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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
August 7, 2003 Session ELAINE H. DEATHERIDGE, ET UX. v. RICHARD T. BARKSDALE
A Direct Appeal from the Circuit Court for Davidson County No. 01C-1475 The Honorable Marietta M. Shipley, Judge

No. M2003-00032-COA-R3-CV - Filed December 23, 2003

Plaintiffs brought action against driver for damages arising from a rear-end automobile collision. Defendant raised affirmative defense of sudden emergency caused by a "phantom" nonparty defendant's placing duct work in the roadway. The jury found that Defendant was not at fault. Plaintiffs appeal. We affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID R. FARMER , J., joined. Terrance E. McNabb; James R. Omer & Associates, Nashville, For Appellants, Elaine H. Deatheridge and Louise D. Deatheridge William B. Jakes, III, Nashville, For Appellee, Richard T. Barksdale OPINION The accident at issue in this case occurred on May 21, 1998, at the intersection of Lombardy Drive and Hillsboro Pike in Nashville, Tennessee. The vehicle driven by Elaine Deathridge was stopped at a red light when it was struck from the rear by a vehicle owned and driven by Richard T. Barksdale ("Barksdale," "Defendant," or "Appellee"). On May 16, 20011, Elaine Deathridge and her husband, Louis (together with Elaine Deathridge, the "Deathridges," "Plaintiffs," or "Appellants") filed a Complaint against Barksdale. The Complaint reads, in relevant part, as follows:

The suit was originally filed within one year of the accident date and voluntarily dismissed. The instant suit was timely filed under the saving statute.

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5. Defendant was then and there negligent in that he (a) failed to maintain the vehicle he was operating under due and reasonable control; (b) operated his vehicle at a speed which was excessive under the conditions then and there existing; (c) failed to maintain a due and proper lookout ahead in the direction in which he was driving, and in particular for the car in which Plaintiff was an occupant; (d) failed to bring his vehicle under control and to slow the same when there was sufficient time and distance for him to do so before striking the rear of Plaintiff's automobile; (e) failed to see that which was there to be seen and take proper action with respect thereto; (f) failure to take necessary evasive action when it was evident that a collision was about to occur. 6. Defendant was further then and there guilty of negligence per se in that he violated one or more of the statutes of the State of Tennessee, including, but not limited to, the following statute: T.C.A. 55-8-124: Following too closely. (a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. Mrs. Deathridge seeks damages for personal injury. Mr. Deathridge seeks damages for loss of consortium and services of his wife. Barksdale filed his Answer on August 14, 2001. In his Answer, Barksdale admitted "that his vehicle struck the vehicle being operated by plaintiff but [denies] that there was any violent crash as alleged," and raised, as an affirmative defense, the placing of "duct work material" in the roadway by a phantom non-party defendant. The case was tried to a jury on November 4, 5, and 6, 2002. The jury found that Barksdale was not at fault. An Order of Judgment was entered on the jury verdict on November 18, 2002. The Deathridges filed a Motion for New Trial on November 21, 2002.2 Barksdale filed a Response to the Motion for New Trial. The Motion for New Trial was heard on December 6, 2002 and was denied by Order entered on December 17, 2002. The Deathridges appeal and raise five issues for review as stated in their brief: 1. Whether the Trial Judge properly performed her function as a Thirteenth juror in denying Plaintiffs' motion for a new trial.

Pursuant to Tenn. R. App. P. 3(e), Plaintiffs' Motion for New Trial specifically mentioned each of the issues presented on appeal.

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2. Whether the jury verdict is contrary to the weight of the evidence. 3. Whether the Trial Judge erred in instructing the jury on sudden emergency. 4. Whether the Trial Judge erred in instructing the jury that a "phanton person's" violation of T.C.A.

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