Kobie Turner v. City of Memphis

12/20/2016
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 17, 2016 Session
KOBIE TURNER v. CITY OF MEMPHIS
Appeal from the Circuit Court for Shelby County
No. CT-004957-13 James F. Russell, Judge
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No. W2015-02510-COA-R3-CV
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Appellee sued the City of Memphis, alleging that he was injured in a car accident caused
by a police officer employed by the City. After a bench trial, the trial court ruled in
Appellee’s favor, awarding him $90,000.00 in damages. Appellant appeals. On appeal,
Appellant argues that the trial court erred when it found that Appellee had proven that
Appellant was the proximate cause of Appellee’s injuries and when it awarded Appellee
what Appellant deemed to be an excessive amount of damages. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P J.,W.S., delivered the opinion of the court, in which ARNOLD B.
GOLDIN and KENNY ARMSTRONG, JJ., joined.
André C. Wharton, Memphis, Tennessee, for the appellant, City of Memphis.
Mark N. Geller, Memphis, Tennessee, for the appellee, Kobie Turner.
OPINION
BACKGROUND
This action arose from a motor vehicle accident (“the accident”) that occurred on
December 30, 2012, at approximately 12:07 a.m. The collision occurred on Third Street
near the intersection of Crump Boulevard in Memphis, Tennessee, between
Plaintiff/Appellee Kobie Turner (“Appellee”) and Officer Tony Brown (“Officer
Brown”), an employee of Defendant/Appellant City of Memphis (“Appellant”). Third
Street consists of five full lanes: two lanes for traffic heading northbound, a middle turn
lane, and two lanes for traffic heading southbound.1 Appellee was visiting Memphis,
Tennessee, from Charlotte, North Carolina, to attend his aunt’s funeral that was to be
held later in the day on December 30, 2012. It is undisputed that Appellee, while driving
his cousin and the cousin’s friend home, was in the lane closest to the middle turn lane
heading south on Third Street and approaching Crump Boulevard. The remaining facts
leading up to the collision, however, are sharply in dispute, as discussed in detail below.
On November 18, 2013, Appellee filed a complaint against Officer Brown and the
Appellant2 in the Shelby County Circuit Court under the Tennessee Governmental Tort
Liability Act, Tennessee Code Annotated sections 29-20-101 et seq., for the personal
injuries sustained from the accident. Therein, Appellee alleged that he was traveling
southbound on Third Street, while Officer Brown was driving northbound on Third Street
in a vehicle owned by the City of Memphis. Appellee further alleged that Officer Brown
“negligently and without warning, crossed traffic and struck the vehicle driven by
[Appellee] head on” and that Officer Brown violated various provisions of Tennessee
Code Annotated and various traffic ordinances. Appellee sought $300,000.00 for the
injuries and damages incurred, which included: (1) injuries aggravated by the accident,
such as back pain, chest pain, and neck pain; (2) fright and shock; (3) past and future
physical pain; (4) past and future mental and emotional anguish; (5) medical expenses
itemized pursuant to Tennessee Code Annotated section 24-5-113 totaling $28,421.18;3
and (6) loss of property and loss of use of the vehicle requiring him to find alternative
transportation to return to his home in North Carolina.
On March 5, 2014, Appellant filed an answer, generally denying the material
allegations raised in the complaint and asserting several affirmative defenses.
Specifically, Appellant contended: (1) that Appellee failed to state a claim upon which
relief could be granted, (2) that governmental immunity barred the action; (3)
comparative fault by non-parties; (4) that a sudden emergency and superseding cause
existed; (5) that Appellee’s bills were not reasonable or necessary; and (6) that Appellee
failed to mitigate his damages. Prior to trial, Appellee filed several motions in limine.4
1
Although the parties refer to the turning lane as the “median,” the record reflects, and the trial
court found, that there is no median at all; rather, a full turn lane exists in the middle of Third Street.
