### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 5, 2000 Session (at Nashville) JOANNE DICKEY, ET VIR 

### . v. W. KEITH McCORD, ET AL 

### . Direct Appeal from the Circuit Court for Knox County No. 2-511-96 Harold Wimberly, Judge FILED APRIL 4, 2001
No. E2000-00567-COA-R3-CV

This is a personal injury action arising from a boating ac cident in t he Bahamas. At trial, the jury returned a verdict for the

defendants. The plaintiffs appealed, alleging that the jury’s verdict wa s not supportedby any

material evidenc

e as well as alleg

ing error wit

h the trial court’s function as th irteenth juror and with its e

videntiary

rulings concer

ning an expert wit

ness and admi ssion o f testimony co

ncerning non-u

se of life prese

rvers by the

plaintiffs. We aff

irm. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed; and Remanded
D AVID R. F ARMER , J., delivered the opinion of the court, in which A LAN E. H IGHERS and H OLLY K. L ILLARD , J.J., joined. Thomas S. Scott, Jr. and Chris T. Cain, Knoxville, Tennessee, for the Appellants,

JoAnne Dickey and Dou glas Dic key.
Dalton L. Townsend, J. Michael Haynes and A my V. Ho llars, Knoxville, Tennessee, for the Appellees, W. Keith McCord, WKM INC., John Doe, and XYZ Corporation.
OPINION
JoAnne Dickey (Mrs. Dickey) a nd her husban d, Doug D ickey (Mr. Dickey), w ere visiting their friends, Keith Mc

Cord (Mr. McCord)

and his wife, Peg

gy McCord (

Mrs. Mc Co rd), at their condominium in the Bahamas. During their visits to the McCords’, the Dickeys ty pically spent

time fishing andboating with the McCords. This visit was no different, an d on the morning of

August 25, 199 5, t he co upl es ar ose earl y to prepare for their day’s outing. Mr. McCord arose first and obtainedreports of the local weather conditions from a Freeport radio station. He further made sensory observations of the weather and sea conditions fromhis condominium on Treasure Cay and checked the weather postings at the marina. On that morning, the skies were clear and the wind was from the southeast

at less than five mi

les per hour. The

seas were calm

with gentle wave

s of one to two feet.1 The Lost Sea was owned by M r. McCord’s business, WKM , Inc., a defendant in thi s action. -2- Around10:00 a.m., the couples departed Trea sure Cay in th

e McCord’s twenty

-six foot, center-console

boat named the Lost Sea. 1 Mr. McCord drove the boat from a channel on the inland side of Treasure Cay out into the harbor area. After le aving the no-wake zone, Mr. McCord traveled aroundthe east end of Treasure Cay and through Don’t Rock Passa ge. At Don’t Rock Passage, Mr. McCordlifted the bo at’s e ngines in order to proceed through a shallow area of shifting sand bars known as the flats. Once through the flats, Mr. McCord lowered the engines and continued towards WhaleCay Passage. Up to this point in their journey, the sea conditions had been relativ

ely calm withwaves around one

foot in height and with wavelets in the sand bar area. When the boat entered Whale Cay Passage, it encountered a very large wave that broke over the boat, causing the boa t to go under the wave. The impact of the wave hitting the boat knocked down Mr. Dic key, Mrs . Di ckey, andMrs. McCord. As a r esult of being kn

ocked down, Mrs. D

ickey fra ctured her rig

ht hip and sustained lacerations to her right forehead and chin.
The sea conditions leading up to the time of the accident are disputed. The Dickeys’ account is that the boat began to encounter four to five foot

waves and then one or two six to eight foot waves beforebeing hit by the final, large wave. The McCords’ te stimony was that there was one predec essor

wave and then, from out of nowhere, came the big wave that caused Mrs. Dicke y’ s injuries.
On August 15, 1996, the Dickeys filed an action alleging that

