Dillon v. State ( 1997 )

KATHY S. DILLON, and husband )
DONALD L. DILLON, )
)
Plaintiffs/Appellants, )
) Tennessee Claims Commission
VS. ) No. 304797
)
)
STATE OF TENNESSEE, ) Appeal No.
) 01A01-9701-BC-00020
Defendant/Appellee. )
IN THE COURT OF APPEALS OF TENNESSEE
FILED
MIDDLE SECTION AT NASHVILLE
June 20, 1997
APPEAL FROM TENNESSEE CLAIMS COMMISSION,Cecil W. Crowson
MIDDLE DIVISION, OF DAVIDSON COUNTY Appellate Court Clerk
AT NASHVILLE, TENNESSEE
HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION
John Knox Walkup
Attorney General & Reporter
Michael W. Catalano
Associate Solicitor General
500 Charlotte Avenue
Nashville, Tennessee 37243-0497
ATTORNEYS FOR DEFENDANT/APPELLEE
Gary R. Gober
Harry L. Weddle
2505 21st Avenue, Suite 301
Post Office Box 121497
Nashville, Tennessee 37212
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
MODIFIED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
KATHY S. DILLON, and husband )
DONALD L. DILLON, )
)
Plaintiffs/Appellants, )
) Tennessee Claims Commission
) No. 304797
VS. )
)
STATE OF TENNESSEE, ) Appeal No.
) 01A01-9701-BC-00020
Defendant/Appellee. )
OPINION
This appeal arises from the injury of a passenger in a motor vehicle which was struck in
the rear by a Tennessee Highway Patrol Cruiser operated by a Trooper of the patrol. The State
Claims Commission found the fault of the Trooper to be 85% and that of the driver of vehicle
occupied by the injured passenger to be 15% and assessed damages accordingly. The State filed
a petition for judicial review by this Court, presenting the following issues:
1. Trooper Christian saw the Dillon car followed by a car
driving erratically. He pursued the erratic car, crested a rise,
saw only Dillon and immediately turned on his emergency
equipment. When Dillon slowed and moved toward the right
shoulder, Christian attempted to pass, but Dillon began to
turn left. Christian veered to the right and hit Dillon’s rear
bumper. Did the Commissioner err in holding that Trooper
Christian breached his duty of care to Dillon?
2. When Mr. Dillon began to turn left, he activated his left
turn signal less than 50 feet before the turn in violation of
state law. Based on this act, the Commissioner held that Mr.
Dillon was only 15% at fault. Did the Commissioner err in
that Trooper Christian was 85% at fault?
The Claimants present the issues in the following form:
1. Whether the Tennessee Claims Commissioner erred by a
preponderance of the evidence in holding that an experienced
highway patrol officer failed to use due regard for the safety
of the plaintiffs by initiating a high-speed chase around them
from the rear over hilly terrain in the dark on a rain-wet road
after turning on his emergency equipment two-tenths of a
mile back at 50 m.p.h. in a 30 m.p.h. residential area and then,
despite having total visual command of the situation, crashing
violently into the rear of the car as it sat entirely in the right
lane of a shoulderless, two-lane road in front of the plaintiffs’
driveway with the turn indicator blinking?
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2. Whether the Commissioner, after assessing the credibility
of the witnesses and the weight of all the evidence at trial,
erred in apportioning 85% of the fault to the negligent trooper
who had ample time and distance to slow his cruiser to a
controllable speed under the road conditions and known
presence of the plaintiffs; and who testified that he knew
beforehand that the wetness of the road would diminish his
ability to stop or slow his cruiser, yet maintained an
uncontrollable speed on approach of the plaintiffs’ vehicle
from the rear, despite his admitted personal knowledge that
the driver of the plaintiffs’ vehicle might not have then
perceived his cruiser two-tenths of a mile behind him at 50
m.p.h.?
I.
THE FACTS
With minor exceptions noted hereafter, the facts are undisputed.
The collision occurred on U.S. Highway 70N which is a two lane paved highway with
no shoulder adjoining the pavement on the north side due to a ditch near the pavement.
Plaintiff Donald Dillon was driving his vehicle westward in the described area at a very
slow speed searching for a driveway on the south (left) side of the roadway which driveway he
intended to enter by turning left across the (south) east-bound lane of the roadway. It was dark
and raining, causing low visibility. Approximately 3/10 of a mile to the east of the scene, there
is a crest in the level of the road obscuring vehicles beyond the crest. East of said crest, the
speed limit was 55 m.p.h., but west of the crest, the speed limit was 30 m.p.h.
For some distance before arriving at the scene, Mr. Dillon noticed another private vehicle
(not the patrol cruiser), approaching at a high rate of speed shifting his headlights high and low
as though trying to pass. At some point near the crest, the speeding vehicle passed the Dillon
vehicle and continued westward at a high rate of speed.
