Lanier v. Bane, No. M2000-03199-COA-R3-CV (TN 6/8/2004)
| Decision Date | 08 June 2004 |
| Docket Number | No. M2000-03199-COA-R3-CV.,M2000-03199-COA-R3-CV. |
| Parties | LANCE LANIER v. HUBERT BANE, ET AL. |
| Court | Tennessee Supreme Court |
Appeal from the Circuit Court for Smith County; No. 4488B; Clara W. Byrd, Judge.
Judgment of the Circuit Court. Affirmed and Remanded.
Alan Poindexter, Lebanon, Tennessee, for the Appellant, Lance Lanier.
Jacky O. Bellar, Carthage, Tennessee, for the Appellees, Hubert Bane and Joyce Bane, Co-Administrators of the Estate of Michael Bane, Deceased.
William B. Cain, J., delivered the opinion of the court, in which William C. Koch, JR., P.J., M.S., and Patricia J. Cottrell, J., joined.
Plaintiff guest passenger appeals the trial court's denial of recovery in his action against his host driver for injuries suffered in a one car accident. The jury found him to be 50% responsible for his own injuries and upon such verdict the trial court entered judgment for the defendant. We affirm the action of the trial court.
Plaintiff Lance Lanier was a passenger in a 1994 Lexis ES300 owned and operated by Michael Bane. At approximately 12:28 a.m., June 19, 1999, Michael Bane was operating his automobile on Highway 53 in Smith County, Tennessee. While attempting to negotiate a curve in the road he lost control of the automobile and collided with a rock bluff. Bane died from injuries suffered in the accident and passenger Lanier suffered personal injuries in the accident.
On September 30, 1999, Lanier filed suit against the Estate of Michael Bane in the Circuit Court for Smith County, Tennessee charging Bane with negligence and gross negligence in the operation of his automobile. The complaint asserted that Bane had failed to exercise due care in keeping his vehicle under control and upon the right half of the roadway in violation of Tennessee Code Annotated section 55-8-115(a), that he failed to drive his vehicle at a careful and prudent speed exceeding the posted speed limit in violation of Tennessee Code Annotated section 55-8-152 and failed to drive his vehicle within his lane of travel in violation of Tennessee Code Annotated section 55-8-123, that he drove his automobile in willful and wanton disregard for the safety of persons in violation of section 55-10-205 and operated his vehicle under the influence of an intoxicant in violation of Tennessee Code Annotated section 55-10-401(a) and section 55-10-408(b). Lanier sought punitive damages in his original complaint, but on June 14, 2000, amended the complaint to delete his request for punitive damages and to delete any allegations that Bane was operating his vehicle under the influence of an intoxicant.
The co-administrators of the Estate of Michael Bane answered the complaint denying that Bane was at fault and asserting that Lanier was guilty of negligence in becoming a passenger in an automobile driven by one that he knew to be under the influence of an intoxicant. After trial on September 21, 2000, the trial court submitted the case to the jury using a special jury verdict form prepared by counsel for Lanier. This verdict form provided in its first question that the jury should determine the total amount of the Plaintiff's damages. The second and third interrogatories on the special jury verdict form provided:
2. WHAT PERCENTAGE OF FAULT DO YOU ATTRIBUTE TO EACH PERSON WHOSE CONDUCT CAUSED OR CONTRIBUTED TO THE COLLISION. YOUR ANSWERS MUST TOTAL 100%.
MICHAEL BANE _______________%
LANCE LANIER _______________ %
3. STATE THE PERCENTAGE BY WHICH THE NEGLIGENCE OF LANCE LANIER, IF ANY, CAUSED OR CONTRIBUTED TO HIS OWN INJURIES. ______________% ZERO TO ONE HUNDRED PERCENT.
The jury returned a verdict finding Plaintiff's total damages to be $51,723.11. The jury found Michael Bane to be 100% at fault for the collision of the automobile with the rock bluff. In answer to question 3 on the jury verdict form, the jury found that the negligence of Lanier contributed causally to his own injuries by 50%.
The trial court first found under the jury verdict that Plaintiff was entitled to recover one-half of his damages from Defendant but on its own motion reconsidered the judgment and entered an order on October 13, 2000, holding that under a proper construction of the jury verdict, Lanier was entitled to no damages. Lanier timely appealed.
Plaintiff brings these issues on appeal:
I. Did the trial court err in amending its prior order so that the final order of the trial court prohibited the plaintiff from any recovery.
II. Did the trial court err in not granting a motion for a new trial based upon the confusion between the special verdict form and the written jury instructions.
