Hardeman County v. Judy I. McIntyre , 2013 Tenn. App. LEXIS 206 ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
February 20, 2013 Session
HARDEMAN COUNTY v. JUDY I. MCINTYRE, ET AL.
Direct Appeal from the Circuit Court for Hardeman County
No. 08-02-0331/08-02-0351 J. Weber McCraw, Judge
No. W2012-01690-COA-R3-CV - Filed March 27, 2013
This case concerns the liability for a collision involving a vehicle operated by one of the
appellees and an ambulance operated by the appellant county. After a bench trial, the trial
court awarded damages to appellee driver against the appellant. After a thorough review of
the record, we reverse and remand.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and H OLLY M. K IRBY, J., joined.
James I. Pentecost and Melissa K. Van Pelt, Jackson, Tennessee, for the appellants,
Hardeman County, Tennessee and Hardeman County Emergency Medical Services.
David A. Stowers and Stephen L. Hale, Bolivar, Tennessee, for the appellees, Judy McIntyre
and Billy McIntyre.
Jay G. Bush, Jackson, Tennessee, for the appellee, Judy I. McIntyre.
OPINION
I. Background
On August 14, 2007, Appellant Hardeman County Emergency Medical Services
(“Ambulance Service”) employees Derrick Love and Jennifer Fortune were involved in an
automobile accident while responding to an emergency call in Whiteville, Tennessee. The
Ambulance Service is operated by Appellant Hardeman County, Tennessee (“Hardeman
County,” and together with Ambulance Service, “Appellants”).
At the time of the accident, the ambulance was traveling westbound on two-lane Tate
Road, through several curves, approaching the turn off to Jones Road. There is no stoplight
or stop sign on Tate Road at the turn off to Jones Road. The ambulance decelerated upon
seeing at least two cars stopped on Tate Road preparing to turn left onto Jones Road. After
the first car, a pickup truck, turned left, the ambulance proceeded to cross the double yellow
line on Tate Toad and merged into the left lane, in an attempt to go around the car that
remained stopped on Tate Road. As the ambulance was passing the stopped car, a Town Car,
the car’s driver, Appellee Judy I. McIntyre, attempted to turn left onto Jones Street, colliding
with the ambulance. Both the ambulance personnel and Ms. McIntyre sustained injuries in
the collision.
On June 5, 2008, Hardeman County filed a complaint against Ms. McIntyre for
damages arising from the collision, including property damage and medical expenses for the
ambulance personnel that were incurred by Hardeman County. On August 6, 2008, Ms.
McIntyre and her husband filed a separate complaint for damages against Hardeman County,
ambulance driver Derrick Love, and the Ambulance Service. The two cases were
consolidated by agreement of the parties on September 29, 2011.
A bench trial was held on May 15, 2012. The parties stipulated to the medical
expenses of both parties and the property damage to Hardeman County. The first witness
to testify was Annette Anderson. Ms. Anderson was driving the pickup truck in front of Ms.
McIntyre’s car that turned left onto Jones Road prior to the collision. Ms. Anderson testified
that the accident occurred during daylight and there were no adverse conditions on the road,
such as rain or snow. She further testified that the ambulance had engaged both its
emergency lights and siren throughout the events at issue in this case, and that she clearly
heard and saw the ambulance prior to the collision. According to Ms. Anderson, she
proceeded to turn onto Jones Road because the ambulance was far enough away at that time
that she could safely make the turn. Ms. Anderson testified that, when she observed the
ambulance, it was going “fast”and “quick” down Tate Road westbound toward the turn off
at Jones Road. However, Ms. Anderson further testified that, after she turned onto Jones
Road, she did not observe the ambulance again and admitted that she had no “knowledge of
how fast the ambulance was going.” Instead, she testified that shortly after turning on Jones
Road, she heard the sound of a collision, pulled her car to the side of the road , exited the car
and saw that the Town Car and the ambulance had collided.
Jennifer Fortune, an emergency medical technician with the Ambulance Service also
testified as to the circumstances surrounding the collision. Prior to the collision, the
ambulance was traveling down Jones Road in response to an emergency call regarding a
possible drug overdose in Whiteville, Tennessee. Ms. Fortune testified that Tate Road
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contains several curves, but that the portion of the road immediately proceeding the turn off
to Jones Road is a “straight away.” According to Mr. Fortune, who was a passenger in the
ambulance, the ambulance decelerated upon approaching the turn off to Jones Road until
the pickup truck turned, then proceeded to clear the intersection. As the ambulance was
going through the intersection, however, the Town Car turned left, colliding with the
ambulance and pushing it into a fire hydrant. Ms. Fortune testified that the ambulance’s
lights and siren were engaged the entire time and that the Town Car did not have a blinker
on indicating its intent to turn left. Ms. Fortune described the ambulance’s movement at the
turn off, stating that it “approached [the turn off] still using lights, and sirens are still
running, we yielded, [and] proceeded around [Ms. McIntyre’s Town Car] with caution.”
According to Ms. Fortune, when the driver of the ambulance became aware that Ms.
