FILED

June 11, 1997

Cecil W. Crowson

Appellate Court Clerk

BONNIE MAE BAIN, )

)

Plaintiff/Appellee, ) Appeal No.

) 01-A-01-9611-CV-00510

v. )

) Rutherford Circuit

CITY OF MURFREESBORO, ) No. 31466

TENNESSEE, )

)

Defendant/Appellant. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR RUTHERFORD COUNTY

AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBERT CORLEW, CHANCELLOR

JOSEPH H. JOHNSTON

P. O. Box 120874

Nashville, Tennessee 37212

ATTORNEY FOR PLAINTIFF/APPELLEE

ALAN T. FISTER

Stewart, Estes & Donnell

424 Church Street, 14th Floor

Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE
1

Court of Appeals Rule 10(b):

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or

modify the actions of the trial court by memorandum opinion when a formal opinion would have

no precedential value. When a case is decided by memorandum opinion, it shall be designated

"MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any

reason in a subsequent unrelated case. 

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MEMORANDUM OPINION1

This is an appeal by defendant/appellant, the City of Murfreesboro (“the

City”), from the decision of the Rutherford County Circuit Court awarding

$27,036.10 to plaintiff/appellee, Bonnie Mae Bain, for injuries suffered by Ms. Bain

as a result of negligence on the part of two of the City’s police officers. The facts out

of which this matter arose are as follows. 

Murfreesboro Police Officer Lannye Winnett, now deceased, was on foot

patrol at the January Street Housing Projects on 15 February 1992. Officer Winnett

went to Ms. Bain’s apartment because nearby residence were complaining of noise.

Officer Winnett was unable to convince Ms. Bain to cooperate and determined she

was under the influence of an intoxicant. Officer Winnett called for backup. Officer

Billy Gay arrived on the scene and stood some distance from Ms. Bain’s front door.

Ms. Bain stood in the doorway and supported herself by holding onto the handle of

the screen door. Officer Gay observed Ms. Bain and heard her yelling and screaming,

but was unable to determine whether Ms. Bain was intoxicated. Officer Winnett was

standing ten to fifteen feet to Ms. Bain’s right. Officer Winnett did not tell Officer

Gay that Ms. Bain was drunk. In addition, neither officer knew Ms. Bain suffered a

mental disability or lack of coordination.

Without discussing it with Officer Winnett, Officer Gay decided to arrest

Ms. Bain. He went to the door, pulled the screen door open, and took Ms. Bain by

the left arm. Ms. Bain fell and sustained injuries to her face and shoulder. The

officers testified Ms. Bain did not attempt to break her fall by putting her right arm

forward or by bending her knees. Officer Gay instinctively pulled back on Ms. Bain’s

arm as she fell to break her fall. Officer Gay took Ms. Bain to the emergency room

where doctors treated Ms. Bain for a broken nose and dislocated shoulder. The

emergency room physician performed a blood alcohol test which revealed Ms. Bain’s

blood alcohol level was .18. Officer Gay then transported Ms. Bain to the local jail.
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A court later convicted Ms. Bain of public drunkenness and disorderly conduct.

Subsequently, a number of doctors treated Ms. Bain at Middle Tennessee

Medical Center, Baptist Hospital, and Vanderbilt Medical Center. Her medical bills

totaled $12,594.80. Doctor John Lamb performed surgery on Ms. Bain’s shoulder.

Doctor Lamb rated Ms. Bain’s disability to her arm before the incident at ten to

twelve percent and at ten to fifteen percent after the surgery.

Ms. Bain filed her complaint on 11 February 1993. She named the City of

Murfreesboro, Officer Winnett, Officer Gay, and Officer John Doe as defendants.

She alleged the officers were negligent and the City was liable for the officers’

negligence. The City and Officers Winnett and Gay filed an answer. The answer

included an assertion that the City did not employ an Officer John Doe. The

answering defendants claimed they were immune, the Governmental Tort Liability

Act limited Ms. Bain’s recovery, and Ms. Bain was comparatively negligent. By

agreed orders entered 29 January 1996, the court dismissed the claims against

Officers Winnett and Gay individually. 

The court entered a detailed order after hearing the case. The court made

the following findings:

It appears to the Court that as the Plaintiff stood at the door to her

residence, with the screen door partially open, holding onto that

door, that she was in fact using the door to support herself. When

Officer Gay approached the Plaintiff without otherwise making

his presence known, it appears that the Plaintiff was startled, the

screen door was moved forward by the officer, and the officer

took the Plaintiff by the arm. As previously stated, the Court

finds that the evidence preponderates in favor of a finding that the

officer also pulled the Plaintiff’s arm slightly forward. All of

these factors, combined with the Plaintiff’s disabilities which

manifest themselves in lack of coordination, plus the effect of

alcoholic beverages which the Plaintiff had consumed, all

contributed to the Plaintiff’s fall. The Court finds that there was

no intention whatsoever on the part of either of the officers to

inflict any harm or injury to the Plaintiff. The Court finds,

however, based upon the evidence, that the officer was negligent

in his dealing with the Plaintiff.

It is not the finding of the Court that the City or its police

officers are insurers of the safety of a person who is placed under

arrest. At the same time, officers working together at the scene
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where an individual is placed under arrest have a duty to

communicate with each other in a manner consistent with the

circumstances which are found at the scene, for the safety of each

other, the safety of the individual arrested, and the safety of such

victims and bystanders as may be present at the scene. In addition

to a duty to communicate with each other, officers have a duty to

observe such circumstances as may be apparent and in their plain

view. They have a duty to draw such conclusions from the

evidence before them as might be drawn by a reasonable police

officer with the experience and training possessed by the officer

whose duties are being determined. Further such officers have a

duty to recognize circumstances in which a person arrested may

face, including drunkenness, incapacity, or infirmities of either

advanced age or tender years to the extent that such may be open

and obvious. Officers further have the duty not to take actions

which, under all of the circumstances, reasonably would place the

arrested individual in a position of potential danger. . . . [I]n the

present case, it appears that the officer in question had a duty to

recognize the Plaintiff’s condition being under the influence of an

intoxicant, and consider that given the agitated state in which he

found the Plaintiff, she might in fact have been unstable on her

feet, and that she might be inclined to fall were the door which

she was holding to be pulled forward and a hand however gently

placed upon her arm pulling her forward, however slightly.

In the end, the court concluded both parties had acted negligently and allocated sixtyfive percent of the fault to the City and thirty-five percent of the fault to Ms. Bain.

As a result of these findings, the court awarded Ms. Bain $27,036.10 in damages.

The court also ordered Ms. Bain to provide a proper individual for the court to entrust

with Ms. Bain’s damages for Ms. Bain’s benefit. The City filed a timely notice of

appeal.

The City has raised six issues. We are of the opinion, however, that the

evidence fully supports the findings of the trial court. There is no error in the

findings of fact, and there is no error in the court’s determination of the law. 

Therefore, we affirm the judgment of the trial court in all respects and

remand the case to the trial court for further necessary proceedings. Costs on appeal

are taxed to defendant/appellant, the City of Murfreeboro. 

____________________________________

SAMUEL L. LEWIS, JUDGE
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CONCUR:

_____________________________________

BEN H. CANTRELL, JUDGE

_____________________________________

WILLIAM C. KOCH, JR., JUDGE