Mrs. Dickey sustained personal injuries and that her husband sustained derivative losses as a result of the boating accident on August 20, 1995. The Di ckeys alleged th at the accid ent and the r esulting injuries to Mrs. Dickey were caused by the negligence of Mr. McCord in his operation of

the boat, the L

ost Sea. After a lengthy trial, t he jury returned a verdict in favor of the defendants. The Dickeys filed a motion for a new trial, which was denied. This appeal followed, and t he parties raise the following issues, as we perceive them, for this Court’s review:
1. Whether

the trial court pr

operly per

formed its duty

as the thirteenth j uror in denying th

e Dickeys’ motion for a new tr ial.
2. Whether the jury’s verdict was supported by any material evidence.
3. Whether

the trial court erred in prohibi ting the Dickeys from identifying defendants’ expe

rt, Dr. Van Dorn,

as a missing witne

ss.
4. Whether

the trial court erred in l imiting the Dickeys’ cross examination of Mr. McCord regarding Dr. Van Dorn.
5. Whether

the trial court erred

in prohibiting the Dickeys from using Dr. Van Dorn’s deposition

at trial pursuant t

o Rule32.01(3) of

the Tennessee Rules of Civil Procedure.2 The court stated that the motion was base d upon three main gro unds, namely 1) that the verdict was contrary to the weight of the evidence; 2) t hat the trial court er

red in its treatment of witness, Dr. Van Dorn, for numerous reasons; and 3) that the trial court erred in allowing que stions concerning the Dickeys’ non -use of life preservers. -3- 6. Whether

the trial court er

red in deny

ing the Dickey

s’ motion i n limine to prohibit any

inquiry into th

e Dickeys’ non-use of life pr eservers. Thirteenth Juror
When acting as the thirteenth juror in con s idering a motion for a new trial, the trial court must independently weigh the evidence, determine the issues prese nted, and decide whether the jury’s verdict is supported by the evidence. See Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 717 (Tenn. Ct. App . 1999). If, after weighing the evidence, the trial cour t is satisfied with the jury’s verdict, the court

must approve the verdict. See Ridings v. Norfolk Southern Ry. Co. , 894 S.W.2d 281, 288 (Tenn. Ct. App. 1994). If, on the other hand, the trial court is not sa tisfied with the ve

rdict, it must grant a

new trial. See id. “The trial court’s performance of its function as thirteenth juror must be performed without regard to and without deference being shown to the result reached by the jury.” See id. at 288-89. An appellate court presumes the trial court properly performe d its duty as the thirteenth juror whenthe trial court approves the jury’s verdict without comment. See id. at 289. Where, as here, the trial court makes comments regardi ng the verdic

t on the record, this Court evidence, and was satisfied or dissatisfied wi th the verdict.” Miller v. Doe , 873 S.W.2d 346, 347 (Tenn. Ct. App. 1993). This Court may reverse the lower court’s jud gment and ord er a new trial only when the record contains statements that the trial court was dissatisfied

with or disapproved of the jury’s verdict or when the trial court abso lved itself of or misconstrued its function as the thirteenth juror. See id.
After hearing arguments on theDickeys’ mo tion for a new tria

l, the trial court c

onsidered this matter for several weeks. After announcing that it had reviewed the evidence pre sented, the court noted the grounds for

the motion for new t

rial. 2 In making its decision regarding the motion for new trial, the court stated:
The Co urt because of th

e length of time n

ot only of the

case but the time si

n ce th e case had been tried asked for some time to review the Court file, the Court’s notes, the exhibits. . . . And I

’ve now done thes

e things.

. . . . The Court feels that there was more than sufficient evidence to find that [Mr. M cCord] was not legally at fault and that he acted reasonably un der th e circumstances. . . .

