### IN THE SUPREME COURT OF TENNESS EE AT KNOXVILLE May 6, 2003 Session ROBERT FRED JONES, JR., ET AL 

### . v. VICK IDLES
Interloc utory Appeal by Per

mission fr

om the C ourt of Appe als Circuit Court for Anderson County No. 98LA0255 William E. Lantrip, Chancellor, Sitting by Interchange

No. E2001-02833-SC-S09-CV - Filed September 8, 2003

We granted

this appe al to dete

rmine whe

ther the chance llor corr ectly granted a new trial after

finding that the jury’s alloca

tion of ninety perc ent of the fault to the plaintiff s and ten p ercent

of the fa ult to the defenda

nt w as ag ainst the weight of the evidence and that the e vidence supported “a defe nse verdict for both sides.” A majority of the Court o f Appea

ls conclu ded that t

he chancellor c orrect

ly granted a new tria l on both the

plaintiff s’ claim and the defendant’s counterclaim and a ffirmed the judgment of the tri al court

. Af

te r r ev ie wi ng th e r ec or d a nd ap pl ic ab le au th or it y, we agree with the Courtof Appea

ls and hold that the chancellor properly g

ranted a new trial after finding tha t the jury’s allocation of fault was against the weigh t of the evidence in his role as the thirteenth juror. Accordingly , we affirm the judgment. Tenn. R. App.P. 9 Inte rlocutor y Appeal; J

udgment of the Cour

t of Appeals A ffirmed
E. R IL EY A NDERSON , J., delivered the opinion of the court, in which F RANK F. D ROWOT A , III, C.J., and A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W IL LI AM M. B ARKER , JJ., joined. Jerry Shattuck, Clinton, Te

nnessee , for the

appella nt, Vick I dles.
Terrill L. Adkin s, Kno xvi lle, T ennes see, fo r the ap pelle es, Ro bert Fr ed Jo nes an d Virgi nia Leigh Jones.

OPINION
On March 31, 1998, at approximately 1:45 p.m., the plaintiff, Robert Fred Jones, was driving a 1988 Dodg e automob ile approaching the intersection of Charles Seivers Boulevard with L ongmire Road in Clinton, Anderson County, Tennes see. At the s ame time, the defendant, Vick I dles, was driving a 1996 GMC truck toward the same intersection, which was controlled by a traffic light. The vehicles collide d in the intersection. Thereafter, Jones and his wife, Virginia Leigh Jones, filed a1 The trial court had entered an “Order of Bifurcati on” stating that the liability issue s betw een the parties would be tried sepa rately from issues reg ardin g dam ages.

2 Idles argued that t

he trial court erred in granti ng a new trial on the Jon es’s comp laint, but he did not co ntest th e t ri al cour t’ s gr ant

of a new tr ial

on hi s co unt erc lai m. -2- complaint in the Circuit Court of

Anderson County, alleg

ing that Idles had fa

iled to stop at the red light and collided with their automobile, causing personal injuries and loss of consortium for whic h they sought damages. Idles filed a counterc laim alleging in turn that Robert Jones had run the red light and had failed to keep a proper lookout, which c aused him injuries and damages. Later, at a tr ia l o n t he is su e o f l ia bi li ty, 1 the jury allocated ninety

percent of the fault to Jones and ten percent of the fault to Idles. The chancellor entered an orde r after the verdict dismissing the complain t filed by Robert and Virgin

ia Jones and finding that the counter complaint filed by Idles was “sustained by the proof .” After a hearing on the Jones’s motion for a new tri al , however, the chancellor decided:

