In Higgs v. Green, No. M2016-01369-COA-R3-CV (Tenn. Ct. App. May 11, 2017), the Court of Appeals affirmed a jury verdict for defendant in a car accident case.
Plaintiff and defendant were involved in a two-car accident in Brentwood. “The accident occurred as Defendant was making a left-hand turn across Plaintiff’s lane of traffic to enter a gas station when the front of Plaintiff’s vehicle collided with the rear quadrant of the passenger’s side of Defendant’s vehicle.” Plaintiff alleged in her complaint that the accident was due to defendant’s failure to yield, failure to keep a proper lookout, failure to keep his car under control, and turning without making sure it was safe to do so. Further, plaintiff cited four statutes that she alleged defendant violated, asserting that defendant had thus committed negligence per se.
The jury returned a verdict finding plaintiff 75% at fault and defendant 25% at fault, and judgment was thus entered for defendant. Plaintiff moved for a new trial, which the trial court denied, and this appeal followed. On appeal, plaintiff presented two issues, one dealing with the exclusion of certain testimony from a police officer and one dealing with potential juror misconduct.
During the trial, but while the jury was not present, the investigating officer who plaintiff planned to call as a witness was questioned. The officer testified that “he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff’s lane of traffic.” The officer further testified that defendant was not issued a citation after the accident. Despite these admissions, the officer stated that he was familiar with the area and that “there was a double-yellow line” where the accident occurred, that the double-yellow line would indicate “a continuation of a median,” and that it was illegal to turn across a median.
Defendant objected to the officer testifying about the crossing of a double-yellow line, and the trial court agreed. The court ruled that the officer could testify as to what was in his report, but that since the information about the double-yellow line was not in his report and he had no independent recollection of it, the officer could not testify that defendant crossed such a line. The Court of Appeals affirmed this testimony limitation, noting that “Plaintiff has not cited any statute or ordinance that prohibits a driver from making a left turn across a double-yellow line to enter a private drive or business entrance, and we are not aware of any such authority.” Because no applicable Tennessee law made crossing a double-yellow line while turning off the road illegal, the Court ruled that “whether Defendant made a left turn across a double-yellow line is not a ‘fact of consequence.’” Accordingly, it ruled that the trial court did not abuse its discretion by excluding testimony about the possible crossing of a double-yellow line.
The second issue addressed alleged juror misconduct. At the start of the trial, the trial court correctly instructed the jurors that they were should “not discuss the case either among themselves or with anyone else during the trial and also to keep an open mind until they have heard all of the evidence, the attorneys’ closing arguments and my final instructions concerning the law.” Plaintiff, however, filed affidavits from two different witnesses who heard jurors discussing the case before the conclusion of evidence. One witness, an alternate juror, stated that “several jurors made comments to the entire jury that part of Plaintiff’s testimony was confusing and didn’t make sense,” and that “several of the jurors commented on what they thought plaintiff meant by her testimony.” A second witness overheard two jurors discussing plaintiff, with one saying that she did not believe plaintiff was injured.
Based on these affidavits, the Court stated that it “agree[d] with Plaintiff that the jury failed to follow [the trial court’s] instructions.” It held, though, that “Plaintiff has failed to establish that this conduct more probably than not affected the outcome of the verdict or resulted in prejudice to the judicial process.” Because plaintiff had not shown all the necessary elements to prove that a new trial was warranted, the Court affirmed the denial of plaintiff’s motion for a new trial.
I wish the appellate court had discussed the law of whether the affidavits of the juror and the witness on the issue of jury misconduct. Tenn. R. Evid. 606 addresses the issue of juror affidavits; see Mayo v. Shine for a discussion of that law.