. . . .-4- The question obviously was did [Mr. McCord] exercise reasonable care in the operation o f his wate

rcraft. That was the question presented by the case and the question submitted to the Jury; did he, in fact, obta in appropriate a

nd available information before the trip, didhe act appropriately in response to that information, didhe reasonably be [sic] aware of and observe the conditions thatexisted at the time and reasonably

react to those co

nditions. . . . based upon the testimony of people who were there the Court feels that there is more than sufficient evide nce tosupport the verdict that [Mr. McCord] was not legally at fault in this case and was not negligent in this case. . . .

. . . The Court t

hen a pproves the verdict in this case and asks that an order be submitted indicating that. Although the trial judge d id not specificall

y state that he had independently weighed the evidence, our review of his

comments in toto convince us that he did so. Accordingly, we affirm the denial of the Dickey

s’ motion for a new

trial. Jury’s Verdict
When jury trials

are involved, our

task is to determine whether there is any material evidence to support the jury’s verdict. See Harper v. Watkin s , 670 S.W.2d 611, 631 (Tenn. Ct. App. 1983); Lassetter v. Henson , 588 S.W.2d 315, 317 (Tenn. Ct. App. 1979); see also Tenn. R. App. P. 13(d). Moreover, “we must take the strongest legitimate view of all the evide nce to uphol d the verdict,
assume the truth of all tha

t tends to support it and discard all to the contrary. We are bound to allow all reasonable inferencesto sustain the verdict, and, if there is any material evidence to support the verdict, we must affirm.” See Harper , 670 S.W.2d at 631. We do notreweigh the evidence. See Electric Power Bd. v. St. Joseph Valley Structural SteelCorp. , 691 S.W.2d 522, 526 (Tenn. 1985).
Over the course of this

trial, six witnesses were called to testify regarding their opinions on how the wave materialized: Mr. Dickey, Mrs. Dickey , Dr. Jacob us Van d e Kreeke (Dr. Van de Kreeke), Jack Riggleman (Mr. Riggleman), Mr. McCord, and Mrs. McCord. Mr. Dickey testified that the parties experienced a five minute period

of four to five foot waves, followed by one or two six to eight foot waves, before encountering th e last wave. Mrs. Dickey testified that they experienced

rolling waves which increased in size as the boat moved forward, wi th the last wave being the biggest of

all. Mr. McCord tes

tified that they

experienced wav

es of a foot and a half or less when they were passing through the sand bar area and then an unusual wave popped up, like a bending sheet of paper, from out of nowhere. Mrs. McCord testified that, after going throug h the WhaleCay Channel

, the part ies exp eri ence d on e wav e th at t he b oat wen t ov er an d th en s udd enl y a huge wall of water came towards them that the boat went through. The Dickeys and the McCords were the only

passengers on t

he boat at the time o

f the accident.3 Dr. Van de K reeke testified th at a freak wave is a wave that is t wo to two and a half times as large as t he significant

wave heig

ht. Si gnifi cant wave

height was defi ned as the

average of

the one-third l

argest waves. Dr.

Van de Kreeke also referred to a scientific pub lication autho red by a D r. Peregrin which discuss ed the causesof freak waves. Amongst those causes wer e topographical re

f ra ction, diffraction and reflection on different sca les, a comb ination of swell and wind seas, an

d the response of a

wave field t

o a turning wi

nd field such

as a hurrican

e. -5- In support of their theory that the waves gradually increased, the Dickeys called two expert wi t nesses, Dr. Van de Kreeke and Jack Riggleman. Dr. Van de Kreeke testified at length to the scientific terminology

associated with w

aves and to their c

ausation. Furthe

r, he testified tha

t, inhis opinion, the wave climate in the Whale CayPassage at the ti me of the accide

nt was waves of a

ll sizes and that amongst them was this one big wave. He o pined that the waves were the result of HurricaneFelix, which, at the time, was located in Bermuda. Although Dr. Van de Kreeke testified that a lone wave occurring in an otherwise calm sea was only possible when t here was seismic act ivi ty, he later admitted that a freak wave 3 not caused by a hurricane or earthquake c