[A]cting as the 13t

h juror, t he Court f

inds th at the 90 p ercent, 10 percent there – I thought that they were credi ble witnesse s for both sides to b e quite honest with you. And that it would have bee n a n impossible

job for th is jury to come back with anything

but a def ense verdict for both sides of the complaint

. For that reason, and that reason alone, the Court grants a ne w trial. (Emphasis added). Likewise, the chancellor’s order gr anting the new trial stated that “the Cour t further finds, in the exerc ise of its f

unction a s the thirt

eenth juror, that neither the plaintiffs [Robert and Virgin ia Jones] nor the c ounter pl a int iff [Vick I dles] car ried the burden o f proof i n this cau se and it w ould have been an

impossible

job for the jury

to come back with

any thing but a defense verdict for both sides.” Accord

ingly , the cha

ncellor granted a new tr

ial “with all issues in the Complaint and Counter Complaint to be retried.”
Idles filed an application for interlocutory review, which

was granted by

both the Chancery Courtand the Court of Appeals. Tenn. R. App. P. 9. 2 After a rgumen t, a major ity of the Cou rt of Appeals held that the chancellor correctly granted b oth partie s a new trial after finding that the chancellor

disagreed with the jury ’s verdi ct in his ca pacity as the thir

teenth ju ror. The dissent, howe ver, concluded that Robert and Virginia Jones failed to establish any basis for relief under comparative fault principles because the jury ’s verdict and the chancellor’s findings indica ted that Robert Jones was at least fifty per cent or more at fault. We granted the defendant’s applica tion for permission to appeal.3 W e disting uished a tri al court’s statut ory authority to correct an award of damages through remitti tur and

add itur pro ced ures. Turner , 957 S. W.2d at 824. -3- ANALYSIS
The d efendant, Vick Idle s, argues that the plaintiffs, Robert and Virginia Jones, wer e not entitled to a new trial because they failed to establish any

basis for relief o n their

complaint. Idles reasons that because the jury found that

Robert Jones was ninety perce ntat fault and the chancellor implicitly found that Jones was at least fifty per cent at fault, the plaintiffs are not entitled to a second op po rtunity

to establish that their percentage of fa ult was less than fifty per cent to recover under comparative fault principles. See McInty re v. Balentine , 833 S. W. 2d 52 (T en n. 19 92 ). Co nv er se ly, the plaintiff

s argue that the chancell or prope rly granted a new tr

ial beca use a tr ial cour t is not allowedto reallocate the percentag es of fault determined by the jury once it disag

rees with the weight of the evidence as the thirteenth juror. See Tenn. R. Civ. P. 59.06.
In McIn tyr e v. Bal enti ne , 833 S.W.2d 52 (Tenn. 1992) , this Court adopted a system of modified comparative fault under which a trier of fact must apportion fault among the parties to a lawsuit. Under th

is sy stem, a pla

intiff ma y r ecover damage s onlywhere a trier of fact deter mines that the plain tiff’s pe rcenta ge of f ault is less than that of the defendant, and the plaintiff’s recovery of damages must bereduced in proportion to his or her percentag e of fault. McInty re , 833 S.W.2d at 57. In contrast, a plaintiff who has been determined by the trier of f

act to be fifty pe

rcent or more at fault may not recover any damages at all. Id.
In Turner v. Jordan , 957 S.W.2d 8 15 (Tenn . 1997), th is Court determinedthat a trial court may not reallocate th

e perce ntagesof fault

th at ha ve be en de te rm in ed by a jury under the pr inciples adopted in Mc Int rye
. Turner , 957 S.W.2d a t 823-24. We

reasoned that [s]ince liability

is inextric ably

bound up w it h the ap portionment of damages under the

doctrine of comp arati ve negligence, this matter must be left to the jury. When

the percentages of liability are contra ry to the manifest weight of

the evidence, the trialcourt mus t treat th is defect as an error in the finding of liability itself.
Id. at 824 (quot ing Rowlands v. Signal Const. Co. , 549 So.2d 1380, 1382-83 (Fla. 1989)). 3 Ac co rd in gl y, we concluded that where a trial court disag rees with the weight of the evidence in its roleas the thirteenth juror, the “only remedy is to order

a new trial on all issues affected by the error.” Turner , 957 S.W.2d at 824.
The Court of A

ppeals properl

y a pplied the se principles in Fye v. K ennedy , 991 S.W.2d 754 (Tenn. Ct. App. 19 98), a ca se in which the

jury allocated ninety

percen t of the fa ult to a defendant who had settled with the plaintiff, one percent of the fault to a co-defendant, and nine perc ent of the fault to the plaintiff’s decede nt. The tr ial cour t upheld th