2
The City of Memphis, through counsel, made an oral motion to dismiss Officer Brown as a
named defendant at trial on November 5, 2015. The trial court entered an order of voluntary dismissal
with prejudice as to Officer Brown on November 19, 2015.
3
Initially, Appellee also sought reimbursement for the chiropractic fees in the amount of
$3,995.00. However, prior to trial, Appellee withdrew this claim and only sought $24,426.18 in medical
bills at trial.
4
The trial court did not receive Appellant’s response until the day before trial. At trial, the trial
judge, after commenting on the fact that he had never seen motions in limine filed in non-jury trials
before, determined that several of the issues raised in the motions in limine had been addressed by: (1) the
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On November 2, 2015, an agreed stipulation was entered by the parties stating that “the
medical records [by the ambulance and the hospital] were reasonable and necessary and
incurred as a result of the . . . accident.” The case proceeded to trial without a jury on
November 5, 2015.
At trial, Appellee testified that he was a stay-at-home father to one child.
According to Appellee, he had previously been hit by a drunk driver in 2000 (“2000
accident”) and had sustained a mild concussion and a broken femur bone in his right leg.
Appellee testified that he was denied disability benefits related to the 2000 accident.
However, Appellee denied seeking damages in this case for his previous injuries.
Appellee recalled that on the night of the accident, he went to an establishment in
downtown Memphis to see his brother perform with the house band. Although he stayed
for an hour, Appellee testified that he did not eat nor drink anything. Appellee testified
that he was driving the speed limit, at thirty-five miles per hour, on Third Street in the
lane closest to the turn lane heading southbound and approaching the intersection at
Crump Boulevard. According to Appellee, when he was a few feet from the intersection
of Crump Boulevard, he “saw a police car coming from Crump [Boulevard] onto Third
Street traveling northbound going around another vehicle, swerving out of control at a
fast rate of speed.” Appellee testified that the police car crossed over the middle turning
lane into his lane of traffic, lost control of the car, and hit him head-on in the front end
driver’s side. Appellee introduced several exhibits depicting the aftermath of the
accident and described that the impact was “hard” enough to deploy his air bag. Appellee
denied seeing any dog on the road. After the impact, Appellee testified that he lost
consciousness. Upon regaining consciousness, Appellee testified that he sustained loss of
feeling and was in considerable pain in his head and throughout his body. Specifically,
Appellee testified that his neck, head, shoulders, upper body, and lower body were in
pain after the accident. Appellee testified that, because he was in pain and was unable to
walk, two officers helped him out of his vehicle.
Thereafter, Appellee testified that the paramedics arrived, helped him onto a
stretcher, and took him to the Regional One Health Medical Center (“hospital”). At the
hospital, Appellee was subjected to a full trauma work-up, was given a neck brace
because of whiplash, was given an I.V. for dehydration, and was administered
considerable pain medication. According to Appellee, he was discharged a few hours
before his aunt’s funeral on the same day.
Appellee testified that the pain he felt was intensified during his stay at the
hospital and the pain persisted while he was at the funeral. Further, Appellee testified
that due to the damage to his vehicle, he was required to obtain a rental car through his
April 16, 2014 order striking Appellant’s defense of comparative fault against an unknown third party and
(2) the November 2, 2015 agreed stipulation by the parties. As to all other issues raised prior to trial, the
trial court determined that it would “take those up as they come” during trial.
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insurance company for the drive back to North Carolina. Once he was back in North
Carolina, Appellee testified that he sought treatment with a chiropractor for a couple of
months. While he was receiving treatments, Appellee described that he was in “[a] lot of
pain [that he’s] never experienced before on that scale, and it was very uncomfortable.”
By April 2013, Appellee testified that he felt better, and he could move around.
According to Appellee, his injuries decreased his ability to engage in physical activities,
including cooking, cleaning, and getting his son to and from school, and he still suffered
from frequent headaches, anxiety attacks, and unease of rest.
