evidence well17 or if we determine that we would have reached a different

conclusion had we been members of the jury.18

The facts of this case are straightforward, and the testimony of the four occupants of the

vehicle does not differ in any material respect. The facts show clearly that 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. Amacher negligently decided to drive when he knew or should reasonably have known that he

was too intoxicated to operate a motor vehicle safely. Mr. Henley was negligent because he decided

to ride in a vehicle being operated by Mr. Amacher when he knew or should reasonably have known

that Mr. Amacher was too intoxicated to drive. The evidence also shows that both Mr. Amacher’s

negligence and Mr. Henley’s negligence caused Mr. Henley’s injuries. Mr. Henley would not have

been injured had Mr. Amacher not lost control of the vehicle and caused it to flip over. Likewise,

Mr. Henley would not have been injured had he decided against riding with Mr. Amacher that

morning.

Since both Mr. Amacher and Mr. Henley were at fault, the Tennessee Supreme Court’s

system of modified comparative fault required the jury, as the trier-of-fact, to allocate the fault

between them. The jury decided that Mr. Amacher was comparatively more at fault than Mr.

Henley. Thus, the question boils down to whether there is any material evidence in the record to

support the jury’s conclusion that Mr. Amacher was comparatively more at fault. The answer is yes.

The trier of fact has considerable latitude in allocating fault to the negligent parties. Wright

v. City of Knoxville, 898 S.W.2d 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, even
19(...continued)

The employee presented evidence that the handle was made of defective wood; while the railroad asserted that the

handle was not defective. The Court declined to “disturb the finding” even though it concluded that the record contained

evidence from which the jury could have concluded that the wooden handle was not made of defective wood. East

Tenn., Va. & Ga. R.R. v. Smith, 77 Tenn. at 689. 

-13-

though he was only sixteen, was quite familiar with the effects of alcohol because he had been

drinking since he was twelve years old. He had received institutional treatment on two occasions

for alcohol abuse, and therefore, by June 28, 1995, drinking was much more than a youthful

experiment for him. Despite his knowledge of the effects that alcohol had on him, Mr. Amacher

went on a ten-hour drinking binge with Mr. Henley. After staying up all night and drinking half of

a pint of whiskey and approximately two six packs of beer, Mr. Amacher insisted that he could drive

a motor vehicle safely at 5:30 in the morning and brushed aside his companions’ suggestions that

he should let someone else drive. These essentially undisputed facts provided the jury with a

material factual foundation for concluding that Mr. Amacher’s fault exceeded Mr. Henley’s.

Accordingly, we find no merit in Mr. Amacher’s argument that the record contains no material

evidence to support the jury’s allocation of 75% of the fault to him.

IV.

THE DAMAGE AWARDS FOR PERMANENT IMPAIRMENT AND FUTURE MEDICAL EXPENSES

We turn now to the issue of damages. Mr. Amacher maintains that there is no material

evidence to support the jury’s decision to award Mr. Henley $5,000 for the permanent impairment

of his knee and $20,000 for his future medical expenses. We have concluded that the record contains

material evidence supporting the jury’s award for permanent impairment. However, we have also

concluded that the record does not contain material evidence to support the jury’s award for future

medical expenses.

A.

The existence and amount of damages in a personal injury action are questions of fact.

Spence v. Allstate Ins. Co., 883 S.W.2d 586, 594 (Tenn. 1994); 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. 1999); 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 and definite enough to enable the trier-of-fact to

make a reasonable assessment of the claimant’s damages. Provident Life & Accident Ins. Co. v.

Globe Indemn. Co., 156 Tenn. 571, 576, 3 S.W.2d 1057, 1058 (1928); Airline Constr., Inc. v. Barr,

807 S.W.2d 247, 274 (Tenn. 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 speculative, a damage

award must lack a factual foundation establishing with some certainty that the claimant was, in fact,

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. Perry, 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.2d 941, 944 (Tenn. Ct. App. 1995). Thus, once the trial court approves a jury’s

damage award, the reviewing courts may not substitute their judgment for that of the jury.

