# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, WE STERN SECTION AT JACKSON

_______________________________________________________ ) JONA MCCRACKEN, et al , ) Shelby County Circuit Court ) No. 53344-7 Plaintiff/Appelle

e/Cross-Appella

nt. ) ) VS. ) C.A. No. 02A01-9707-CV-00165 ) CITY OF MILLINGTO N, TENNESSEE,

) ) Defendant/Appellant/Cross-Appellee. ) )

______________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable Robert A. Lanier, Judge
John C. Duffy

, WATSON, HOLLOW & REEVES, Knoxville, Tennessee Charles A. Sevier, Reid R. Phillips , SEVIER & PHILL

IPS, Memphis, Tennessee Attorneys for Defendant/Appellant/Cross-Appellee City of Millington, Tennessee. R. Sadler Bailey , Andrew C. Clarke , BAILEY & CLA

RKE, Memphis, Tennessee Attorneys f

or Plaintiff/Appe

llee/Cross-Appe

llant.

OPINION FIL

ED: AFFIRMED IN P

ART, REVERSED IN PA RT AND REMANDED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) HIGHERS, J. : (Concurs)This action for persona l injuries and wron gful death arise

s out of an automobil

e accident between a vehicle containing two fleeing bank robbery suspects and a vehicle containing Trevor McCracken, hi s wife Jona McCracken, and their daughter Jessica McCracken. The trial court found that the negligence of two policeofficers employed by the Defendant City of Millington was
a twenty-five per

cent p roxim ate cause of this accident and ordered the City of Millington to pay $130,000 .00 for the wrongful death of Trevor, $46,250.00 for the personal injuries of Jona, $20,077.00 for the personal injuries of Jessic

a, and $17,335.30 i

n discretionary c

osts. Both parties have appealed. Beca

use we find that the trial court should not have awarded damages to Jona under the theory of negligent

infliction of emotional distress and further find that the trial court abused its discretion when awarding di scretionary cos

ts, we reverse th

e ruling of the tria

l court with respe

ct to these issues. In all other respects, the ruling of the trial court is affirmed.
Factual History

On April 24, 1992, two armed suspec ts robbed the Bank of Mason in Mason, Tennessee. A description of the suspects and their vehicle, includin

g its license plate

number, was broadcast by the dispatcher

s of law enforce

ment agencies in

the surrounding area. Trooper Robert Pugh of the Tennessee Highway Patrol heard the broadcast and

began looking for

the suspects in his markedpatrol car. While heading northbound on Brunswick Road, Trooper Pugh encountered the suspectstraveling southbound on Brunswick Roadat between twenty-five and thirty miles per hour. As Trooper Pugh appl

ied his brakes in or

der to turn around

, the suspects beg

an to flee at a hig

h rate of speed, making a right hand turn onto State Road 205. Trooper Pugh e ngage d in a high speed chase with the suspects, a

t times reaching sp

eeds in excess

of 100 miles per hour. As the vehicles approach the intersection of State Road 205 and Highway 14, however, Trooper Pugh slowed down because of the possibility that there might be traffic at that intersection. The suspects did not slow down, but instead raced through the intersection at a high rate of speed, running a third party off

the road. After losing sight o f the suspects,

Trooper Pugh used

the radio in his patrol car to notify other law enforcement personnel that the suspects were on State Road 205 heading toward Millington.

On the day of the robbery in Mason, Officers Mike Rose and Reginald Fields of the Millington Police Departmen t were schedule

d to work from 3:00 to

11:00 p.m. They arrived at theMillington Police Station at ap proximately 2:30 p.m. and were advised by the dispatcher that there
were two fleeing bank

robbery suspects heading toward Millington. Because there were no police vehicles available

for Officers Rose and Fields to use, Officer Rose re

quested permissio

n to search for the suspects in

his private vehic

le, a pick-up truc

k. Although Rose’s v

ehicle was not equipped withpermanent lights or sirens, there was a d as h-mounted blue light in the truck that could be activated by plugging it into the cigarette lighte r. Lieutenant R.

E. Wilson authoriz

ed Officers Rose and Fields to look for the sus pects in Rose’s pic k-up truck but spe

cifically instruc

ted them not to chase or pursue the suspects.

Officers Rose and Fiel ds encountered the suspects while traveling eastbound on Na v y Road and began to follow them. At this point, the officers wer e clo se enough to the sus pects’ vehicle to read the information on the suspects’ licens

e plate. Office

r Fields attempted t

o activate the dash-mounted blue light in Officer Rose’s pick-up truck but it blew out after only one revolution. Additionally, Officers Rose and Fields attempted to contact the dispatcher at the Millington Police Department

with their hand-he

ld radios but were

unsuccessful.

After switching the fre

quency of his radio, Offi cer Ro se was able to con tact the dispatch

er of the Shelby Cou

nty Police Depart

ment. Approximately

thirty seconds later, Officer Ros e notified the Shelby County dispatcher that they
were behind the suspects’ vehicle at Navy Road and Bethuel Road. He then informed the Shelby County dispatcher that

the suspects hadturned left and were heading northbound on Bethuel Road. Approximately

300-400 yards from the intersection of Navy Road

and Bethuel Road, O

fficer Rose noticed the patrol car of Trooper Pugh , which was position ed in the roadway

facing west with it

s blue lights activated. As Officers Rose and Fields approached the intersection, they were forced to stop behind a gravel truck that was in the left-hand turn lane. Officer Rose flashed the h

eadlights of his pick-up truck

in an attempt to signal other drivers to yield and then proceeded to drive around the gravel truck, making a left turn onto Bethuel Road. As Officers Rose and Fields approached the intersection of Bethuel Road andCoronado, Officer Fields observed flying debris and noticed that the suspects had collided with another vehicle.

Trevor McCracken, age twenty-two, was driving the vehicle that was struck bythe bank robbery suspect

s. Trevor’s wife

Jona McCracken,

also age twenty-two, and their twenty-two month old daughter

Jessica were passengers in the vehicle. Both Jona and Jessica were asleep at the1 The named defendants include Finde Naifeh, Jr., Calvin Blade, the City of Mason Police

Department, the City of Mason, William Morris, Alton C. Gillis, the Shelby County Sheriff’ s Department, the County of Shelby, Tennessee , Jeff Huffman, Clyde D. “Buddy” Lewis, Jr., the Tipton County Sheriff’s Department, the County of Tipton, Tennessee , George R. Harvell, Jr., John Hall, t

he City of Milling

ton Police

Departme

nt, the City

of Milling

ton, Tenne

ssee, W. W. Herenton, Melvin

Burgess, the Ci

ty of Memphis

Police Departmen

t, the City of M

emphis, Tennessee, and unknown officers one through twenty.

2 There is no right to a jury trial with respect to actions brought pursuant to the Tenne ssee Governmental Tort Liability Act. See Tenn. Code Ann. § 29-30-307 (Supp. 1998). time that the acci

dent occurred.

