Day on Torts
Where a car accident defendant failed to file a motion for new trial raising certain evidentiary issues, those issues had been waived on appeal.
In Pajazetovic v. Baker, No. M2024-00372-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2025), the plaintiff was involved in a car accident. The plaintiff filed suit against the driver and the owner of the other car, and the defendant’s underinsured motorist carrier was also served.
Prior to the first trial, the defendants filed a motion in limine to exclude the plaintiff’s accident reconstructionist, arguing that his opinion was based solely on his determination of which witnesses were most credible rather than on “calculations or other scientific explanations.” The trial court denied the motion in limine, the accident reconstructionist testified, and the first trial resulted in a hung jury. The accident reconstructionist passed away before the second trial, and the trial court ruled that the expert was unavailable under Rule 804. The trial court allowed his testimony from the first trial to be used. This second trial resulted in a jury verdict for plaintiff of more than $120,000.
After the jury verdict in the second trial, the defendant at issue in this appeal (the driver) filed no post-trial motions, but instead appealed to the Court of Appeals. The issues raised on appeal centered on the original admission of the accident reconstructionist, as well as the admission of his prior testimony in the second trial.
The Court began its analysis by noting that “in all civil cases tried to a jury, any ground not cited in the motion for new trial has been waived for the purposes of appeal.” (internal citation and quotation omitted). While the defendant undisputedly failed to file a motion for new trial here, he argued that the Court should consider the issues raised because “the trial court deprived [him] of his fundamental right to cross-examine [the accident reconstructionist] under both the Tennessee and United States Constitution.” He also argued that the evidentiary rulings “undermine[d] the fairness and integrity of the trial,” and that the rulings of the trial court amounted to “plain error.”
The Court of Appeals, however, found that the defendant cited no authority supporting his position that these evidentiary rulings rose “to the level of constitutional violations.” Regarding the plain error argument, the Court first pointed out that the “Court of Criminal appeals recently indicated that plain error may be inapplicable in civil cases.” (internal citation omitted). Instead, “the proper lens to determine whether to address a waived issue in a civil appeal was under Rule 13(b) and 36(b) of the Tennessee Rules of Appellate Procedure.” (internal citation omitted).
Under Rule 13(b), the Court can “consider issues not properly presented for review in order, among other reasons: (1) to prevent needless litigation, (2) to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial process.” Under Rule 36(b), the Court can consider an issue “when necessary to do substantial justice.” In this case, none of these considerations were at play. The Court instead described the issues as “simply run-of-the-mill evidentiary issues,” and stated that the defendant’s “arguments [were] little more than an attempt to avoid the clear application of Rule 3(e).” (internal citation omitted).
Because the defendant failed to file a motion for new trial raising the issues he sought to argue on appeal, he waived those issues. The verdict for the plaintiff was affirmed, and the Court awarded the plaintiff reasonable attorney’s fees for the appeal, as the appeal “had no reasonable chance of success.”
The result in this case is no surprise to anyone familiar with the law of civil trial in Tennessee.
This opinion was released three months after oral arguments.