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At about this time, the Trooper was approaching the scene from the west, moving
eastward, facing the Dillon vehicle. Seeing the antics of the speeding vehicle, the Trooper
decided to chase and intercept the speeding vehicle, but it was necessary to change direction to
do so. After passing the Dillon vehicle, the Trooper continued eastward to a point where the
reversal of direction was accomplished and the Trooper approached the scene, westbound at a
high rate of speed with siren and emergency lights activated. The cruiser was not visible to Mr.
Dillon until it passed the crest in the road 3/10 of a mile from the Dillon vehicle. Mr. Dillon
testified that he never heard the siren or saw the blue lights until just before the collision, but that
at the time of the collision he had moved to the extreme right of his lane and was moving slowly.
The trooper testified that he saw the brake signal of the Dillon vehicle and the movement
to the right portion of the west bound lane and presumed that Mr. Dillon was yielding the right
of way, and that he (the Trooper) began the movement to pass the Dillon vehicle on the left,
using the southern (east-bound) lane; but the Dillon vehicle began to display a signal for a left
turn and began to move to the left (southerly) portion of the west bound lane; and that the
Trooper then expected Mr. Dillon to turn left across the south (east bound) lane which would
result in the cruiser striking the Dillon broadside.
The Trooper testified that his only alternative was to attempt to pass to the right of the
Dillon vehicle, but that he was unable to do so, succeeding only in hitting the Dillon vehicle in
the rear instead of the side.
The points of contact with the Dillon vehicle included the entire rear, that is, from the left
end to the right end of the rear bumper. When struck, the Dillon vehicle was entirely within the
west bound lane.
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II.
THE LAW
T.C.A. § 55-8-108 reads in pertinent part as follows:
Authorized emergency vehicles. - (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 herein
stated.
----
(3) Exceed the speed limits so long as life or property are not
thereby endangered; and
(4) Disregard regulations governing direction of movement or
turning in specified directions.
(c) The exemptions herein granted to an authorized
emergency vehicle shall apply only when such vehicle is
making use of audible and visual signals meeting the
requirements of the applicable laws of this state, except that
an authorized emergency vehicle operated as a police vehicle
may be equipped with or display a red light only in
combination with a blue light visible from in front of the
vehicle.
(d) The 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.
T.C.A. § 55-8-143 reads in pertinent part as follows:
Signals for turns. - (a) Every driver who intends to
start, stop or turn, or partly turn from a direct line, shall first
see that such movement can be made in safety, and whenever
the operation of any other vehicle may be affected by such
movement, shall give a signal required in this section, plainly
visible to the driver of such other vehicle of the intention to
make such movement. (Emphasis supplied.)
T.C.A. § 9-8-403 (a) (1) provides in pertinent part as follows:
The decisions of the individual commissioners may be
appealed to the entire claims commission pursuant to rules
promulgated by the commission. The decisions of the
individual commissioners or, when rendered, decisions of the
entire commission regarding claims on the regular docket may
be appealed to the Tennessee Court of Appeals pursuant to
the Tennessee Rules of Appellate Procedure, except that tax
appeals shall go directly to the Tennessee Supreme Court and
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workers’ compensation appeals shall be appealed pursuant to
the procedure for other workers’ compensation cases under
§ 50-6-225(e).
TRAP Rule 13 (d) provides in pertinent part as follows:
(d) Findings of Fact of Civil Actions. - Unless
otherwise required by statute, review of findings of fact by the
trial court in civil actions shall be de novo upon the record of
the trial court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the
evidence is otherwise. Findings of fact by a jury in civil
actions shall be set aside only if there is no material evidence
to support the verdict.
III.
DECISION OF THE COMMISSION
The judgment of the Commission contains the following:
The trooper was trying to catch a westbound car that
had been driving recklessly and apparently drunkenly. His
bluelight signals, his siren, and his headlights were all in full
operation (but not his horn). At one point he had been driving
65 or seventy miles an hour. There was no impediment
whatever to his seeing traffic ahead of him for at least a
quarter of a mile, and he did in fact see the car he hit as he
came up behind it. The trooper testified that he was going
“forty to fifty” miles an hour at the point of impact.
The trooper said that he hit the car the claimant was in
“right smack dab in the rear.” The collision happened in the
westbound right lane of the highway.
It is not disputed that, as a matter of fact, neither the
claimant nor her husband saw or heard any of the trooper’s
signals.
The duty arises when a party should have heard the
siren or should have seen the lights flashing. But Thomas v.
State does not say that anybody has a duty to hear what he did
not hear or see what de did not see; the holding of Thomas v.
State is that anybody is responsible for looking for on-coming
traffic on any road he enters or crosses. Kowalski v.
Elderridge, 765 S.W.2nd 746 (Tenn. App. 1988), has no
reference to the duty of a driver who did not hear or see a
signal but should have: in that case the Court held that the
driver in fact did hear the signal.
----
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This trooper was trained and experienced; in particular
he knew that other drivers sometimes cannot see or hear
emergency equipment. He had a full view of all the
circumstances. This trooper made mistaken assumptions (like
thinking the car ahead of him was going to go straight down
the highway and not turn left) and mistaken perceptions (like
thinking that the car ahead of him had heard or seen his
signals and was yielding); his acting on these mistakes, when
ordinary care under the circumstances required him to slow
down, was the main cause of this wreck.
