# FILED
June 11, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk BONNIE MAE B AIN, ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9611-CV-00510 v. ) ) Rutherfo

rd Circuit CITY OF MURFREESBORO, ) No. 31466 TENNESSEE, ) ) Defend ant/Appe

llant. )

COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CI RCUIT COURT FOR RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE

THE HONORABLE ROB ERT CORLEW, CHANCELL OR

JOSEPH H. JOHNSTON P. O. Box 120874 Nashville, Tennessee 37212

ATTORNEY FOR PLAI

NTIFF/APPEL

LEE

ALAN T. FISTER Stewart, Estes & D onnell 424 Church Street, 14th Floor Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANT/APPEL LANT

AFFIRMED AND

REMANDED

SAMUEL L . LEWIS, JUDGE1 Court of Appeals Rule 10(b): The Court , wi th t

he conc urre nce of

alljudge s par ti cipat

ing in t he cas e, mayaff

irm, reve rse or modify the acti ons of the tri al court by memorandum op inion when a formal opinion would have no precedenti al val ue. When a case i s decided by memorandum opinion, it shall be designa ted "M EM ORA ND UM OPIN ION ," shall not be published, and shall not be ci ted or relied on for any reaso n in a sub sequ ent unre lated c ase. -2-



## MEMORANDUM OPINION 1
This is an ap peal by

defendant

/appellant , the Cit

y of Mu rfreesb oro (“ the City”), from the decision of the Rutherfo r d County Circuit C ourt awa

rding $27,036.10

to plaintif

f/appelle e, Bonnie

Mae Bain , for inj uries suff ered by Ms. Bain
as a result of neglig ence on th e part of two of the Cit y’s police off

icers. The fac ts out of which th is matter arose are as follows

.
Murfreesboro Police O fficer Lanny e Winnett, now de ceased, was on foo t patrolatthe Januar

y Str eet Housi ng Projec ts on 15 Febr uary 1 992. Off

icer W innett went to Ms. Ba

in’s apa rtment because

nearby residenc e were

compl aining of

noise. Officer Winnett was unabl e to conv ince Ms . Bain to cooperate and deter

mined she
was under the i nfluence of an intoxi cant. Office r Winnett called for

backup. Officer Billy Gay arrived on the scene and stood some distance from Ms. Bain’s front door. Ms. Bain stood i n the doorw ay and supported he

rself by holding onto the handle

of the screen door. Officer Gay observed Ms. Bain

and heard

her y elling and s cream

ing, but was unable to determ

ine wheth er Ms. Bain was intoxicated. Officer W innett was standing ten to fifteen feet to M s. Bain’ s right. O fficer Winnett did not tell Officer Gay that Ms. Bain was drunk. Inaddition, neither officer knew Ms. Bain suffered a menta l disability

or lack of

coordinati on.
Without discussin g i t with Of

ficer W innett, O fficer

Gay decided toarrest Ms. Bain. H e went to the door, pull ed the scr een door open, and took M s. Bain by the left arm . Ms. B ain fell a nd sustained

injurie s to her fa

ce and shou lder. The officer s testifie d Ms. Bain did not attem pt to break

her fall by putting her right arm forwardor by b ending her kn ees. Officer Ga y insti ncti vely pu lled back o n Ms. B ain’s
arm as she fell to break her

fall. O fficer

Gay took Ms. B ain to the em

ergency room where doctor s t reated M s. Bain f or a broke n nose and dis located sho ulder. T he emergency

room physician

performed a blood alcohol test which reveal ed Ms. Bain’s bloodalcohol level was .18. Officer G ay then transportedMs. Bain to the loca

l jail.-3-

A court la

ter convic ted Ms. B ain of publi c drunkenne ss and disorderly conduct.

