### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 30, 2001 Sessio

n MARTHA McELROY v. NORMA SHARP and VICTORIA L. SHARP

Direct Appeal from the Circuit Court for Knox County No. I-763-99 Hon. Dale C. Workman, Circuit Judge

FILED OCTOBER 8, 2001 No. E2000-02708-COA-R3-CV

The Trial Court alloc ated fault b etween vehicle operators involve

d in the accident.

Defendants appeal the alloc

ation. We affirm. Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Circuit Cour

t Affirmed.
H ERSCHEL P ICKENS F RANKS , J ., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Jerry M. Mar

tin, Knoxville, Tenne

ssee, for Appell

ants. B. Chase Kibler, Knoxville, Tennessee, for Appellee.

OPINION
In this action arising from a motor vehicle accident, the only issue raised on appeal is whether the Trial Jud ge properly a llocated the per

centage of fa

ult to the respecti

ve motor vehicle operators. The parties were involved in a motor vehicle accident

on January 31, 1998. Plaintiff was backing out of a private driveway onto a two lane main road, intending to travel in a westbound direction. She stopped and looked in both directions b

efore backing

out, but did not see defe

ndants’ vehicle approaching from the east. Plaintiff’s vision toward the east was obstructed by a large bush. Defendant

was traveling eastbound on the main road at 45 miles per hour, where the speed limit was 40 miles per hour. Sharp was looking down to insert a cassette into a tape player a nd did not see plaint iff’s vehic le before impact. She stated to the investigating officers that she was not pay ing attention when the impact occurred. She did not attempt to swerve or brake prior

to the impact, and neither driver’s view of the other was obstructed.-2- Plaintiff sued for her damages and defendant counter-claimed for her damages.

The Circuit Court determined that plaintiff was 45% at fau lt and defendants were 55% at fault for the accident,and judgment was entered for plaintiff in accordance with the formula for recovery under the comparative negligence doctrine. Defendants have appe aled. The scope of our review in non-jur y cases is d e novo with a presumption of correctness

of the trial court’s findings of fact, unless the evidence preponderates otherwise. Cross v. C ity of Memphis , 20 S.W.3d 642, 644 (Tenn. 2000); Tenn. R. App. P. 13(d). Generally, the determination of proximate causation is a question of fact. However, the issue may be determined by the court as a matter of law, in situations “where the facts are established by evidence free from conflict, and the inference fro m the facts is so

certain that all reasonable men, in the exercise of free andimpartial judgme

nt, must agree upon it.” Eaton v. McLain , 891 S.W.2d 587, 590 (Tenn. 1994). But cases are rare where comparative neglige nce is reviewed as a matter of law . 57B Am .Jur.2d Negligence §1282 (1989).

Evidenceweighing against the defendant in this case was the failur e of de fendant ope rator to keep a proper lookout ahead and to see what was to be seen and take proper action

. Hogan v. Reese , 1998 WL 430627, Tenn. Ct. Ap p. No. 01-A- 01-9801-CV-00023, July 31, 1998. Moreover, the consequences of a driver’s momentary diverting attention from the road has bee n held to be a factor of proximate causation. Hadley v. Morris, 249 S.W.2d 295, 298 (Tenn. Ct. App. 1951). On allocation of fault, the Eaton court outlined general principles to guide juries and trial courts: [T]he percentage of fault assi gn ed to each party should be dependent upon all the

circumstances of the case, including such factors as: (1) the relative closeness of the causal rel ation ship between the conduct of the defendant and the injury to the plaintiff; (2) the reasonableness of the party’s conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it; (3) the extent to whichthe defendant failed to reasonably

utilize an existing op

portunity to

avoid the injury to the plaintiff; (4

) the existence of

a sudden eme

rg ency requ

iring a hasty decision; (5) the significance of what the party was attempting to accomplish by the conduct, such as an attempt to save another’ s li fe; an d (6) the party’s particular capacities, such as age, maturity, training, educ ation and so forth.
Eaton , at 892 S.W.2d at 592.

The fact that one driver has the right-of-way is not, by itself, sufficient to grou n d liabi lity of the non-yielding driver as a matter of law. Right-of- way is a factor, but not the sol e determinative issue of proximate cause. Each driver has a duty to exercise due care in the operation of their vehicle

, and the neglig

ence of both driv

ers may com

bine together to

proximately

cause an accident. Nash-Wilson Funeral Home, Inc ., v. Greer, 417 S.W.2d 562 (Tenn. Ct. App. 1966).-3-

Exercise of due care requires

a driver to keep a

reasonably

careful lookout,

so as to avoid collision with persons and ot

her vehicles: If the party coming out of the driveway is violating the law, and the party driving the automobile

along the highway

is likewise violating the law, by not keeping a lookout ahead, or by not driving his car in a careful manner, . . . and both violations occur at the time of the injury

, this constitutes a

jury question, and

not one in which the Court should di rect a verdict,

because even th

ough both partie

s be violating the

law, it is still a question for the jury to determine what the proximate cause of the collision resulting in the injury

was, andthe violation of whi ch one constituted

the proximate cause, . . .

. . . The driver of

a motor vehicle has the duty to keep a proper lookout and watch where he is driving, eventho ugh h e is righ tfu lly o n th e hi ghwa y and has the righ t of way; he is bound to take notic

e of the road, to o

bse rve conditions along

the way, an

d to know what is in front of h im for a reasona

ble distance. He

must look not only straight ahead, but laterally

, to discover whet

her there is

danger of collision with the side of his car. Am.Jur. 5A Section 265.
Lowe v. Irvin , 373 S.W.2d 623, 629, 632 (Tenn. Ct. App. 1963). Similarly, failing to keep a proper lookoutand to take action to avoid the consequences of another driver’s negligence, has been held to be a failure to exercise due care. See Hale v. Rayb urn , 264 S.W.2d 230 (Tenn. Ct. App. 1953). The trier of

fact has considerable latitude in the allocation of the percenta

ge of fault in negligence cases. Wright v. City o f Knoxville , 898 S.W.2d 177, 181 (Tenn. 1995); also see Griggs v. Mixon , 1996 WL 44104, No. 02A01-9504-CV- 00087 (T enn. Ct. App. Aug. 6, 1996). In the instantcase the Judge, a

s the trier of fac

t, onerated defendant with 55% of the fault for th e accident. Defendant’s attention was diverted by her attempt to insert a cassette tape. She admitted to the officer that she wasn’t paying attention. She made no attempt to brake or swerve to avoid Mc Elroy’s vehicle. Th us, the evidence does not preponderate against the finding that despite plaintiff’s negligence

in failing to y

ield to an oncoming driver, defendants’ negligence was the g reater of the two. We find thatthe evidence does not preponderate a

gainst the Trial

Judge’s allocati

on of fault. We affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to the defendants, Norma and Victoria L. Sharp.

_________________________ H ERSCHEL P ICKENS F RANKS , J.