Angie Brooks, v. Kimberly J. Quam Davis and Gayle Schaal - Concurring

Two persons injured in a one-car accident sued the driver of the car in which they were riding. After obtaining an essentially worthless judgment against the unknown driver of another car, the passengers perfected this appeal to take issue with the trial court’s decision to permit their driver to rely on a “phantom automobile” defense even though she had not included this defense in her answer. The majority has determined that the trial court properly permitted the driver to assert this defense and to amend her pleadings to conform to the proof. While I concur with the majority’s decision under the circumstances of this case, I have prepared this separate opinion to avoid leaving a mistaken impression that the driver’s answer complied with Tenn. R. Civ. P. 8.03. It did not; however, the error does not undermine the jury’s verdict in this case.