Sudden Emergency Jury Instruction Allowed Without Comparative Fault Defense

In Boshears v. Brooks, No. E2015-01915-COA-R3-CV (Tenn. Ct. App. July 6, 2016), plaintiff asserted on appeal that the trial judge had given incorrect jury instructions in the underlying jury trial. The Court of Appeals, however, affirmed.

Plaintiff was riding in a car with his girlfriend when they were hit by a vehicle driven by defendant. Defendant was 78-years-old and blind in one eye, and he had been to his doctor that day to report blurry vision. His doctor had referred him to the ER, and the accident occurred after defendant had been released from the ER. Defendant’s theory at trial was that he had a stroke while driving, “which resulted in an unforeseeable loss of consciousness leading to the accident.” Defendant presented expert testimony supporting his theory of the case. Plaintiff, on the other hand, attempted to show that defendant “had suffered vision problems for years, and that, essentially, he had no business driving on the day of the accident.” Plaintiff “attempted to cast doubt on whether [defendant] had been unconscious during the accident,” and witness statements regarding defendant’s condition after the wreck varied.

While charging the jury, the trial court included instructions on both sudden emergency and loss of consciousness. The jury instructions included the following:

…A person faced with a sudden emergency is required to act as a reasonably careful person placed in a similar position. A sudden emergency will not excuse the actions of a person whose own negligence created the emergency.

If you find there was a sudden emergency that was not caused by any fault of the person whose actions you are judging, you must consider this factor in determining and comparing fault.

A sudden loss of consciousness or physical incapacity experienced while driving which is not reasonably foreseeable is a defense to a negligent action. …To constitute a defense, the defendant must establish that the sudden loss of consciousness or physical capacity was not reasonably foreseeable to a prudent person…

After deliberation, the jury found defendant not at fault for the accident.

On appeal, plaintiff first asserted that the trial court erred in instructing the jury on sudden emergency when defendant “did not raise comparative fault.” The Court of Appeals, in analyzing this issue, noted that the Supreme Court has previously stated that the sudden emergency doctrine “has now been subsumed into Tennessee’s comparative fault scheme,” and that “the doctrine no longer constitutes a defense as a matter of law but, if at issue, must be considered as a factor in the total comparative fault analysis.” (quoting McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995)).

In addition to the language of McCall, however, the Court also relied on a 2000 Court of Appeals case wherein the Court “rejected the plaintiff’s argument that sudden emergency has no application when a defendant does not allege comparative fault on the part of the plaintiff.” (citing Ross v. Vanderbilt Univ. Med. Center, 27 S.W.3d 523 (Tenn. Ct. App. 2000)).  Considering this case and common law regarding propriety of a jury instruction, the Court ultimately held that “it was not necessary for [defendant] to plead the affirmative defense of comparative fault in order for the Trial Court to charge the jury on sudden emergency.” The Court reasoned that following plaintiff’s logic, where sudden emergency could only come into play where a defendant had alleged comparative fault, would “lead to illogical and unacceptable results.” As an example, the Court explained that if a tree fell and a defendant swerved to miss the tree but hit plaintiff, defendant could not allege comparative fault against the tree, yet sudden emergency would be an appropriate jury instruction. Accordingly, the Court found no error in this jury instruction.

Next, plaintiff argued that the trial court erred by instructing the jury on both sudden emergency and loss of consciousness, asserting that these instructions “effectively gave [defendant] two bites of the apple, so to speak.” The Court rejected plaintiff’s argument, noting that multiple theories were presented to the jury, and that these two instructions fit theories that were presented and had at least some evidence to support them. Finding no error with the trial court’s instructions, the Court affirmed the jury’s verdict.

Though the language from the Supreme Court case is a little confusing, the Court most likely ruled correctly on this issue. No Tennessee case yet has held that defendant must plead comparative fault to get an instruction on sudden emergency. It will be interesting to see whether, if plaintiff appeals, the Supreme Court takes up this matter.

One additional note here—at the very end of the opinion, the Court hinted that the plaintiff had not done enough to support his appeal in this case. The Court stated:

[T]he record before us on appeal does not reveal to us which theory the jury ultimately believed to be true. [Plaintiff] points to no specific evidence in the record that the jury was in any way misled by the jury instructions. …Even if we were to conclude that the Trial Court erred in charging both sudden emergency and loss of consciousness, we would be unable to conclude that such error impacted the outcome of the trial, and such error, therefore, would be harmless.

This is a great reminder to be sure that the record you submit on appeal is thorough and provides the evidence necessary for the Court to rule in your favor. Failure to include or cite required evidence may result in an unfavorable ruling, even if the Court agreed with your arguments.