In Bilbrey v. Parks, No. E2013-02808-COA-CV (Tenn. Ct. App. Sept. 29, 2014), a negligence case arising from a car accident, the Court of Appeals recently addressed two evidentiary issues. Plaintiff, her aunt, and her boyfriend were in plaintiff’s car when it ran out of gas. The car was pushed onto the side of the road, though not completely off of it. While the boyfriend and aunt had gone to get gas, defendant came along and collided with plaintiff’s car. The incident occurred at night. Plaintiff brought a negligence action against defendant, and defendant counterclaimed asserting plaintiff’s negligence. At trial, the jury found both plaintiff and defendant to be 50% at fault. Subsequently, plaintiff appealed two evidentiary rulings made by the trial court.
First, plaintiff asserted that the trial court should not have allowed the boyfriend’s deposition to be read into evidence by defendant. Plaintiff pointed out that defendant had not subpoenaed boyfriend within the timing specified by local rules, and more importantly, that the evidence presented to show that boyfriend was unavailable by being more than 100 miles from the courthouse was insufficient. The unavailability evidence was fraught with layers of hearsay, and boyfriends’“unknown, unproven, and in dispute.”’s deposition should not have been admitted, it was a harmless error, as the deposition testimony was “almost entirely consistent with, and cumulative to, that of”’s deposition and the in-court testimony of other witnesses did not result in the admission of the deposition being prejudicial to plaintiff.
Second, plaintiff objected to the testimony of a state trooper who listened to a voice mail from plaintiff to her boyfriend on plaintiff’s phone when he arrived at the scene. According to his testimony, plaintiff told her boyfriend on that message that the emergency lights had either gone out or were going low. In affirming the trial court’s decision to allow the trooper to testify regarding the voicemail, the Court addressed three major points. One, plaintiff and her boyfriend had both testified that the phones containing this message were either lost or destroyed. Defendant, therefore, could rely on Tenn. R. Evid. 1004 and did not have to produce the original recording. Two, although the trooper had never heard plaintiff’s voice prior to listening to the voicemail, he spoke with her soon thereafter and testified that he recognized the voices as the same. The Court found that this was enough to satisfy the voice identification requirements of Tenn. R. Evid. 901. Three, plaintiff asserted that this statement did not fall under the party-opponent admission exception to the hearsay rule as it was not a statement against plaintiff’s interest. The Court rejected this argument, noting that any statements by a party, whether against that party’s interest or not, may be used by the opposing party. Accordingly, the Court of Appeals affirmed the trial court’s judgment.
This case is a good reminder of the deference given to trial courts on evidentiary issues. Even with some differences between the deposition testimony and the in-court witness testimony, and without much discussion about the voice mail or the voice identification, the Court affirmed the trial court’s evidentiary rulings in total here.