Sub seq uen tly, a numb er of doct ors treat ed Ms. Ba

in at Middle

Tennessee Medical Center, Baptist

Hospital, and Vande

rbilt Medi cal Cente

r. Her medic al bills totaled $12,594 .80. Doctor Jo hn Lam b perform

ed surger y on Ms. Bain’s shoulder. Doctor Lam b rate d Ms . Bain’ s disability to her ar m bef ore the inc ident at te n to twel ve p erce nt a nd a t te n to fift een perc ent afte r th e su rge ry.
Ms. Bain filed her com

plaint on 11 February

1993. She

name d the City

of Murfre esboro, Office

r Winne tt, Off icer Ga y, a nd Offic er John Do e as defendant s . She alleged th e office

rs were negligent a

nd the C ity w as liable f or the off icers’ negligence. T he Ci ty and Officers W innett and Gay filed an answer. T he answer included an as sert ion tha t th e Cit y did not emplo y an Offi cer Jo hn Doe. T he answeri ng defendant s claim ed they were im mune, the Gover

nmental Tort L

iability Act limited Ms. Bain’s re covery, and Ms. Bain wa s co mpar ati vely negligent. By ag reed or ders ente

red 29 Janua

ry 1996 , the cour

t dismi ssed the cl aims against Officers Winnet t and Gay indiv idually.

The courtentered a

detailed o rder af

ter hear ing the cas e. The

court made the follow ing findings: Itappears 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 w as in fac t using the door to su pport her self. When Off icer Gay approached the Plaintiff without otherwise m ak in g his presence known, it appears that the Plaintiff was star tled, the screen door was moved fo rwa rd b y the officer, and the officer took the Plai nti ff by the arm. As previously stated, the Court finds that the evidence preponderates in favor of afinding tha t the officer al so pull ed the Pla

intiff’ s arm

slightly forwar d. All of these factors, combi ned with th e Plaintif f’s disa bilities which man ifest themselves in lack of coordination, plus the eff ect o f alcoholicbeverage s whi ch the Plaintif f had consum

ed, all contributed to the Pla

intiff’ s fall. T

he Court finds that there was no intention whatsoever on the par t of either of the offic ers to inflictany ha

rm or injury to the Pla

intiff. The Cour

t finds, however, based upon th e evidence, that the of ficer w as negligen

t in his dealing with the Plaintiff. Itis not the f

inding 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 t

ime, o fficer s working together a t the scene-4-

where an individual is placed under arrest have a duty to comm unic ate with each othe

r in a manner cons istent wit h the circumstances which are found at the scene, for the safet

y of each other, the safety

of the individual arrested, and the safety of such vi cti ms and bystanders as may be present at the scene. Inaddition to a duty to comm

unicate with each other, officers have a duty to observesuch circumstances as may be apparent and in the ir plain view. They have a duty to draw such co ncl usions from the evidence before t

hem a s might

be drawn

by a r easo nable police officer with the e xperience

and training possessed by the officer whoseduties are being determined. Further such officer s have a duty to recognize circumstances in which a person arrested may face, including drunken nes s, incapacity, or infirm ities of either advanced age or tender years to the extent that such may be open and obvious. O fficer s further have the dut y not to take actio ns which, under all o f the cir

cumst ances, r

easonably

would place the arrested individual in a

position of po tential da

nger. . . . [I ]n the present case, it appears that

the offic er in quest

ion had a duty

to recognize the Plaintiff’s condition being under the influence of an intoxicant, and considerthat given the agitat ed state in

which he foundthe 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 holdin g to be pulled forward and a hand however gently pla ced upo n he r arm p ull ing her f orwa rd, h owev er sl igh tly. In the end, the court c oncluded both parties ha

d acted ne gligently

andall oca ted six tyfive pe rcent of the fault t o the City and thirty -five per

cent of the

fault to Ms . Bain

. As a result of these findings, the c o urt awar ded Ms. B ain $27,036. 10 in damages. The court alsoordered M s. Bain toprovide a p roper indi vidual for the court t

o entrust withMs. Bain ’s dam

ages for M s. Bain’ s benefit. The City filed a ti mely

no tice of appeal.

The City h as raised six issues. We ar

e of the opi nion, howe ver, tha t the evidence fully supports the findings of the trial court. There is no error i n t he finding s of fact, and there is no error in the court’s deter mination of th e law.
Therefore, we affirm

th e judgm

ent of the t

rial cour t in all re spects and
rema nd the case

to the trial court for further necessary procee dings. Costs on appeal are taxed to defendant /appellan t, the City of Mur freeboro.

____________________________________ SAMUEL L . LEWIS, JUDGE-5-

CONCUR:

_____________________________________ BEN H. CANTRELL , JUDGE

_____________________________________ WILL IAM C. KOCH, JR., JUDGE