ould occur in any random setting. The Dickeys’ other expert, Mr. Riggleman, te stified that, in his opinion, the parties either experienced a gradual buildup in wave height with a big increase at the end or a straight line progressio n of buildi ng w aves, depending on the circumstances at the time. Mr. Riggleman admitted, however, that

the only people who truly knew what was e xperienced werethe people in the boat. After hearing all of the testimony presented a t trial, the j ury returned a verdict for the defendants. Expertopinions, at least when dealing with highly com plicated and sc ientific matters,
are not ordinarily conclusive in the s ense that t hey must be accepted as true on the subject of their

testimony, but are

purely adv

isory in cha

racter and the t

rier of facts may place whatever

weight it choose

s upon such testimony

and may rej ect it, if it finds that it is inconsistent with the facts in the case or otherwise unreasonable. Even in those instances in which no opposing expert evidence is offered, the trier of facts is still bound to decide the issue uponits own fair judgment, assisted by the expert tes tim ony. . . . this is especially true when the opinion . . . amounts to no more than prediction or speculation.
Gibson v. Ferguson , 562 S.W.2d 188, 189-9 0 (Tenn. 1976) (c

it ing Act-O-Lan e Gas Serv. Co. v. Hall , 248 S.W.2d 398 (Tenn. Ct. App. 1951)). A ju

ry is not bound

to accept an expe

rt wit ness’ s testimony as true. Taking the stronge st leg itimate view of all the evidence to uphold the verdict, while assuming the truth of all that tends to support it and discarding all to the contrary, we find that the record d

oes, in fact, contain material evidence to support the jury’s verdict. Accor dingly, we uphold the jury’s verdict for the d

efendants.-6- Dr. Van Dorn
On June 30, 1999, the defendants in this action identified

, in their suppleme

ntal answer to the Dickeys’ interrogatories, oceanog rapher, William G. Van Dorn (D r. Van Dorn) , as an expert witness whom they expe

cted to call at tri

al. At a pre-trial hearing, the defendants informed the court that they did not intend to call Dr. Van Dorn as a witness at trial. Defendants then moved the court to prohibit any

use of or reference to Dr. Van Dorn’s August 30, 1999, discovery deposition pursuant to Rule 32.01 of the Tennessee Rules of Civil Procedure. The trial court ruled tha t Dr. Van Dorn could not be mentioned in the presence of the jury and that the court would addres s the p articular issues relating to Dr. Van Dorn ’s involve ment in th e case as they aros e during the course of trial. On appeal, the Dickeys’ assert error with the trial court’s ruling regarding Dr. Van Dorn in three respects: 1) its prohibiting the Dickey s from identify

ing Dr. Van Dor

n as a missing witne

ss; 2) its limiting the Dickeys’ cross-examination of Mr. McCord regarding Dr. Van Dor n; and 3) its prohibiting the Dickeys from using Dr. Van Dorn’s discovery deposition attrial. We will addre ss each issue in turn. A. Missing Witness The missing witne

ss rule provides th

at [f]ailure of a par

ty to cal l an availab le witness possessin g peculiar kn owledge concerning the facts es sential to a party’s case, d irect or rebu tting, or to examine such witness as to the facts co vered by hi

s spec ial knowledge, e

specially if

the witness would naturally b

e favorable to th

e party’s c

ontention, rely

ing in stead upon the evidenceof witnesses less familiar with the matter, gives rise to an inference that the testimonyof such uninterrogated witness would not sustain the con tention of the part y. No such inference arises where the only object of calling such witness would be to produce corroborative, cumulative, or possibly unnecessary evidence; or when an adverse inference would be improper for any other reason . . . .
Stevens v. Moore , 139 S.W.2d 710, 717 (Tenn. Ct. App. 1940) (ci tation omitted); see also State v. Francis , 669 S.W.2d 85, 88-90 (Tenn. 1984). As a prere quisite t o commenting on a missing wit ness, the evidence must show “that the witness had knowledge of material facts, t hat a relationship