Jona’s first memor

y after the acc

ident is that she wa

s lying in the grass and could hear the voices of paramedics. Jona also remembered being inside an ambulance
on a stretcher. While inside the ambulance, Jona observed that Jessica was crying and was holding her arms out to her. Both Jona andJessica were transported to The Naval Hospital. Jona was treated for a severely sprained

left ankle, a severely bruised upper thigh, and various cuts, bumps, and bruises while Jessica was treated for a broken leg. Trevor was initially taken to The Naval Hospital butlater was transported by helicopter to The Med in Memphi s. On April 26, 1992, Jona was allowedto visit her husband at The Med. She observed that Tr evor was unconsc

ious, hooked up to
a respirator and a heart monitor, had an IV in his arm, and was extremely swolle

n. Approximately fifteen minutes after her visit with Trevor, Jona was notified that her husband had died. Four months after the accident, Jona went to see Dr. Radwan Khuri, a psychiatrist, for an evaluation of her mental he alth. Concluding that Jona was suffering from a “grief reaction,” Dr. Khuri gave Jona a prescription for s leepi ng pills and advised her to consider in

dividual counselin

g. Jona’s only permanent

physical injury is that there is scar tissue onher upper thigh that, if bumped, causes Jona to experience pain.
Procedural History

On April 23, 1993, Jona filed a complain

t in her i ndividual capacity and in a representativecapacity

on behalf of Tre

vor and Jessica a

gainst a variety of governmental entities and employee’s thereof. 1 With the exception of the City of Millington, each of these defendants has been dismi sse d on a motion to dismiss, o n a motion for summar

y judgment, or by vol

untary non-suit. The matter

came to be heard on June 30, 1997 through July 2, 1997. The trial judge, sitting without
a jury, 2 took the matter under advisement. In a memorandum opinion issued on July 10, 1997, the trial court found that the negligence of Officers Rose and Fields was a twenty-five pe rcent proximate3 Under the Tennessee Governmental Tort Liability Act, the maximum amount of damages that a plaintiff can recover from a municipality in a wrongful death or personal injury action is $130,000.00 per injured party and $350,000.00 per accident. See Tenn. Code Ann. § 29-20-311 (1980); Tenn. Code Ann. § 29-20-403(b)(2)(A) (Supp. 1998). cause of the automobile accident involving Trevor, Jona, and Jessica. Ad dition ally, the court assessedthe damages in this matter at $1,906,393.29 for the wrongful death of Trevor, $185,000.00 for the personal injur

ies of Jona, and $8

0,308.00 for the pe

rso nal inj uries of Jessica

. Taking into account the Defendant’s degree of fault and the limits imposed by the Tennessee Governmental Tort Liability Act, 3 the court entered a judgment against the Defendant in the amount of $130,000.00 for the wrongful death of Trevor, $46,250.00 for the personal injuries of Jona, and $20,077.00 for the personal injurie

s of Jessica. The

Defendant filed

a notice of appe

al. Thereafter, the Plaintiff filed
a motion for discretionary costs totaling $21,957.80. Additionally, the Plaintiff amended her motion for discretionary costs to redu ce the amount s ought for the expe rt witness fees of

Dr. Geoffrey P. Alpert and Michael Cosgrove. The trial judge entered an order granting in part and denying in part the Plaintiff’s motion f

or discretion ary costs. The Defendant also appeals this ruling of the trial court.

Issues

The issues raised

by the parties on a

ppeal, as we per

ceive them, are

as follows:

I. Did

the trial court err in finding that th e actions of Offi cers Rose and Fields were a cause in fact of t h e injuries sustained by Trevor, Jona, and Jessica? II. Did

the trial court err i

n finding that, in exceeding the speedlimit while in a vehicle without emergency equipment, Officers Rose a nd Fields viola

ted a duty of care owed to Trevor, Jona, and Jessica? III. Did

the trial court err in finding that the negligence of Officers Rose and Fields was a twenty-five pe rcent proximate

cause of the i njuri es sustained by Trevor, Jona, and Jessica? IV. Did the trial court err in finding that Jona ha d sustained c ompensatory damages tot alin g $175,000.00 when, in her complaint, J ona s ought only $100,000.00 in comp

ensatory damage

s? V. Did

the trial court er

r inawarding damages for Jona’s emotional injurie s und er the theory of negligentinfliction of emotio nal distress? VI. Do the trial court’s f indings with respect to Jona’s da mage s permit double recovery for the emotional injuries sustained by Jona as a result of theaccident? VII. Did

the trial court err in finding that Jessica had sustained a total of $80,308. 00 in damages as a result of the accident? VIII. Did

the trial c ourt e rr in awarding the Plaintiffs $17,335.30 in discr

etionary costs? VIV. Did

the trial court err in fail

ing to award dama

ges to Jona and Jessica for loss of spousal and parental co n sortium resulting from the wrongful death of Trevor? X. Did

the trial court err in comparing the fault of Officers Rose and Fields with the fault of the fleeing bank robbery susp

ects?
Standard of Review

When a civil action is heard by a trial judge sitting without a jury, our review of the matter is de novo on the record, accompanied by a presumption of correctness of the findings below. See, e.g., Foster v . Bue , 749 S.W.2d 736, 741 (Tenn. 1988); T.R.A.P. 13(d). We maynot
reverse the findings of

fact made by the trial judge unless theyare contrary to the preponderance of the evidence. See, e.g., Jahn v. J ahn , 932 S.W.2d 939, 941 (Tenn. App. 1996) . This presumption of correctness, however, does not attach to the trial judge’s legal determinations or the trial court’s conclusions that are based on undisputed facts. See, e.g., N CNB Nat’l Bank v. Thrail kill , 856 S.W.2d 150, 153 (Tenn. App. 1993).

Causation in Fact

We first consider whether the conduct of Officers Rose and Fields was a cause in fact of the injuries sustainedby Trevor, Jona, and Jessica. A defendant’s conduct may be classified as
a cause in fa ct if, b ut for the defendant’s conduct, the plaintiff’s injury would not have occurred. See, e.g., Snyder v. LTG Lufttechnische GmbH , 955 S.W.2d 252, 256 n.2 (Tenn. 1997). In the instantcase, the Defendant argues that the bank robbery suspects were unaware that they were being pursuedby Officers Rose and Field and thus were not attempting to flee from these officers. Rather,the Defendant conte nds that the bank ro

bbery su spects were traveling at a high rate of speed and driving in a reckless

manner in order to avoid apprehension by other law enforcement officers who had previously pursued the suspects, including Trooper Pugh.

