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Mitchell v. Johnson3/27/2002
This case arises out of a collision on a public road between an automobile driven by the defendant, Brandyn D. Johnson, and a go-cart operated by Clayton Mitchell ("the minor") - the seven-year old child of the plaintiffs Ruth Ann Mitchell and Steve Harold Mitchell. The Mitchells sued the defendant, asserting a personal injury claim on behalf of the minor and individual claims for their alleged losses arising out of the parent-child relationship. The jury found the minor 80% at fault and, consequently, returned a verdict in favor of the defendant. The Mitchells appeal, arguing (1) the trial court erred in failing to charge the jury that the minor was entitled to make a right-hand turn once he determined that his lane of traffic was clear; (2) the trial court erred in failing to charge the jury that the minor was entitled to a presumption that he was incapable of negligence due to his age, or alternatively, that his age and capacity should be taken into consideration when evaluating the parties' comparative fault; and (3) the verdict "is not supported by the greater weight of the evidence." We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded
Charles D. Susano, Jr., J., delivered the opinion of the court, in which Herschel P. Franks and D. Michael Swiney, JJ., joined.
OPINION
I.
This two-vehicle accident occurred on Lakeview Drive, a two-lane highway running generally north and south in Washington County. On the day of the accident, the minor was visiting his grandparents, whose house fronts on Lakeview Drive. He was driving a go-cart in the field behind their house when his grandmother called to him and told him to return to the house. To accomplish this, the minor had to proceed east on a gravel walkway that was parallel to and at the edge of his grandparents' front yard; the walkway was partially separated from the yard by a fence. At the end of the walkway, the minor had to make a right turn onto Lakeview Drive, and then make another right turn almost immediately into his grandparents' yard. The described movement would approximate a U-turn movement as the minor left the gravel walkway, turned right, or south, on Lakeview Drive, and then turned right again into the yard.
The minor testified at trial that when he reached the end of the walkway, he recalled stopping at the street. Seeing nothing coming, he started to make his right-hand turn onto Lakeview Drive. The next thing he remembered was waking up in the ambulance. The defendant testified that she had pulled out of a driveway just south of the grandparents' house. As she was proceeding north on Lakeview Drive, the minor suddenly pulled out from the walkway to the defendant's left and into the path of her vehicle. The defendant stated that she applied the brakes and veered to the right, but that she could not avoid colliding with the go-cart.
The parents of the minor sued the defendant under a general negligence theory. The case proceeded to trial. The jury returned a verdict in favor of the defendant, finding that the minor was 80 % at fault. Thereafter, the minor's parents filed a motion for a new trial. The trial court approved the jury's verdict and denied the parents' motion. This appeal followed.
II.
A.
The plaintiffs' first issue raises the question of whether the trial court erred in failing to give a requested charge to the jury. The charge is as follows:
I charged you that the statute of this state requires a driver entering a roadway from a private driveway to yield the right of way to traffic on the roadway. If such a driver is turning into a la
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