The Honorable Hamilton v. Gayden, Jr., Judge ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT NASHVILLE
________________________________________________
JOHN F. NICHOLS AND
KERRY L. STEWART,
Davidson Circuit No. 89C-3148
Plaintiffs-Appellees,
Vs. C.A. No. 01A01-9509-CV-00393
METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON
COUNTY, FILED
Defendant-Appellant, July 12, 1996
STATE OF TENNESSEE, Cecil W. Crowson
Appellate Court Clerk
Defendant-Appellee.
___________________________________________________________________________
FROM THE DAVIDSON COUNTY CIRCUIT COURT
THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
John C. Lyell, II, of Nashville
For Plaintiffs-Appellees
James L. Murphy, III, Director of Law,
Department of Law of the Metropolitan
Government of Nashville and Davidson County
John L. Kennedy of Nashville
For Appellant
Charles W. Burson, Attorney General and Reporter
Rachel L. Steele, Assistant Attorney General
For Appellee, State of Tennessee
AFFIRMED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This appeal arises out of an automobile accident which occurred in Nashville at the four-
way intersection of Charlotte Avenue and Eakin-Weakley Drive (Seventh Avenue North) on
October 24, 1988. Plaintiffs, John F. Nichols and Kerry L. Stewart, filed suit against defendant,
Metropolitan Government of Nashville and Davidson County (Metro), for personal injuries
sustained in the accident. They also filed claims with the Tennessee Claims Commission against
the State of Tennessee. Subsequently, the claims commission cases were transferred for trial to
the circuit court and consolidated for trial with the plaintiffs’ actions against Metro in the circuit
court.
With respect to Metro, plaintiffs’ complaint alleges that on October 24, 1988, there was
a traffic signal light “down” at the intersection of Eakin-Weakley Drive and Charlotte Avenue.
The complaint alleges that because the traffic signal was down, Billy C. Stair, a state employee,
crashed into plaintiffs’ vehicle at approximately 6:15 p.m. The complaint avers that Metro was
negligent because of the failure of its employees to promptly warn of the downed traffic signal
and to provide proper traffic control after having notice of the dangerous condition created by
the “downed” signal. The complaint further avers that the negligence of Metro’s employees was
a direct and proximate cause of plaintiffs’ injuries.
Metro’s answer admits that the traffic light at the intersection was down, admits that there
was a collision at the intersection, and joins issue on the remaining allegations of the complaint.
Metro avers that the negligence of Billy Stair, in conjunction with the negligence of the
plaintiffs, was the proximate cause of the collision and the resulting injuries. Metro further avers
that the decision not to provide emergency relief at the intersection was a discretionary act for
which immunity from suit is preserved by T.C.A. § 29-20-205 (1980).
The intersection of Charlotte and Eakin-Weakley is controlled by traffic signals in all
four directions. Plaintiff Kerry Stewart was driving her vehicle westbound on Charlotte Avenue
when her vehicle was struck by Billy C. Stair who was traveling southbound on Eakin-Weakley
Drive. At the time of the collision, the traffic signal controlling westbound traffic on Charlotte
was green, and the traffic signal controlling southbound traffic on Eakin-Weakley was
inoperative due to an accident prior to the accident in this case. Immediately prior to the
accident in this case, Mr. Stair was exiting Eakin-Weakley Drive1 and was on his way home
from work. Mr. Stair is an employee of the State of Tennessee, and at the time of the collision,
1
Eakin-Weakley is not a “through street,” rather it leads to parking lots on the side of the
state capitol building.
2
he was driving an automobile owned by the State of Tennessee.
Plaintiff Stewart testified that there were no warning signs indicating that the traffic light
for Eakin-Weakley was inoperative, and that Stair's automobile appeared suddenly and that there
was no chance to avoid him. Mr. Stair testified that he was familiar with the area and the
intersection since Eakin-Weakley was his normal and customary route to and from work. Mr.
Stair also testified that he did not slow down at the intersection of Charlotte and Eakin-Weakley,
because he thought he had a green light. He further testified that he did not notice that the traffic
light controlling Eakin-Weakley Drive was missing, and that his view of westbound traffic on
Charlotte Avenue was obstructed by a wall along the northeast corner of Eakin-Weakley.