We think that there is a

mple evidence in the record to support the trial court’s finding that the bank robbery susp

ects were, in fa

ct, fleeing from O

fficers Rose

and Fields rather than other law enforcement officers. When Officers Rose and Fields first encountered thesuspects, they were able to get close enoughto read the information onthe suspects’ license plate. The officers followed the suspects at speed

s wellin excess of the speed limit, which was forty miles per hour. Although the officers themselves estimated their rate of speed to be between fifty and sixty-five miles per hour, Trooper Pugh testified that he observed Officers Rose and Fields traveling at betwee n eighty and eighty-five miles per hour. Wh ile following the su

spects, Officer

Rose flashed the headlights of his pick-up truck and drove around a gravel truck that was stopped in a left-hand turn lane, making a left turn onto Bethuel Road. We also think it is significant that, as Officers Rose and Fields approached the accident site, Of

ficer Fields obse

rved flying debri

s. This suggest

s that the officers must have remained in close pr oxim ity to the fleeing suspects throughout the pursuit. Under such circumstances,

there is a substan

tial lik e lihood that the bank robbery suspect knew that they were being pursued by Offic

ers Rose and Fields . In attempting to av oid apprehension

by these officer

s, the bank robbery suspects drove in a reckless manner

. Consequently, the

suspectscrashed into the McCrackenvehicle. Thus, we agree with the trial court’s finding that the conduct of Officers Rose and Fields was a cause in fact of the injuries sustained by Trevor, Jona, and Jessica.
Breach of Duty

We next consider whether Officers Rose and Fields breached a duty of care owed to Trevor, Jona, and Jessica. In negligence cases, the phra

se “duty of care” refers to the defendant’s obligation to conform to the reasonable person standa rd of care for the protection of the plaintiff from unreasonable risks of harm. See McClung v. Delta Square Ltd. Partnershi p , 937 S.W.2d 891, 894 (Tenn. 1996)(citing McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995)). In some cases, the reasonable

person standard

of care is prescribed by statute. See Cook v. Spinnaker’s of Rivergate, Inc. , 878 S.W.2d 934, 937 (Tenn. 1994)(citing McIntyre v. Balentin e , 833 S.W.2d 52, 59 (Tenn.4 Under section 55-8-108 of the Tennessee Code Annotated, the driver of an authorized

emergency vehicle is permitted to exceed the posted speed limit under ce rtain circumstances. See Tenn. Code Ann. § 22-8-108 (b)(3) (1998). This privilege only applies, howeve r, when the vehicle is making use of its emergency equipment. See Tenn. Code Ann. § 55-8-108(c) (1998). In the instant case, the only emergency equipment in Officer Rose’s pick-up truck was a dashmounted blue light that did not operate properly. Thus, we conclude that this provision did not operate to authorize Officers Rose and Fields to exceed the posted speed limit when pursuing the fleeing bank r

obbery susp

ects.
5 Trooper Pugh testified that he observed Officer Rose’s pick-up truck traveling at approximately eighty to eighty -five miles per hour. Additionally, Officer Rose estimated that the truck reached a maximum speed of fifty to sixty-five miles per hour . Finally, Officer Fields testified that the highest speed attained while following the fleeing bank robbery suspects was sixty miles per hour. 1992)). If the statu

te was designed to prevent the type of harm suffered by the plaintiff and the plaintiff is within the class of persons that was intended to be protected by the statute, the violation of such a statute amo

unts to negligence

per se, resulting

in a conclusi

ve p resumption that the defendant violated a duty of care owed to the plaintiff. See id. (citing Smith v. Owen , 841 S.W.2d 828, 831 (Tenn. App. 1992)).

The maximum speeds at which a person is permitted to operate a motor vehicle on the highways and public roads of this state are set forth in section 55-8-152 of Tennessee Code Annotated. Se e Tenn. Code Ann. § 55-8-152 (1998). 4 See also Tenn. Code Ann. § 55-8-15 3 (1998)(allowing for downward alteration of these limits in the intere st of public safety). In the instantcase, the posted

speed limit on the roads traveled by Officers Rose and Fields while following the bank robbery suspects was forty miles per hour. There is some disagreement regarding the speed at which Officers

Rose and Fields purs

ued the fleeing ba

nk robbery susp

ects. 5 It is undisputed, however, that

as the bank r obbery suspects b egan to pull away f

rom Officers Rose

and Fields, Officer Fields instructed O

fficer Rose to “p

unch it.” Office

r Rose testified that he had the gas pedal pressedto the floor and was traveling as fast as hi s pick-u p truck could run. Officers Rose and Fields estimated that they reached a top speed of fifty to sixty-five miles per hour. Thus, under

the officers’ own testimony, it is clear that Officers Rose and Fields violat ed t he speed limit in the ir pursuit of the flee

ing bank robbery s

uspects.

We now consider whether, under the circumstances of the case at bar, the

officers’ violation of the speed limit a mounts to negligenc

e per se. The pur

poseof imposing a speed

limit is to prevent injuries resulting from motor vehicle a ccidents. These limitations are imposed in theinterest

of public safety and are designed to benefit all persons who utilize the roads of this state. In the instant case, Trevor, Jona, and Jessica sustained injuries as a result of a motor vehicle

accident. This is precisely the ty

pe of harm that spe

ed limits are des igned to prevent. Additionally, as members of the public who were traveling on Tennessee roads, we find that Trevor, Jona, and Jessica
were among the class of

persons that the sp

eed limit in the insta

nt case was desig

ned to protect. Thus, we conclude that the conduct of Officers Rose and Fields constitutes negligence per se. Ac c ordingly, we must conclusive ly presume that the

se officers viola

ted a duty of care

owed to Trevor, Jona, and Jessica.
Apportionment of Fault

The trial court

found that the negligent cond uct of Officers

Rose and Fields was

a twenty-five percent proximate cause of the injuries sustained by Trevor , Jon a, and Jessica. The Defendant

argues on appeal the trial court’s apportionment of fault was basedon erroneous findings withrespect to causa

tion and thus, the pe

rcentage of fa

ult assigned to Officers Rose and Fields should be substantially reduced. As we explained above, however, we agree with the trial court’s finding that the conduct of Officers Rose and Fields was a cause in fact of the accident between the suspects’ vehicl

e and the McCrac

ken vehicle. Thus , we reject this a rgument of the De

fendant.

The trier of fact in a negligence case is afforded a great deal of discre tion with respect to its apportionment of fault. See Wright v. City of Knoxvi lle , 898 S.W.2d 177, 181 (Tenn. 1995)(citing Martin v. Bussert , 19 3 N.W.2d 134, 139 (Minn. 1971)). In light of their negligent conduct, it is clear in the instant case that at least some degree of fault should have been assigned to Officers Rose and

Fields. Additionally, because of their reckless conduct, we think that a high degree of fault should have been assigned to the bank robbery suspects. The trial court apparently reached the same conclusion, assign

ing only twenty-five percent of the fault to Officers Rose and Fields. Under the circumstances of the case at bar, we cannot say that the trial court’s apportionment of fault is contrary to the preponderance of the evidence.

The Plaintiff also challenges the trial court’s apportio nment of fault,

arguing that the trial court should not ha

ve compared the

fault of Office

rs Rose a nd Fields with the fault of thefleeing bank robbery suspects. In support of this position, the Plaintiff first co ntends that such a

comparison should not have been made because the Defendant failed to properly raise the issue of comparative fault. Under Rule 8.03 of the Tennessee Rules of Civil Pro cedure, a d efendant who intends to rely on the doctr ine of comparati

ve fault “ must identify or describe other alleged tortfeasors who should shar e fault, or else the defendant normally would be barred from shifting blame to others at trial.” Advisory Commission Comment [1993] to T.R.C.P. 8.03.