Sergeant Kenneth E. Calhoun (“Sergeant Calhoun”) testified that he had served as
a sergeant for the Appellant for five years and is part of the Special Traffic Investigation
Squad (“STIS”), a bureau within the Memphis Police Department; he had been an
employee for twenty-two years. Sergeant Calhoun explained that the STIS is assigned to
investigate critical accidents, fatalities, and when City equipment is involved in an
accident. Such an investigation can include taking photographs of the scene, talking to
the officer and others involved, recording his findings in a report, and deciding whether
to issue a citation. On the night of the accident, Sergeant Calhoun testified that he arrived
about fifteen to twenty minutes after he was called to the scene but that he did not see a
dog. According to Sergeant Calhoun, when he interviewed Appellee, Appellee did not
allege that Officer Brown turned his car at a high rate of speed, as Appellee had alleged at
trial.
Carla Turner, Appellee’s wife, testified that the first time that she saw Appellee
following the accident was on the night of January 1, 2013, one day after the accident.
Ms. Turner stated that Appellee appeared to be in pain. According to Ms. Turner,
Appellee was under the care of a chiropractor since January 2, 2013, three times a week
for four months. During those four months, Ms. Turner described Appellee as depressed
and unable to play his music at church. Ms. Turner also testified that Appellee often
complained that his heart and feet felt like pins and needles. Ms. Turner conceded on
cross-examination that Appellee’s right leg injury from the 2000 accident prevented him
from performing certain household tasks. According to Ms. Turner, Appellee developed
anxiety and/or panic attacks that have made it difficult for him to sleep. Ms. Turner
further testified that Appellee, as the primary caretaker for their “disabled” son, and due
to his injuries, could no longer “participate” with the son in various activities.
Officer Brown testified that he worked for the Memphis Police Department for
four years and that he had received training in driving and operating his police car.
Officer Brown testified that, on the night of the accident, he was driving to the office of
the judicial commissioner in his police cruiser to perform official duties. Officer Brown
further testified that he was driving thirty-five to forty miles per hour and denied that he
was in a rush while on this errand. Given that no emergency response was necessary,
Officer Brown had not activated any emergency lights or sirens. Officer Brown explained
that he was driving in the lane nearest the curb going northbound on Third Street
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approaching the intersection of Crump Boulevard. According to Officer Brown, he saw
an object approach on his right side in his peripheral vision, which he thought at the time
to be a person because he knew that intoxicated people frequent the area. As a result,
Officer Brown testified that he automatically “shuffle steered”5 toward the middle turn
lane in order to avoid hitting the person, as he did not believe that merely braking would
have prevented a collision with the purported pedestrian. Officer Brown denied seeing
any oncoming traffic when he swerved. Additionally, Officer Brown denied that the
accident occurred because of his attempt to pass another car, as Officer Brown contended
that no other car was going northbound on Third Street for him to pass. After he
swerved, he testified that he looked back and saw a light-brown dog. Officer Brown
testified that he was unable to remember anything after that because he lost
consciousness. When he regained consciousness, he testified that both cars were on the
sidewalk next to a gas station. Officer Brown testified that he stumbled out of the police
car and advised on the radio that he was in an accident. Officer Brown further testified
that he saw two black males standing near Appellee’s vehicle. According to Officer
Brown, he explained his version of events exactly as testified to the investigating officers.
After closing arguments, the trial court issued an oral ruling, which was
transcribed and later incorporated by reference in its November 19, 2015 order. The trial
court considered the proof presented at trial and the deposition of Dr. William Smith
received on October 2, 2015, who was the expert witness for Appellee. With regard to
liability, the trial court found that the existence of the person or dog “[wa]s not actually
established by extrinsic proof.” According to the trial court, even if the trial court
accepted the existence of the person or dog, “all reasonable minds would conclude[] that
the object could have been and should have been safely avoided without moving into the
oncoming traffic” because Officer Brown, driving on the lane closest to the curb going
northbound, had “two full traffic lanes open to his left . . . to safely avoid striking the
object.” The trial court further found that there was no proof that Appellee was negligent
on the night of the accident. Thus, the trial court concluded that Appellant was solely
negligent for the damages suffered by Appellee.