exists between the witness and the party that would naturally incline

the witness to favor the party and that

the missing witness was available to the process of the Court for the trial.” Delk v. State , 590 S.W.2d 435, 440 (Tenn. 1979).
The mere fact that a party fails to produce a particular person who m ay have some knowledge of

the facts involved

does not justify

application of the

inference ag

ainst him. However, when i

t can be said

“with reasonable assurance that it would have been natural for a party to have called the absent witness but for some apprehension about his testimony,” an inference may be drawn by the

jury that the

testimony wou

ld have been unfavorable.4 In their supplement al answer

to int errogator

ies propoun

ded by the Dickeys,

the defendants

claim that

Dr. Van Dorn was to testify that the wave clim ate describ ed by M r. McC ord was statistica lly probable in that a single large wave could have emerged from a rel atively calm sea. Dr. Van Dorn testified in his deposition, howe ver, that the Dickeys’ version of events was more likel y to have occurred t

han the McCords’ version.This same test imony was eli

cited at tr

ial from the Dickeys’ expert, Dr. Van de Kreeke, when he testified that a fr eak wave could occur in any random setting, but that he believed that

the Dickeys’ version of events, that the wave climate in t he Whale Cay Passage at the time of the accident wa s waves of all size s and that am ongst them w as this one big w ave, was acc urate. -7- Francis , 669 S.W.2d at 88-89 (ci ting Burgess v. United States , 440 F.2d226, 237 (D.C.Cir. 1970)). The missing witness ru

le is premised on the

idea that “the absent witness, if produced, would have made an intelligent statement about what was observed.” Id. at 89.
The Dickeys claim that they should have been allowed to identify Dr. Van Dorn as a missing witness. We disagree. In order to identify a witness as missing, t he witness must have k nowledge of material facts. Dr. Van Dorn was not present in the boat at the tim

e of the acciden

t; thus, he did notpossess knowledge of how the wave materialized, a fact material to this dispute. Further, as Dr. Van Dor n wa s to tes tif y, if called, to his prediction of the wave climat e in the Wha le Cay Passage at the time of the accident, evidence already entere d at trial through the Dickeys’ e xperts, 4 we find that Dr. Van Dorn ’s testimony w ould have been co

rroborative or c

umulative at best.
For the foregoingreasons, weaffirm the trial court’s decision prohibiting the Dickeys from identifying

Dr. Van Dorn as a missing witness. We note, however, that the trial court premi

sed its decision on an erroneous belief that the missing witnes s rule does not app ly to experts,

when, in fact, it does indeed apply to expert witnesses. See Scripps-Howard Broad. Co., Inc. v. Regency Elecs., In c. , 765 F.2d 146, 146 (6th Cir. 1985). However, where a trial court rules correctly , y et fo r erroneous reasons, this Cour t will sustain its

ruling upon what w

e conceive to

be a c orr ect the ory. See Cannon Mills, Inc. v. Spivey , 346 S.W.2d 266, 272 (Tenn. 1961).
B. Cross-Examination
At trial, the Dickeys attempted to cross-examine Mr. McCord on the basis of his testimony concerning the term “freak” or “rogue” wave, believing that Mr. McC ord’s te stimony was influenced by conversations had with or information received from Dr. Van Dorn: Q.: Well, have yo

u read any

thing about rog

ue waves since th

is accident?
A.: I have as I explained

- - yes, as I told y

ou, I have learned and found that there
are conc epts of Ithink the more technical name is freak waves or sneak
waves. The Bahamian name is a rogue wave. And I have inquired about that and tried to find out about it. . . .