In George v. Alexander , 931 S.W.2d 517 (Tenn. 1 996), Ethel George began to experience

physical problems with her right leg and foot after un dergoi ng a surgical procedure performed

by Dr. James Da niell. See id. at 518-19. George filed a medical malpractice action against Dr. Phillip Jones and Dr. Clyde Alexander, the physicians who administered Geo rge ’s anesthesia, but did not name Dr. Daniell as a defe

ndant. See id. at 519. In their answer to George’s complaint, Dr. Jones and Dr. Alexander did not raise the issue of comparative fault. See id. Subsequently, how ev er, George took the deposition of Dr. Vaughan Allen, who suggested that George’s injury might have oc curred becaus

e Dr. Daniell impr

operly positioned her body during the surgery. See id. at 519-20. Over the objection of George, the trial court allowed Dr. Allen’s deposition to be admitted into evidence. See id. at 520. On appeal, the Tennessee Supreme Court reversed the trial court’s ruling, holding that, because Dr. Jones and Dr. Ale xander failed to

alleged comparative fault as an affir mative defense,

they could not atte

mpt at trial to shift th

e blame to

Dr. Daniell. See id. at 522. In a separate concurrence, one member of the court explained as follows:
[W]here the defendant does not plead comparative fault, it will be held liable for 100 perce nt of th e plaintiff’s dam ages unless it is absolvedof all liability. In o ther words,where a sole defendant does notplead comparati

ve fault, there w

ill be no apportioni

ng of liability for damages even

though the defendant may have been only partial

ly at fault.

Id. at 527 (Reid, J., concurring).

In the instant cas

e, the Defendan

t’s answer state

s in pertinent par

t as follows:

26. The City of Millington , Tennessee, de

fendant, relies upon the Doctrine of Comparative Fault. If this defen dant , City ofMillington, Tennessee, was negligen t in an y manner, then the plaintiffs’ recovery must

be barred, as the negligence of the plaintiffs and plaintiffs’ deced ent was greater tha n the negligence

of the City of Millington, Tennessee, if any, and any negligen ce of any codefendant must be reduced by the p laintiffs’ or the plaintiffs’ decedent’s per

centage of fau

lt.
Thus, although the D ef

endant raised the doctrine of comparative fault with respect to the conduct of the Plaintiff, the Defendant did not allege that the conduct

of the fleeing ba

nk robbery suspec

ts in any way caused or contributed to the Plaintiff’s injuries. It appears, then, that, under the court’s ruling in Ge o rge , the trial court should not have considered the fault of the fleeing bank robbery suspects when determining the Defendant’s degree of fault.

Additionally, the Plaintiff argues that it was improper for the trial court to compare the fault of Office

rs Rose and Fields with the fault of the fleeing suspects because conduct of the suspectswas intentional. In Turner v. Jordan , 957 S.W.2d 815 (Tenn. 1997), Emma Turner, a nurse who worked at a Nashville hospital, was attacked and severely beaten by Tarry Williams, a psychiatric

in-patient at the hospital. See id. at 816. On the day o f the atta ck, W illiams was interviewed by Dr. Harold Jordan wh o found Williams to

be “aggressive, grandiose, intimidating, combative, and dangerous.” Id. at 817. Despite this finding, Dr. Jordan made no attempt to protect Turner from the risk of ha

rm created by the

presence of Wil

liams at the hospita

l. See id. at 817. In
a negligence action brought by Turner against Dr. Jordan, the trial court ins tructed the jury th

at, in apportioning fault, it could compare t he a lleged intentional conduct of Williams with the alleged negligent conduct of

D r. Jordan. See id. On appeal, the Tennessee Supreme Court disagreed, holding that “the conduct of a negligentdefendant should not be compared with the intentional conduct of another

in determining comparative fault where the intentional conduc

t is the foreseea

ble risk created by the negligent tortfeasor.” Id. at 823.

In light of the rule set forth in Jordan , we must now consider whether the conduct of the f leeing suspects in the instant case may be classified as intentional. Under Tennessee’s criminal statutes, the word intentional “refers to a person who ac ts intentionally with

respect to

the nature of the conduct or to a result of the conduct when it is the person’s conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-106(a)(18) (1997);Tenn. Code Ann. § 39-11-302(a) (1997). The Restatement (Second) of Torts uses the word intent

“to denote that the ac

tor desires to ca

use consequence

s of his act, or tha

t he believes t

hat the consequences are substantiall y certain to result from it.” Restatement (Second) of Torts § 8A (1965).

In an attempt to emphas ize the distinction between conduct that is intentional and conduct that is merely

negligent or

reckless, the drafters of the Restatement (Second) of Torts offer the following illustration:

2. On a curve in a narrow highway A, without any desire to injure B, or belief that he is substantially c ertain to do so, recklessly drives his automobile in an attempt to pass B’s car. As a result of this recklessness, A crashes into B’s car, injur i ng B. A is subject to liability to B for his reckless conduct, but is not liable to B for any intentiona

l tort.

Restatement

(Second) of Torts § 8A illus . 2 (1965) . Similarly in the instant case, there is no allegation that the fleeing suspects desired to injure Trevor, Jona, or Jessica. Nor is there any allegation that the fleeing su spects believed t

hat their conduct was substa

ntially certain to

result in injuries to the persons contained in the McCracken vehicle. On the cont rary, as sugg ested by the Plaintiff’s own expert wit ness, a suspe ct who is fleeing th e police typically

attempts to avoid apprehensionby blending into tra ffic and remain

ing inconspicuous u

ntil the susp ect has an opportunity

to stop his or her vehicle and hide from the police. It stands to r eason, then, that a
su spectwho is attempting to blend i nto traffic and r

emain inconspicuo

us would not intention

ally crash into the vehicle of an innocent bystander.

In its memorandumopinion, the trial court makes reference to the “reckless driving of the criminals.” For the reasons set forth above, we think that the trial court properly characterized the suspects’ conduct as rec kless rather than intentional. T hus, we find that th

e rule set forth in Jordan is inapplicable to the case at bar. Accordingly, we reject the Plaintiff’s argument that, under Jordan , the trial court was not permitted to compare the fault of the fleeing suspects with the fault of Officers Rose and Fields.

As stated above, we agree with the Plaintiff that, under George , the trial court sh ould6 The court also found that Jona had sustained consortium-type damages during the two

days that Trevor survived after the accident and value d these damages at $10,000.00. nothave considered the fault of the fleeing bank robbery suspects when determining the Defendant’s degree of fault. However, we are unable to find anything in the record suggesting that the Plaintiff objectedat trial to the court apportioning fault in this manner. On the contra ry, counsel for the Plaintiff apparently conceded that the fault of Officers Rose and Fields would be compared with the fault of the flee

ing bank robbery s

uspects, stating du

ring closing argum

ents as follows:

I think the Court i s to appl y a comparative fault analysis and I do believe that a great deal of the fa ult must be cast against [the bank robbery suspects]. . . .