McCullough 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

findings, a reviewing court may second-guess a jury only when the record contains no material

evidence to support the jury’s verdict. Coffey v. Fayette Tubular Prods., 929 S.W.2d 326, 331 n.2

(Tenn. 1996); Benson v. Tennessee Valley Electric Co-op, 868 S.W.2d 630, 640 (Tenn. 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 regard to the remedies available to reviewing courts when

they conclude that there is no material evidence to support the jury’s decision. Because reviewing

courts may not modify a jury’s allocation of fault, granting a new trial is the only proper remedy

when the court determines that the allocation of fault is not supported by material evidence. It is not

so with damages. When a damage award is not supported by material evidence, 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. 1994); United

Brake Sys., Inc. v. American Envt’l Prot., Inc., 963 S.W.2d 749, 760 (Tenn. Ct. App. 1997); Baker

v. Bates, 4 Tenn. Civ. App. (Higgins) 175, 178 (1913). The reviewing court’s remittitur power is

not limited to circumstances where the size of the verdict reflects passion, prejudice, or caprice. It

may also be invoked when the verdict is excessive for any other reason. Grant v. Louisville &

Nashville Ry., 129 Tenn. 398, 409, 165 S.W. 963, 965 (1914).

B.

Damages for Permanent Impairment

Mr. Henley injured his right knee when he was thrown from the GMC Jimmy early on the

morning of June 28, 1995. His knee was surgically reconstructed by an orthopaedic surgeon in

Nashville who later observed:

Even though we can reconstruct the ligaments and actually do very

well, we can’t put ligaments in like God made them. They’re not

perfect. The joints are not perfect. The ligaments that were torn on

the inside of his knee have to heal secondarily. That doesn’t create

a normal ligament. In addition, we took about half of his outside

cartilage out and that’s important for distributing weight-bearing

forces. When you have a devastating knee injury, you’re more likely

to get arthritis in the future and that may be ten or fifteen years. So

even though we reconstructed it and he’s doing well, that doesn’t

mean his knee is perfect.

The surgeon opined that the condition of Mr. Henley’s knee following the wreck and surgical

reconstruction constituted a permanent impairment.

Mr. Amacher elected not to present expert medical evidence to contradict the opinion of Mr.

Henley’s surgeon. He relied instead on evidence regarding Mr. Henley’s physical condition between

the time of the wreck and the trial. He proved that Mr. Henley had played football during his senior
20Mr. Amacher places much emphasis on another case in which we set aside a verdict that included damages

of permanent impairment. In the discussion of the lack of any material evidence of permanent impairment, we noted

that the plaintiff’s treating physician never gave the plaintiff a disability rating. Sanders v. Johnson, 859 S.W.2d at 332

(stating that “no disability rating was given by Dr. Slutsky”). This observation should not be twisted into a

pronouncement we did not make. The holding in the case was that the issue of permanent impairment should never have

been submitted to the jury because the plaintiff came forward with no material evidence to support his claim that he was

permanently impaired. We did not hold that the issue of permanent impairment should not have gone to the jury simply

because the plaintiff’s treating physician did not give him a specific anatomical impairment rating. 

-15-

year of high school and that he had been named the team’s outstanding defensive lineman. He also

proved that following his high school graduation, Mr. Henley had taken a job with Danley’s Air

Conditioning that required a great deal of physical exertion. He also proved that Mr. Henley had not

required medical attention for his knee since he completed his rehabilitation following surgery.

All of the evidence brought forward by Mr. Amacher regarding Mr. Henley’s residual

impairment was certainly relevant. The jury was entitled to consider this evidence along with the

unequivocal testimony of Mr. Henley’s treating orthopaedic surgeon that Mr. Henley’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 provides the material evidence needed to sustain

the jury’s determination that the June 28, 1995 wreck left Mr. Henley permanently impaired.

Accordingly, we have no basis for setting aside the $5,000 damage award for permanent impairment

for lack of material evidence to support it.