With regard to damages, the trial court found that the accident was a “very
substantial impact” that is “not your . . . typical fender bender.” Although Dr. Smith did
not treat Appellee, but rather reviewed Appellee’s medical records, the trial court relied
on his deposition for the medical explanation of the trauma work-up at the hospital and
Appellee’s diagnoses.6 The trial court, based on the testimony of Appellee, Ms. Turner,
5
According to Officer Brown, this technique, which he learned at the police academy, allowed
him to “move from one way to the other in a quick fashion[.]”
6
Most of Dr. Smith’s testimony revolved around whether the treatment rendered at the hospital
was reasonable and necessary. Dr. Smith testified that the medical bills were reasonably incurred and that
the amount charged was similar to the amounts charged by similar trauma units although the hospital is a
level above most other local hospital emergency rooms. Dr. Smith further testified that Appellee’s
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and Dr. Smith, found that Appellee “suffered mightily from the injuries sustained in [the]
. . . accident” and awarded Appellee actual and compensatory damages in the amount of
$90,000.00 plus court costs. Appellant timely appeals.
ISSUES
Appellant presents two issues for our review, which were taken from its brief and
slightly restated:
1. Whether the trial court erred in finding that the [Appellee] had proven
by preponderance of the evidence that [Officer Brown] was the legal
cause of [Appellee’s] injuries?
2. Whether the trial court’s damages award was excessive in light of the
evidence presented by the [Appellee]?
STANDARD OF REVIEW
The trial court heard this case sitting without a jury. Accordingly, we review the
trial court’s findings 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)). Additionally, the trial court’s findings on credibility,
whether express or implicit, are entitled to great deference on appeal. See Taylor v.
McKinnie, No. W2007-01468-COA-R3-JV, 2008 WL 2971767, at *4 (Tenn. Ct. App.
Aug. 5, 2008). Where the trial court’s factual determinations are based on its assessment
of witness credibility, this Court will not reevaluate that assessment absent clear and
convincing evidence to the contrary. Franklin Cnty. Bd. of Educ. v. Crabtree, 337
S.W.3d 808, 811 (Tenn. Ct. App. 2010) (citing Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002)).
DISCUSSION
Appellant first argues that the trial court erred in finding that Officer Brown was
the legal cause of Appellee’s injuries by failing to properly apply the sudden emergency
doctrine. According to the Tennessee Supreme Court:
injuries were caused by the accident. According to Dr. Smith, after Appellee was discharged from the
chiropractor, he was diagnosed with several post-traumatic ailments. On cross-examination, Dr. Smith
conceded that Appellee would heal on his own and there was no evidence of bleeding caused by the
accident.
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The sudden emergency doctrine, which has now been subsumed into
Tennessee’s comparative fault scheme, Eaton v. McLain, 891 S.W.2d 587,
592 (Tenn.1995), recognizes that a person confronted with a sudden or
unexpected emergency which calls for immediate action is not expected to
exercise the same accuracy of judgment as one acting under normal
circumstances who has time for reflection and thought before acting. See
Young v. Clark, 814 P.2d 364, 365 (Colo. 1991); see also Prosser and
Keeton on the Law of Torts, § 196.
The doctrine no longer constitutes a defense as a matter of law but, if
at issue, must be considered as a factor in the total comparative fault
analysis.
McCall v. Wilder, 913 S.W.2d 150, 157 (Tenn. 1995). “While the sudden emergency
doctrine is not treated as an affirmative defense, the burden of proving the occurrence of
[an event that establishes the sudden emergency doctrine] is on the defendant.” Knoxville
Optical Supply, Inc. v. Thomas, No. 03A01-9207CV00267, 1993 WL 574, at *2 (Tenn.