. . . .

. . . Judge, I think that [the Defendant] ought to b e held 2 5 percent responsible. I think that’s fair. That’s what we ask this Court to do is find that the C

ity of Millington was 2

5 percent at fau

lt.
Thus, the Plaintiff’s position at trial with respect to this issue is contrary to the position t hat the Plaintiff asserts on appeal. It is well settled that, under Tennessee law, an issue cannot be raised for the first time on appeal. See, e.g., Simpson v . Frontier Community

Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991); State Dept. of Hu man Servs. v. Defriece , 937 S.W.2d 954, 960 (Tenn. App. 1996). In the instantcase, the Plaintiff did not raise an objection at the trial court level with respect to the trial judge’s method of appo rtioning faul t. Consequently, the trial judge did not have an opportunity

to correct its ruling so as to conform to our supreme court’s holding in George . Under such circumstances,

we find that the Pla

intiff has waived

the right to raise

any issue on appeal with respect to the tri

al court’s appor

tionment of fault.
Damages of Jona McCracken

In her complaint, Jona sought compensatory damages in the amount of $100,000.00. When assessing Jona’ s d amages, however, the trial court found that she had sustained a total of $175,000.00 in compensatory da mages. 6 The Defendant

presented an

issue on appeal tha

t, because the court fou nd that Jon a had sustained damages in excess of those sought in her complaint, the7 We must note, however, that the Defendant has subsequently abandoned this arg ument and now concedes that, in the instant case, the amount of the judgment was not in excess of the amount sought in Jona’s complaint. court’s finding with respe ct to Jona’s damag

es sho uld be reduced. 7 Under Tennessee law, a trial
co urt may not enter a jud

gment in excess of

the amount sought in t

he plaintiff’s co

mplain t. Se e Gaylor v. Miller , 59 S.W.2d 502, 504 (Tenn. 1933)(citing Murphy v. Johnson , 64 S.W. 894, 895 (Tenn. 1901)); Cross v. City of Morris town , No. 03A01-9606-CV-00211, 1996 WL 605248, at *2 (Tenn. App. Oct. 23, 1996)(citations omitted). See also T.R.C.P. 15.02 (“amendment after verdict so as to increase the amount sued for in the action shall not be permitted”). This rule refers to the amount of the plaintiff’ s judgment, n ot the trial court’s preliminary assessment of the plaintiff’s damages. In the instant case, the trial judge reduced the amount of Jona’s damages to refl ect th e Defen dant’s deg ree of fault, ultimately entering a judgment in favor of Jona in the amount of $46,250.00. This amountdoes not exceed $100,000.00, the amount sought by Jona in her compla int. The Defendant also

contends that the t

rial court erre

d in finding that Jona was entitled to recover damages under the theory of n egligent infliction of emotional distress. In Camper v. Minor , 915 S.W.2d 439 (Tenn. 1996), the Tennessee Supreme Cou rt ab andoned the physical manifestation or injury rule and adopted a general negligence approac h to claims of negligent infliction of emotional distress. See id. 446. Under this approach, the plaintiff may recover only if the defendant’s conduct was negligent and, as a resul t o f the defendant’s negligence, the plaintiff sustained a serious or severe emotional injury. See id. The court noted in Camperthat it was not necessarily

abandoning the zone of dan ger test, stating as follows: “[S]ince the ‘zone of danger’ approach is, in reality, merely a way of defining and lim iting the elements o

f duty and proximat

e or legal cause, the principles of the approach can likely be integrated into the general negligence framework.” Id. at 446 n.2.

In Ramsey v. Beaver

s , 931 S.W.2d 527 (Te

nn. 1996), the cou

rt attempted to exp

lain the operation of

the zone of danger test within the context of the general negligence approach. The court held in Ramsey that, in order to recover for emotional injur ies sustained as a result of the injuries of a third person, the plaintiff must prove that the defendant’s conduct was a cause in fact of both the third party’s injury and the plaintiff’s emotional injury. See id. at 531. Additionally, the plai ntiff must prove that his or her emotional injury was the foreseeable result of the d efendant’ sconduct. See id. In determining whether the plaintiff’s emotional injury was foreseeable, the trier

of fact should consider (1) the plaintiff’s physical location at the time of the injury-producing event
as well as the plaintiff’s awareness of the injury-producing event, (2 ) the seriousness of the third party’s injury, and (3) the nature of the plaintiff’s relationship with the injured third party. See id. With respect to the

first of these con

siderations, the c

ourt explained as

follows:
Obviously, it is more foreseeable that o ne witnessing or having a sensory observation of the event will suffer effects from it. As has been explained: The impact of personally observing the injuryproducing event in most, altho ugh concededly

not all, cases distinguishes the plaintiff’s resultant emotional distress from the emotion fe lt when one learns of

the injury or death of a loved one from another, or obs erves pain and sufferi ng but not the trauma

ti c cause of the injury.

Id. (quoting Thing v. La Chusa , 771 P.2d 814, 828 (Ca l. 1989))(footnot

e omitted). The court then summarized its rul

ing as follows:

Our holding today aband o ns the hypertechnical approach of the zone of danger rule and recognizes that in certain

circumstances a plaintiff whose ph

ysical safety is no

t endangered ma

y nonetheless suffer compensable mental injury as a result of injuries t o a closely related third person which plaintiff observes sensorily.

Id. at 532.

In determining whether Jona was entitled to rec over damages under the theory of negligent infliction of emotional distress, our inquiry focuses primarily on the first of the three foreseeability

factors discussed in Ramsey . At the time of the accident, Jona was a passenger in one of the vehicles t

hat was involve d in the collision. Thus, Jona’s physical proximity to the injuryproducing event could not have been any closer. We must also consider, however, Jona’s awareness of the injury-producing event. Jona testified that both she and Jessica were asleep when the accident occurred. Sometime thereafter, Jona woke up and was lying on the ground. As she opened her eyes, Jona observed trees a

nd leaves but appa

rently was not able to see the scene of the accident. Jona testified that she remembered hearing commotion and being questioned by a paramedic. She couldnot, however, recall the substance of the param e dic’s questions. Jona’s next memory is of being inside an ambulance with Jessica. While inside the ambulance, Jona observed that Jessica was cryin g and holding her arms out to her. The next thing that Jona remembered was being at Th e Na val Hospital sur rounded by her friends and neighbors. Jona was told that she was going to be alright, that Trevor was fine, and that Jessica had broken her leg. Jona testified at t rial that, when she woke up at The Naval Hospital, she did not even really know what had happened.