Approximately two hours prior to the accident involving the plaintiffs, a tractor-trailer
struck the pole which held the traffic signal facing Eakin-Weakley Drive.2 The Metro Police
dispatch records indicate that a call was received at 4:17 p.m. from a dispatcher at the Metro
Transit Authority regarding an accident involving a tractor-trailer at Seventh Avenue North and
Charlotte.3 The call from the Metro Transit Authority dispatcher to the police dispatcher
indicated that there were no personal injuries, thus, the police dispatcher "assigned [the call] a
lower priority relative to a personal injury accident.” The Metro Police dispatch records contain
no indication that the Metro Transit Authority dispatcher notified the Metro Police dispatcher
that the traffic signal was “downed.” The police dispatcher testified that she called out a
dispatch at 4:37 p.m. and that there was a response and arrival at 4:41 p.m. Apparently two
officers answered the call but took no action and left the scene at 4:41 p.m. and 4:43 p.m. One
of the two officers who was originally dispatched to the intersection, Daniel Crockett, was again
dispatched at 5:10 p.m. Officer Crockett arrived at the intersection at 5:25 p.m., whereupon he
investigated the scene, wrote out the accident report, and left the intersection with three
directions of traffic controlled (by signal). The fourth direction of traffic, which, prior to the
2
Eakin-Weakley is on the north side of Charlotte Avenue and becomes Seventh Avenue
North once a motorist crosses Charlotte Avenue traveling south.
3
The Metro Transit Authority dispatcher placed the call to the police dispatcher after
receiving a call from a Metro bus driver who reported that there had been an accident at the
corner of Seventh Avenue North and Charlotte Avenue. The bus driver apparently did not
mention that the traffic signal had been knocked down.
3
accident, was controlled by the signal facing Eakin-Weakley, was left uncontrolled. Officer
Crockett left the intersection without directing traffic, without putting up warning signs, and
without directing anyone else to put up warning signs. Officer Crockett testified that he did
not stay to direct traffic, because traffic on Eakin-Weakley was very “light.” He testified that
the training he received at the police academy regarding inoperative signals was to personally
direct traffic when volume was heavy and when he felt direction was necessary, "but not to do
so when traffic flow was light or non-existent." Officer Crockett testified that in a downed signal
situation, standard police procedure was to notify the county-wide dispatcher of the inoperative
signal; the county-wide dispatcher would then notify Metro Traffic and Parking employees that
a signal was in need of repair. Officer Crockett further testified that although he did not recall
contacting either the county-wide dispatcher or Metro Traffic and Parking, he was sure he
contacted one of the two because that was standard procedure. The record indicates that Metro
Traffic and Parking did not receive notification that the signal was out of service until 9:50 a.m.
on October 26, 1988, two days after the accident involving the plaintiffs, and then only after
reviewing the accident report that was filed by Officer Crockett concerning the tractor-trailer
accident that knocked down the pole.
Terry Grissim, a Metro Traffic and Parking employee who repairs traffic signals, testified
that a "knock-down" situation in which one traffic light is down at a four-way intersection and
the remaining three directions are left controlled, is a "dangerous condition." Mr. Grissim
testified that a "knockdown is . . . [a] top priority." Mr. Grissim testified that it was his normal
procedure to maintain a log of his repair activities, and he testified that he maintained this log
on October 24, 1988. He stated that whenever he received a call regarding an inoperative signal,
he noted the time of the call and the location of the inoperative signal in his log. The log was
introduced into evidence and showed that Mr. Grissim had been repairing traffic signals all day
on October 24th, and that he received no notification of the downed light facing Eakin-Weakley.
Mr. Grissim stated that it would normally take approximately eight hours to re-erect a downed
pole and install a new light, and that he did not have the equipment to erect a temporary stop sign
at the intersection of Eakin-Weakley and Charlotte Avenue. However, he also stated that if he
had been notified of the downed signal, he could have placed the remaining intersection signal
4
lights “in a flash operation.”
Ernest Clark Poteete, the Superintendent of Operations at Metro Traffic and Parking,
stated in his deposition that Metro Traffic and Parking has methods of providing alternate traffic
control during a period of signal failure, including putting the signals on flash and having
someone direct traffic.
At the conclusion of the nonjury trial, the trial court found Metro and the State each fifty
percent at fault for the plaintiffs’ injuries, and the court entered judgment for Nichols in the
amount of $30,000.00 and for Stewart in the amount of $180,000.00. Only Metro has appealed.
Metro’s first, second, and fourth issues are interrelated and will be considered together. As
stated in Metro’s brief, these issues are:
1. Whether the trial court's findings of negligence against the
metropolitan government are supported by a preponderance of the
evidence?
