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Higgs v. Green

Court of Appeals of Tennessee, Nashville

May 11, 2017

KIM L. HIGGS
v.
JOHN C. GREEN

         Session: April 12, 2017

         Appeal from the Circuit Court for Davidson County No. 12C5340 Kelvin D. Jones, Judge.

         This appeal arises from a two-car accident. In her complaint, Plaintiff alleged that the collision occurred because Defendant violated several statutory rules of the road by failing to yield the right of way and making a turn across traffic without confirming it was safe to do so. Defendant denied any negligence and claimed that Plaintiff was more than 50% at fault. Following a trial, the jury found that Plaintiff was 75% at fault; as a result, judgment was entered for Defendant. On appeal Plaintiff contends she is entitled to a new trial for two reasons. She contends the trial court abused its discretion by limiting the testimony of the investigating police officer to what the parties told him at the scene and to matters that are reflected in his accident report. She also contends she is entitled to a new trial due to jury misconduct. Finding no abuse of discretion, we affirm.

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

          Rocky McElhaney and Justin Hight, Nashville, Tennessee, for the appellant, Kim L. Higgs.

          J. Bart Pickett and Julie Bhattacharya Peak, Brentwood, Tennessee, for the appellee, John C. Green.

          Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which John W. McClarty and W. Neal McBrayer, JJ., joined.

          OPINION

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

         Kim Higgs ("Plaintiff") and John Green ("Defendant") were involved in an automobile accident on Old Hickory Boulevard, near the intersection of Franklin Road in Brentwood, Tennessee, on January 11, 2012. The accident occurred as Defendant was making a left-hand turn across Plaintiff's lane of traffic to enter a gas station when the front of Plaintiff's vehicle collided with the rear quadrant of the passenger's side of Defendant's vehicle.

         Plaintiff alleged that the collision occurred as a result of Defendant's failure to yield when turning left in front of her vehicle. More specifically, Plaintiff asserted the accident was due to Defendant's "failure to keep a proper lookout, failure to keep his vehicle under control, failure to yield the right of way and turning his vehicle without confirming it was safe to do so." The complaint also alleged that Defendant broke the following statutory rules of the road, which constituted negligence per se:

a. Failing to yield the right of way to [Plaintiff's] vehicle in violation of Tenn. Code Ann. § 55-8-129;
b. Failing to ensure that the turn could be made with reasonable safety in violation of Tenn. Code Ann. § 55-8-142;
c. Failing to exercise due care to avoid colliding with another vehicle in violation of Tenn. Code Ann. § 55-8-136; and
d. Driving his vehicle in willful or wanton disregard for the safety of others in violation of Tenn. Code Ann. § 55-10-205.

         A jury trial was held from March 9-10, 2016. At trial, Plaintiff called as a witness Officer Curtis Rich, the investigating police officer. During voir dire outside the presence of the jury, Officer Rich was questioned about the accident. He testified that he arrived at the scene after the vehicles had been removed from the roadway. He also stated that he had no independent recollection of the accident other than what was written in his police report and the police report did not indicate that Defendant had crossed a double-yellow line when he made his left turn to cross Plaintiff's lane of traffic. Nevertheless, Officer Rich stated, based on his familiarity with the area, that there was a double-yellow line, which indicated a "continuation of [a] median, " and that it is illegal to make a turn over medians. Nevertheless, Officer Rich admitted that Defendant was not cited for any violatioins.

         Following voir dire of Officer Rich, Defendant objected to his testimony on the grounds he is not an expert in accident reconstruction, he did not personally witness the vehicles in the road, and he had no independent recollection of the accident. Defendant also objected to any testimony regarding the improper crossing of a double-yellow line, arguing that Plaintiff did not specifically plead this allegation in her complaint. After considering the arguments on this issue, the trial court ruled on this issue in the following exchange:

Trial Court: We're going to allow Officer Rich to testify as to what happened after he got to the scene and what the drivers of vehicle one and two said to him, not reconstruct the scene, but he can testify as to what he was told by the drivers one and two after he got to the scene.
Counsel for Plaintiff: [A]re we allowed to ask him about his knowledge of what cars are supposed to do when they're located in certain locations . . .
Trial Court: Well, the problem is he never cited [Defendant]. There was no citation that day. . . . [S]o then the question would have been, if you know that there was a violation of the rules of the road, why didn't you write a citation? He doesn't have any knowledge. He doesn't recall that. So no, that would not be ...

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