Anticipating this result, Mr. Amacher argues thatthe award for permanentimpairment should

be set aside because Mr. Henley’s surgeon did not undertake to ascribe a specific anatomical

impairment rating to Mr. Henley’s knee. This argument must also fail. A finding of permanent

impairment must be based on expert proof. Sanders v. Johnson, 859 S.W.2d 329, 331 (Tenn. 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 specific anatomical impairment rating is unnecessary in

cases of this sort to establish that an injury is permanent. See Cleek v. Wal-Mart Stores, Inc., 19

S.W.3d 770, 774 (Tenn. 2000); Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998) (both

cases holding that a specific anatomical impairment rating is not always indispensable to a finding

of permanent vocational impairment). Thus, Mr. Henley’s surgeon was not required give Mr.

Henley a specific anatomical impairment rating 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 damages 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 recovered is the reasonable cost of the medical

services that will probably be incurred because of the lingering effects of the injuries caused by the

negligent person. Reed v. Wimmer, 465 S.E.2d 199, 210 (W. Va. 1995). To remove awards for
21

Damage awards for future medical expenses cannot be based on speculation. Marchetti v. Ramirez, 688 A.2d

1325, 1328 (Conn. 1997); Futrell v. Scott Truck & Tractor Co., 629 So. 2d 449, 458 (La. Ct. App. 1993); Faas v. State,

672 N.Y.S.2d 145, 147 (App. Div. 1998); Hammerschmidt v. Mignogna, 685 N.E.2d 281, 285 (Ohio Ct. App. 1996).

22

T.P.I. 3-Civil 14.11.

23Blumenshine v. Baptiste, 869 P.2d 470, 473 (Alaska 1994) (requiring proof of a reasonable probability that

the future medical treatment will occur); Hamernick v. Bach, 779 A.2d 806, 812 (Conn. App. Ct. 2001) (holding that

determinations of future medical expenses must be based on reasonable probabilities, not possibilities); Kloster Cruise,

Ltd. v. Grubbs, 762 So. 2d 552, 556 (Fla. Dist Ct. App. 2000) (requiring proof that future medical expenses are more

probable than not); Molitor v. Jaimeyfield, 622 N.E.2d 1250, 1253 (Ill. App. Ct. 1993) (requiring that future medical

expenses be proved with a reasonable degree of medical certainty); Symington v. Mayo, 590 N.W.2d 450, 452 (N.D.

1999) (requiring a reasonable medical certainty that future medical services are necessary); Reed v. Wimmer, 465 S.E.2d

at 210 (setting aside an award for future medical expenses where no physician testified that the plaintiff would need

additional medical treatment).

24Some courts have quantified the required probability by holding that it means more than a fifty percent

chance. Pustjovsky v. Rapid-American Corp., 35 S.W.3d 643, 652 (Tex. 2000); Jordan v. Bero, 210 S.E.2d 618, 640

(W. Va. 1974) (Neely, J., concurring); see also Sebroski v. United States, 111 F. Supp. 2d 681, 686 (D. Md. 1999)

(requiring that there must be more evidence favoring the likelihood of future medical treatment than against it). 

25We have set aside awards for future medical expenses when the plaintiff has presented no proof of the

probable cost of the services or when the estimate of the future cost is too speculative. Cochran v. Lowe, No. 03A01-

(continued...)

-16-

future medical expenses from the realm of speculation,21 persons seeking future medical expenses

must present evidence (1) that additional medical treatment is reasonably certain to be required in

the future and (2) that will enable the trier-or-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 expenses is, in the language of the

Tennessee Pattern Jury Instructions,22 evidence that additional medical treatment is “reasonably

certain to be required in the future.” This “reasonable certainty” 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 undergo future medical

treatment for the injuries caused by the defendant’s negligence.23 It does not, however, require proof

of future medical treatment to an absolute or metaphysical certainty. Reyes v. Greatway Ins. Co.,

582 N.W.2d 480, 485 (Wis. Ct. App. 1998). Rather, the “reasonable certainty” standard requires the

plaintiff to prove that he or she will, more probably than not, need these medical services in the

future. Futrell v. Scott Truck & Tractor Co., 629 So. 2d at 458; Fibreboard Corp. v. Pool, 813