2. Whether the trial court's conclusion of negligence against the
metropolitan government and/or assignment of comparative fault
are clearly erroneous?
4. Whether the discretionary function immunity from tort
liability applies to a decision of a metro police officer regarding
manual traffic direction?
The Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. (1980 and Supp. 1995)
is premised on absolute immunity for governmental entities except as specifically removed by
the Act. See Collier v. Memphis Light, Gas & Water Div., 657 S.W.2d 771 (Tenn. App. 1983);
Pate v. City of Martin, 586 S.W.2d 834 (Tenn.App. 1979). T.C.A. § 29-20-205 (1980) provides
in pertinent part:
Immunity from suit of all governmental entities is removed for
injury proximately caused by a negligent act or omission of any
employee within the scope of his employment except if the
injury:
(1) Arises out of the exercise or performance or the failure to
exercise or perform a discretionary function, whether or not the
discretion is abused . . . .
Metro contends that following the first accident, Officer Crockett’s decision to answer another
call rather than stay at the intersection and direct traffic was discretionary rather than operational,
because official police policy provides an officer with discretion to direct or not direct traffic
5
depending upon the officer’s assessment of the traffic volume or flow.4 Metro further contends
that although a police officer may normally be considered an operational employee, there are
instances in which an operational employee is entitled to discretionary immunity. Metro asserts
that Officer Crockett’s decision to answer another call rather than stay at the intersection and
direct traffic involved a balancing of policy considerations and was, therefore, discretionary.
In Bowers by Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992), our
Supreme Court, in adopting the “planning-operational” test for determining what decisions are
discretionary, stated:
Under the planning-operational test, decisions that rise to the
level of planning or policy making are considered discretionary
acts which do not give rise to tort liability, while decisions that
are merely operational are not considered discretionary acts and,
therefore, do not give rise to immunity. See Carlson v. State, 598
P.2d 969, 972 (Alaska 1979). The distinction between planning
and operational depends on the type of decision rather than
merely the identity of the decision maker. See id. We caution
that this distinction serves only to aid in determining when
discretionary function immunity applies; discretionary function
immunity attaches to all conduct properly involving the balancing
of policy considerations. Therefore, there may be occasions
where an “operational act” is entitled to immunity, where, for
instance, the operational actor is properly charged with balancing
policy considerations. See United States v. Gaubert, 499 U.S.
___ , 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)(recognizing that
operational activities grounded in policy are entitled to
discretionary function immunity).
Id. at 430-31.
Although the Bowers Court stated that discretionary immunity may attach in some
instances to the acts of an operational actor, the Court also cautioned that discretionary immunity
does not “automatically attach to all acts involving choice or judgment,” because “to some
extent, every act involves discretion.” Id. at 431. When considering whether an act is a planning
or operational act, courts should focus on the decision making process and the propriety of
judicial review of the resulting decision. Id. The Bowers Court stated:
If a particular course of conduct is determined after consideration
4
The testimony at trial established that Metro Police policy allows an officer to leave an
intersection with a disabled traffic light as long as the traffic volume is “light.”
6
or debate by an individual or group charged with the formulation
of plans or policies, it strongly suggests the result is a planning
decision. These decisions often result from assessing priorities;
allocating resources; developing policies; or establishing plans,
specifications, or schedules. (citation omitted)
On the other hand, a decision resulting from a
determination based on preexisting laws, regulations, policies, or
standards, usually indicates that its maker is performing an
operational act. Similarly operational acts are those ad hoc
decisions made by an individual or group charged with the
development of plans or policies. These operational acts, which
often implement prior planning decisions, are not “discretionary
functions” within the meaning of the Tennessee Governmental
Tort Liability Act. In other words, “the discretionary function”
exception [will] not apply to a claim that government employees
failed to comply with regulations or policies designed to guide
their actions in a particular situation.” Aslakson v. United States,
709 F.2d 688, 692 (8th Cir. 1986).
Id.
The policy of the Metro Police Department in an inoperative signal situation is that if
traffic is heavy an officer should stay and manually direct traffic; if traffic is light the officer is
free to leave and answer another call. Officer Crockett assessed the traffic flow, determined that
it was light, and left the intersection. While Metro’s policy regarding manual traffic direction
in a downed signal situation may be unwise or even negligently formulated, the adoption of the
policy is a discretionary function, and Metro may not be held liable when one of its police
officers properly complied with this policy. Thus, no liability may be imputed to Metro simply
because Officer Crockett left the accident scene because the traffic was “light.”
