Day on Torts
In Garvin v. Malone, No. M2015-00856-COA-R3-CV (Tenn. Ct. App. Feb. 26, 2016), plaintiffs sued defendant after defendant’s van ran into the rear of plaintiffs’ car. After a jury found for defendant, the issue on appeal was whether photographs showing damage to the vehicles should have been admitted since plaintiffs had not made a claim for property damage.
Defendant was traveling behind plaintiffs, a husband and wife, when a police car traveling in the opposite lane allegedly crossed into plaintiffs’ path. Plaintiff husband was driving and slammed on the brakes. Defendant hit her brakes as well, but “was unable to prevent her van from hitting the rear bumper of the [plaintiffs’] vehicle.” Plaintiffs brought a negligence claim seeking personal injury damages and loss of consortium–$825,000 for husband and $75,000 for wife.
During trial, plaintiff husband testified that he felt a “heavy impact,” and that the accident “impacted [him] heavily.” He admitted that he had no cuts or bruises, and that his body did not touch anything during the accident, but that he was “moved around in [his] vehicle.” Likewise, plaintiff wife testified: “I wasn’t thrown; I was just thrown forward…my body didn’t hit anything except to just react.” Defendant testified, however, that the accident was much less substantial, stating that she “tapped the passenger side rear bumper, about maybe an eight-inch mark, but didn’t see any paint off or anything.”
Before the trial, plaintiffs had filed a motion in limine asking the trial court to prohibit defendant from introducing any photographs of the damage to the vehicles from the accident “for the purpose of showing a correlation between the damage to the parties’ vehicles and the injuries sustained by [plaintiff] unless the evidence was supported by expert testimony.” The court did not rule on this motion, but after plaintiffs’ testimony about the impact of the accident, the court allowed defendant to introduce the photographs for the purpose of impeaching plaintiff husband’s testimony that the impact was “heavy.” While allowing the photographs to come into evidence, the court instructed the jury that they were “not able to make any inference regarding any correlation between property damage to the vehicles and the personal injury damages claims by the plaintiffs.” Instead, the court instructed the jury that the photographs could be considered for impeachment purposes, stating: “you heard [plaintiffs] testimony regarding the force of the impact, and you are authorized to consider the testimony that’s been offered by [defendant], both her verbal testimony and the photographs that she has placed into evidence, to impeach or contradict the testimony that you have heard from [plaintiffs].” At the close of evidence, the jury returned a verdict for defendant, finding her not at fault.
On appeal, the sole issue was whether the photographs should have been allowed into evidence. Plaintiffs argued that pursuant to Hardeman County v. McIntyre, 420 S.W.3d 742 (Tenn. Ct. App. 2013), the photographs should have been excluded. The Court of Appeals, however, held that the relevant issue in the Hardeman case was speed, and that there the Court ruled that “speed may not be inferred merely from photographs depicting damage to the vehicles as a result of the collision.” The Court held that the Hardeman case “does not prevent a jury from considering photographic evidence to infer the force of the impact from a collision in the absence of expert testimony.” Instead, the Court pointed out two Tennessee cases where defendants have been allowed to use photographs to assert that the impact of and injuries caused by an accident did not line up with a plaintiff’s testimony.
Ultimately, the Court upheld the admission of the photographs in this case. The Court stated that defendant “was entitled to defend the charges the [plaintiffs] were making against her and to impeach the [plaintiffs’] testimony with any relevant evidence, including photographs,” and the judgment of the trial court was affirmed.
This case is a good reminder for attorneys to consider all potential evidence when filing a claim and prepping witnesses. If a witness is going to testify to “heavy” impact, but the only physical evidence that will be offered (by the other side) makes the impact look less than “heavy,” this may significantly affect your witness’s credibility in the eyes of the fact finder. I am not sure how the TRE 403 analysis was utilized in this case, but the combination of the limiting instruction and the discretion given to the trial judge in evidentiary rulings allowed the defense to prevail on appeal.