S.W.2d 658, 681 (Tex. App. 1991).24

The trier-of-fact must have some factual basis for reasonably estimating the cost of the future

medical expenses. Lynden, Inc. v. Walker, 30 P.3d 609, 620 (Alaska 2001); Bull Street Church of

Christ v. Jensen, 504 S.E.2d 1, 7 (Ga. Ct. App. 1998); Mendralla v. Weaver Corp., 703 A.2d 480,

485 (Pa. Super. Ct. 1997). Accordingly, the second component of a claim for future medical

expenses is evidence regarding the cost of the medical services. Sherbahn v. Kerkove, 987 P.2d 195,

198 (Alaska 1999); District of Columbia v. Howell, 607 A.2d 501, 506 (D.C. 1992); Mossman v.

Amana Soc’y, 494 N.W.2d 676, 679 (Iowa 1993); Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093,

1099 (La. Ct. App. 2000); Myers v. Hearth Techs., Inc., 621 N.W.2d at 793.25
25(...continued)

9809-CV-00292, 1999 WL 233382, at *2 (Tenn. Ct. App. Apr. 16, 1999) (No Tenn. R. App. P. 11 application filed)

(suggesting a remittitur because the plaintiff presented no proof of the future cost of medications); Bowers v. City of

Chattanooga, 855 S.W.2d 583, 587 (Tenn. Ct. App. 1992) (vacating an award for future medical expenses for

multidisciplinary rehabilitation because the plaintiff’s psychologist conceded that he could not give a reasonable cost

projection); Kincaid v. Lyerla, 680 S.W.2d 471, 472-73 (Tenn. Ct. App. 1984). But see Palmer v. Norfolk-Southern Ry.,

No. 03A01-9309-CV-00313, 1994 WL 111037, at * 3 (Tenn. Ct App. Mar. 30, 1994), perm. app. denied (Tenn. Aug.

22, 1994) (stating that the jury is not precluded from awarding damages for future medical expenses when no evidence

regarding the cost of these expenses is offered). The Palmer case involved a $400,000 general verdict for a painful,

debilitating wrist injury suffered on the job, and it is not clear from the record what portion of this verdict, if any, was

for future medical expenses. This court vacated the judgment and ordered a new trial on other grounds. 

26Precise evidence of the cost of future medical expenses is not required. Roberts v. Williamson, 52 S.W.3d

343, 350 (Tex. App. 2001); Patterson v. Horton, 929 P.2d 1125, 1131 (Wash. Ct. App. 1997).

27For example, a plaintiff whose injury will require continuing medication or therapy may introduce evidence

of the cost already incurred for the same medication or therapy to prove his or her future expenses for this medication

or therapy.

-17-

The trier-of-fact enjoys a certain degree of leeway in determining the cost of future medical

expenses. Richardson v. Chapman, 676 N.E.2d 621, 628 (Ill. 1997). Accordingly, the cost of future

medical treatment need not be proved with the same certainty required to prove the cost of past

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 evidence26 regarding

these anticipated costs, it is sufficient to present estimates of the costs within a reasonable range.

Mendralla v. Weaver, 703 A.2d at 485; Jordan v. Bero, 210 S.E.2d at 637. Thus, in the case of a

permanent injury that will require continuing treatment, evidence of the cost of past medical

treatment can provide evidence of the cost of the future medical treatment as long as the plaintiff has

proved that the future medical treatment will be required and that this treatment is similar to the

treatment that has already been provided. Wal-Mart Stores, Inc. v. Londagin, 37 S.W.3d 620, 627

(Ark. 2001); Marchetti 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 presented competent evidence that his knee injury is permanent. However,

proving that an injury 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. 1976); Spleas v.

Milwaukee & Suburban Transp. Corp., 124 N.W.2d 593, 597 (Wis. 1963). Thus, we must examine

the record to determine whether it contains any material evidence (1) establishing that it is

reasonably certain that Mr. Henley will require additional medical treatment for the knee injury he

sustained on June 28, 1995 and (2) providing a basis for a reasonable trier-of-fact to determine how

much this treatment will probably cost. 