e jury ’s ninety

percen t allocat ion of fa ult to the settling defendant but ordered a new trial to reapportion fault between the co-defe ndant and4 As the Court of Appeals correctly observed, the tri al c ourt ’s rul ing was ma de pri or to thi s Court ’s decis ion

in Turner

. -4- the plaintiff’s decedent. The Court of Appeals observed that the trial court’s ruling violated Turner because it effectively

realloc ated the

jury ’s deter

mination of

the co-d efenda nt’s fault : We believe

that Turner precl udes even a partial reallocation of a jury’s finding

as to comp arative fault. Under Turner , a trial judge, who, in his or her role as the thirt ee nth juror , cannot a pprove so me part of the jury’s de

termination with respect to comp arative fault is limited to granting a new trial. Fye , 991 S.W.2d at 762. 4 In our view, the Court of Appeals’ majority correctly applied the Turner

and Fye decisions in the present case. The chance llor reviewed

the evidence in his role of thirteenth juror and clea rly found that the jury’s ver

dict was not supported by the we ight of the evidence; indeed, the chancellor twice stated that the evidence only “supported a defense verdict” on the com p laint and the counter claim. Although the chance llor did no t make specific finding s, he orde red a new trial on

“all issues in the Complai nt and [the] Counter Complaint.” In short, the chancellor’s actions as the thirteenth juror were consistent with Turner

. Idle s’ argument that the c ha ncellor erred i n gran

ting a ne w trial to b oth him and

Jones is misplaced. First, there is no reasonable basis upon which to conclude that I dles is entitled to a new trial on the cou

ntercla im but that Ro

bert and Virgini a Jones are not entitle d to a new trial on th

eir complain t. Such a conclusion would require this Court to accept the c hancellor’s finding that the plaintiffs failed to

establish their claim but ignore the chancellor’s identical finding that Idles failed to establish

his counter

claim. Mor

eover, a s the Court

of Appea ls’ majority correctly observed, suc h a holding w ould likely

result in two separate trials before two separa te juries allocating fault in the samecase between the same twoparties with the potential for fault exceedingone hundr ed perc ent. In short, the gra

nting of a new trial for both parties under Turner prevent s these a

bsurd re sults.
We also disagree with the Court of Appeals’ dissenting vie w that the proceduralposture of this case warrants a differe nt rule than that expre ssed in Turner . On the contrary , once the chancellor found that the jury’s verdict was against the weight of the evidenc e, the defect was an “error in the finding of liability itself.” Turner , 957 S.W.2d a t 824. The

premise t

hat th e chan cellor found Robert Jones to be atleast fifty per cent at fault is inherently fla

wed since a trial court, after finding that a jury ’s verdi ct is ag ainst the weig ht of the e vidence in its capa

city as a thirteenth juror, may not go further and reallocate the fault. Moreover, any

inference that the jury

and the chancellor found that the claim was not established under comparative fault principles ca nnot be drawn. Si mi la rl y, granting a new trial to both parties does not disturb the integrity of

the jury’s ver

dict given that the jury’s verdict was found by the chancellor to be agains t the weight o f the evidence and therefore-5-

flawed. Instead, gra

nting a new trial to both parties will permit a jury to consider the evidence and determine the liab ility

issues be tween the parties u nder com parativ e fault p

rinciple s. Ac co rd in gl y, we reiterate our conclusion expressed in earlier cases that where a trial court acting as the thirteenth juror finds that the jury ’s allocation of fault is unsupported by the weight of the evide nce, the only remedy is the g

ranting of a new trial. The trial court may not reallocate the percentages of fault between the parties either in whole or in par t. The chancellor correctly granted a new trial in the present case.
CONCLUSION
After reviewing the record and a pplicabl e authority , we ag ree with the Court o f Appea

ls’ majority and hold th at a new

trial must

be granted whenever the

trial court, a

cting a s the thirt

eenth juror, disagr

ees with a jury ’s compa

rative f ault alloc ation. We th

erefor e affir m the judgment. Costs of th e a pp ea l a re ta xe d t o t he ap pe ll an t, Vi ck Idl es , f or wh ic h e xe cu ti on sh al l i ss ue if ne ce ss ar y.

___________________________________ E. RIL EY ANDER SON, JUSTI CE