Richard Conroy v. City of Dickson

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 4, 2001 Session

RICHARD LEE CONROY v. CITY OF DICKSON, ET AL.

Appeal from the Circuit Court for Dickson County

No. CV235 Leonard W. Martin, Judge

No. M2000-01189-COA-R3-CV - Filed February 23, 2001

The driver of an automobile sued the City of Dickson under the Governmental Tort Liability Act for

the severe injuries he suffered when a city police cruiser collided with his car. After a bench trial,

the court found that the plaintiff and the officer driving the police car were equally responsible for

the accident, resulting in no recovery for the plaintiff. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.

and PATRICIA J. COTTRELL , JJ., joined.

William H. Poland, Clarksville, Tennessee, for the appellant, Richard Lee Conroy.

Kristin Ellis Berexa and J. Russell Farrar, Nashville, Tennessee, for the appellees, City of Dickson,

City of Dickson Police Department and John L. Baynham, Jr.

OPINION

I.

ACCIDENT AND TRIAL

This case arose from an accident that occurred at approximately 7:30, on the night of

November 30, 1992. Richard Conroy had been driving his Geo Metro on Interstate 40, and he exited

onto Highway 46 near Dickson to look for a motel to spend the night. He traveled north along

Highway 46 for about one hundred and fifty yards, and came to a stop. He intended to turn left

across the southbound lane of Highway 46 onto Gum Branch Road where an EconoLodge Motel was

located.

Mr. Conroy testified that he waited for the southbound traffic to pass him, and that once the

last visible oncoming vehicle passed, he saw a “glow of lights” shining over the crest of a hill which

was about one hundred seventy-five to two hundred feet to his north. Thinking that it was safe to

make the left turn, he began to do so. A police cruiser driven by Officer John Baynham came over

the hill, followed closely by another cruiser driven by Officer Tommy Beale. Officer Baynham’s car

plowed into the passenger side of Mr. Conry’s Geo, demolishing it, and causing serious injury to Mr.

Conroy.

On June 28, 1993, Mr. Conroy filed a complaint for negligence in the Dickson County Circuit

Court. Mr. Conroy claimed that Officer Baynham was acting within the scope of his employment

at the time of the accident, and he named the City of Dickson, the City of Dickson Police Department

and Officer Baynham as defendants. Mr. Conroy asked for $150,000 in damages. His wife Shirley

joined in the complaint, and asked $50,000 for loss of consortium and other damages.

On August 16, 1999, the defendants filed their Answer. They admitted that Officer Baynham

was acting within the scope of his employment, but denied that he was guilty of any negligence. The

Answer included a Counter-Claim, which alleged that the accident was actually caused by Mr.

Conroy’s negligence, and asked for $25,000 in damages. In the event the court determined both

parties to be negligent, the defendants asked that any damages be apportioned between the parties

in accordance with the principles of comparative fault. See McIntyre v. Balentine, 833 S.W.2d 52

(Tenn. 1992).

Since the City admitted that the officer was its employee and was acting within the scope of

his employment, the Governmental Tort Liability Act, Tenn. Code. Ann. § 29-20-101, et seq.,

applied. Therefore, Officer Baynham was dismissed as a defendant without prejudice. See Tenn.

Code. Ann. § 29-20-310. The parties were further winnowed on January 24, 1995, when Shirley

Conroy filed a Notice of Nonsuit.

The trial of this case began on April 11, 2000. No reason for the lengthy interval between

the accident and the trial appears in the record. The court heard testimony from nine witnesses,

including Mr. Conroy, Officer Baynham, Officer Beale, a Highway Patrol officer, the Dickson Chief

of Police, three civilian eyewitnesses, and one expert witness. At the conclusion of the proof, the

court found both parties to be equally at fault, and assessed 50% of the fault to the plaintiff and 50%

to the defendant. In accordance with the principles of comparative fault, as enunciated in McIntyre

v. Balentine, supra, the court dismissed Mr. Conroy’s claim against the City of Dickson, and the

City’s counterclaim against him. Mr. Conroy appealed.

II.

FINDINGS OF FACT

The parties enjoyed a complete evidentiary hearing before the trial court. In our review of

this case, we must therefore presume that the trial court’s findings of fact are correct, unless the

preponderance of the evidence is otherwise. Rule 13(d), Tenn. R. App. P.

The court found that both Officer Baynham and Mr. Conroy were negligent. The proof

showed that at the time of the accident, Officers Baynham and Beale were responding to a domestic

disturbance call at the Holiday Inn. Another officer was already at the scene, so the dispatcher

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advised them not to treat the call as an emergency, and neither Baynham nor Beale was using his

sirens or blue lights.