The record contains no material evidence that Mr. Henley will require additional medical

treatment for his knee, let alone the cost of this treatment. When Mr. Henley’s orthopaedic surgeon

last saw him in March 1996, he released Mr. Henley without restrictions and without any plans for

further treatment of any sort. Thus, there is no competent medical evidence that Mr. Henley will

require any additional medical treatment for his knee. In the absence of evidence of a need for
28The evidence regarding the cost of Mr. Henley’s reconstructive surgery and post-surgical rehabilitation do

not provide a basis for projecting future medical costs because there is absolutely no evidence that Mr. Henley will be

required to undergo a second reconstructive surgery because of the injury to his knee.

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continuing medical treatment, it is not surprising that the record contains no evidence at all of the

cost of any future medical expenses Mr. Henley might have as a result of his knee injury.28

We conclude that there is no material evidence in the record to support the jury’s decision

to award Mr. Henley $20,000 for future medical expenses. Accordingly, 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 damages which would reduce Mr. Henley’s total recovery from $34,125 to $19,125.

Mr. Henley must elect either to accept or to reject this remittitur. Within thirty days following the

issuance of the mandate 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. Henley a new trial. 

V.

THE JOINT AND SEVERAL LIABILITY OF MR. AMACHER AND HIS FATHER

As a final matter, Mr. Amacher’s father, Kenneth Amacher, takes issue with the jury’s use

of the family purpose doctrine to hold him jointly and severally liable for Mr. Henley’s damages.

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 his son was not on his business at the time. While both of

these factual assertions may be true, neither is essential to the proper application of the family

purpose doctrine in this case.

The family purpose doctrine is a judicially-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 adoption 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 use of family members is vicariously liable for any other family member’s negligent

use of that vehicle. Camper v. Minor, 915 S.W.2d at 447. Persons seeking to invoke the family

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 members, Scates v. Sandefer, 163 Tenn. 558,

564, 44 S.W.2d 310, 311 (1931) and (2) that a family 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 driver be

engaged in the owner’s business does not mean that the driver must have been on a specific errand

for the owner at the time of the incident giving rise to the lawsuit. It means only that the family

member must have been using the vehicle consistently with the head of the household’s purpose for

purchasing it – the pleasure and convenience of the family. Thurmon v. Sellers, ___ S.W.3d at ___,

2001 WL 256124, at *7-8.
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Kenneth Amacher owned the 1987 GMC Jimmy that Mr. Amacher was driving on the

morning of June 28, 1995. While he had purchased the vehicle primarily for the use of Mr.

Amacher’s brother, Chris, Kenneth Amacher knew that Mr. Amacher occasionally drove the vehicle

with his brother’s permission. Kenneth Amacher never forbade Mr. Amacher to drive the vehicle

and never instructed his son, Chris, not to permit Mr. Amacher to drive the vehicle. All this provides

material evidence from which the jury could rationally have concluded: (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 but also Mr. Amacher, and (3) that Mr. Amacher 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 contains material evidence to support the jury’s application of the family

purpose doctrine to hold Kenneth Amacher jointly and severally liable for Mr. Henley’s injuries.

VI.

We affirm the judgment finding that Kenneth Amacher and Russell D. Amacher are jointly

and severally liable to Randall D. Henley for the injury he sustained on June 28, 1995. We also

affirm the jury’s assessment of Mr. Henley’s damages with the exception of its decision to award

Mr. Henley $20,000 for future medical expenses. Because we have concluded that the record does

not contain material evidence to support an award for future medical expenses, we suggest a

remittitur of $20,000 that would, if accepted, reduce Mr. Henley’s judgment from $34,125 to

$19,125. Within thirty days following the issuance of the mandate 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. Henley a new

trial. We tax the costs of this appeal in equal proportions to Russell D. Amacher and Kenneth

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

_____________________________ 

WILLIAM C. KOCH, JR., JUDGE