The problems in this case result from efforts in the trial court to apply the sound principles of Hawks v. Grandstaff, 36 S.W.3d 483 (Tenn.Ct.App. 2000) in a fact situation to which such principles are not applicable. Hawks v. Grandstaff involved a two vehicle multi-party negligence action applying comparative fault principles. The case at bar is a guest passenger action against his host driver for injuries resulting from a single car collision wherein the host driver lost control of his vehicle and collided with a rock bluff. The estate of the host driver defends the action by asserting that Plaintiff was responsible for his own injuries by voluntarily becoming a passenger in a vehicle driven by one that he knew to be intoxicated.1
The principles governing this case date back to the beginning of the automotive age and are well stated by Chief Justice Grafton Green in Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323:
It is apparent from the proof that the accident in which young Schwartz lost his life resulted from the negligent speeding of this car by the Johnson boy. The plaintiff therefore has made out a case for the jury, unless the suit be barred by the contributory negligence of his intestate, and we think the Court of Appeals rightly held that it was so barred.
According to the undisputed proof, these boys had taken about twelve drinks of whisky each, during five or six hours preceding the accident. Both were intoxicated. Intoxication does not relieve one from contributory negligence. Louisville, etc., R. Co. v. Hall, 5 Tenn. Civ. App. 491; Thompson on Negligence, § 2935. When one gets into an automobile which is to be operated by a drunken driver, through the traffic of a populous city, such person takes his life in his hands. All the authorities are to the effect that such contributory negligence prevents a recovery by one taking such a chance, if he is injured as a result of the driver's negligence. Lynn v. Goodwin, 148 P. 927, 170 Cal. 112, L. R. A. 1915E, 588; Jensen v. Chicago, M. & St. P. R. Co., 233 P. 635, 133 Wash. 208; Winston's Adm'r v. City of Henderson, 200 S.W. 330, 179 Ky. 220, L. R. A. 1918C, 646; Kirmse v. Chicago, T. H. & S. E. R., Co., 127 N. E. 837, 73 Ind. App. 537; Cunningham v. Erie R. Co., 121 N. Y. S. 706, 137 App. Div. 506.
Schwartz v. Johnson, 280 S.W. 32, 33 (Tenn. 1926); see also Cole v. Woods, 548 S.W.2d 640, 643 (Tenn. 1977).
The case at bar presents as a fact issue whether or not, or to what extent, Plaintiff was aware of the condition of the host driver.
If the evidence is such that reasonable minds may not differ as in Schwartz, the question is one of law and Plaintiff is barred from any recovery. See Talbot v. Taylor, 201 S.W.2d 1 (Tenn. 1935). If reasonable minds may differ as to extent of Plaintiff's knowledge of the host driver's condition, the case must go to the jury for determination. Harvey v. Wheeler, 423 S.W.2d 283 (Tenn.Ct.App. 1967).
The rules in Schwartz, Talbot and Harvey survived the advent of comparative fault in Tennessee subject only to the modification required by McIntyre. Such modification is best exemplified by Larue v. 1817 Lake, Inc. Prior to the comparative fault system implemented by McIntyre, Tennessee followed the common law rule of contributory negligence. Under this rule, "If the injury was caused by the plaintiff's conduct, or was the immediate result of the plaintiff's conduct, to which the wrong of the defendant did or did not contribute as an immediate cause, the plaintiff cannot recover, but must bear the result of his own negligence or conduct." Nashville, etc. Railway Co. v. Norman, 108 Tenn. 324, 333, 67 S.W. 479, 481 (Tenn.1902) (quoting Railroad Co. v. Pugh, 97 Tenn. 627, 37 S.W. 555, 556 (1896)). See LaRue v. 1817 Lake, Inc., 966 S.W.2d 423 (Tenn.Ct.App. 1997).
Under this rule, any negligence of Plaintiff which directly contributed to the proximate cause of his injury, even if by comparison with the proximate negligence of Defendant it was the lesser contribution, would bar a recovery by the plaintiff. McIntyre modified the harshness of the contributory negligence rule. LaRue v. 1817 Lake, Inc. explains the effect of McIntyre on the Schwartz, Talbot, Harvey rule and the effect of the fault comparison on the contributory negligence rule:
After directing verdicts for the dram shop defendants, the trial court found, as to the remaining defendant, that reasonable minds could reach only one conclusion — that LaRue was at least fifty percent at fault for his death, when compared with the fault of Brewer. We must disagree. Although this is admittedly a close question, we find the trial court should have allowed it to be decided by the jury.
As the plaintiff points out, the facts of this case are very similar to those in Silcox v. Coffee, 1993 WL 350134 (Tenn.App.Sept. 15, 1993). In Silcox, the plaintiff was killed in an automobile accident after both he and the defendant driver had been drinking heavily. The defendant's blood alcohol level was 0.39 and plaintiff's was 0.37. Id. at **1. The court stated the following:
Our inquiry is whether viewing the evidence in the plaintiff's favor, the evidence can reasonably support a conclusion that [plaintiff's] decision to ride with an...
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