Ct. App. Jan. 4, 1993) (citing Blumberg v. Hofstetter, No. 89-133-II, 1989 WL 122974(Tenn. Ct. App. Oct. 18, 1989)).
Here, the trial court was presented with conflicting testimony from Appellee and
Officer Brown regarding the existence of a dog in the road that forced Officer Brown to
veer into oncoming traffic. Faced with this conflicting proof, the trial court resolved the
conflict in favor of Appellee and found that Officer Brown failed to establish that a dog
or person was in the road on the night of the accident. Clearly, the trial court’s resolution
of this issue turns on its assessment of the credibility of the witnesses before it. “The trial
court’s findings with respect to credibility and weight of the evidence may generally be
inferred from the manner in which the court resolves conflicts in the testimony and
decides the case.” Walker v. G.UB.MK Constructors, No. E2015-00346-SC-R3-WC,
2016 WL 2343177, at *4 (Tenn. May 2, 2016) (citing Rhodes v. Capital City Ins. Co.,
154 S.W.3d 43, 46 (Tenn. 2004)). “[F]indings that are related to the issue of credibility
will not be disturbed by this court, absent other concrete evidence to the contrary which
shows that the trial judge erred in his judgment of the veracity of the witnesses.” Worth v.
Cumberland Mountain Prop. Owners Ass’n, Inc., No. 03A01-9709-CV-00442, 1999
WL 61629, at *4 (Tenn. Ct. App. Feb. 10, 1999) (quoting Farmers & Merchants Bank v.
Dyersburg Prod. Credit Ass’n, 728 S.W.2d 10, 18 (Tenn. Ct. App. 1986)). As previously
discussed, where the trial court’s factual determinations are based upon its assessment of
witness credibility, we will only overturn the trial court’s rulings if clear and convincing
evidence to the contrary is shown. See Crabtree, 337 S.W.3d at 811. The Tennessee
Supreme Court has described the “clear and convincing” burden as follows:
“Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn
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from the evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3
(Tenn. 1992). “In other words, the evidence must be such that the truth of
the facts asserted [is] ‘highly probable.’” Goff v. Elmo Greer & Sons
Constr. Co., 297 S.W.3d 175, 187 (Tenn. 2009) (quoting Teter v. Republic
Parking Sys., Inc., 181 S.W.3d 330, 341 (Tenn. 2005)). In general, “the bar
for attaining relief is set very high and the burden borne by the [Appellant]
is heavy.” Johnson v. Johnson, 37 S.W.3d 892, 895 n.2 (Tenn. 2001).
Furlough v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013).
Despite Appellant’s argument to the contrary, we cannot conclude that Appellant
has presented clear and convincing evidence that would allow this Court to overturn the
trial court’s implied credibility finding in favor of Appellee as to the existence of a dog or
person. See Owens v. Tenn. Rural Health Improvement Ass’n, 213 S.W.3d 283, 288
(Tenn. Ct. App. 2006) (refusing to overturn trial court’s credibility determinations when
Appellants “failed to point to clear and convincing evidence in the record . . .
demonstrat[ing] that the trial court erred” on the issue of witness credibility). Whether
the sudden emergency doctrine can apply depends on whether the facts establishing the
emergency exist, and in this case, the trial court found that Appellant failed to meet its
burden to establish the existence of a sudden emergency. See Thomas, 1993 WL 574, at
*2. Moreover, the trial court went further in its ruling to find that, even if a dog or person
present were in the road, Officer Brown nevertheless committed negligence in crossing
two full lanes of traffic to veer into oncoming traffic causing the accident. Having
reviewed the evidence regarding the road where the accident took place as well as the
other evidence in the record, we cannot conclude that the evidence preponderates against
the trial court’s finding that even where a dog or person was in the road, Officer Brown
nevertheless committed negligence in crossing several lanes of traffic to hit Appellee
traveling in the opposite direction.