McIntyre was proceeding to turn left, he attempted to accelerate to prevent a collision.
However, his attempt was unsuccessful. Ms. Fortune further testified that she was unsure
of the exact rate of speed the ambulance was traveling down Tate Road, but that she was
sure that the ambulance was not exceeding fifteen miles per hour over the posted speed limit,
which is the Ambulance Service’s internal policy limit for speed in an emergency situation.
Ms. Fortune was also unsure of the exact speed limit on Tate Road where the accident
occurred, but testified that she believed the speed limit to be thirty-five miles per hour. Ms.
Fortune further testified that the ambulance was not required by internal policy to stop at the
turn off to Jones Road because the turn off was not a true intersection.
Ms. McIntyre testified, in contrast, that she is usually in the habit of using her turn
signal at the turn off to Jones Road and that she travels this same path every day that she
goes into work. Ms. McIntyre believed that she had used her blinker on the day of the
collision as was her usual habit. Ms. McIntyre testified that prior to the collision, she heard
the ambulance siren, but after looking in all directions, was unable to locate the ambulance.
According to Ms. McIntyre, she could also no longer hear the siren and she believed that the
ambulance personnel had “turned [the siren] off.” Ms. McIntyre admitted, however, that she
was listening to the radio at the time and did not turn the radio down despite hearing the
siren. Because she could neither hear nor see the ambulance approaching, Ms. McIntyre
proceeded to execute a left-hand turn onto Jones Road, resulting in the collision. According
to Ms. McIntyre, she never saw the ambulance and was, therefore, unable to speculate as to
the ambulance’s speed. Ms. McIntyre was taken by another ambulance to a hospital. She
testified, over objection, that while she was in the emergency room, she overheard the
ambulance driver admit to a police officer that he was driving approximately eighty miles
per hour prior to the collision. Ms. McIntyre also alleged that the ambulance driver stated
that both his lights and siren were on and that he believed that Ms. McIntyre had yielded to
the ambulance prior to attempting to pass her Town Car. The police officer allegedly
responded that he would falsify the police report to state that the ambulance was only
traveling forty miles per hour. Ms. McIntyre admitted, however, that she never saw the
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alleged speakers at the hospital, that she had never met either the ambulance driver or the
police officer, that she was not familiar with either speaker’s voice, and that the police report
at issue did not contain a speed at which the ambulance was traveling. Although the
ambulance driver was named as a defendant in the complaint, it appears from the record that
he was never served with process, nor did he participate in any way in the proceedings.
Neither the ambulance driver nor the police officer was called to testify.
Several photographs depicting the damage to Ms. McIntyre’s car were also admitted
into evidence without objection. The photographs show extensive damage to the driver’s
side and front of Ms. McIntyre’s car. Ms. McIntyre further testified that she suffered various
injuries, including a broken collar bone, four broken ribs, internal bruising, and an ankle
injury as a result of the crash. According to Ms. McIntyre, although she healed from the
majority of her injuries in approximately four months, she had lingering pain for a year after
the accident.
Finally, Lela Ashworth, Ms. McIntyre’s sister, testified about a conversation she had
with Ms. Fortune at the hospital after the accident. According to Ms. Ashworth, she was
called to the hospital due to her sister’s accident. At the hospital, Ms. Ashworth spoke with
Ms. Fortune, who allegedly informed Ms. Ashworth that the ambulance had been traveling
at eighty miles per hour prior to the collision, but “slowed down” before the accident
occurred. Ms. Ashworth testified, however, that Ms. Fortune did not state what speed the
ambulance was going at the time of the collision. In her previous testimony, however, Ms.
Fortune denied that she told anyone that the ambulance was traveling eighty miles per hour.
In addition, Ms. Fortune testified that she never heard Mr. Love or any one else state that the
ambulance was going eighty miles per hour.
At the conclusion of the evidence, the trial court made oral findings of fact and
conclusions of law. In pertinent part, the trial court found:
First of all, there’s a lot of argument about the speed of
the ambulance. The Court does not find that the ambulance was
traveling at 80 miles per hour. Although the Court does find
that based on the photographs that the ambulance was traveling
at a pretty good rate of speed, because there is substantial
impact according to the photographs.
The Court also finds that Ms. McIntyre testified that she
heard the ambulance and then it was cut off, and she looked
around and didn’t know where it was. And then there was
testimony later that she had a radio on listening to gospel music.
You know, the court kind of wonders if you had heard a
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siren and didn’t know where it was, why you would have the
radio on, why you would not just pull to a stop or to the side of
the road until you could locate the source of the siren, to locate
the ambulance, so I’m a little troubled by that.
The Court is going to ultimately find that the ambulance
driver was 60 percent at fault based on his disregard for
possible results and the safety of all persons. Even though he
does have the ability to pass cars, cross double yellow lines, to
make emergency maneuvers, he still needs to do so with regards
to safety for all persons.
And, again, based on impact, it appears that he should
have lowered his speed as he maybe passed which is an
appropriate pass. He must do so with due caution.