Under the aforementioned circumstances, we are n ot convinced that Jona had sufficient awareness of the

injury-producing event to satisfy the requirements of Ramsey
. The court in Ramsey limited recovery for negligent inf

liction of emotiona

l distress to

cases i n which the plaintiff actually observ ed the injury -producing event with his or her senses. See Ramsey , 931 S.W.2d at 531-32. It recognized however, that the

requisite sensor

y observation doe

s not necessarily have to be a visual one,

noting that it

is possible to audibly

observe an injury

-producing even

t. See id. at 531 n.2. In the instant case, the trial judge noted that Jona had no memory of the collision itself but nevertheless concluded that “[h]er senses must have received some impact from it.” While
we certainly agree that Jona’s body must have received a physical impact as a result of the collision,
we do not think that this n ecessarily esta

blishes that Jona wa

s aware of this

impact. On the contrary, the trial court found that “[a]ppar ently s he was knocked unconscious instantly by the collision.” Under Ramsey , the crucial inqu iry is whether the plaintiff was aware of the injury-pro

ducing event, notwhether the plaintiff received a physical impact from the event. See id. 531. Because Jona was sleeping immediately prior to the accident a

nd was knocked unc

onscious at the mome

nt of impact, she could not have had

any conscious awareness of what had occurred. Thus, we must conclude that Jona has failed to establish sufficient awareness of the event to allow r ecovery for

her emotional injuries under Ramsey
.

Even assuming that Jona’s emotional injuries were foreseeable, however, we would still find that

Jona is not entitled to recover damages for negligent infliction of emotional distress. A plaintiff may recover under this legal theory only if he or she h as suffered a serious or severe emotional injury. See Ramsey , 931 S.W.2d at 532; Camper , 915 S.W.2d at 446 (citations omitted). Additionally, the plaintiff’s se rious or severe i

njury must be suppor

ted by expert medi cal or scientific proof. See Ramsey , 931 S.W.2d at 532; Camper , 915 S.W.2d at 446 (citing Leong v.8 There is no evidence in the record, however, suggesting that Jona actually received any future counseling. Takasaki , 520 P.2d 758, 766-67 (Haw. 1974)). The plaintiff’s injury is sufficiently serious or severe if “a reasonable person, normally constitute d, would be unable

to adequately

cope with the mental stress engendered by the circumstances of the case.” Ramsey , 931 S.W.2d at 532 (quoting Camper , 915 S.W.2d at 446). In the instant case, the trial judge found that Jona had sustained “some” emotional injury as a r esult of t he accident. The court then noted that Jona had “witnessed her husband in a grotesquely swollen and injured condition i

n the hospital.” In Ramsey , however, the court clearly indicated that the requisite emotional injury could not be one sustained as a result of observing the “pain and suffering [of the injured party] but not the traumatic cause of the injury.” Ramsey , 931 S.W.2d at 531 (quoting Thing , 771 P.2d at 828). Approximately four months after the accident,Jona was examined by a psychiatrist who diagnosed Jona’s condition as a grief reaction, gave her a prescription of sleeping pills, an d recommended that Jona undergo individual counseling. 8 While we agree that a

person who has experienced grief has certainly suffered an emotional injury,
we do not think this type of emotional injury is compensable under Ramsey . Again, Ramsey allows
aplaintiff to recover damages for an emotional injury sustained as a result of observing the injuryproducing event, not an emotional injury experienced “when one learns of the injury or death of a loved one from another.” Ramsey , 931 S.W.2d at 531 (quoting Thing , 771 P.2d at 828). Additionally, we find that Jona h as faile d to pr ove by expert medical or scientific proof that her emotional injuries were severe or serious. According to Jona’s psychiatrist, her symptoms were “within the normal grieving process and may not lead to any future long term complications.” Thus, under the definition of “

severe or serio

us injury” adopted

by our su

preme cour t in Camperand Ramsey , we conclude that Jona has failed to carry her burden of proof with respect to this issue.

In light of our

discussion above, we find that the requirements of Ramsey have not been satisfied in the instant case and consequently hold that the trial court erred in its assessment of Jona’s damages. On remand, t he court should reduce its prior assessment of Jona’s damages by $100,000.00, the amount that the court as signed as d amages for negligent infliction of emotional distress.

The trial court also f ound that, in additio

n to the emotional injuries discussed above,Jona

sustained damages for her own personal injuries in the amount of $75,000.00. The Defendant argues on appeal that this figure is excessive and allows Jona to receive a double recovery for

her emotional injuries. We disagree. Jona’s physical injuries resulting from the accident included a severely sprained left an

kle, a severely

bruised upper thigh, and

various cuts, bumps , and bruises. Although these injuries healed, there is permanent scar tissue on Jona’s right leg that, when bumped,
causes Jona to experience pain. A plaintiff who is injured as a result of the negligence of the defendant is entitled to “reasonable compensation for bodily injuries, pain and suffering, disability, loss of earnings and expenses.” Brown v. Null , 863 S.W.2d 425, 430 (Tenn. App. 1993). There are
no mathematical rules for computing damages in a negligence case. See, e.g., id. at 429-30. Rather, the amount

to be awarded in such a case is primarily within the discretion of the trier of fact. See, e.g, id. at 430 (citations o mitted). In the inst

ant case, it is undi

sp uted that Jona incurred on ly $367.00 in medical expenses. However, she also experienced pain and suf fering and has a

t least
somepermanent disabi

lity or impairment th

at may, in fact, cause her

some pain and suffering in the future. Under these circumstances, we cannot say that the evidence preponderatesagainst the trial court’s conclusion that Jona sustained $75,000.00 in damages as a resul t of her personal injuries. Thus, even if the trial court improperly considered Jona’s mental sufferi ng wh en making its assessment

of these injuries, we do not think that the figure ult

imately reache

d by the trial cour

t is excessive.
Damages of Jessica McCracken

As a result of the accident, Jessica sustained a fracture to her left leg. For eight weeks, Jessica was required to wear a cast that extended from the top of her toes to the middle of her thigh. The parties s

ti pulated at trial th

at, as a result of

this injury, Jessica

incurred medica

l bills totaling $304.00. The trial court found that Jessica had sustained a total of $80,308.00

in damages. The Defendant argues on appeal that this amount is excessive and represents a subconscious attempt
on the part of the tri

al judge to

circumvent the rules of

comparative fault. We cannot agree. Again,
we m ust note that the assessment of damages in a negligence case is largely left to the soun d discret ion of the trie

r of fact. See, e.g, Brown , 863 S.W.2d at 430 (citations omitted). Jessica undoubtedly

experienced a

great deal of pa

in as a result

of her fractur

ed leg. Additional

ly, the child must have experienced considerable suf fering associated with having the leg immobilized for aperiodof eight weeks. Th us, although the tri

a l co urt’s assessment of Jessica’s damages appears somewhat high in light of the small amount o f her medical ex

penses, we cann

ot say that it is

contrary to the preponderance of the evidence. Accordingly, we find no error on the par to f the trial court with respect to its assessment of Jessica’s damages.
Discretionary Costs

