1 The Governmental Tort Liability Act, T.C.A. § 79-20-101 et seg. , controls. The ca se was heard without a jury, and the judgment was rendere d in accordance with the doctrine of comparative negligence, and within the ambit of the statute.

2 McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992) provides that a plaintiff cannot recover if his ne

gligence is 50% or more of the total negligence . 

# FILED March 31, 2000 Cecil Crowson, Jr. Appellate Court Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

WILLIAM A. HARVEY, ) LOUDON CIRCU IT ) Plaintiff/Appellee, ) Appeal No. ) E1999-00601-COA- R3-CV v. ) ) HON. RUSSELL SIMMONS, JR., LENOIR CITY UTILITIES BOARD , ) JUDGE ) Defendant/Appellant ) AFFIRMED Billy J. Stokes,

Knoxville, Tennesse

e, Attorney

for Defendant/

Appellant. Larry C. Vaughn, Knoxville, Tennessee, Attorne y for Plaintiff/Appellee



### O P I N I O N INMA N, Sr. J. 

### I The pedestrian plaintiff was struck by a service truck ownedby the defendant and operated by its employee

in the course of hi

s duties. 1 The trial judge allocated 45% of fault to the plaintiff. The defendant appeals, insisting that the preponderance of

the evidence requires a finding that the “plaintiff was more than 51% at

fault” 2 which, in turn, requires the dismissal of the complaint. Theissue for resoluti on is whether the tr

ial court erred

in the allocation o

f fault. 

### II Our review is de novo on the record accompanied with a presumption t

hat the judgment i

s correct unless the evidence preponderates against it. Rule 13(d) T.R.A.P. The presumption o f correctness

doctrine requires an appellate court to defer to a trial court’s findings of fact. Taylor v. Trans Aero Corp. , 924 S.W.2d 109, (Tenn. Ct. App. 1 995); Weaver v. Nelms , 750 S.W.2d 158 (Tenn. Ct. App. 1987); Realty Shop Inc. v. RR W estminister Ho lding , 7 S.W.3rd 581, (Ten n. Ct. App. 1999). Factual findings that rest on credibility are entitled to great weight. Estate of Walton , 950 S.W.2d 956 (Tenn. 1997). Superimposed upon these familiar p rinciples is the definitive abjuration t o a ccord trial judges considerable latitude in the allocation of fault between or among culpable parties. Wright v. City o f Knoxville , 898 S.W.2d 177 (Tenn. 1995).



### III The plaintiff was 68 y

ears old at the time

of the accident.

He drove onto Tria

ngle Street in Lenoir City, found a

proper parking space

, and alighted f

rom his truck intend

ing to cross Tria

ngle Street en route to a barber shop nearby. He was “wa lking briskly” on account of a l ight ra in; he lookedto his right, and thence to his left as he approached the

margin of Triangle Street. He did not again look to his right, and thus did no t see the approaching truck driven by an employ ee of the defendant. The plaintiff was in the middle of the street when he was struck. The plaintiff testified that his vision was unobstructed to his right, for about 76 feet, and that there were no vehicles approaching from either direction when he prepared to cross the street. After taking four or five steps, he saw, out of the corner of his ey es, the defendant’s truck, whose driver3 Thus inferring that the accident would probably not have occur red. 4 A specific issue p

resented by

the appellant is tha

t the trial court e

rred in refusing

to sustain the motion to dismiss made at the close of the plaintiff’s proof. We think that reliance on the motion was waived by the introduction of proof and we do not notice it further. testifiedthat he wa s tr aveling about 15 miles per hour whe

n he saw the plaint

iff running fro

m his left, applied his b

rakes, but could n

ot stop in time to avoid

the accident. The trial judge made findi ngs of fact: (1) that the defendant’s driver was traveling at a speed of 20 mph, which was too fast under the circumstances; (2) that he drove in the middle of the street rather than in his proper lane 3 ; (3) that both parties were proximately negligent; (4) that fault should be allocated 45% to the plaintiff, and 55% to the defendant’s driver. 

### IV Each party empl oyed an ac cident reconstr

uction expert, both o

f whom testified by

deposit ion . The defendant’s expert opined that the speed of the truck was between 15 and 21 mph when brakes
were ap plied; the trial judge apparently did not treat the expert testimony a s materially beneficia l except with resp ect to the speed of t

he truck. We also take note of the fact that the trial judge made
no specific finding as to the credibility of the p laintiff an d the defendant’ s driver. As in most contestedlawsuits, the credibility of witnesses who testify in open court is cruc ial to a resolution of factual disputes, and the trial court’s determination or credibility is well-nigh conclusive on appeal, for familiar reasons. See, Town of Alamo v. Forcum James Company , 327 S.W.2d 47 (Tenn. 1959). We think the issue of

credibility was necessarily re solved by the trial judge favorably to the plaintiff. 4 

### V The latitude accord

ed to trial courts i

n the allocation of

fault necessarily controls our reviewof

this ca se. We are unable to find that the evidence preponderates against the allocation and the judgment is therefore affirmed at the costs of the appellant. The case is remanded for all appropriate purposes.

________________________________ William H. Inman, Senior Judge. CONCUR:

_______________________________ Houston M. Goddard, P residing J udge

_______________________________ Charles D. S usano, Jr ., Judge