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Moore v. Johnson9/26/2000
ort the verdict. See Tenn. R. App. P. 13(d); see also Shivers v. Ramsey, 937 S.W.2d 945, 947 (Tenn. Ct. App. 1996). IV. Discussion
To successfully assert a negligence claim, a plaintiff must establish the following elements:
(1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of the duty; (3) an injury or loss; (4) causation in fact; and (5) proximate causation. Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998).
The defendant argues that he was exercising the same degree of care that any reasonable person would have exercised when confronted with the "sudden emergency" that arose when the van swerved unexpectedly into his lane. He contends that the sole proximate cause of the plaintiff's injuries was the negligence of the unidentified driver, who, the defendant argues, created a situation in which it was "impossible" for the defendant to avoid hitting the plaintiff.
The existence of a "sudden emergency" requiring a defendant to make a hasty decision is one of several factors that a jury may consider in allocating fault. See Eaton, 891 S.W.2d at 592. We will set aside a jury's allocation of fault and grant a new trial only if there is no material evidence to support the verdict. See Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997).
Construing the evidence as we must, we find that there is material evidence in the record to support a finding that the defendant was 50% at fault for the accident. The defendant testified that he was traveling between 53 and 57 miles per hour when he attempted to pass the white van. The speed limit at the site of the accident was 55 miles per hour. Thus, the jury could have reasonably concluded from all of the evidence, especially the dynamics of the accident, that the defendant was traveling in excess of the posted speed limit when the van swerved into his lane. There is also material evidence from which the jury could have concluded that the defendant's speed adversely affected his ability to control his vehicle and avoid a collision with the plaintiff's vehicle as he moved his vehicle to the left. The defendant testified that the van came about halfway into his lane, i.e., about six feet. The evidence reflects that each lane of the highway was 12 feet wide, and the paved median separating the northbound and southbound lanes was 4 feet wide. The defendant's vehicle was 5 feet wide. From these facts, the jury could have reasonably concluded that the defendant had sufficient room to avoid the white van without hitting the plaintiff's vehicle and that his failure to do so was because of his speed.
The trial court was correct in denying the defendant's motion for directed verdict. There is material evidence to support the jury's verdict allocating 50% of the fault to the defendant. V. Conclusion
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant. This case is remanded for enforcement of the judgment and collection of costs assessed below, all pursuant to applicable law.
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