Appellant next argues that the trial court “erred when it failed to consider the
respective degree [of] negligence of the parties involved, including the dog . . . and the
[Appellee] himself.” Here, the trial court did consider Appellee’s fault; however, it found
that Appellee contributed no fault to the accident. Thus, the proper issue is whether the
trial court should have considered and apportioned fault to a phantom non-party. 7 As
7
We realize that Appellant’s argument can also be interpreted as “the trial court erred in
assigning no fault to the Appellee.” “[T]he comparison and allocation of fault is a question of fact to be
decided by the finder-of-fact, that is the jury or the trial court sitting without a jury.” Henley v. Amacher,
No. M1999-02799-COA-R3-CV, 2002 WL 100402, at *6 (Tenn. Ct. App. Jan. 28, 2002) (citing Brown v.
Wal-Mart Discount Cities, 12 S.W.3d 785, 789 (Tenn. 2000); Turner v. Jordan, 957 S.W.2d 815, 824
(Tenn. 1997); Prince v. St. Thomas Hosp., 945 S.W.2d 731, 735 (Tenn. Ct. App. 1996)). As previously
discussed, questions of fact are reviewed de novo with a presumption of correctness. Appellant points to
no evidence in the record other than the fact that Appellee “waivered in terms of what he saw.” As
discussed, supra, we will not overturn a trial court’s credibility determination absent clear and convincing
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previously discussed, however, the trial court did not find credible the evidence regarding
the dog, and we will not disturb this credibility finding. Therefore, the trial court was not
required to assign fault to a defendant that it found to not have been established by the
evidence. Even assuming arguendo that the trial court believed in the existence of the
dog, it may not apportion any fault to a phantom non-party. See Brown v. Wal-Mart
Disc. Cities, 12 S.W.3d 785, 789 (Tenn. 2000) (holding that, because a defendant’s fault
may not be shared with an unknown tortfeasor who has not been sufficiently identified by
the defendant, the trial court did not err assigning defendant 100% of the fault, despite the
fact that the jury assigned some fault to an unknown tortfeasor).
Finally, Appellant argues that the damages award of $90,000.00 was excessive in
light of the fact that: (1) Appellee offered no evidence concerning the property damage to
his car; (2) Appellee’s testimony regarding his pain was inconsistent and he was
unconscious for a time immediately following the accident; (3) there was no testimony
regarding the cost of Appellee’s physical therapy, chiropractic care, or the necessity of
either treatment; (4) Appellee’s medical bills admitted into evidence totaled only
$24,426.18.
At the outset, we note that because the parties entered into the November 2, 2015
agreed stipulation that the medical bills were reasonable and necessary, we need not
discuss whether the actual damage award in the amount of $24,426.18 was excessive
based on the evidence presented at trial. In addition, the trial court’s order contains no
indication that it considered property damage to Appellee’s car as a part of its damages
calculation nor did it consider the cost of his chiropractic care. Indeed, as the trial court
reiterated in is order: “Again keeping in mind . . . [any claim for monetary damages or
any follow-up treatment] by the chiropractic clinic has been withdrawn.” The trial court
appeared to grant the bulk of the damage award based on the seriousness of the impact on
Appellee’s life, noting that “this was a very substantial impact,” that is “not your typical
fender bender,” and “[t]he fact that both drivers suffered a loss of consciousness speaks
volumes . . . about the seriousness and gravity of injuries to [the drivers].” Further, the
trial court found that Appellee “suffered mightily from the injuries sustained in [the
accident].” Thus, the issue is whether the trial court’s grant of $65,573.82 in
compensatory non-economic damages was excessive.
As the Tennessee Supreme Court has observed:
proof. We further note that within the same argument, Appellant urges us that the trial court “should have
attributed all fault to the dog” and the “sole proximate cause of this accident was the dog.” Given
Appellant’s argument that fault should be attributed only to the dog and the complete lack of evidence
concerning any negligence on the part of Appellee, we cannot conclude that the trial court erred in failing
to assign any fault to Appellee.