Liability may be premised, however, on the intersection’s “dangerous condition” and the
officer’s decision to leave without placing a call to Metro Traffic and Parking or to the county-
wide dispatcher. T.C.A. § 29-20-203 (Supp. 1995) provides:
(a) Immunity from suit of a governmental entity is removed for
any injury caused by a defective, unsafe, or dangerous condition
of any street, alley, sidewalk or highway, owned and controlled
by such governmental entity. “Street” or “highway” includes
traffic control devices thereon.
(b) This section shall not apply unless constructive and/or actual
notice to the governmental entity of such condition be alleged and
proved in addition to the procedural notice required by § 29-20-
302 [repealed].
The discretionary function exception does not apply to proceedings under this section. Helton
7
v. Knox County, No. 03-S-01-9502-CV-00015, slip op. at 16-17 (Tenn. May 13, 1996). A
municipal corporation has a duty to maintain its streets in a reasonably safe condition and the
exercise of this duty requires “exercise of ordinary care to keep . . . streets in a reasonably safe
condition for travel day and night in the customary modes by persons themselves exercising
reasonable care.” Bryant v. Jefferson City, 701 S.W.2d 626, 626-27 (Tenn.App. 1985)(quoting
Blackburn v. Dillon, 189 Tenn. 240, 243, 225 S.W.2d 46, 47 (1949)). In determining the
liability of municipalities for dangerous conditions on public streets, ordinary principles of
negligence apply. Bryant, 701 S.W.2d at 627.
The trial court found that once the traffic light controlling southbound traffic on Eakin-
Weakley was knocked down, the four-way intersection became an “immediate hazard, a
dangerous condition . . . .” The court found that once Officer Crockett became aware of the
disabled traffic light, the intersection became a “defect in a roadway” for purposes of the
Tennessee Governmental Tort Liability Act.
In Bryant v. Jefferson City, 701 S.W.2d 626 (Tenn. App. 1985), this Court noted that:
Courts generally hold that where a municipality has actual or
constructive notice that a stop sign is down, the city’s negligence
in failing to restore the sign is determined by the issue of whether
the city had a “reasonable time to effect repairs.” Smith v. Godin,
61 Ill.App.3d 480, 18 Ill. Dec. 754, 378 N.E.2d 218 (1978).
What constitutes a “reasonable time” to make repairs will vary
according to the facts of each case. Bowen v. Riverton City, 656
P.2d 434 (Utah 1982).
Id. at 627.
While the case before us does not involve a “downed stop sign,” the same effect is
presented by a downed traffic signal. It would appear that the word “repairs” provided for the
in the above general rule would include any type of temporary measure taken to alleviate a
dangerous condition before actual repairs can be commenced. In the case at bar, the officer
testified that “department policy” was to notify the “county-wide dispatcher” of an inoperative
signal, and that the county-wide dispatcher would then notify Metro Traffic and Parking so that
repairs could be commenced. Officer Crockett testified that this policy was in place for “safety
reasons . . . [t]o get the pole back up or get the traffic light to work.” Although the officer
testified that he notified either Metro Traffic and Parking or the county-wide dispatcher of the
8
downed signal because “that’s pretty much standard procedure,” he admitted on further
questioning that he had no independent recollection of notifying either the county-wide
dispatcher or Metro Traffic and Parking. Officer Crockett also acknowledged that there was
nothing in his accident report to indicate that he had in fact made such notification. Ernest Clark
Poteete, a supervisor at Metro Traffic and Parking, testified that all calls concerning inoperative
signals are documented by the time, date, and identity of the caller. The records of the
department were introduced into evidence, and there was no record of any call received on
October 24, 1988, regarding the inoperative signal at the intersection of Charlotte and Eakin-
Weakley. Mr. Grissim, who was on call repairing signals on October 24, 1988, testified that he
never received a call regarding an inoperative signal at the intersection. He also testified that if
such a call had been received by his department, he would have been notified because a “knock-
down” is a top priority.
