TBA Law Blog

Posted by: Donald Paine on Nov 24, 2009

Journal Issue Date: Dec 2009

Journal Name: December 2009 - Vol. 45, No. 12

Ever heard of it? I confess my ignorance until I stumbled across it in Tennessee Law of Evidence, Fifth Edition, at  §3.15[4]: "A little known presumption in Tennessee deals with the amnesia victim. In a negligence action, it is presumed that the amnesiac acted with due care in the absence of evidence to the contrary." Authors Cohen or Sheppeard wrote those sentences. This author did not.

Two reported Tennessee Court of Appeals opinions discuss this common law presumption. The first is Jeffreys v. Louisville & Nashville Railroad Company Inc., 560 S.W.2d 920 (1977). Oscar Jeffreys was driving his Volkswagen to work around 7 a.m. on Friday, May 16, 1975. As he headed south on Jackson Road in West Knox County, his usual route, he approached railroad tracks marked by cross-bucks warnings. Although a train traveling west was approaching slowly (20 to 25 m.p.h.) from his left with headlight and zig-zag light operating and bell ringing and whistle blowing, Jeffreys failed to stop. His serious injuries included amnesia. He could not remember the collision or his conduct immediately beforehand.

In the law of presumptions we encounter basic facts and presumed facts. Basic facts are those proved by oral or documentary evidence, here the plaintiff's amnesia. Presumed facts are those provided by common law or statutes, here the plaintiff's due care. The latter can be rebutted by witnesses or documents.

Rebuttal was successful in Jeffrey v. Railroad. The engineer and fireman testified that Oscar Jeffreys did not even look at the train. And uncontested evidence showed that a motorist within 15 feet of the crossing could see a train 1,342 feet to the east.

The second opinion is Green v. City of Knoxville, 642 S.W.2d 431 (1982). A motorcycle and a fire truck collided at an intersection familiar to readers of this column who studied at U.T. In the Fort Sanders community, Highland Avenue runs east and west and takes a dogleg at Seventeenth Street, which runs north and south. On Sunday, April 20, 1980, James Green was riding his motorcycle east on Highland approaching Seventeenth. The fire truck was climbing the hill from the north on Seventeenth approaching Highland, not slowing at the intersection. Green was rendered an amnesiac.

Basic fact: Green is an amnesiac. Presumed fact: Green acted with due care.

An eyewitness testified that Green had the green light. The manual device to make all intersection lights red was not activated. Rebuttal proof failed and the presumption prevailed.

Thankfully this presumption does not often arise. But know what it is and how it works, just in case an amnesiac becomes your client.

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.