But the trooper’s actions were not the only cause of
the wreck. As the State’s brief says, “It is a violation of
Tennessee law to make a left-hand turn into a private
driveway without giving a signal continuously for a distance
of at least fifty feet. It is undisputed in this case that Mr.
Dillon failed to signal his proposed left-hand turn properly.
This Commission takes judicial notice that any (sic) people
perform the dangerous driving error (which as the State’s
brief says is a violation of the law) of signaling a turn only
while they are making the turn rather than before it, and
sometimes only after coming to a full stop preparatory to
making the turn; this peculiar unreasonable hesitation and
reluctance to sue turn signals is very common, so that any
trained and experienced highway patrolman must be familiar
with it and prepared for it.
All things considered, particularly that the trooper was
experienced and well trained, that the trooper had a full clear
view of everything involved, that the other driver never heard
or saw the trooper’s signals and had no obligation to notice
them because he never left his own traffic lane, that there was
nothing to keep the trooper from driving more carefully than
he did while coming up behind the other car, and that Mr.
Dillon clearly violated a statute in not signaling his proposed
turn properly. The Commission finds that Mr. Dillon was
15% liable, and that trooper Christian was 85% liable, for this
wreck.
IV.
NEGLIGENCE OF MR. DILLON
The evidence does not preponderate against the decision of the Commission that Mr.
Dillon did not see or hear the lights or siren (in time to obey them), and the finding of the
Commission that Mr. Dillon violated T.C.A. § 55-8-142 and 143 by failing to give a timely
signal before stopping or turning. These findings must therefore be affirmed.
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However, the Commission did not mention that Mr. Dillon failed to perform the mandate
of T.C.A. § 55-8-143, that every driver “who intends to start, stop or turn from a direct line shall
first see that such movement can be made in safety.” It is clear from a preponderance of the
evidence that Mr. Dillon failed to observe the above emphasized portion of the statute; that his
negligence in this regard was one of the principal causes of the collision and; that, had Mr. Dillon
looked before turning from a straight line, he would not have begun the left turn which misled
the Trooper as to Mr. Dillon’s intentions, and the collision would probably not have occurred.
V.
NEGLIGENCE OF THE TROOPER
The evidence preponderates in favor of the finding of the Commission that the Trooper
was negligent acting upon assumptions that were not sufficiently well founded to justify his
actions, and that said negligence of the Trooper was the “main cause of this wreck.” However,
the preponderance of the evidence does not support the finding that the failure to give timely
notice of a turn is commonplace or, if so, such practice was known and should have been acted
upon by the Trooper, or that it was subject to “judicial” (or administrative) notice by the
Commission. This Court therefore declines to affirm these findings.
VI.
DISPOSITION OF APPEAL
The findings of fact heretofore concurred in by this Court distinguish the present case
from Kowalski v. Eldridge, Tenn. App. 1988, 765 S.W.2d 746 and Thomas v. State, Tenn. App.
1987, 742 S.W.2d 649, cited by the State.
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The circumstances of this particular case require a revision of the percentages of fault
assigned by the Commission (85% to the Trooper and 15% to Mr. Dillon). As above explained,
the failure of Mr. Dillon to first ascertain that his movement could be made with safety
substantially increases the percentage of his fault; and the rejection of the duty of the Trooper
to know and act upon common negligence of motorists materially reduces the percentage of fault
of the Trooper.
In Wright v. City of Knoxville, Tenn. 1995, 898 S.W.2d 177, the Supreme Court said:
Although it is true that the trier of fact has
considerable latitude in allocating percentages of fault to
negligent parties, see e.g., Martin v. Bussert, 292 Minn. 29,
193 N.W.2d 134 (1971), appellate courts may alter those
findings if they are clearly erroneous. Because this case was
tried without a jury, our review of the issues of fact is de novo
on the record of the trial court. However, we must presume
that the trial court’s findings were correct unless the
preponderance of the evidence is otherwise. Tenn. Code Ann.
§ 27-3-103; Tenn. R. App. P. 13(d).
In the present appeal, after revising the finding of fact to conform with the preponderance
of the evidence, this Court finds that the allocation of fault by the Commission was “clearly
erroneous” and revises the judgment of the Commission by allocating 60% of fault to the
Trooper (i.e., the State) and 40% to the claimant Donald L. Dillon.
No issue is made as to the finding of the Commission of $220,000.00 total damages.
Accordingly, this Court affirms and adopts this finding, but reduces the net award 40% or
$88,000.00 to $132,000.00. Costs of this appeal will be paid out of the Claims Fund of the State.
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The cause is remanded to the Claim Commission for further appropriate procedure.
MODIFIED AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________
BEN H. CANTRELL, JUDGE
____________________________
WILLIAM C. KOCH, JR., JUDGE
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