Again, the Court finds that Ms. McIntyre is 40 percent at
fault because she heard the ambulance yet she did not take due
care to locate where it was. She did not take the due care to turn
her radio off or even lower the windows to locate the source of
this.
So the Court finds that she’s partially at fault as well
with regards to the damages to the automobile. . . .
The trial court went on to award Ms. McIntyre damages for lost wages, medical
expenses, and pain and suffering. The judgment totaled $86,488.13, which was to be
reduced by Ms. McIntyre’s own percentage of fault. The trial court entered an order
memorializing its ruling from the bench on June 29, 2012. The trial court’s oral ruling was
incorporated by reference into the order. Appellants filed a timely notice of appeal. After
receiving the record, however, this Court concluded that the order entered was not a final
order because it did not adjudicate Ms. McIntyre’s claim against ambulance driver Derrick
Love. Accordingly, this Court entered an order on October 29, 2012 directing the trial court
to enter a final order adjudicating this claim. On November 14, 2012, the trial court entered
an order dismissing Ms. McIntyre’s claim against Mr. Love, noting that Mr. Love was never
served, and therefore was never properly before the Court. The trial court also specifically
noted that it had denied any claims for property damage asserted by Ms. McIntyre.
II. Analysis
Appellants raise a number of issues in their appellate brief; however, from our review
of the record and the parties’ briefs, we discern the dispositive issue in this case to be
whether Ms. McIntyre proved a breach of the standard of care on the part of the Ambulance
Service. Because this case was tried by the trial court, we review the trial court’s findings
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of fact de novo with a presumption of correctness, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the
trial court’s conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d
681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).
Both Ms. McIntyre’s and Hardeman County’s claims against each other are based on
theories of negligence. The prima facie elements of negligence are as follows:
In order to establish a prima facie claim of negligence, basically
defined as the failure to exercise reasonable care, a plaintiff
must establish the following essential elements: “(1) a duty of
care owed by defendant to plaintiff; (2) conduct below the
applicable standard of care that amounts to a breach of that
duty; (3) an injury or loss; (4) cause in fact; and (5) proximate,
or legal cause.
Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v.
Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). Appellants essentially argue that Ms. McIntyre
failed to prove that they breached the duty of care in operating the ambulance at the time of
the collision. With respect to the breach of duty element of a claim for negligence, our
Supreme Court has held:
Assuming a duty is owed, it must be determined whether
defendant has exercised reasonable care under the
circumstances. If defendant has not, the duty has been breached.
In this regard, we have observed that “[t]he term reasonable
care must be given meaning in relation to the circumstances.
Ordinary, or reasonable, care is to be estimated by the risk
entailed through probable dangers attending the particular
situation and is to be commensurate with the risk of injury.”
McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 895 (Tenn. 1996) (citations
omitted). Whether the defendants breached the duty is a question of fact. Winkler v.
Pinnacle Properties I, LLC, M2011-02616-COA-R3-CV, 2012 WL 2989135, *4 (Tenn.
Ct. App. July 20, 2012). In a non-jury case such as this one, we review the record de novo
with a presumption of correctness as to the trial court's determination of facts, and we must
honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P.
13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
Appellants argue that nothing in the record supports the trial court’s implicit finding
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that the Ambulance Service breached the duty to exercise reasonable care. To support this
argument, Appellants cite to Tennessee Code Annotated Section 55-8-108, which exempts
emergency responders from some traffic laws. Tennessee Code Annotated Section 55-8-108
provides, in pertinent part:
(a) The driver of an authorized emergency vehicle, when
responding to an emergency call, or when in the pursuit of an
actual or suspected violator of the law, or when responding to
but not upon returning from a fire alarm, may exercise the
privileges set forth in this section, but subject to the conditions
stated in this section.
(b)(1) A driver of an authorized emergency vehicle operating
the vehicle in accordance with subsection (a) may:
(A) Park or stand, notwithstanding other provisions of this
chapter that regulate parking or standing;
(B) Proceed past a red or stop signal or stop sign, but only after
slowing down as may be necessary for safe operation;
(C) Exceed the speed limits so long as life or property is not
thereby endangered; and
(D) Disregard regulations governing direction of movement or
turning in specified directions.1
Ms. McIntyre argues, however, that Tennessee Code Annotated Section 55-8-108 does not
operate to excuse ambulance drivers from operating with due care, citing subsection (b)(2),
which states that:
Subdivision (b)(1) shall not relieve the driver of an authorized
emergency vehicle from the duty to drive with due regard for
the safety of all persons, nor shall subdivision (b)(1) protect the
driver from the consequences of the driver's own reckless
disregard for the safety of others.
Tenn. Code Ann. § 55-8-108(b)(2). Accordingly, Tennessee law provides that ambulance
drivers are not required to strictly adhere to all traffic laws when responding to an
emergency call, but must exercise these special privileges with “due regard for the safety of
1
Although the statute concerns the duty of the driver of the ambulance rather than the ambulance
service, neither Hardeman County nor the Ambulance Service has appealed the ruling that they may be liable
for Mr. Love’s negligence, regardless of Ms. McIntyre’s failure to make him a proper party to this suit.
