Cannon v. City of Chattanooga ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999
Cecil Crowson, Jr.
YVONNE WIMPEE CANNON, ) Appellate C ourt
C/A NO. 03A01-9901-CV-00023
) Clerk
Plaintiff/Counter-Defendant-)
Appellee, )
)
v. )
)
CITY OF CHATTANOOGA, )
)
Defendant/Counter-Plaintiff-)
Appellant. )
)
)
)
CHARLOTTE BLALOCK, Individually )
and as guardian and next friend )
of AMBER STONECIPHER, )
) APPEAL AS OF RIGHT FROM THE
Plaintiff-Appellee, ) HAMILTON COUNTY CIRCUIT COURT
)
v. )
)
JAMES WIMPEE and YVONNE WIMPEE )
CANNON, )
)
Defendants, )
)
RICHARD A. PHILLIPS, )
)
Defendant, )
)
and )
)
CITY OF CHATTANOOGA, )
) HONORABLE L. MARIE WILLIAMS,
Defendant-Appellant. ) JUDGE
For Appellant For Appellee Yvonne
Wimpee Cannon
KENNETH O. FRITZ
MICHAEL A. McMAHAN CONRAD FINNELL
Special Counsel Conrad Finnell, P.C. &
Chattanooga, Tennessee Associates
Cleveland, Tennessee
ALVIN Y. BELL
Bell, Turner & Hobbs
Chattanooga, Tennessee
For Appellee Charlotte Blalock
JEFFREY W. RUFOLO
Summers & Wyatt, P.C.
Chattanooga, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
This case arises out of an automobile accident
involving an emergency rescue vehicle (“the rescue truck”) and
three other vehicles. The rescue truck was driven by Richard A.
Phillips (“Phillips”), an employee of the defendant/counter-
plaintiff, the City of Chattanooga (“the City”). The other
vehicles involved in the collision were a Ford Ranger truck
driven by James Wimpee (“Wimpee”) and owned by Wimpee’s mother,
plaintiff/counter-defendant Yvonne Wimpee Cannon (“Cannon”); a
Mercedes driven by plaintiff Charlotte Blalock (“Blalock”); and a
Ford Explorer driven by an unidentified individual who is not a
party to this lawsuit.
Following a bench trial, the court found that Phillips,
as the driver of the rescue truck, was 100% at fault for the
accident; it also held that Phillips’ negligence was imputed to
the City. Accordingly, the trial court found that the City was
liable to Cannon for the damages to her vehicle in the amount of
$3,500. The trial court held the City liable for damages of
$18,500 on Blalock’s individual claim for injuries sustained in
the accident, and $6,500 on Blalock’s claim on behalf of her
granddaughter, Amber Stonecipher (“Stonecipher”), who was also
injured in the accident. The trial court also dismissed a
counterclaim filed by the City against Cannon. The City appeals,
contending that the trial court erred in assigning 100% of the
fault to it, in failing to apportion any percentage of fault to
Wimpee, and in dismissing its counterclaim against Cannon. We
affirm.
2
I. Facts and Procedural History
On February 14, 1996, Phillips, an EMT firefighter with
the Chattanooga Fire Department, was dispatched with his rescue
team to the scene of an automobile accident at the intersection
of Interstates 24 and 75. Driving a six-wheel, five-passenger
rescue truck, Phillips entered Interstate 24 East, enroute to the
accident. At all points relevant to the instant case, Interstate
24 East consisted of three lanes of travel. Prior to entering
the Interstate, Phillips had engaged the truck’s emergency lights
and siren. After moving into the left lane, Phillips observed
that all three lanes of traffic were congested and that traffic
was slowing down ahead of him. Phillips testified that he then
decided, in an effort to maneuver around the traffic, to move
left into the “breakdown lane” -- a six to seven foot wide area
between the left lane of traffic and the concrete barrier that
separated the eastbound and westbound lanes of Interstate 24.
In the meantime, Wimpee was driving Cannon’s pickup
truck in the left lane of I-24 East, a short distance ahead of
Phillips. Wimpee testified that as traffic began slowing, he
heard a siren from behind. Wimpee testified that he looked in
his rear-view mirror for the source of the siren, and that as he
looked back in front of him, traffic had come to a stop. Unsure
whether he could stop in time to avoid colliding with the vehicle
in front of him, and hoping to avoid any potential collision from
behind, Wimpee applied his brakes and pulled over to the left,
i.e., into the breakdown area. He was able to make this maneuver
without striking the vehicle in front of him.
3
Phillips testified that, upon entering the breakdown
lane, he slowed to about 35 miles per hour and was able to pass
one or two vehicles that were traveling in the left lane. He
stated that he then saw Wimpee’s truck pull out in front of him
into the breakdown lane. Phillips initially steered the rescue
truck to the right, colliding with Blalock’s Mercedes. He
applied his brakes but impacted the rear of Wimpee’s truck, as
well as that of the Ford Explorer, approximately two seconds
later. Phillips estimated that his truck was going 25 to 30
miles per hour at the time of the collision.
