1

FILED

October 20, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

DIANE F. DECKER and ) C/A NO. 03A01-9704-CV-00143

GEORGE H. DECKER, )

)

Plaintiffs-Appellants, )

)

) 

v. ) APPEAL AS OF RIGHT FROM THE

) KNOX COUNTY CIRCUIT COURT

)

)

)

SUSAN E. OROSZ and )

ERIC J. BERGMAN, )

) HONORABLE DALE C. WORKMAN,

Defendants-Appellees. ) JUDGE

For Appellants For Appellees

W. MORRIS KIZER KEITH F. BLUE

Gentry, Tipton, Kizer & McLemore Jenkins & Jenkins

Knoxville, Tennessee Knoxville, Tennessee

O P I N I O N

VACATED AND REMANDED Susano, J.
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In its present posture, this is a negligence action by

the original plaintiffs seeking damages allegedly arising out of

a two-vehicle accident at the intersection of Cumberland Avenue

and Stadium Drive in Knoxville. The jury returned a verdict in

favor of the defendants, Susan E. Orosz and her husband, Eric

Bergman. The plaintiffs, Diane F. Decker and her husband, George

H. Decker, appealed, raising the following issues:

1. Did the trial court err in denying the

Deckers’ motion for directed verdict on the

issue of Ms. Orosz’ liability?

2. Did the trial court err in denying the

Deckers’ motion to set aside the judgment and

to have judgment entered in accordance with

their motion for directed verdict?

3. Did the trial court err in denying the

Deckers’ motion for new trial?

4. Is there any material evidence to support

the special verdict of the jury that Ms.

Orosz was not negligent?

For ease of reference, the two drivers involved in the accident,

Ms. Decker and Ms. Orosz, will be referred to, respectively, as

“the plaintiff” and “the defendant.”

The accident occurred shortly before 9:00 a.m. on March

29, 1994. The plaintiff, a student at the University of

Tennessee-Knoxville, was on her way to class; the defendant, an

employee at the College of Veterinary Medicine on the same

campus, was going to work. Both were proceeding west on

Cumberland Avenue. The plaintiff was in the left-hand turn lane,

intending to turn left onto Stadium Drive. The defendant was

immediately to the right of the plaintiff, in a lane for vehicles

proceeding straight ahead. She had originally intended to go
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Ms. Orosz’s husband, Eric Bergman, was sued on the theory that she was

driving a family purpose vehicle. The defendant and her husband admitted this

fact at trial.

2

The defendant and her husband have not appealed this ruling.

3

straight, but changed her mind, after which she turned into the

plaintiff’s lane of traffic, striking the right front part of the

plaintiff’s vehicle.

The plaintiff sued the defendant1 for damages. The

defendant and her husband filed a counterclaim for damages. At

the conclusion of all the proof, the plaintiff moved for a

directed verdict “on the issue of liability.” The trial court

granted the plaintiff’s motion as to the counterclaim, finding no

evidence of negligence on the part of the plaintiff.2 The trial

court denied the motion as to the original complaint, remarking

that “[t]he jury’s got to decide whether this defendant was

negligent.”

We will address first the failure of the trial court to

grant the plaintiff’s motion for a directed verdict on the issue

of the defendant’s liability.

The standards applicable to a court’s evaluation of a

motion for directed verdict in a negligence case are well

established. In Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994),

the Supreme Court had occasion to state these standards:

In ruling on the motion, the court must take

the strongest legitimate view of the evidence

in favor of the non-moving party. In other

words, the court must remove any conflict in

the evidence by construing it in the light

most favorable to the non-movant and

discarding all countervailing evidence. The
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court may grant the motion only if, after

assessing the evidence according to the

foregoing standards, it determines that

reasonable minds could not differ as to the

conclusions to be drawn from the evidence. 

(Citations omitted.) If there is any doubt

as to the proper conclusions to be drawn from

the evidence, the motion must be denied.

(Citation omitted.)

Id. at 590.

In the instant case, the plaintiff alleges, among other

acts of negligence, that the defendant violated certain statutes,

which are as follows:

Whenever any roadway has been divided into

two (2) or more clearly marked lanes for

traffic, the following rules, in addition to

all others consistent herewith, shall apply:

(1) A vehicle shall be driven as nearly as

practicable entirely within a single lane and

shall not be moved from such lane until the

driver has first ascertained that such

movement can be made with safety;...

T.C.A. § 55-8-123.

No person shall...turn a vehicle from a

direct course or move right or left upon a

roadway, unless and until such movement can

be made with reasonable safety.

T.C.A. § 55-8-142(a).

Every driver who intends to start, stop or

turn, or partly turn from a direct line,

shall first see that such movement can be

made in safety,...
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T.C.A. § 55-8-143(a). It was and is the plaintiff’s position

that the defendant violated these code sections and that her

violations were the proximate cause of the accident and the

injuries and damages claimed by the plaintiff and her husband.