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all persons.” Tenn. Code Ann. § 55-8-108(b)(1)–(2).
There is no dispute in this case that Mr. Love and Ms. Fortune were responding to
an emergency when the accident occurred. As such, they were entitled to exceed speed limits
and disregard regulations governing the direction of movement. However, as explained by
the statute, this exemption is tempered by the fact that the ambulance driver may not place
life or property in danger and must exercise due regard for all drivers. The obligation to
exercise due care is, thus, not excused by the fact that the ambulance driver is responding
to an emergency call. As explained in American Jurisprudence:
[T]he fact that an emergency vehicle on an emergency call is
exempt from traffic regulations and is given the right of way
over other travelers does not relieve the driver of such vehicle
from the duty to drive with due regard for the safety of others
using the highway. The drivers of emergency vehicles do not
have the right to enter an intersection in blind reliance on their
special right of way, but such drivers have to be alert and on the
lookout for other travelers who might attempt to cross the
intersection and who are lulled into a sense of security by the
thought that they have the right of way.
8 Am. Jur. 2d Automobiles § 812 (footnotes omitted). As further explained:
The fact that an ambulance is exempt from the operation
of certain traffic regulations or enjoys certain prior rights over
other vehicles does not permit the operators of such vehicles to
drive in reckless disregard of the safety of others, nor does it
relieve them of the general duty of exercising due care for the
safety of others and their own safety.
Generally speaking, an ambulance driver is under a duty
to exercise due care for the safety of all persons, and an
ambulance driver must exercise reasonable precautions against
extraordinary dangers of the situation which duty compels the
driver to create. The fact that ambulances are exempted from
the operation of certain traffic regulations or enjoy certain prior
rights over other vehicles does not permit the operators of such
vehicles to drive in reckless disregard of the safety of others,
nor does it relieve them from the general duty of exercising due
care for the safety of others and their own safety, or from the
consequences of an arbitrary exercise of the right of way. Any
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careless, arbitrary, or unreasonable exercise of the driver's
privileges is negligence. Under some statutes, the threshold for
recovery for violation of the duty to exercise due care for the
safety of all persons is recklessness, not negligence.
60A C.J.S. Motor Vehicles § 880 (footnotes omitted).
From our review of the record and the arguments of counsel in this case, it appears
that Ms. McIntyre’s theory of liability is that the ambulance driver breached his duty of care
in driving down Tate Road at an excessive rate of speed. Indeed, the trial court’s oral
findings support our conclusion, as the trial court remarked that the photographs of the
impact the ambulance had on Ms. McIntyre’s car show that the ambulance was traveling “at
a pretty good rate of speed.” The trial court made no other findings as to any fault on the part
of the ambulance driver or the Ambulance Service. Instead, the trial court even remarked
that the ambulance’s driver’s maneuver into the opposite lane of traffic was “appropriate.”
Accordingly, this Court must consider whether the evidence in the record
preponderates against the trial court’s finding that the Ambulance Service, through the
actions of the ambulance driver, breached the duty of care by traveling at an excessive rate
of speed. For the evidence to preponderate against a trial court's finding of fact, it must
support another finding of fact with greater convincing effect. Watson v. Watson, 196
S.W.3d 695, 701 (Tenn. Ct. App. 2005). We first turn to consider the evidence in the record
that supports the trial court’s finding that the ambulance driver breached the duty of care by
traveling at an excessive rate of speed.
First, the trial court heard testimony from Ms. Anderson, who witnessed the events
leading up to the collision. Ms. Anderson testified that at the time she observed the
ambulance, it was traveling “fast” and “quick.” Ms. Anderson admitted, however that she
did not observe the ambulance immediately prior to the collision and was, therefore, unable
to testify to the ambulance’s speed at the time of the accident. Because Ms. McIntyre did not
see the ambulance at any time prior to the accident, she was also unable to testify as to the
speed of the ambulance at the time of the accident. Her testimony, therefore, is not probative
of whether the ambulance was traveling at an excessive rate of speed.
The trial court also heard testimony from Ms. McIntyre and Ms. Ashworth regarding
hearsay statements made after the collision suggesting that the ambulance was traveling
approximately eighty miles per hour at the time of the crash. The trial court, however, did
not credit this testimony and specifically found that the ambulance was not going eighty
miles per hour. Ms. McIntyre does not challenge this ruling on appeal. Accordingly, we will
likewise disregard the alleged hearsay statements suggesting that the ambulance was
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traveling at a speed of eighty miles per hour.
Next, Ms. McIntyre submitted into evidence photographs depicting the impact
damage to Ms. McIntyre’s car. According to Ms. McIntyre, these photographs allowed the
trial court to make a reasonable inference that the ambulance was traveling at an excessive
rate of speed under the circumstances. It appears that the trial court credited this argument
when it found that the “impact” to Ms. McIntyre’s car showed that the car was traveling at
a “pretty good rate of speed.” Ms. McIntyre argues that the trial court’s finding was proper
because the trial court was able to infer the ambulance’s speed from the photographs and
testimony. Ms. McIntyre relies on this Court’s opinion in Ward v. Gilless, No.
