Runner Hit By Car Found 80% At Fault

Where a plaintiff was running in the dark with no wearable light and was hit by a car while crossing the road, the Court of Appeals affirmed a jury verdict finding plaintiff 80% at fault.

In Golden v. Powers, No. E2019-00712-COA-R3-CV (Tenn. Ct. App. Feb. 12, 2020), plaintiff and her family were visiting Hawkins County, Tennessee from Miami, Florida. Plaintiff went for a jog one morning while it was still dark, and she began by running in the same direction as traffic. When she decided to cross in order to run against traffic, she “glanced to see if any cars were coming.” While crossing, a car approached in the lane plaintiff was running towards, so she slowed down to let the car pass. She did not stop running, did not move back to the side, and did not turn around to check traffic. She was then hit by a car driven by defendant. At the scene of the accident, defendant estimated that she had been driving 50-55 mph, and the speed limit was 45 mph.

Plaintiff asserted claims of negligence and negligence per se against defendant, and the case was tried by a jury more than thirteen years after the accident occurred. Plaintiff testified that she was not carrying a light, but that there was some reflective material on her shorts and shoes. Defendant testified that while she saw the car approaching in the opposite lane, she did not see plaintiff until “she was on the hood of the car.” Both plaintiff and defendant offered expert testimony, with plaintiff’s expert opining that had defendant been driving 45 mph, the accident would not have occurred because both plaintiff and defendant would have had more time to see and avoid the accident. Defendant’s expert, however, testified that defendant was driving 40-41 mph, that plaintiff “had a better chance of see [defendant] than vice versa,” and that defendant had no way to avoid this accident.

The jury found that plaintiff sustained $300,000 in damages, which was about $60,000 more than her medical bills. The jury also found that plaintiff was 80% at fault and defendant was only 20% at fault, meaning that plaintiff could not recover any damages. Plaintiff appealed, and the Court of Appeals affirmed.

First, plaintiff alleged that the trial judge failed to act as thirteenth juror. The Court noted, though, that the trial court’s order “found that the evidence supports the verdict and then articulated its basis for so concluding.” The Court stated that it was “the trial court’s prerogative” to only cite evidence that was favorable to defendant and pointed out that “trials are inherently about deciding issues in dispute.”

Next, plaintiff argued that “no material evidence support[ed] the specific allocation of fault found by the jury of 80% to [plaintiff] and 20% to [defendant].” The Court stated that “challenges to a jury’s allocation of fault are a longshot,” and that here there was evidence that plaintiff “went jogging in the dark with her back to traffic on the wrong side of the road, that she jogged out into the highway without the benefit of a crosswalk, that she continued running in the right side lane, and that [defendant] was driving at or below the speed limit.” The Court of Appeals ruled that this constituted material evidence to support the jury’s allocation of fault.

Third, plaintiff alleged that the jury was prejudiced against her, citing five examples of where prejudice was shown. She argued that the $300,000 damage figure was inadequate and showed prejudice, but the Court ruled that $60,000 in noneconomic damages was not “grossly inadequate as to show prejudice by the jury” where the evidence showed that plaintiff recovered from her serious injuries. Plaintiff argued that evidence of her wealth was improperly put before the jury through testimony regarding her having a nanny, housekeeper, and other hired home assistance, but the Court found that this evidence was relevant to plaintiff’s husband’s loss of consortium claim. Moreover, the Court stated that it did not believe that “the jury’s mere knowledge that Plaintiffs are of some financial means, and in particular that they can afford to hire domestic assistance, was so damaging as to render the jury prejudiced against Plaintiffs and unable to fairly decide the question before it.” Plaintiff also argued that “local bias permeated the trial,” but the Court pointed out that plaintiff chose to file suit in Hawkins County, that the fact that the only witness was local was “just a fact of the case,” and that “adopting plaintiff’s position here would be akin to having a presumption of prejudice by a jury against an out of county party when the other party and witnesses are in county.” Plaintiff asserted that defense counsel improperly urged the jury not to “punish” the defendant for plaintiff’s choices, but the Court found that while the use of the word “punish” was inappropriate, the trial court issued sufficient curative instructions. Finally, plaintiff argued that a juror’s question showed bias against her. A juror submitted the following question: “Devils Nose Road to 70 is dark and dangerous! How did she get out that road without anything happening? There is bears, snakes, deer and turkey. I would not walk that road in daytime without a gun.” The Court found that this question did “not speak badly of [plaintiff] or purport to judge liability of fault,” but that it “merely asks in a rambling fashion how she go to where she was.”

Finding that there was nothing to suggest impropriety on the jury’s part and that the trial court did not abuse its discretion in denying plaintiff’s motion for a new trial, the trial court’s judgment was affirmed. This was a very fact specific case, and apparently defense counsel did a good job of using the evidence to paint a picture of the accident for the jurors.

              NOTE:  To aid lawyers in giving clients guidance about how long it takes to receive an opinion after oral argument in the appellate courts, we are going to start sharing that information with readers.   Please understand that the length of time that elapses between oral argument and the date the opinion is released is dependent on a multitude of factors, not the least of which is the complexity of the issues presented.  In this case, the opinion was released about two months after oral argument.