There was conflicting testimony as to how fast the police cars were actually going just prior

to the accident. The speed limit on that section of highway was 45 miles per hour. Officer Baynham

denied that he was speeding at all (although he reportedly made an earlier statement that he couldn’t

have been doing more than 55). Officer Beale estimated the speed of both police vehicles to be

between 45 and 55 miles per hour. Eyewitness Charles Macioci testified that it looked like the

police car was going about 70 miles per hour. Karen Shadowens, another eyewitness, simply

testified that she thought it was exceeding the speed limit. Roger Heath was asked if he could tell

how fast the police cars were going, and he answered, “Not exactly. I mean, I didn’t notice that they

were speeding. They were just going along like regular traffic.”

Richard Fitzgerald, the plaintiff’s accident reconstruction expert, visited the accident site,

viewed photos of the damage to both cars, interviewed the trooper who paced off the skid marks at

the scene of the accident, and calculated a range of possible speeds from the data he gathered. He

concluded that the police car was going at least 65 miles per hour at the time he applied the brakes.

The trial judge considered all this testimony, and determined that the testimony of Officer

Baynham was not credible, and that he was in fact speeding. He observed that even a police officer

has a duty to obey the speed limit, and that if he intends to exceed it, he should only do so if he

knows it can be done safely. He thus concluded that Officer Baynham’s conduct had to be

considered negligent.

The judge also noted that a motorist intending to turn is supposed to yield the right-of-way

to oncoming traffic, and should only turn after ascertaining that he can do so safely. The court

found Mr. Conroy to be negligent for turning in front of the police car, and ruled that his negligence

was equal to Officer Baynham’s, and thus that under the version of comparative fault in effect in the

State of Tennessee, Mr. Conroy was not entitled to recover from the defendant.

It appears to us that the location of the police car at the moment that Mr. Conroy began to

turn has a bearing on the question of his degree of negligence. As we stated above, the plaintiff

testified that he could only see the glow of the police car’s lights from behind the hill when he began

his turn. Karen Shadowens testified that Mr. Conroy “was into the turn to go” when the police car

topped the hill. Officer Baynham testified that he was halfway down the hill when Mr. Conroy

turned in front of him. Roger Heath was driving his pick-up truck directly behind Mr. Conroy, when

the accident occurred. He testified that he could see the two police cars coming down the hill, that

Mr. Conroy turned right in front of them, and that Officer Baynham had no chance to avoid the

accident.

We must note that there were problems or inconsistencies with the testimony of all the

eyewitnesses. Karen Shadowens and Charles Macioci were both impeached by prior recorded

statements they had made about the accident. The trial court stated that Roger Heath was the most

credible witness, and apparently credited his testimony that Mr. Conroy turned directly in front of

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Officer Baynham. But even Mr. Heath’s testimony was not free of problems, because as we stated

above, he testified that the speed of the police car was normal, and the trial court found that it was

in fact speeding.

Nonetheless, it is the role of the trial judge to assess the credibility of witnesses, and this

court must accord great deference to that assessment. Wells v. Tenn. Board of Regents, 9 S.W.3d

779 (Tenn. 1999); Harwell v. Harwell, 612 S.W.2d 182, (Tenn. Ct. App. 1980). In this case, Mr.

Heath’s testimony implies a greater degree of fault on the part of Mr. Conroy than does the testimony

of the other eyewitnesses, and supports the court’s finding that both parties were equally negligent.

We have thoroughly examined the record, and while the evidence might have supported a different

conclusion, we cannot say that it preponderates against the trial court’s finding.

III.

GROSS NEGLIGENCE AND COMPARATIVE FAULT

As an alternative argument, Mr. Conroy contends that his negligence and that of Officer

Baynham may not be compared, because they differ not only in degree, but also in kind. He argues

that he was at most guilty of ordinary negligence, while Officer Baynham’s conduct has to be

characterized as gross negligence.

We believe that the appellant is advancing this argument primarily as a vehicle to highlight

the circumstances that he believed rendered Officer Baynham’s excessive speed more deserving of

blame than his own conduct. These include the officer’s failure to use his siren, his knowledge that

traffic along Highway 46 was sometimes heavy, his knowledge that there had been prior accidents

along the road, and the poor visibility at that time of the evening. As we stated above, however, we

do not believe that the evidence preponderated against the trial court’s allocation of fault.

Gross negligence is a term that evolved out of the jurisprudence of contributory negligence

as a way to avoid the harsh consequences of that doctrine. Under the purest form of contributory

negligence, an injured plaintiff could not recover any damages from a negligent defendant, if the

defendant could prove that the plaintiff himself was also guilty of negligence, however slight.