W1999-01324-COA-R3-CV, 2000 WL 34411148 (Tenn. Ct. App. Aug. 21, 2000).
Ward involved an automobile accident that resulted in the death of driver (“the
decedent”). Id. at *1. In Ward, the decedent’s father (“plaintiff”) filed a complaint for
damages against the Shelby County Sheriff’s Office and the Shelby County Division of
Public Works (together, “defendants”), alleging that the defendants were negligent in failing
to close the road on which the accident occurred due to flooding. Id. at *3. At the conclusion
of the trial, the trial court found that the negligence of the decedent was greater than the
negligence of the defendants and dismissed the case. Id. On appeal, the plaintiff argued that
the evidence was insufficient to show any negligence on the part of the decedent. The Court
of Appeals disagreed and affirmed the trial court. Explaining the rules of negligence with
regard to the speed of an automobile, the Court stated:
Under Tennessee law, the standard that must be applied
in negligence cases is that of a reasonable and prudent person
in the same or similar circumstances. See Menuskin v.
Williams, 940 F. Supp. 1199, 1211 (E.D. Tenn.1996); McClung
v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 895 (Tenn.
1996); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995);
Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990);
Kelley v. Johnson, 796 S .W.2d 155, 158 (Tenn. Ct. App.
1990). When determining whether an individual has conformed
to this standard, the trier of fact must consider the evidence
presented regarding the facts of the case and may also rely on
the considerations of logic, common sense, public policy, and
precedent. See Kelley, 796 S.W.2d at 158. When an individual
is operating a motor vehicle, he or she is required to operate the
vehicle in such a manner and at such a speed that is consistent
with what a reasonable and prudent person would do under the
same or similar circumstances. See Cawthon v. Mayo, 325
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S.W.2d 629, 637 (Tenn. Ct. App. 1958); Coleman v. Byrnes,
242 S.W.2d 85, 89 (Tenn. Ct. App. 1950). Consistent with this
general rule, a motorist must proceed at a speed sufficiently
slow to enable him or her to stop in time to avoid any
obstruction or condition in the roadway that he or she had a
reason to expect. See Cline v. United States, 214 F. Supp. 66, 72
(E.D. Tenn. 1962). An acceptable speed of travel is one that is
commensurate with the then existing conditions of the roadway
and atmosphere. See Hopper v. United States, 122 F. Supp. 181,
188 (E.D. Tenn. 1953). The mere fact that a motorist is
operating his or her vehicle at a speed that is within the limit
proscribed by law does not preclude the conclusion that the
speed is excessive under the circumstances. See Cline, 214
F.Supp. at 73; Hopper, 122 F.Supp. at 188. When determining
whether an individual was operating his or her vehicle at an
excessive speed under the circumstances, it is not essential that
the trier of fact have before it direct evidence regarding this
matter; rather, a finding with respect to the speed of a vehicle
may be inferred from the facts of the case. See Nash v. Love,
440 S .W.2d 593, 598 (Tenn. Ct. App. 1968); Templeton v.
Quarles, 374 S.W.2d 654, 658 (Tenn. Ct. App. 1963).
Ward, 2000 WL 34411148, at *3 (emphasis added).
Applying the above rules to the facts of the case, the Court of Appeals concluded that
the trial court did not err in finding the decedent at fault for his own injuries when the
evidence was undisputed that it had been raining heavily, the decedent was familiar with the
road, and the road had posted signs warning high water was present. In addition, the sole
witness to the accident testified that the decedent was driving at approximately thirty-seven
miles per hour in a forty-five mile per hour zone, despite the heavy rain and warnings, which
the trial court concluded was excessive given the circumstances.
Based on the rule expressed in Ward, Ms. McIntyre argues that the trial court could
infer excessive speed on the part of the ambulance based upon the photographs showing the
impact to her Town Car. In contrast, Appellants argue that the photographs alone are
insufficient to support a finding of excessive speed.2 Authority exists that evidence of
2
We note that Ms. McIntyre objects to this argument on appeal due to the fact that the Appellants
did not object to the admissibility of the photographs in the trial court. It is well-settled that issues are
(continued...)
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violence and force of impact is a circumstance which may be considered by the fact finder
in considering the question of whether a vehicle was traveling at an excessive or negligent
rate of speed. 9 Blashfield's Cyclopedia of Automobile Law and Practice, § 6234; see also
29 A.L.R. 3d 248 (noting that non-expert witness testimony is not admissible to estimate the
speed of a vehicle, as the fact finder “is as qualified to estimate the speed of a motor vehicle
from the physical facts as is the lay or nonexpert witness.”). This principle has likewise been
applied in Tennessee:
Direct testimony is not essential to warrant a finding of
excessive speed. Evidence as to the force of the impact of the
collision, or as to the distance which an automobile causing an
injury overshot the point of the accident before being brought
to a standstill, is of significance, and may be by itself, or in
connection with other circumstances, of sufficient force to
warrant a jury in finding negligence as to speed, and in drawing
an inference that the machine was traveling at a rate of speed
such as to endanger the life or limb of persons upon the
highway.