The plaintiff and the defendant were the only witnesses

to the accident; however, neither party saw the other before

their cars collided. The plaintiff testified that as she

approached the intersection in the left-hand turn lane, she

observed that the traffic light at the intersection was red. She

said that she had almost brought her car to a complete stop when

it was struck in the right front side by the left front of the

defendant’s vehicle. The parties agree that after the collision,

the plaintiff’s vehicle was still in the turn lane and the

defendant’s vehicle was partly in the turn lane and partly in the

through-traffic lane.

The defendant admitted that the “driver’s side front

corner of [her] vehicle collided with the passenger side front

wheel and front fender of [the plaintiff’s] vehicle.” When asked

if she could tell the jury anything that the plaintiff had done

to cause the accident, the defendant responded, “[n]o, sir, I

can’t.”

The plaintiff testified that the defendant volunteered

at the scene of the accident that the collision was her fault. 

When asked about this at trial, the defendant responded:

I don’t know if I implied it or if I said it. 

Honestly, I don’t.
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The defendant testified regarding what took place when

she made a decision to turn left at Stadium Drive rather than

going straight through the intersection:

Q. And upon deciding you’re going to make a

left on Stadium, are you moving or stopped at

that point, as you’re thinking about this?

A. I was -- I was at a complete stop.

Q. And in what lane?

A. I was in the left-hand [through-traffic]

lane.

* * *

Q. All right, And what did you do then once

you changed your mind and you were going to

make a left onto Stadium Drive.

A. Okay, after -- I remember after I looked

at the clock and made the decision, then I

put my blinker on to get into the left-hand

turn lane. Then I looked into the --

Q. Which blinker did you put on?

A. My left.

Q. All right.

A. Okay, then I looked into the rear view

mirror and looked straight behind me and I

did not see anyone coming. Then I looked in

the mirror on the left by the driver’s seat,

didn’t see anyone there, and then gave a

quick glance up ahead, still didn’t see

anyone, and then slowly took my foot off the

clutch so I could go into this lane. So, I

had just started turning the wheel of the

car, and taking my foot off the clutch when

the accident occurred.

When the defendant made her decision to change lanes, she was

stopped behind other traffic in the through-traffic lane, waiting

for the red light to change.
3

For example, in taking this view of the evidence, we have ignored Ms.

Decker’s testimony that the defendant admitted fault at the scene of the

accident. A reasonable inference from Ms. Orosz’ testimony is that she did not

intend to admit fault.

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When the evidence is viewed “in the light most

favorable to the non-movant,”3 i.e., the defendant, see Eaton,

891 S.W.2d at 590, it is subject to only one reasonable

interpretation -- the defendant changed lanes at a time when such

a movement could not “be made with reasonable safety.” See

T.C.A. § 55-8-142(a). It is obvious to us, as the plaintiff

argues, that the defendant was negligent in failing to make sure

that the plaintiff was not in her “blind spot.” Before making

her lane change, the defendant checked her back and side mirrors;

what she failed to do was look back over her left shoulder to

assured herself that a vehicle was not to her left in the area

that could not be viewed through the side and back mirrors. This

was a clear violation of T.C.A. § 55-8-142(a). That violation

was the proximate cause of the collision between the two cars.

In this case, it was conceded by the defendant, and

found by the trial court, that the plaintiff was not guilty of

any negligence. Thus, logically, we are presented with an

accident that was either caused by the defendant’s negligence or

was unavoidable in nature. An “unavoidable accident” has been

defined by this court as follows:

An unavoidable or inevitable accident is such

an occurrence or happening as, under all

attendant circumstances and conditions, could

not have been foreseen or anticipated in the

exercise of ordinary care as the proximate

cause of injury by any of the parties

concerned. In other words, where there is no

evidence that the operator of the motor

vehicle was negligent in any way, or that he

could have anticipated the resulting
4

Because of our disposition of plaintiff’s first issue, we do not find

it necessary to reach the other issues raised on this appeal.

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accident, the accident is deemed to have been

an unavoidable or inevitable one for which no

recovery may be had.

Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn.App. 1994) (citing

from 7A Am.Jur.2d, Automobiles and Highway Traffic § 397, pp.607-

08). To state the rule is to demonstrate that it does not

describe the facts in this case. When measured against this

definition, the evidence in this case cannot reasonably be

interpreted in such a way as to conclude that the collision was

unavoidable. On the contrary, it seems to us that the evidence,

even when viewed in a light most favorable to the defendant,

clearly demonstrates negligence on the part of the defendant that

proximately caused this collision. This accident could have been

avoided had the defendant ascertained that the plaintiff was to

her left in the “blind spot.” According to her testimony, she

did not do that.

We believe that the plaintiff was entitled to a

directed verdict on the issue of the defendant’s liablity.4

Accordingly, we vacate the trial court’s judgment entered on the

jury’s verdict for the defendant, and remand this case for the

entry of a verdict for the plaintiff on the issue of the

defendant’s liability, and for a new trial limited solely to the

damages, if any, to which the plaintiff and her husband are

entitled. Costs on appeal are taxed against the appellees.

__________________________

Charles D. Susano, Jr., J.
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CONCUR:

__________________________

Houston M. Goddard, P.J.

(Separate Dissenting Opinion)

Herschel P. Franks, J.