After t he tria l court rendered its judgment, the Plaintiff filed a motion for discretionary costs totaling $21,957.80. The amount sought by the Plaintiff included the $11,040.00 expert witness fee of Dr. Geoffer y Alpert and the $7 ,596.50 expert wi tness fee of Michael Cosgrove. The Pla intiff subsequently filed an amended bill of costs wherein the Plaintiff stated tha t approximately

$2,025.00 of Dr. Alpert’s f ee and $975.00 of

Cosgrove’s fee w

as incurred prio

r to the dismissal of the named defe ndants other than the City of Millington. Based

on these calcula

tions, the Plaintiff amendedher motion for discretionary cost to seek only $9,015.00for the expert w itness fee of Dr. Alpert and $6,621.50 for the expert witness fee of Cosgrove. After hearing oral argument
on the Plaintiff’s amended motion, the trial judge entered an order awarding the Plaintiff $17,335.30 in discretionary costs. In its order, the trial judge denied the Plaintiff’s requests for travelexpenses and expenses associated with preparation of the trial transcript totaling $2,222.50. The court then stated that the Plaintiff was entitled to 1/5 or $600.00 of the $3,000.00 in expert witness fees incurred prior to the dismissal of the other named defendants. Finally, the court granted all

other aspects of the Plaintiff’s motion for discretionary costs. Thus, acco rding to our calcu

lations, the total amount awarded to the Plaintiff for the expert witness fees of Dr. Alpert and Cosgrove is $16,236.50.

Under the Tennessee Rules of Civil Procedure, discretionary costs include “reasonable and nece ssary court reporter expenses for depositions or trial, reasonable and nece ssary exper t witnes s fees for depositions or trials, and guard

ian ad litem fees. ” T.R.C.P. 54.04(2 ) (emphasis

added). On appe

al, the Defenda

nt argues that the

Plaintiff was not e

ntitled to
recover the expert witness fees of Dr. Alpert and

Cosgrove because the testimony of these witnesses
was not necessary. After taking the instant case under advisement, the trial judge stated as follows:

I feel called upon to say that the expert testimony, withou t an ydisrespect to the gentlemen that testified, I d on’t t hink was very helpful to the Court at all. It d ealt mainly with pe ople putting their own interpretation on the facts that I’m not sure that the Court or that a juror wouldn’t be in just as good a pos i tion to do as anyone, although they were unquestionably policemen of great experi enc e. So I’ll just mention that for whatever it’s worth . . . .
In light of the trial judge’s comment that the testimony of Dr. Alpert and Cosgrove was “not very helpful . . . at all,” it would be inconsistent fo

r the trial judge to

find that t

heir testimony was “necessary.” Thus, because expert witness fees may be awarded as discretionary costs only if they
are necessary, we agree that the trial judge in the instant case should not have awarded the Plaintiff $16,236.50 for the expert witness fees of Dr. Alpert and Cosgrove.

The Defendant also argues that, because the trial court found that it wasonly twentyfive percent at fault, the court erred in requiring it to pay the entire amount awarded to the Plaintiff
as discretionary costs. In Hollifield v. City of Morristown , No. 03A01-9605-CV-00172, 1996 WL 539766 (Tenn. App. Sept. 25, 1996), we expressly rejected the contention that, in

comparative fa

ult cases, costs must

be assessed according to the party’s degree of fault. See id. at *2. Thus, we find this argument of the

Defendant to be w

ithout merit.

As the name sugges ts, trial j udges are afforded a great deal of discretion when considering a motion for discre tionary costs. Abs

ent a clear abus

e of discretio

n, appellate courts generally will not interfere with a trial court’s assessment of costs. See, e.g., Perdu e v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992). I n the instant case, we think that the trial court clearly abused its discretion in awarding as discretionary costs of the fees the Plaintiff’s expert
w itnesses. We find no abuse o f discretion, how

ever, with respe

ct to the trial judge ’s decis ion t o
assess 100% of the amount awarded as discretionary costs against the Defendant. Thus, on remand, the trial judge should reduce that amount of the awar d by $16,236.50, ultimately awarding the Plaintiff $1,098.80 as discretionary costs. Additionally, 100 % of t he $1,098.80 award should be assessed against

the Defendant.9 This case has been designated for publication. Loss of Spousal and Pare ntal Consortium
At trial, Jona and Jessica both sought loss of consortium damages for the wrongful death of Trevor. The trial judge, however, ruled that Jona and Jessica were not entitled to recover consortium-type damages under Tennessee’s wrongful death statutes. We now consider whether, in light of our supreme court’s recent decision in Jordan v. Baptist Three Rivers Hosp. , No. 01S01- 9706-CV-00142, 1999 WL 24677 (Tenn. Jan. 25, 1999), 9 the trial court erred i n failing to award Jona and Jessica

damages for loss o

f spousal and par

ental consortium.

Under Tennessee law, a cause of action for wrongful death is recognized by statute. See Tenn. Code Ann. §§ 20-5-101 to -120 (1994 & Supp. 1998). The types of damages that are recoverable

in a wrongful dea

th case are outli

n ed in se ction 20-5-113 of the Tennessee Code Annotated which p

rovides as follows :

Where a person’s death is caused by the w rongful act, fault, or omission of another, and suit is brought for damages, as provided for by §§ 20-5-106 and 20

-5-107, the party

suing shall, if enti

tled t o dama ges, have the right to recover for the mental and physical suffering, loss of time, and necessary expenses resulting to the deceased from the personal injuries, and also the damages res ul ting to the p ar ties for whose use and benefit the right of action survives from the death consequent upon the injuries received.

Tenn. Code Ann. § 20-5-1 13 (1994). Tenne ssee courts

have classified this provision as a survival statute because it vests in a designated sur vivor wha tever cause of action the injured party had against the defendant prior to his or her death. See Milligan v. American Hoist & Derrick Co. , 622 F. Supp. 56, 59 (W .D. Tenn. 1985); Jones v. Black , 539 S.W.2d 123, 124 (Tenn. 1976). Additionally, the courts of this state have repe

atedly rejected the notion that section 20-5-113 creates
a new cause of action in favor of the injured party’s survivors for their loss resulting from the injured party’s death. See Jamison v. Memphis Transit Management Co. , 381 F.2d 670, 673 (6th Cir. 1967); Harmon v. Wolfe , 253 F. Supp. 577, 5 78 (E. D. Tenn. 1965); Jones , 539 S.W.2d at 124; So utheaster n Aviation, Inc. v. Hurd , 355 S.W.2d 436, 442

(Tenn. 1962); Logan v. Reaves , 354 S.W.2d 789, 790 (Te

nn. 1962); Herrell v. Haney , 341 S.W.2d 574, 576 (Tenn. 1960); MemphisSt. Ry. Co. v. Cooper , 313 S.W.2d 444, 447 -48 (Tenn. 1958) ; Love v. Southern Ry. Co. , 65 S.W.

475, 480 (Tenn. 1901); Whaley v. Catlett , 53 S.W. 131, 133 (Tenn. 1899); Rogers v. DonelsonHermitage Chamber of Commerce , 807 S.W.2d 242, 245 (Tenn. App. 1990).