Templeton v. Quarles, 374 S.W.2d 654, 658 (Tenn. Ct. App. 1964) (citing Elmore v.
Thompson, 14 Tenn. App. 78, 1931 WL 1579 (Tenn. Ct. App. 1932); Phillips-Buttorf Mfg.
Co. v. McAlexander, 15 Tenn. App. 618, 1932 WL 1358 (Tenn. Ct. App. 1932)). All
inferences must be based on the evidence and “cannot be based on surmise, speculation,
conjecture, or guess[.]” Benton v. Snyder, 825 S.W.2d 409 (Tenn. 1992) (quoting Patton
v. L.O. Brayton & Co., 201 S.W.2d 981, 984 (Tenn. 1947)). We note, however, that the
cases in which speed had been inferred by a non-expert from the circumstances surrounding
the collision all involve evidence other than or in addition to photographs depicting the
damage to the vehicles as a result of the collision. In fact, in most cases, the evidence relied
on by the trial court concerned the skid marks on the road at the collision site. See Johnson
v. Attkinson, 722 S.W.2d 390, 392 (Tenn. Ct. App. 1986) (involving skid marks); Combs
v. Rogers, 450 S.W.2d 605, 608 (Tenn. Ct. App. 1969) (concluding that the evidence was
insufficient to support a finding of excessive speed when the record contained no evidence
(...continued)
considered waived on appeal by the failure to present them at trial. See ABN AMRO Mortg. Group, Inc. v.
Southern Sec. Federal Credit Union, No. W2011-00693-COA-R3CV, 2011 WL 5590320, at *4 (Tenn. Ct.
App. Nov. 17, 2011) (citing Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009)). As we perceive Appellants’
argument, however, they are not questioning the admissibility of the evidence, but rather find error in the trial
court’s reliance on the evidence to infer excessive speed. Thus, their argument is not waived and Ms.
McIntyre’s objection is without merit.
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of skid marks); Monday v. Milsaps, 264 S.W.2d 6, 17 (Tenn. Ct. App. 1953) (“The law is
well settled that an expert witness may give his opinion as to the speed of an automobile
from the length of its skidmarks.”) (citing 32 C.J.S., Evidence, § 533). For example, the
Court in Templeton considered evidence of skid marks and the distance the pedestrian
plaintiff was thrown by the collision as probative evidence of “impact,” rather than
photographic evidence of the vehicle’s damages. Templeton, 374 S.W.2d at 658. In another
case relying on Templeton, Nash v. Love, 440 S.W.2d 593 (Tenn. Ct. App. 1968), this
Court held that the proof was likewise insufficient to allow the fact-finder to infer excessive
speed when the record contained no evidence of skid marks on the road due to the collision,
the distance the vehicle “overshot the point of impact,” or how far the plaintiff pedestrian
was thrown by the impact. Id. at 598. Thus, the term “impact,” as it is used in Templeton
and its progeny, refers to something more than mere photographs of the damage to a vehicle
caused by a collision. See also Ward, 2000 WL 34411148, at *3 (relying on Templeton).
The requirement that evidence other than mere photographs of vehicle damage be
considered in determining speed is not novel: “Accurate computation of speed from damage
to vehicles alone is not possible; it is difficult to measure the force required to distort a
particular automobile part.” 18 Am. Jur. Trials 443.
In this case, however, there is no evidence in the record regarding skid marks on the
road from the accident. Further, there is nothing in the record to indicate the weight of either
vehicle, the tire air pressure, or type and condition of the road surface at the time of the
accident. All these factors have been held “necessary to estimate the speed of the vehicle.”
Johnson, 722 S.W.2d 392. Thus, while the record does contain photographs depicting a
substantial impact to Ms. McIntyre’s car, the record is devoid of other evidence necessary
to allow the finder of fact to infer excessive speed from the circumstances.
Finally, the record contains testimony from Ms. Fortune that the ambulance was
traveling at no greater than fifteen miles per hour over the speed limit. Taking Ms. Fortune’s
belief that the speed limit on Tate Road was thirty-five miles per hour as true, as it is
uncontroverted in the record, Ms. Fortune’s testimony suggests that the speed the ambulance
was traveling at approximately fifty miles per hour. Nothing in the record suggests that the
trial court found Ms. Fortune’s credibility lacking. Thus, the evidence in the record supports
a finding that the ambulance was traveling up to fifteen miles above the posted speed limit.
A finding that the ambulance was traveling above the posted speed limit does not,
ipso facto, lead to the conclusion that the ambulance driver breached his duty to drive with
due care to all persons. Indeed, the Tennessee Supreme Court has held that “[u]nusual
circumstances may make it reasonable to adopt a course of conduct which causes a high risk
of harm to the public.” Haynes v. Hamilton County, 883 S.W.2d 606, (Tenn. 1994).