The proof established that the dangerous condition of the intersection was exacerbated
by stone retaining walls on the northeast corner of the intersection and the fact that the
intersection is at the crest of a hill.5 Due to the walls and the contour of Charlotte Avenue,
westbound traffic on Charlotte (plaintiffs’ direction) is entirely obscured from the view of
southbound traffic on Eakin-Weakley (Billy Stair’s direction), and vice-versa. These factors
contributed to the danger of the intersection, and they were either known or should have been
known by Officer Crockett when he investigated the accident. Reasonable care under similar
circumstances would require at least some steps to alleviate the danger presented by the
intersection before leaving the intersection. Furthermore, Officer Crockett’s testimony indicates
that his determination that traffic flow was “light” was unreasonable, because at the time Officer
Crockett investigated the accident (5:25 p.m on a Monday in downtown Nashville), “a lot of
people are leaving town . . . .”6
The record supports the appellant’s contention that the pole and light could not have been
replaced prior to the accident in question. However, the record indicates that had Metro Traffic
5
The northeast corner of the intersection is occupied by the state capitol building.
6
Officer Crockett apparently determined that traffic was “light” based only on the number
of cars in the parking lots surrounding Eakin-Weakley Drive.
9
and Parking been notified of the downed signal, Metro Traffic and Parking could have taken
measures to alert motorists of the dangerous condition of the intersection, and that these
measures could have been implemented prior to the accident in this case.
In summary, Officer Crockett’s failure to notify the county-wide dispatcher of the
inoperative signal and his decision to leave the intersection (a busy, downtown, four-way
intersection in which westbound and southbound motorists were obscured from each other’s
vision) with three directions of traffic controlled and one direction of traffic uncontrolled,
constituted negligence. Moreover, after notice of the condition, Metro had a reasonable time to
effect some repairs or provide some type of warning and/or some type of traffic control. Mr.
Grissim testified that had he been notified of the “knockdown” it would have been his “top
priority,” and he could have placed the remaining signal lights “in a flash operation.” Mr.
Grissim testified that once he arrived at the intersection, it would have taken him approximately
five minutes to place the lights on flash. The record indicates that had Mr. Grissim been notified
of the inoperative traffic signal at or near the time Officer Crockett was dispatched (5:10 p.m.)
or when Officer Crockett arrived to investigate the intersection (5:25 p.m.), Mr. Grissim or
another Metro Traffic and Parking employee would have placed the traffic signals facing
Charlotte Avenue and Seventh Avenue on flash prior to the accident in this case.7 Plaintiff
Stewart testified that she would have definitely approached the intersection with greater caution
if she had seen a flashing light.
The trial court found that Metro’s failure to provide any warning and/or traffic control
at the intersection was a proximate cause of the collision and plaintiffs’ resulting injuries. The
evidence does not preponderate against this finding.
Appellant’s last issue for review is “[w]hether the trial court committed reversible error
by admitting and relying upon proof of subsequent remedial measures by the metropolitan
government.” Metro contends that the trial court committed reversible error by admitting
testimony from Mr. Stair in which Mr. Stair stated that when he saw that the signal had not been
7
The record indicates that Mr. Grissim was at work repairing traffic signals on the
afternoon of October 24th, and that he could have reached the intersection approximately thirty
minutes after receiving notification of the inoperative signal.
10
repaired on October 25, 1988, he called an acquaintance in the Metro Mayor’s Office to report
the problem. After Mr. Stair made various phone calls to city officials, the signal was repaired
the following day. Metro contends that the testimony was offered to show that Metro was
negligent by not repairing the signal until two days after the accident in question. Metro argues
that this testimony should have been excluded, because it constituted evidence of subsequent
remedial measures under Tenn.R.Evid. 407.
It appears that this testimony was irrelevant and of no probative value with respect to any
of the issues in this case. However, from our review of the record, we find that the admission
of this evidence did not affect the judgment or result in prejudice to the judicial process.
T.R.A.P. 36(b).
Metro also questions the trial court’s allocation of fault. The trial court found Metro 50%
at fault for the injuries and damages which the plaintiffs’ sustained. The trier of fact has
“considerable latitude in allocating percentages of fault to negligent parties.” Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). An appellate court may modify those findings
only if they are clearly erroneous. Id. Based upon the record before us, we cannot say that the
trial court’s allocation of fault to the respective defendants was clearly erroneous. The appellees’
remaining issues are pretermitted.
The judgment of the trial court is affirmed, and the case is remanded for such further
proceedings as are necessary. Costs of this appeal are assessed against the appellant.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
_________________________________
ALAN E. HIGHERS, JUDGE
_________________________________
DAVID R. FARMER, JUDGE
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