Gross negligence provided an exception to this rule. If a plaintiff could prove that the

defendant was guilty of a higher degree of negligence than his own, then the ordinary negligence of

the plaintiff did not operate as a bar to recovery. Gross negligence has been defined as arising from

“a conscious neglect of duty or a callous indifference to consequences.” Thomason v. Wayne

County, 611 S.W.2d 585 (Tenn. Ct. App. 1980). Elsewhere, this court has said, “[g]ross negligence

is not characterized by inadvertence. It is a negligent act done with utter unconcern for the safety

of others, or one done with such a reckless disregard for the rights of others that a conscious

indifference to consequences is implied in law.” Odum v. Haynes, 494 S.W.2d 795 (Tenn. Ct. App.

1972).

With the case of McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), our Supreme Court

swept away the doctrine of contributory negligence and many of its ancillary doctrines, stating that

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“it is time to abandon the outmoded and unjust common law doctrine of contributory negligence and

adopt in its place a system of comparative fault.” 833 S.W.2d at 56. The Court observed that doing

away with such a long-established doctrine would affect many other legal principles surrounding tort

litigation, and stated that “[f]or the most part, harmonizing these principles with comparative fault

must await another day.” 833 S.W.2d at 57. However, for the guidance of trial courts charged with

implementing the new system, the Court declared that comparative fault made the doctrines of

remote contributory negligence and last clear chance obsolete, because the circumstances taken into

account by those rules could henceforth be addressed within the context of relative degrees of fault.

The court did not address the question of gross negligence.

The appellant suggests that we should look to the recent case of Turner v. Jordan, 957

S.W.2d 815 (Tenn. 1997) for guidance as to how we should deal with gross negligence. In that case,

a hospital nurse was attacked and badly beaten by a psychiatric patient. She sued the treating

psychiatrist for his failure to medicate, restrain, seclude or transfer the patient. Since there was no

evidence that the nurse herself was negligent, the trial court instructed the jury to allocate fault

between the psychiatrist and the patient. Following a verdict and an appeal to this court, the case

reached the Supreme Court, which stated that

“In our view, the conduct of a negligent defendant should not be compared with the

intentional conduct of another in determining comparative fault, where the

intentional conduct is the foreseeable risk created by the negligent tortfeasor . . .

fairness dictates that [a negligent defendant] should not be permitted to rely upon the

foreseeable harm it had a duty to prevent so as to reduce [his] liability.”

957 S.W.2d at 823.

It appears to us that there is very little similarity between Turner v. Jordan and the present

case. For example, while Turner v. Jordan involved the duty of the defendant to protect the plaintiff

from the intentional conduct of a third party, there is no such triangulation of duty and conduct

present here. Further, there is no implication in the record before us that Officer Baynham intended

to cause an accident, or that his conduct could be characterized as anything other than negligent.

We must reject Mr. Conroy’s proposition that we treat gross negligence in the same way as

we treat intentional conduct, because we believe that would be an unhelpful step backward. One

reason for instituting comparative fault in this state was for the simplification it offered. The

proliferation of categories of conduct that required legal definition in order to mitigate the harsh

effects of pure contributory negligence unnecessarily complicated the task of fixing liability, and

resulted in legalistic hair-splitting and confusing jury instructions. As one commentator said,

“The continuum of fault from negligence to gross negligence to wanton or willful

conduct to recklessness is highly malleable. In particular, the phrase ‘gross

negligence’ has been characterized by the Tennessee Supreme Court as ‘Nothing

more than negligence with the addition of a vituperative epithet’. . . [the] escalation

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of pejorative labels unnecessarily complicates some trials and heightens the

probability of emotional pleas to the jury.”

C. Mutter, Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee,

57 Tenn. L. Rev. 199, 211 (1990).

Although the Supreme Court did not explicitly declare the demise of gross negligence in

McIntyre, we see no reason why negligent acts that might previously have been denominated as gross

cannot be compared with other negligent acts, within the context of relative fault. In Eaton v.

McLain, 891 S.W.2d 587 (Tenn. 1994), the Supreme Court discussed the status of the doctrines that

have been abolished by the adoption of comparative fault, and declared that while they no longer had

any independent existence, their underlying principles, if relevant, could still be considered by the

finder of fact in allocating fault.

The court stated that,

“the percentage of fault assigned each party should be dependent upon all the

circumstances of the case, including factors such as: (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 an attempt to save another's life; and (6) the party's particular

capacities, such as age, maturity, training, education, and so forth.”

891 S.W.2d at 592.

It appears to us that the considerations underlying the doctrine of gross negligence have been

largely subsumed within the second factor listed above, and that there is no reason, from the point

of view of precedent or of policy, to make it an exception to the system of comparative fault. The

appellant’s argument is without merit.

V.

The judgment of the trial court is affirmed. Remand this cause to the Circuit Court of

Dickson County for further proceedings consistent with this opinion. Tax the costs on appeal to the

appellant.

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BEN H. CANTRELL, PRESIDING JUDGE, M.S.

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