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An award of damages, which is intended to make a plaintiff whole,
compensates the plaintiff for damage or injury caused by a defendant’s
wrongful conduct. Inland Container Corp. v. March, 529 S.W.2d 43, 44
(Tenn. 1975). A plaintiff may be compensated for any economic or
pecuniary losses that naturally result from the defendant’s wrongful
conduct. Id. Economic damages include out-of-pocket medical expenses,
future medical expenses, lost wages, and lost earning potential. The
plaintiff bears the burden of proving damages to such a degree that, while
perhaps not mathematically precise, will allow the [trier of fact] to make a
reasoned assessment of the plaintiff’s injury and loss. Provident Life &
Accident Ins. Co. v. Globe Indem. Co., 156 Tenn. 571, 576–77, 3 S.W.2d
1057, 1058 (1928); Overstreet [v. Shoney’s Inc.], 4 S.W.3d [694,] at 703
[(Tenn. Ct. App. 1999)].
A plaintiff is also entitled to recover compensatory damages for non-
economic loss or injury. Elliott v. Cobb, 320 S.W.3d 246, 247 (Tenn.
2010). “Non-economic damages include pain and suffering, permanent
impairment and/or disfigurement, and loss of enjoyment of life.” Id. at 248
n.1 (quoting Overstreet, 4 S.W.3d at 715). Damages for pain and suffering
are awarded for the physical and mental suffering that accompany an
injury. Overstreet, 4 S.W.3d at 715. Damages awarded for loss of
enjoyment of life are intended to compensate a plaintiff for the impairment
of the ability to enjoy the normal pleasures of living. Lang v. Nissan N.
Am., Inc., 170 S.W.3d 564, 571–72 (Tenn. 2005). . . . The assessment of
non-economic damages is not an exact science, nor is there a precise
mathematical formula to apply in determining the amount of damages an
injured party has incurred. See McCullough v. Johnson Freight Lines,
Inc., 202 Tenn. 596, 606, 308 S.W.2d 387, 392 (1957); S. Ry. Co. v. Sloan,
56 Tenn. App. 380, 392, 407 S.W.2d 205, 211 (1965). Thus, a plaintiff is
generally not required to prove the monetary value of non-economic
damages.
Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419–20 (Tenn. 2013)
(footnotes omitted). In addition, “[d]amages may never be based on mere conjecture or
speculation.” Overstreet, 4 S.W.3d at 703 (citing Western Sizzlin, Inc. v. Harris, 741
S.W.2d 334, 335–36 (Tenn. Ct. App. 1987); Nashland Assocs. v. Shumate, 730 S.W.2d
332, 334 (Tenn. Ct. App. 1987)). “However, uncertain or speculative damages are
prohibited only when the existence, not the amount, of damages is uncertain.” Id. (citing
Jennings v. Hayes, 787 S.W.2d 1, 3 (Tenn. Ct. App. 1989); Cummins v. Brodie, 667
S.W.2d 759, 765 (Tenn. Ct. App. 1983)). “Evidence required to support a claim for
damages need only prove the amount of damages with reasonable certainty.” Id. (citing
Airline Constr., Inc. v. Barr, 807 S.W.2d at 274; Redbud Coop. Corp. v. Clayton, 700
S.W.2d 551, 561 (Tenn. Ct. App. 1985)). “Whether the trial court has used the proper
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measure of damages is a question of law, which we review de novo, but the actual
amount of damages awarded, provided within the limits ascribed by law, is a question of
fact, which we review with a presumption of correctness.” Huskey v. Rhea Cnty., No.
E2012-02411-COA-R3-CV, 2013 WL 4807038, at *12 (Tenn. Ct. App. Sept. 10, 2013)
(citing Beaty v. McGraw, 15 S.W.3d 819, 829 (Tenn. Ct. App. 1998); Tenn. R. App. P.
