Day on Torts
In Turner v. City of Memphis, No. W2015-02510-COA-R3-CV (Tenn. Ct. App. Dec. 20, 2016), the Court of Appeals affirmed a verdict for plaintiff following a Tennessee head-on car wreck between plaintiff and a police officer.
In December 2012, plaintiff and a Memphis police officer were traveling in opposite directions along the same road at just after midnight. The road had five lanes, two going in each direction and one turn lane. Plaintiff was driving south in the lane closest to the turn lane, while the officer was driving north in the outer lane. According to plaintiff, the officer “negligently and without warning crossed traffic and struck the vehicle being driven by [plaintiff] head on.” The accident caused plaintiff’s airbag to deploy and both drivers were knocked unconscious. Plaintiff was transported to the hospital by ambulance and 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.” Plaintiff testified that he eventually was treated by a chiropractor and that the accident caused him pain that he had “never experienced before on that scale.” According to plaintiff, his injuries had improved, but they had “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.”
Plaintiff brought this action against the city of Memphis under the GTLA for the officer’s alleged negligence in causing the accident. Plaintiff sought $300,000 in damages, including $28,421.18 in medical expenses.
During a bench trial, the officer testified that he had seen an object approaching on the right side of the vehicle, and he thought at the time it was a person. He alleged that he swerved to avoid hitting the object and that after he swerved he saw that the object was a dog. He stated that swerving to miss the dog caused the accident, that he was not “in a rush,” and that he was not attempting to pass another car.
The trial court found that the officer “was solely negligent for the damages suffered by [plaintiff.]” The trial judge “found that the existence of the person or dog ‘was not actually established by extrinsic proof,’” and that even if there had been a dog, it “could have been and should have been safely avoided without moving into the oncoming traffic” since there were two full lanes between the officer’s lane and the one in which plaintiff was driving. The trial court awarded plaintiff $90,000 in damages—the approximately $28,000 in stipulated medical expenses plus noneconomic damages. Defendant appealed, and the Court of Appeals affirmed in total.
On appeal, the Court first addressed the issue of whether the trial court was right to find the officer solely responsible for the accident. Of great importance here was the premise that a “trial court’s findings on credibility, whether express or implicit, are entitled to great deference on appeal.” (internal citation omitted). Defendant argued that the trial court should have applied the sudden emergency doctrine to this case, which “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 action.” (internal citation omitted). The Court of Appeals, however, noted that there was conflicting testimony regarding whether a dog was present at the accident, with plaintiff testifying that he did not see a dog. The Court stated that “the trial court resolved the conflict in favor of [plaintiff],” and that defendant had not presented clear and convincing evidence that this finding should be overturned. (Remember: the test for overturning a trial judge’s findings based on the credibility of witnesses is the “clear and convincing evidence” test.) The Court further noted that the trial court did more than resolve the discrepancy in favor of plaintiff—it stated that even if a dog had been in the road, the officer “nevertheless committed negligence in crossing two full lanes of traffic to veer into oncoming traffic causing the accident.”
With regard to fault, defendant also argued that the trial court “should have considered and apportioned fault to a phantom non-party.” The Court rejected this argument, pointing out that “the trial court did not find credible the evidence regarding the dog,” and that even if it had, it could “not apportion any fault to a phantom non-party.” (internal citation omitted). Accordingly, the trial court’s ruling that defendant was solely at fault was affirmed.
Next, defendant appealed the amount of damages awarded to plaintiff. The Court of Appeals, though, found that the only medical damages awarded were those stipulated to by the parties. The Court stated that the trial court’s award “contain[ed] no indication that it considered property damage to [plaintiff’s] car” or the cost of chiropractic care. Instead, the Court found that “the bulk of the damage award [was] based on the seriousness of the impact on [plaintiff’s] life.” The Court noted that this was a serious collision, with both drivers losing consciousness, and pointed out that plaintiff testified that he still had pain from the accident, still had panic attacks, and was still unable to enjoy many activities. The Court found that the evidence “clearly established [plaintiff’s] entitlement to pain and suffering damages,” and that the award of $65,573.82 was “not outside the realm of reasonableness based on previous Tennessee car accident cases.” The damages award was thus affirmed.
The Court clearly got this case right. This was a case of the trial court believing plaintiff’s version of an accident and awarding him damages in line with his pain and suffering. The Court correctly affirmed this award, refusing to undermine the trial court’s credibility findings even when the witness whose version was found not credible was a police officer.