08/23/2024 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

July 17, 2024 Session

JULIUS SUMMERROW v. CARA C. WELSH

Appeal from the Circuit Court for Hamilton County

No. 17-C-980 Kyle E. Hendrick, Judge

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No. E2023-00772-COA-R3-CV ___________________________________

This is a personal injury action arising from an automobile accident on a road encircling a Chattanooga mall. The case was heard before a jury, which concluded that the defendant was not at fault. The plaintiff appeals. Having determined that there is material evidence to support the jury’s verdict, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and KRISTI M. DAVIS, J., joined.

Charles G. Wright, Jr., Chattanooga, Tennessee, for the appellant, Julius Summerrow.

C. Scott Johnson, Drew H. Reynolds, Chattanooga, Tennessee, for the appellee, Cara C. Welsh, as Administrator Ad Litem for the Estate of Edward Varner.^[1]

OPINION

FACTS AND PROCEDURAL HISTORY

On September 30, 2016, Julius Summerrow (“Plaintiff”) was driving on Hamilton Place Boulevard in Chattanooga, Tennessee, when Edward Varner (“Defendant”), with his wife as passenger, began to pull out of a mall parking lot. Although the parties’ vehicles came into contact, the parties dispute how the accident occurred and the force of the impact. Plaintiff claims to have been “struck by Defendant’s automobile coming out of a parking Mrs. Varner testified that it was Plaintiff’s vehicle that “bumped” Defendant’s vehicle. She stated that Defendant had begun to pull out of the parking lot after looking both ways and seeing that the road was clear, but that “out of nowhere, he saw [Plaintiff’s] car coming” and came to a complete stop. After Defendant stopped, Mrs. Varner testified that “[Plaintiff’s] vehicle touched [Defendant’s] bumper.”

Officer Morgan testified that, when he arrived at the scene of the accident, the parties’ vehicles were corner to corner with “[Plaintiff’s] front passenger’s corner to [Defendant’s] front driver’s bumper.” He also testified that he had noted only minor damage to the front bumpers of both vehicles.

With regard to his medical history prior to the accident, Plaintiff testified that he had previously suffered a rotator cuff injury to his right shoulder while working as a boilermaker. On cross-examination, Plaintiff initially testified that he had never experienced neck problems prior to the September 2016 accident, but on cross examination by defense counsel, Plaintiff admitted that he had previously dealt with neck problems “off and on.”

Dr. Mason and Dr. Lund both testified that, during the course of Plaintiff’s treatment, he had informed them that the pain in his neck and left shoulder began after the September 2016 automobile accident. While Dr. Lund was aware that Plaintiff had experienced problems with his right shoulder in the past, Plaintiff “attributed the symptoms in the left shoulder to the accident that he had been in.” Based on the history provided to them by Plaintiff, both doctors stated that they believed Plaintiff’s injuries to have been caused by that accident.^[2] However, Dr. Mason testified that Plaintiff had not informed him that he had been experiencing neck pain prior to the accident, and when asked whether his opinion regarding the cause of Plaintiff’s injuries could change if Plaintiff had previously experienced neck pain, Dr. Mason replied that “it could.”

After reviewing Plaintiff’s X-rays taken at the hospital the day after the accident, Dr. West testified that they showed “an underlying condition” of “pre-existing cervical spine degenerative disc and degenerative joint disease” that likely “would have nothing to do with this type of motor vehicle accident.”

After hearing and considering the evidence and jury instructions, the jury returned a unanimous verdict finding that Defendant was not at fault.^[3] Plaintiff appeals the jury’s verdict.^[4]

ISSUES

Plaintiff presents one issue on appeal, which we rephrase as follows: Whether there is any material evidence to support the jury’s finding that Defendant was not at fault.^[5]

STANDARD OF REVIEW

In civil actions decided by a jury, our standard of review is limited to the following:

An appellate court shall only set aside findings of fact by a jury in a civil matter if there is no material evidence to support the jury’s verdict. Tenn. R. App. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006). In determining whether there is material evidence to support a verdict, [the reviewing court] shall: “(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.” Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000) (citing Crabtree Masonry Co. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn. 1978)). “Appellate courts shall neither reweigh the evidence nor decide where the preponderance of the evidence lies.” Barnes, 48 S.W.3d at 704. If there is any material evidence to support the verdict, we must affirm it; otherwise, the parties would be deprived of their constitutional right to trial by jury.” Crabtree Masonry Co., 575 S.W.2d at 5. As to issues involving questions of law, however, our standard of review is de novo with no presumption of correctness or deference to the legal conclusions made by the lower courts. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn. 2008); S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

Creech v. Addington, 281 S.W.3d 363, 372 (Tenn. 2009).

ANALYSIS

Plaintiff contends that there was no material evidence to support the jury’s finding that Defendant was not at fault because he claims that there is “substantial material evidence” to show that Defendant violated two statutory rules of the road—Tennessee Code Annotated §§ 55-8-131 and 1366—when he failed to yield to Plaintiff and entered Plaintiff’s lane of travel, and that these infractions were “negligence per se and were the direct and proximate cause of [P]laintiff’s alleged injuries and damages.”

