Chapter 75: Unavoidable Accident

The Case: Whitaker v. Harmon , 879 S.W.2d 865 (Tenn. Ct. App. 1994).

The Basic Facts: Defendant lost control on a wet road and hit plaintiff. He insisted it was error for the trial judge not to give an "unavoidable accident" instruction.

The Bottom Line:

• "An 'unavoidable accident' has been defined by our courts as follows:

  An unavoidable or inevitable accident is such an occurrence or happening as, under all attendant circumstances and conditions, could not have been foreseen or anticipated in the exercise of ordinary care as the proximate cause of injury by any of the parties concerned. In other words, where there is no evidence that the operator of the motor vehicle was negligent in any way, or that he could have anticipated the resulting accident, the accident is deemed to have been an unavoidable or inevitable one for which no recovery may be had.

  [7A Am. Jur. 2d Automobiles and Highway Traffic § 397, pp. 607-08]; see also [Black's Law Dictionary 1693 (Rev. 4th ed. 1968)]." 879 S.W.2d at 870.
• "We are aware that there are cases which recite that 'unavoidable accident' is an affirmative defense. See i.e., Nelson v. Simpson, [826 S.W.2d 483 (Tenn. Ct. App. 1991)]. Such assertions, however, are mere dicta. For example, in Nelson, the court simply recited that an answer filed on behalf of the defendant asserted 'the affirmative defenses of unavoidable accident and contributory negligence.' We are further aware that it is not uncommon for trial judges to give an 'unavoidable accident' charge. We believe, however, that since 'unavoidable accident' in its simplest terms is nothing more than a lack of negligence on the part of any party which is a proximate cause of the accident or damage, an adequate instruction on negligence alone is sufficient and an 'unavoidable accident' charge is unnecessary except in, perhaps, the most unusual circumstance. We believe the better view is stated Braden v. Varnell, 871 S.W.2d 690 (1991), (Permission to appeal denied June 10, 1991): [sic]." Id.
• "As to the last issue, counsel for Mr. Braden insists that sudden emergency is an affirmative defense and Rule 8.03 of the Tennessee Rules of Civil Procedure requires that it be specifically pleaded. Counsel concedes there is a split of authority in other jurisdictions regarding the question. We are inclined to believe that the doctrine is not an affirmative defense because the defenses enumerated in the Rule seek to avoid liability even though a party might otherwise be liable. Under the sudden emergency doctrine a party is guilty of no negligence because of the emergency, and thus there is nothing to avoid." Id.
• "This reasoning applies equally to the so-called 'unavoidable accident doctrine.' Thus, in accord with Braden, supra, we hold that the defenses of 'sudden emergency' and 'unavoidable accident' are not affirmative defenses, therefore, there was no cause for the trial judge to charge regarding the burden of proof in relation thereto." Id.

Other Sources of Note : Rickets v. Robinson, 169 S.W.3d 642 (Tenn. Ct. App. 2004) (unavoidable accident instruction is no longer necessary but it was not reversible error for the judge to charge it).