Following the accident, Cannon filed suit against the
City to recover for damages to, and the loss of use of, her
truck. The City filed a counterclaim against Cannon, alleging
that Cannon was liable for Wimpee’s negligence, which, according
to the City, had been the proximate cause of the accident.1
Blalock filed suit as well -- both individually and as guardian
and next friend of Stonecipher -- against Cannon, Wimpee,
Phillips and the City, seeking to recover for injuries sustained
by her and by her granddaughter.2 Blalock’s claim against Cannon
and Wimpee was disposed of prior to trial.3
After consolidation by order of the trial court, the
two cases proceeded to trial, at which time the parties
1
The City apparently did not allege at trial, nor does it allege on
appeal, any negligence on the part of Blalock.
2
Blalock evidently amended her complaint to add a claim for property
damage; however, the trial court ultimately found that claim to be barred
under the applicable statute of limitations, T.C.A. § 29-20-305. Blalock does
not appeal this or any other aspect of the trial court’s judgment.
3
Stonecipher’s claim against Wimpee and Cannon was subsequently settled
by the parties.
4
stipulated that Phillips was an employee and agent of the City
and that he had been acting in the course and scope of his
employment at the time of the accident.
At some point during the proceedings, the trial court
dismissed the City’s counterclaim against Cannon, finding no
basis for imputing any liability to her.
At the conclusion of the trial, the court found, among
other things, that Phillips had violated T.C.A. § 55-8-108 by
failing to drive with due regard for the safety of other persons;
that Phillips “could have anticipated sudden stops and moves of
those traveling in traffic”; that Phillips’ “inability to keep
his vehicle under sufficient control in light of these
circumstances was negligence”; and that Phillips’ actions “which
are imputed to the City of Chattanooga [were] the sole cause of
the accident....” Accordingly, the trial court assigned 100% of
the fault to the City. It awarded damages of $3,500 to Cannon on
her property damage claim. Finding that Blalock and Stonecipher
had “each suffered permanent injury in the accident and [had]
incurred reasonable and necessary medical bills and expenses,”
the trial court entered judgment in favor of Blalock in the
amount of $18,500 as to her individual claim and $6,500 as to her
claim on behalf of her granddaughter.
II. Applicable Law
Our review of this non-jury case is de novo upon the
record of the proceedings below; however, that record comes to us
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with a presumption that the trial court’s factual findings are
correct. Rule 13(d), T.R.A.P.; Wright v. City of Knoxville, 898
S.W.2d 177, 181 (Tenn. 1995). We must honor this presumption
unless we find that the evidence preponderates against those
findings. Rule 13(d), T.R.A.P.; Wright, 898 S.W.2d at 181; Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The
trial court’s conclusions of law, however, are not accorded the
same deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26,
35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.
1993).
Our de novo review is also subject to the well-
established principle that the trial court is in the best
position to assess the credibility of the witnesses; accordingly,
such determinations are entitled to great weight on appeal.
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);
Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).
The Supreme Court has also noted that “[a] trial court
acting as trier of fact ‘has considerable latitude in allocating
percentages of fault to negligent parties....’” Coln v. City of
Savannah, 966 S.W.2d 34, 44 (Tenn. 1998)(quoting Wright, 898
S.W.2d at 181.) An appellate court may alter the trial court’s
allocation of fault where the lower court’s action is “clearly
erroneous.” Coln, 966 S.W.2d at 44; Wright, 898 S.W.2d at 181.
The appropriate percentage of fault to be apportioned
to each party “is ultimately dependent upon all the circumstances
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of the case.” Eaton v. McLain, 891 S.W.2d 587, 593 (Tenn. 1994).
Factors to be considered by the trier of fact include, but are
not limited to, the following:
(1) the relative closeness of the causal
relationship between the conduct of the
defendant and the injury to the plaintiff;
(2) the reasonableness of the party’s conduct
in confronting a risk, such as whether the
party knew of the risk, or should have known
of it; (3) the extent to which the defendant
failed to reasonably utilize an existing
opportunity to avoid the injury to the
plaintiff; (4) the existence of a sudden
emergency requiring a hasty decision; (5) the
significance of what the party was attempting
to accomplish by the conduct, such as to save
another’s life; and (6) the party’s
particular capacities, such as age, maturity,
training, education, and so forth.
Coln, 966 S.W.2d at 44; Eaton, 891 S.W.2d at 592.
The relevant statutory provisions are found at T.C.A.
§§ 55-8-108 and -132. Section 55-8-108 confers upon authorized
emergency vehicles -- such as the rescue truck in this case4 --
certain exemptions from normal “rules of the road,” when such
vehicles are responding to an emergency call and operating their
emergency audio and visual equipment. See T.C.A. § 55-8-108(a)
through (c). The statute also provides, however, that
[t]he foregoing provisions 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 such
provisions protect the driver from the
consequences of the driver’s own reckless
disregard for the safety of others.