. . . .-8-

Q.: In this whole deposition . . . you n ever used the word freak any where, did you?
A.: I don’t know whether I did or not. I don’t know the distinction to

this day between a freak wave and a sneak wave and a rog ue wave. Q.: Did

you not rea

d material in this c

ase giving the

te ch nical definition of a freak wave as being a

wave that was at l

east two to two and o

ne half times the significant

wave height of any particular wave, g roup of waves that you observe?
A.: I read - - I

heard of that con

cept. Q.: Mr. . . . McCord, you had an oceanographer in your condo in August of 1999, didn’ t yo u?
At a conference at the bench upon Mr. McCord’s objection, the Dickeys’ counsel asserted that he had the right to ask the question concerning the oceanographer (Dr. Van Dorn) after Mr. McCordtestifi ed about his knowledge of rogue waves or lack thereof. I n response, the court sustained the defendan ts’ object ion, stati ng [Mr. McCord’s] opinion or anything else about that has nothing to do with anything. He didn’t even express an opinionabout that until you asked him about it, and you cannot set up a thing in that manner. An d, besides, his opin

ion of that is meanin

gless in the context of this ca

se
. He’s simply testifying about what he obser ved and not offered to give any explanation about how it might

have happened. So, therefore, the objection is sustained . . . .
Counsel for the Dic

keys at no tim

e attempted to

make an offer of

proof to preserve Mr. McCord’s testimony for the record. Generally in Tennessee, a trial court’s ruling on the admissibility of evidence is within

the sound discretion of the

trial judge. Fu

rther, trial cour

ts are accorde

d a wide degre

e of latitude in the

ir determination of whether to admit or exclude evidence, even if suc h evidence would be relevant. A trial court’s evidentiary ruling will only be overturned on appeal upon a showi ng of abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992)(citations omitted). According to

Rule 103 of the Tennessee Rules of Evidence, a party cannot claim error upon
a trial court’s ruling excluding evidence unless “a substantial right of the party is affected, and . . . (2) Offer of

proof . In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent fro m th e con tex t.” Ten n. R . Ev id. 103 . Ad dit ion all y, where an appellant fails to make an-9-

offer of proof, this Court will not reverse a trial court’s evidentiary ruling. See Shepherd v. Per kins Builders , 968 S.W.2d 832, 834 (Tenn. Ct. App. 1997).
Because we find that the Dickeys did not make an offer of proof and bec ause we also find that the trial judge did not abus e his discretion in limiting the cross-examination of Mr. McCord as it related to Dr. Van Dorn, we affirm the trial court’s evidentiary ruling to exclude such testimony by Mr. McCord. C. Deposition
On appeal, the Dick

eys argu e that the trial court erred by prohibiting them from using Dr. Van Dorn’s deposition at trial, pursuant to Rule 32.01(3) of the Tennessee Rules of Civil Procedure, to impeach the McCords’ testimony and their theory of the accident. Rule 32.01(3) of the Tennessee Rules of Civil Proce

dure provides as

follows:
The deposition of

a witness, whether or not a p arty, may be used by a

ny party for any purpose if the court finds: (A) that the witness is d ead; or (B) tha

t the witness is at a greater distance than 100 miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify be

cause of age, illness, infirmity, or imprisonment; or that (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena or the witness is exempt from subpoena to trial under T.C.A. § 24-9-101; or (E) upon application and notice, that su ch exceptio

nal circum stances exist as to ma ke it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used. Notwithstand ing the foregoing provisions, depositions of expe rts taken pursuant to the provisio

ns of Rule 26. 02(4) may not be used at the tria l except to impeach in accordance with the provisions of Rule 32.01(1).
Tenn. R. Civ. P. 32.01(3) (e mphasis added). Ru

le 32.01(1) of th

e Tennes see Rules of Civil Procedurestates that “[a]ny deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.” Tenn. R. Civ. P. 32.01(1) (emphasis added). This restriction applies to discovery depositions of an adversary’s expert. See Tenn. R. Civ. P. 32.01 advisory co