“However, such conduct is not justified unless the end itself is of sufficient social value. The
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general public has a significant interest in not being subjected to unreasonable risks of injury
as the police carry out their duties.” Id. (footnote omitted). The question, then, is whether
traveling at a rate of speed fifteen miles per hour above the posted speed limit was
reasonable given the circumstances. Thus, we turn to consider the circumstances
surrounding the collision and whether those circumstances justify the ambulance driver’s
action in exceeding the posted speed limit.
First, it is undisputed that the ambulance was responding to an emergency drug
overdose call at the time of the collision. In addition, both Ms. Anderson and Ms. Fortune
testified that the ambulance had engaged both its emergency lights and siren throughout the
events at issue in this case. Ms. McIntyre, however, testified that she believed that the
ambulance driver at some point “turned [the siren] off.” While the trial court did not make
a specific finding that the ambulance driver had engaged his emergency lights and siren, the
trial court did find Ms. McIntyre at fault for failing to search for the ambulance after hearing
its siren. Accordingly, the trial court, at least inferentially, found that the ambulance had
engaged its siren prior to the accident. Where the trial court does not make specific findings
of fact, there is no presumption of correctness and we “must conduct our own independent
review of the record to determine where the preponderance of the evidence lies.” Brooks v.
Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Based on the testimony of both Ms. Anderson
and Ms. Fortune, we conclude that the weight of the evidence supports a finding that the
ambulance driver engaged the ambulance’s lights and sirens throughout the events at issue.
Because the ambulance driver was responding to an emergency and had engaged the
ambulance’s emergency signals, the ambulance driver was entitled to exceed posted speed
limits, so long as life or property was not endangered and he did so with due caution given
the circumstances. See Tenn. Code Ann. §55-8-108. Additionally, the only direct evidence
of speed suggests that the ambulance was traveling less than fifteen miles per hour over the
posted speed limit, which is within the Ambulance Service’s internal policy for speed in an
emergency situation. Finally, uncontradicted evidence from Ms. Fortune also shows that the
ambulance decelerated when approaching the turn off to Jones Road, proceeded around Ms.
McIntyre’s car “with caution,” and only accelerated in an attempt to avoid the collision.
These facts tend to support a finding that the ambulance was not negligent in traveling at a
speed of fifteen miles per hour over the posted speed limit.
The road conditions on the day of the accident also tend to show that the ambulance’s
speed was not excessive given the circumstances. See Haynes v. Hamilton County, 883
S.W.2d 606, 611 (Tenn. 1994) (noting that in a case involving a police chase, the “weather
and road conditions” are factors relevant to the determination of whether the emergency
vehicle was operated in a negligent manner). First, the collision occurred in broad daylight
on a clear day. No witness or party testified that there were adverse road conditions the day
of the accident, such as rain or snow. In addition, Ms. Anderson testified that even though
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at least one car was behind her on Tate Road, she could clearly hear and see the ambulance
approaching. Indeed, Ms. Anderson saw the ambulance when it was far enough away that
she was safely able to turn onto Jones Road. Finally, the turn off to Jones Road occurs at a
part of Tate Road that is a straight path and is not concealed from other drivers by curves.
The situation in this case is analogous to the situation presented in Kowalski v.
Eldridge, 765 S.W.2d 746 (Tenn. Ct. App. 1988). In Kowalksi, a fire truck was traveling
down a road when the driver ahead of the fire truck swerved to the right, then immediately
turned left into the fire truck, resulting in a collision in which the car driver died. Id. at 747.
The driver’s wife brought a wrongful death action against the operators of the fire truck. It
was undisputed that the fire truck had engaged all its emergency signals, that the car driver
did not engage his turn signal indicating his intent to turn left, and that the fire truck was
traveling approximately ten-to-twenty miles per hour faster than the car. The trial court
found that the fire truck driver was negligent “in approaching from the rear the [other]
vehicle and attempting to pass on the left without first ascertaining in his own mind that he
could do so with reasonable safety.” The trial court further concluded that the car driver’s
negligence was excused by the sudden emergency doctrine, based on expert testimony that
the car driver most likely perceived the approach of the fire truck as an emergency. Id. at
748.
The Court of Appeals, however, reversed, concluding that the sudden emergency
doctrine did not apply because the driver, in suddenly turning left, created the emergency at
issue. Id. at 747–48. In addition, the Court of Appeals concluded that the fire truck driver
acted reasonably under the circumstances in passing to the left of the car, see Tenn. Code
Ann. § 55-8-117 (detailing the procedure for passing on the left), despite the evidence that
the fire truck was traveling at a much greater rate of speed than the car driver. Kowalski, 765
S.W.2d at 749.