Defendant contends that there was “ample evidence from which a jury could conclude that [Defendant] was not at fault.” Namely, Defendant argues that the jury could have concluded that Plaintiff was speeding at the time of the accident given that he was unable to stop in time to avoid the collision. Defendant further submits that Plaintiff cannot establish “a causal link between the accident and [Plaintiff’s] alleged injuries” because there is “proof in the record demonstrating that [Plaintiff’s] injuries were pre-existing, as opposed to being caused by the motor-vehicle accident at issue.”

As noted above, in determining whether there is material evidence to support a verdict, we “(1) take the strongest legitimate view of all the evidence in favor of the verdict; (2) assume the truth of all evidence that supports the verdict; (3) allow all reasonable inferences to sustain the verdict; and (4) discard all [countervailing] evidence.” Barnes, 48 S.W.3d at 704 (citations omitted).

We find it relevant that fault or “[n]egligence is not presumed from the mere fact of an accident or injury.” Armes by Armes v. Hulett, 843 S.W.2d 427, 432 (Tenn. Ct. App. 1992) (citations omitted); see also Howard v. Norwood, No. M1999-00838-COA-R3-CV, at *5 (Tenn. Ct. App. May 25, 2000) (finding that the mere occurrence of an accident did not require the jury to find fault). Where there is conflicting evidence or reasonable minds may differ as to whether a defendant is negligent, the question of fault is for the jury to decide. Hickman v. Jordan, 87 S.W.3d 496, 499 (Tenn. Ct. App. 2001) (citing Hale v. Rayburn, 264 S.W.2d 230, 233 (Tenn. Ct. App. 1953)).

As discussed above, Defendant’s widow, Mrs. Varner, testified that Defendant stopped to observe the flow of traffic prior to pulling out of the parking lot. Seeing that “the way was clear,” Defendant began to pull out of the lot, but came to a complete stop when he saw Plaintiff’s car emerge “out of nowhere.” Mrs. Varner also testified that Plaintiff’s vehicle “bumped” Defendant’s vehicle after Defendant stopped. Thus, instead of finding Defendant at fault, the jury could have found that Plaintiff was negligent per se and at fault by failing to maintain a safe lookout and keeping his vehicle under proper control “to see and avoid colliding with any other vehicle.” See Tenn. Code Ann. § 55-8- 136(b).

It is also significant that Plaintiff was the only witness who testified that Defendant was at fault in causing the accident. Thus, the jury’s verdict as to fault, if any, could be based on Plaintiff’s credibility, or lack thereof, and there was evidence at trial that undermined Plaintiff’s credibility.

For example, while Plaintiff insisted that his injuries were caused by the accident and initially testified that he did not have a pre-existing condition or prior injuries to his neck, he admitted on cross-examination that he had experienced neck pain “off and on” before the accident. Further, Dr. Mason’s testimony indicated that Plaintiff had presented an incomplete medical history during the course of his treatment. Specifically, Dr. Mason testified that Plaintiff had reported no history of any prior problems with his neck or shoulders before the accident. Moreover, Defendant introduced evidence from Dr. West, whose review of Plaintiff’s previous medical records revealed that Plaintiff had a pre-existing condition that would likely cause pain in the neck. Dr. West also opined that there was no objective evidence of any injury caused by the motor vehicle accident with Defendant.

To further challenge Plaintiff’s credibility, Defendant introduced evidence showing that Plaintiff had denied that he was referred to Dr. Mason by his counsel, while Dr. Mason’s records revealed that Plaintiff had been referred by his attorney.

Here, the jury’s determination as to fault was dependent on its impression of Plaintiff’s credibility and that of Mrs. Varner. Based upon the above evidence, the jury could conclude that Plaintiff was not entirely forthcoming or honest in his conversations with his doctors or in his testimony at trial. Thus, there was material evidence upon which the jury could discredit Plaintiff’s testimony. See Ferguson v. Middle Tenn. State Univ., 451 S.W.3d 375, 383 (Tenn. 2014) (“The jury can disregard the testimony of a witness it does not find to be credible.”) (citations omitted). Conversely, there was no evidence to discredit Mrs. Varner’s testimony that, immediately before the accident, Plaintiff came out of nowhere and hit her husband’s vehicle. Thus, there was material evidence to support the verdict that Defendant was not at fault.

As we have explained, the standard of appellate review when reviewing a jury verdict approved by a trial court is whether there is any material evidence to support the verdict. Tenn. R. App. P. 13(d). The record reveals that there is.

Having determined that there is material evidence upon which to conclude that Defendant was not at fault, we affirm the judgment of the trial court.^[7]

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed, and this matter is remanded for further proceedings consistent with this opinion. Costs of appeal are assessed against the appellant, Julius Summerrow.

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FRANK G. CLEMENT JR., P.J., M.S.