mmission cmt. to 1986 a

mendment. Reading the language of subsections (1) and (3) of Rule 32.01 c

oncurrently

, this Court finds that the rule regarding the use of expert depositions at trial is clear: An e xpe rt’ s de pos iti on m ay only be used at trial to impeach the testimony of the expert as a witness. See also White v. Vanderbilt Univ. , 21 S.W.3d 215, 226 (Tenn. Ct. App. 1999 ). Because Dr. Van Dorn was not called as a witness at trial, his deposition could notbe u sed for any p urp ose . Ac cord ingl y, we affirm the trial court’s decision on this matter.-10- Life Preserver

s
The Dickeys co

ntend that the tria

l court erred in d

enying the

ir motion in

limine which sought to preclude questioning either of them about their use or non-use of life pres erver s. T he D ick eys argue that the trial court should n ot have permitted

the defendants to

inquire into

the use or non-use of life preservers as such testimony was not relevant pursuant to Rules 401 and 402 of the Tennessee Rules of Evidence. Ge

nerally, Ru

le 402 states t hat all relevant e vidence is admissib

le while irrelevant ev idence is inadmissible. Rule 401 defines relevant evidence as “evidence having any tendency to make the existenc

e of any fa

ct that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401.

In this case, the determinative factua l issue was how the wave that caused Mrs. Dickey’s injuries emerged. The next question, accor

ding to Rule 401 of t

he Tennessee Rul

es of Evidence, i

s whether the Dickeys’ states of mind tended to make the existence of the wave theor

ies more probable or less probable thanthey would have been without the evidence. In th e in sta nt c ase, the Dic keys and the McCords disagree regarding the wave climate in the Whale Cay Passage at

the time of the accident. The Dickey

s assert that the w

aves graduall

y increased while the McCords assert that the
wave popped up out of a relatively calm sea

. In analyzing these two theories, this Court can understand the re

levance of the te

stimony conc

erning the use

or non-use of the

life preserver

s. At first glance, such te

stimony conc

erning the non-

use of life preservers by the Dickey s lends support to the McCords’ version that the wa ve suddenly

emerged from out of nowhere. However, further contemplation re

veals that the Dic

keys’ non-use of life preservers does not negate their version of events. The Dickeys’ testified that they experienc ed a gradual build up of waves as they traveled through the Whale Cay Passage, but they did nottestify that they saw the last, large wave coming from a distance. Rather, they

testified that they experienced a gradual build up of waves, and after going over one to t wo six to e ight foot wa ves, they then e ncountered the last, l arge wave. I n this respect, the testimony concerning the non-use of life preservers does not tend to make the evidence concerning the wav e climate more probable or less probable. Again, however, the admission or
e xclusion of evidence at trial is within the sound discretion of the trial court and will not b e overturned

absent a finding

of abuse of such discretion. See Otis v. Cambridge M ut. Fire Ins. Co. , 850 S.W.2d 439, 442 (Tenn. 1992). Additional ly, “[a]ppella

te courtsshould permit a discretionary decision to stand if reasonable judicial minds can differ conc erning itssoundness.” White v. Vanderbilt

Univ. , 21 S.W.3d 215, 223 (Tenn. C t. App. 199 9)(citing Overstreet v. Shoney’s, Inc. , 4 S.W .3d 694, 709 (Tenn. Ct. App. 1999)). As

the foregoing

discussion demonstr

ate s tha t reasonable

judicial minds could

differ concerning whether to admit or exclude the testimony concerning the use or non-use of life preserve rs, and because we find that the trial court did not abuse its d is cretion, we affirm the trial court’s decision to admit the testimony concerning life preservers.-11- Conclusion
For the foregoing reasons, we affirm the trial court in all respects. The costs of this appeal
are taxed tothe appellants, JoAn ne Dickey a

nd Doug Dickey

, and their surety, for which execution may i ssu e ifnece ssa ry.

___________________________________ DAVID R. FARMER, JUDGE