Similarly, in this case, the ambulance driver was traveling at a greater rate of speed
than the posted speed limit when he attempted to overtake Ms. McIntyre’s car on the left
side. Ms. McIntyre, like the driver in Kowalski, turned left onto Jones Road causing the
collision with the ambulance. As previously discussed, we have concluded that the weight
of the evidence shows that the ambulance driver had engaged his emergency lights and siren
throughout the events at issue. Unlike in Kowalski, however, the facts are disputed as to
whether Ms. McIntyre had engaged her turn signal indicating her intent to turn left. The trial
court also did not make a specific finding of fact as to whether Ms. McIntyre engaged her
turn signal. Regardless of whether the turn signal was engaged, the evidence shows that the
ambulance approached the turn off to Jones Road, decelerated and then proceeded around
Ms. McIntyre’s car “with caution.” In addition, it is undisputed that Ms. Anderson was able
to see and hear the ambulance prior to it reaching the turn off to Jones Road. Finally, Ms.
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McIntyre perceived the siren of an ambulance prior to the collision, but, as found by the trial
court, did not properly investigate the source of the sound, and consequently, did not yield
to the ambulance as it passed on the left side of her vehicle. Tennessee Code Annotated 55-
8-132 outlines the responsibility of a driver when an emergency vehicle approaches, stating
that the driver must “yield the right-of-way . . . and shall stop and remain in that position
until the authorized emergency vehicle has passed.” Thus, Ms. McIntyre was under a
statutory duty to yield to the ambulance as it approached. “[I]t is a general rule of law that,
in the absence of circumstances indicating otherwise, the operator of a motor vehicle has the
right to assume, and to act on the assumption, that other users of the highway will obey the
law and exercise due care.” Hampton v. Padgett, 414 S.W.2d 12, 15 (Tenn. App. Ct. 1967).
The ambulance driver in this case, thus, “had the right to assume that [Ms. McIntyre] would
lawfully respond not only to the emergency signals on the fire truck, but also to yield to a
vehicle passing on the left.” Kowalski, 765 S.W.2d at 749.
In addition, the circumstances of this case fail to rise to the level of other cases in
which an ambulance driver or service has been found to be negligent for traveling at an
excessive rate of speed. See e.g., Shearn v Orlando Funeral Home, Inc., 82 So. 2d 866 (Fla.
1955) (affirming finding of negligence when ambulance driver was traveling up to ninety
miles per hour despite ordinance that only allowed emergency vehicles to travel thirty-five
miles per hour); Carter v. Acadian Ambulance Service, Inc., 342 So. 2d 1145 (La. Ct. App.
1977) (finding of negligence affirmed when the evidence showed that the driver pulled into
right lane of traffic without warning, accelerated at high rate of speed, did not activate
emergency lights or siren until just before collision and took no action to avoid striking other
vehicle); Grammier-Dismukes Co. v Payton, 22 S.W.2d 544 (Tex. Civ. App. 1929)
(affirming a judgment for the plaintiff when the driver was traveling twenty to twenty-five
miles over the speed limit on a foggy day without any audible signal to warn other drivers
of its approach). Under the particular circumstances at issue in this case, we conclude that
the greater convincing weight of the evidence in the record is that the ambulance driver
acted reasonably in traveling down Tate Road at a speed of approximately fifty miles per
hour and decelerating when approaching the turn off. See Watson, 196 S.W.3d at 701.
Accordingly, the evidence preponderates against the trial court’s finding that the ambulance
was traveling at an excessive rate of speed under the circumstances.
Nothing in the trial court’s oral ruling or written order suggests that the trial court
attributed any other fault to the ambulance driver other than the use of excessive speed.
From our review of the record, we likewise conclude that no other fault is attributable to the
ambulance driver or Ambulance Service. Accordingly, the evidence likewise preponderates
against the trial court’s finding that the ambulance driver breached his duty of care in this
case. As previously discussed, a breach of the duty of care is an essential element to any
negligence claim. Giggers, 277 S.W.3d at 364. Without a breach on the part of the
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Appellants or their employees, there can be no liability. Accordingly, we reverse the
judgment against Appellants.
Based on its lack of liability, Hardeman County requests that this Court award its total
requested damages. The parties stipulated that Hardeman County incurred $24,255.16 in
damages for medical expenses and property damage. From our review of the trial court’s
order, the trial court found that Ms. McIntyre breached her duty of care in failing to look for
the ambulance after she heard the siren and consequently failing to yield to the ambulance
at the turn off to Jones Road. In addition, the trial court implicitly concluded that Ms.
McIntyre’s negligence was a cause in fact and a proximate cause of the accident, attributing
forty percent of the fault for the collision to her. Ms. McIntyre does not appeal the trial
court’s finding that she breached the duty of care or that she was partially at fault for the
accident. Having concluded that Appellants did not breach the duty of care and thus are not
negligent, as well as that Ms. McIntyre did not appeal the trial court’s finding that she was
negligent, we award Hardeman County its stipulated damages of $24,255.16.
The judgment of the Hardeman County Circuit Court is reversed and the case is
remanded for entry of judgment in favor of Appellant Hardeman County in the amount of
$24,255.16. Costs of this appeal are taxed to Appellee, Judy McIntyre, for which execution
may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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