# FILED
May 30, 1996 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

ESTER V. HAYE S and ) CALVIN HAY ES, ) HAMILTON CIR CUIT ) Plaintiffs/Appelle es ) NO. 03A01-9602- CV-00054 ) v. ) ) EUGENE P. GILY

and GEOLOGIC ) AND ENVIRO NMENTAL SERVI CES, ) INC., ) ) Defendants/Appellants ) REVERSED and R EMANDED

Paul Campbell, Jr., Chattano oga, for the Appellees. John R. Morgan, Chattanooga, fo r the Appellants.

O P I N I O N

INMAN, Se nior Jud ge This personal i njury act ion arose from an accident whi ch occurred on Interstate 75 near

Ooltewah on April 19, 199 3. The defendant Gily was dri ving a p ick-up tru ck owned by his employer northwardly on Interstate 75 en route to Kno xville. Loaded in the bed of the truck were two Rubbermaid 35-gallon containers, each abo ut three feet high with wheels on the base, and w ith a lid i n place. Accor ding to the te stimony of Gil y, the containers were secured by ropes. He checked the position of the containers periodicall y in his

rear vi ew mirr

or, and all w

as well until he cros sed the bridg e at the Lee Highway-Coll egedale ex it when he d iscovered that the contai ners were no longer in his truck. In the meantime, the plaintiff Mrs. Hayes was driving a Mercedes automobile southwardl y on the left or fast lane of the Inter

state, follow ing a truc k with tool boxes on either side. The separat ing distance is unclear, but she testifie d that she could2

not see around the truck w hich she followed in the fast lane for about three mil es. The truck suddenl y swer ved to the r ight lane w ithout sig naling - to avoid a M azda which was stopped or bar ely movi ng - and Hayes struck t he Mazda. I t was then t hat she saw a container lid “fly up” i n front of her car, and she was then struck from the rear by an automobile dri ven by Ph illips. It was not disputed that the conta iners somehow became loosen ed in Gily’s truck and were propelled into traff ic. The plaintiff alleg ed various acts of common law

and statutory

neglige nce on the part of Gily

and his employer, and alleg ed that the defendant Phil lips was negligent in failing to keep a proper lookout in the direction he was dri ving, an d failing to keep his car under control. All parties

moved for directed verdi cts. The tria l judge di rected a ve rdict for the plaintiff an d against the defend ants Gily and his employer, whose motion for a new trial being overruled, appeal and present fo r review various issues, one of which we believ

e is disposi tive, that being the req uirement that the jury fasten 1 00 percent of the fault up on Gily and his employer. Thiscas e isone of comp arat ive faul t w ithi n theambi t of McIntyre v . Balentine, 833 S.W.2d 52 (Tenn. 1992). The trial judge was of the opinion that the plaintiff was confronted wi th a sudden emerg ency and thus free of any degree of negligen ce. In McCall v

. Wilder, et al, 913 S.W .2d 150 (Tenn. 199 5) the Supreme Court held that the s udd en em ergen cy doc trine had b een subs ume d int o the comp arat ive fault scheme althou gh defi nitively reta ining its tra ditiona l meani ng, citing Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1993). Under t he evidence pr esented we thi nk the jury could rationally have found that the plaintif f Hayes was traveling too closely beh ind t he tr uck, thus obsc urin g her vis ion a nd di sabl ing he r fro m tak ing eva sive action to avoid the Maz da, conformably to the action of the t ruck driver, thereby allocatingsome degree of fault to the plainti ff. In a similar vein, the j ury mig ht rationally have considered whether the truck driver who shifted lanes sudde nly without si gnaling his intention to do so should s hare in the fault, and whether t he non-suited defendant Phi llips (1) was keepi ng a proper lookout, (2) was in control of3

his vehic le, and (3) w hether he took r easonable measures

to avoid r unning into t he rear of the Hayes automobile. In our judgment

it was error for the trial judg e to direct a verdict fastening 100 percent of the li ability upon the defendants thereby taking from thejury i ts consideration of allocatingpercentages of negligence, if the jury chose to do so. The defendants moved for di rected ver dicts also, on the theory that the proof did not reveal they were guilty of negligence in the manner in which the containers
were secu red. We agree with th e action of the tri al judge i n overrul ing this mot ion; and hold that , upo n ret rial, in th e even t the plain tif fs p revai l, th e com para tive negli genc e of the d efe nda nts s hou ld als o be a lloca ted b y the j ury. Reversed and remanded f or a new trial, with costs to the appellees.

__________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_______________________________ Don T. McMur ray, Judg e

IN THE COU RT OF A PPEA LS OF TENN ESSEEEASTERN SECTION A T KNOXVILLE

ESTER V. HAYE S and ) CALVIN HAY ES, ) HAMILTON CIR CUIT ) Plaintiffs/Appelle es ) NO. 03A01-9602- CV-00054 ) v. ) ) EUGENE P. GILY

and GEOLOGIC ) AND ENVIRO NMENTAL SERVI CES, ) INC., ) ) Defendants/Appellants ) REVERSED and R EMANDED

J U D G M E N T
This appeal came on to be heard upon the r ecord from the Ci rcuit Cour t of Hamilton County

and briefs filed on behalf of the respecti ve parties . Upon consideration thereof, this co urt is of the opi nion that there i s revers ible error in the trial cour t’s judgment. It is therefore ORDERED and ADJUDGED by this C ourt that the j udgment of the trial court is rev

ersed. Costs

are assessed to the appellee and its surety . The case is remanded to the Circuit Court of Hamilton County for further proce edings in accordance w ith the opinion of this Court andfor collecti on of costs pursuan t to app licab le law.

PER CURIAM