In Davidson Benedict Co. v. Severson , 72 S.W. 967 (Tenn. 1903), our supreme court held that survivors could not recover consortium-type damages under Tennessee ’s wrongful deat h statutes. See id. at

982 (st ating that “nothing can be allowed . .

. for the loss of the

aid, comfort, counsel, and companionship of the deceased”). See also Louisville & N.R. Co. v. Tucker , 211 F.2d 325, 333 (6th Cir. 1954); Knight v. Nurseryman Supply, Inc. , 248 F. Supp. 925, 926 (E.D. Tenn. 1965); Illinois Cent. R. Co. v. Be ntz , 69 S.W. 317, 320 (Tenn. 1902). Nearly one hundred years later, the Tennessee Supreme Court revisited t his holding in the recent case of Jordan v. Baptist Three Rivers Hosp. The court in Jordan focused on the plain language of section 20-5-113. See Jordan , 1999 WL 24677, at *6. The court noted that, despite its classification as a survival statute, section 20-5- 11 3 also provides for a cause of action that compensates survivors for incidental damages sustained as a result of the injured party’s death. Se e id. at *6-7 (citing Thrailkill v. Patterson , 879 S.W.2d 836, 841 ( Tenn. 1994); Davidson Benedict Co. , 72 S.W. at 977). Incidental damages, as noted by the court, have been defined to include the pecuniary value of the decedent’s life which is calculated by considering the injured party’s age, life expectanc y, condition of hea

lth and strength, earning capacity, and personal habits as to sobriety and industry. See id. at *7 (citing Spencer v. A-1 CraneServ., Inc. , 880 S.W.2d 938, 943 (Tenn. 1994)). Thecourt recognized that the pecuniary value of human life necessarily encompasses the value of human companionship. See id. Accordingly, the court interpreted section 20-5-113 as allowing the survivor to recover damages for the loss of human companionship resulting from the injured party’s death and reversed its earlier ruling in Davidson Benedict Co. to the extent that it prohibited the recovery of damages for spousal consortium in wrongful death cases. See id.

The court in Jordan next considered whether, under T

ennessee’s w

r ongful death statutes, a child of the injur ed party could re

cover damages f

or loss of parenta

l consortium. See id. at *8. The court first noted that section 20-5-110 of the Tennessee Code Annotated pro vide s that
an action for wrongful death may be brought “for the benefit of the surviving spouse and the children of the deceased.” Id. (quoting Tenn. Code Ann. § 20-5-110 (1 994)). The court concluded that,

whenread

in conjunction with section 20-5-110, section 20-5-113 “seem ingly permits consideration of parental consortium damag es.” Id. (ci ting Fosters v. Jeffe rs , 813 S.W.2d 449, 451 (Tenn. App. 1991)). Noting thatmany other jurisdictions allow the child of a tortiously killed parent to recover consortium-type damages, the court held that such damages ar

e also recovera

ble section 20-5-113 as part the pecuniary value of the deceased parent’s life. See id. at *8-9.

We must now consider w

heth er the holding of Jordan may be applied re trospectively to the case at bar. The Tennessee Constitution pr ovides “[ t]hat no retrospective law, or law impairing the obligations of c ontracts, shall be

made.” Tenn. Cons

t. art. I, § 20. This provision has b een int erpreted as pro

hibiting the retros

pective applica

tion of a statute if

such application w

ould disturb a vested substantive right derived from the common law. See Dupuis v. Hand , 814 S.W.2d 340, 343 (Tenn. 1991); Hanover v. Ruch , 809 S.W.2d 893, 896 (Tenn. 1991); Miller v. Sohns , 464 S.W.2d 8 24, 826 (Tenn. 1971); Massey v. Sullivan Coun ty , 464 S.W.2d 548, 549 (Tenn. 1971). This prohibition does not , however, prevent the retroactive application of judicial changes in the
common law. See Dupuis , 814 S.W.2d at 343; Davis v. Davis , 657 S.W.2d 753, 759 (Tenn. 1983). See also Alc azar v. Hayes , 982 S.W.2d 845, 856 (Tenn. 1998); McClung , 937 S.W.2d at 905 ; Perez v. McConkey , 872 S.W.2d 897, 906 (Tenn. 1994); McIntyre , 833 S.W.2d at 58 (directing that the common law change

s contained in those

opinions were to be applied retrospectively to any cases on appeal in which the issue was properly raised in the trial court).

In Jordan , the court’s rulin g did not result

in a change in the common law. Rather, Jordan involved the judici al construction of

a statute. A chan

ge in th e j udicial construction of a statute becomes a part of the statute itself and thus has the same effect as a change in the law by legislation. See Blank v. Olsen , 662 S.W.2d 324, 326 ( Ten n. 1983)(citations omitted). Consequently, many courts have endorsed the position that a change in the judicial construction of
a statute should

not be appliedretrospectively. See id. (citations omitted). In Blank v. Olsen , 662 S.W.2d 324 (Tenn. 1 983), our supreme court stated as f

ollows:

There i s noth ing said in Pierce indicating it is to have retrospective effect, and in the absence of such an expressed intent the rule is . . . t hat the decision overrul

ing a judicial cons

truction of a statu

te will not be given retro

active effect

.Id. at 325. Appl ying this rule to the case at bar, we think it is significant that, unlike Alcazar ,

McClung , Perez , and McIntyre , there is no langua ge in Jordan p roviding f

or retrospective application. Absent such an expressed intent, we must conclude that the Jordan court’s new construction of Tennessee’s wrongful death statutes may not be applied retrospectively.

Thus, in the instant c

ase, we must

review the ruling of thetrial court under the law in existence at the time

of trial. Prior to Jordan , the courts of this state uniformly held that damages for loss of consortium were not recoverable under Tennessee’s wrongful death statutes. We must conclude then, that the trial judge was correct, under the then existing law, in ruling that Jona and Jessica could not r

ecover damage

s for loss of spousa

l and parental co

nsortium.

Conclusion

Based on the foregoing, we conclude that the trial court erred in awarding damages to Jona based on the theory of negligent infliction of emotional distress. Additionally, we conclude that the trial court abused its discretionin awarding as discretionarycosts the fees of the Plaintiff’s expert witnesses. We find

no error, however, with respect to the remaining iss

ues raised on app

eal. Thus, we affirm in part, reverse in part, and remand to the trial cour t forfurther proceedings consistent with this opinion. On remand, the trial court should reduce its assessment of Jona’s damages by $100,000.00, the amount assigned as damages for neg ligent infliction of emotional distress. The court should also reduce the amount awarded asdiscretionary costs by $16,236.50, the amount the court a

warded for the f

ees of the Plaintif

f’s expert witne

sses.

The costs of this

appeal are assessed

to the Plaintiff, for which execution may issue if necessary.

____________________________________ FARMER, J.______________________________

CRAWFORD, P.J., W.S. ( Concurs)

______________________________ HIGHERS, J. (Concu

rs)