4
The parties do not dispute that the rescue truck is an “authorized
emergency vehicle” within the meaning of the statute.
7
T.C.A. § 55-8-108(d). Section § 55-8-132 provides, in pertinent
part, as follows:
(a) Upon the immediate approach of an
authorized emergency vehicle making use of
audible and visual signals...:
(1) The driver of every other vehicle shall
yield the right-of-way and shall immediately
drive to a position parallel to, and as close
as possible to, the right-hand edge or curb
of the roadway clear of any intersection, and
shall stop and remain in such position until
the authorized emergency vehicle has passed,
except when otherwise directed by a police
officer.
T.C.A. § 55-8-132(a)(1).
III. Analysis
A. The Trial Court’s Apportionment of Fault
The City contends that the trial court erred in
assigning 100% of the fault to it and none to Wimpee. It insists
that some percentage of fault must be assigned to Wimpee, in view
of his failure to yield the right-of-way to the emergency
vehicle, as required by T.C.A. § 55-8-132(a)(1).
Upon review of the record, we are of the opinion that
the evidence does not preponderate against the trial court’s
determination that the rescue truck was traveling at a speed that
was unreasonable under the circumstances and traffic conditions.
The evidence likewise does not preponderate against the trial
court’s finding that Phillips failed to exercise due regard for
8
the safety of other drivers on the road, as required by T.C.A. §
55-8-108. Despite the City’s arguments to the contrary, it is
clear that Phillips’ negligence was the proximate cause of the
accident. Although the width of the rescue truck was not
measured, it is obvious from the photographs introduced as
exhibits at trial that the truck was significantly wider than the
six to seven foot breakdown lane through which Phillips attempted
to negotiate. In his testimony at trial, Phillips acknowledged
that the rescue truck was wider than the breakdown lane; that he
had not previously attempted to drive this type of truck through
the breakdown lane; and that immediately prior to the accident,
he had a view ahead of about 2,000 feet, and could see the
traffic slowing down and then stopping. Furthermore, Phillips
admitted that he had had the option of braking and remaining in
the flow of traffic, but had decided to attempt to maneuver his
truck between the left-hand lane and the concrete barrier.
Given the foregoing, we cannot say that the evidence
preponderates against the findings of the trial court. Rule
13(d), T.R.A.P.; Wright, 898 S.W.2d at 181. By the same token,
we cannot say that, under the circumstances of this case, the
trial court’s allocation of 100% of the liability to the City, as
Phillips’ employer, was clearly erroneous. Coln, 966 S.W.2d at
44; Wright, 898 S.W.2d at 181; Eaton, 891 S.W.2d at 593.
B. Dismissal of the City’s Counterclaim
The City also contends that the trial court erred in
dismissing its counterclaim against Cannon. In this context, the
City argues that Cannon was the owner of the truck driven by
9
Wimpee and that she had given her son express permission to use
the vehicle “for the family’s convenience.” In contending that
Cannon should be held liable for Wimpee’s actions, the City
relies upon the family purpose doctrine, which was recently
described by the Supreme Court as follows:
...the head of a household who maintains a
motor vehicle for the general use and
convenience of the family is liable for the
negligence of any member of the family
driving the vehicle, provided the driver
received express or implied consent.
The family purpose doctrine is applicable
when two requirements have been satisfied.
First, the head of the household must
maintain an automobile for the purpose of
providing pleasure or comfort for his or her
family. Second, the family purpose driver
must have been using the motor vehicle at the
time of the injury “in furtherance of that
purpose with the permission, either expressed
or implied, of the owner.”
Camper v. Minor, 915 S.W.2d 437, 447 (Tenn. 1996)(citations
omitted)(emphasis added).
In the instant case, the proof established that
although Cannon was the owner of the vehicle driven by her son at
the time of the accident, she was not the head of his household.
Therefore, the family purpose doctrine is inapplicable to the
facts before us, and we find the City’s argument on this point to
be without merit. In any event, we have already held that the
trial court properly assigned all of the fault for the accident
to the City; thus, there is no liability attributable to Wimpee
that could be imputed to Cannon. We hold that the trial court
did not err in denying the City’s counterclaim against Cannon.
10
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IV. Damages for Frivolous Appeal
Appellee Cannon’s request for damages for a frivolous
appeal under T.C.A. § 27-1-122 is found to be without merit and
is hereby denied. The issues raised by the appellant were fairly
debatable. See Cole v. Dych, 535 S.W.2d 315, 323 (Tenn. 1976).
V. Conclusion
The judgment of the trial court is in all respects
affirmed. Costs on appeal are taxed to the appellant. This case
is remanded to the trial court for enforcement of the judgment
and the collection of costs assessed there, all pursuant to
applicable law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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