13(d)). “In non-jury cases, ‘we will alter the amount of damages only when the trial
court has adopted the wrong measure of damages or when the evidence preponderates
against the amount of damages awarded.’” Id. (quoting Beaty, 15 S.W.3d at 829).
Here, although Appellant contends that Appellee had a pre-existing injury to his
right leg as a result of the 2000 accident, Appellee testified that he was seeking damages
for his pain and ability to function stemming only from the instant case. According to
Appellee, although the pain in his head and body decreased in intensity in April 2013, he
testified that he still felt lingering pain, still had panic attacks, and is no longer able to
enjoy activities that require any physical exertion as of the date of trial. Furthermore,
because Appellee sustained loss of consciousness immediately after a “substantial”
impact, he was required to be subjected to a full trauma work-up at the hospital. This
work-up included several tests, including blood work, blood counts with differentials,
chemistry profiles, bleeding studies, a lactate level to assess perfusion of the tissues, an
electrocardiogram, and computerized tomography scans of the abdomen, chest, and
pelvis. In addition, he was given intravenous fluids and was required to wear a neck
brace.8 Moreover, Dr. Smith testified in his deposition that Appellee’s level of pain was
“significant” following the accident. Ms. Turner, who was able to observe Appellant on
a day-to-day basis, also testified as to Appellee’s condition before and after the accident,
such as his adjustment to pain, increased depression, unease of rest, and inability to
engage in activities he had once enjoyed. None of this evidence was in anyway disputed
or discredited by Appellant. Accordingly, the evidence clearly shows that Appellee
sustained pain and suffering as a result of the accident and therefore was entitled to
damages to compensate him for that injury.
Having determined that Appellee clearly established his entitlement to pain and
suffering damages, we further conclude that the evidence does not preponderate against
the trial court’s total award of $90,000.00 in compensatory damages. The trial court
specifically credited the testimony and opinions of Appellee, Ms. Turner, and Dr. Smith,
and awarded Appellee $90,000.00, significantly less than the $300,000.00 that the
Appellee initially sought in his complaint. Still, Appellant argues the only evidence
regarding the extent of Appellee’s injuries was that of Appellee’s and Ms. Turner’s
testimony, which Appellant contends were “sometimes contradictory and incredulous.”
As previously discussed, however, we will not disturb the trial court’s credibility findings
unless clear and convincing evidence exists to the contrary, and none exists in this case.
8
There was no testimony regarding low long Appellee was required to wear the neck brace.
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Furthermore, we note that the $65,573.82 awarded for non-economic damages is
not outside the realm of reasonableness based on previous Tennessee car accident cases.
See, e.g., Johnson v. Nunis, 383 S.W.3d 122, 128 (Tenn. Ct. App. 2012) (reinstating jury
verdict of $116,843.90 which consisted of $45,000.00 in non-economic damages,
$16,493.22 in medical bills, and $45,000.00 for loss of earning capacity); Rippy v. Cintas
Corp. Servs., No. M2010-00034-COA-R3-CV, 2010 WL 3633469, at *1 (Tenn. Ct. App.
Sept. 17, 2010) (affirming jury verdict of $78,000.00 in non-economic damages and
$16,137.29 in economic damages for a total of $94,637.29). Despite Appellee’s
contention otherwise, we find no basis to conclude that the damage award was excessive
or that the trial court improperly considered the damage to Appellee’s car or the
chiropractor bills. Consequently, the evidence does not preponderate against the trial
court’s award of damages in this case.
CONCLUSION
Based on the foregoing, the judgment of the Shelby County Circuit Court is
affirmed and the case is remanded to the trial court for further proceedings consistent
with this Opinion. Costs of this appeal are taxed to Appellant, the City of Memphis.
_________________________________
J. STEVEN STAFFORD, JUDGE
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