IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 14, 2024 Session

SANDRA EASLEY v. CITY OF MEMPHIS

Appeal from the Circuit Court for Shelby County

No. CT-004777-18 Damita J. Dandridge, Judge

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No. W2023-00437-COA-R3-CV

___________________________________

This is an appeal of a Governmental Tort Liability Act case and concerns a judgment 

received by the plaintiff, who stepped off of a curb in the middle of the block, not at the 

crosswalk, and was struck by a city-owned vehicle while attempting to cross between two 

stopped vehicles when the light changed. Having reviewed the record transmitted to us on 

appeal, we reverse the trial court’s judgment that the city defendant is liable for the 

negligent hiring and retention of its employee because the record fails to show that 

evidence was introduced at trial in support of this claim. Moreover, we reverse the trial 

court’s allocation of fault, concluding that the evidence preponderates in favor of a finding 

that the plaintiff is at least 50% at fault. Because the plaintiff is accordingly barred from 

obtaining a recovery, we dismiss the case.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded 

ARNOLD B. GOLDIN,J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and CARMA DENNIS MCGEE, J., joined.

Dale H. Tuttle, Memphis, Tennessee, for the appellant, City of Memphis.

Mari-Elizabeth Sanford, Memphis, Tennessee, for the appellee, Sandra D. Easley.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

This appeal concerns a negligence action filed by the Appellee, Sandra Easley, as a 

result of an incident in which an employee of the City of Memphis (“the City”), Paul 

Haynie, struck Ms. Easley with a city-owned pickup truck that he was operating. The 

05/01/2024
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incident occurred on December 8, 2017, when Ms. Easley stepped off the curb between 

two stopped vehicles in an attempt to cross A.W. Willis Avenue, near the intersection with 

North Main Street. As the light changed from red to green, the driver of the City vehicle 

took his foot off the brake, and as the vehicle began to move, Ms. Easley was struck by the 

right front bumper. Approximately forty feet from where Ms. Easley stepped off the curb, 

there was a stoplight and a crosswalk. The fact that Ms. Easley attempted to cross the street 

approximately forty feet from the nearby crosswalk is undisputed. In connection with this 

incident, Ms. Easley was ticketed for attempting to cross the street outside of the crosswalk. 

Following the incident, Ms. Easley was taken to Methodist North Hospital via 

ambulance. The Prehospital Care Report prepared by the transporting emergency unit 

noted “an abrasion to the lower left leg below the knee[.]” The ambulance delivered Ms. 

Easley to “ER Non-Emergent,” where her hip and knee underwent X-ray imaging. The 

imaging did not reveal any fractures. Ms. Easley was provided pain medication, as well as 

treatment to lower her blood pressure, before being discharged. 

On December 12, 2017, Ms. Easley returned to the Methodist North Hospital 

emergency room. The associated medical records described Ms. Easley’s chief complaint 

as “involved in a [motor vehicle crash] 4 days ago, here because she needs more time off 

work[.]” She underwent a CT scan of her left knee, the report of which reflected no 

evidence of fracture and little evidence of trauma. Ms. Easley’s leg was bandaged, and she 

was given more pain medication. The treating physician did not provide a referral to 

physical therapy but instructed Ms. Easley to follow up with her primary care physician.

On December 18, 2017, Ms. Easley sought physical therapy at Healthone, a medical 

practice located in Memphis, Tennessee. Healthone’s records reflected that Ms. Easley was 

referred to its practice by her lawyers, not a physician. Subsequently, a nurse practitioner 

associated with Healthone referred Ms. Easley to two separate imaging centers to receive 

magnetic resonance imaging (“MRI”) of her back and left leg. According to Ms. Easley’s 

testifying but non-treating physician, Dr. Apurva Dalal, the results of these two MRIs were 

“normal.” 

On October 18, 2018, Ms. Easley filed her complaint against Mr. Haynie and the 

City. She alleged negligence on the part of Mr. Haynie, asserting the City would be 

vicariously liable, while also alleging that the City had been directly negligent in hiring, 

supervising, and training Mr. Haynie.1

When Ms. Easley testified at trial, she initially contended that Mr. Haynie had 

stopped to permit a group of people and her to cross the street; however, she later testified 

that Mr. Haynie had stopped for a red light. Nevertheless, Ms. Easley testified that she was 

 

1 As discussed elsewhere in this Opinion, the trial court’s judgment in this matter would ultimately 

make a specific finding that the City had been negligent in its “hiring and retention” of Mr. Haynie.
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attempting to cross behind the other group of people but did not make it to the “middle 

ways of the truck” driven by Mr. Haynie before she was struck. She claimed the impact 

occurred on her waist area and that she landed on the right side of her body. 

Concerning the actions of Mr. Haynie, Ms. Easley testified that he was looking at 

his phone while stopped at the red light. When asked if Mr. Haynie was “looking forward,” 

she stated that she was not sure where he was looking, but also added the following: “I was 

watching him as I attempted to cross the road.” Ms. Easley did not offer testimony as to 

whether she saw Mr. Haynie begin to move the truck before the impact.

Ms. Easley testified that, after the impact, she was knocked to the ground, but that 

she stood back up and walked to a Shell gas station nearby to where she had initially 

attempted to cross. She further stated that Mr. Haynie exited the truck and that he was on 

his phone. She testified that she asked Mr. Haynie if he knew that he struck her with the 

truck, but claimed that he “didn’t say anything” in response. According to Ms. Easley, she 

then called 911. 

Ms. Easley testified that she used crutches for a month after the accident and could 

not work for two weeks after the incident. 

In his cross-examination of Ms. Easley, the attorney for the City asked Ms. Easley 

whether her testimony concerning her two weeks of absence from work was accurate. Ms. 

Easley responded that it was actually one week. When further inquiry was made into the

status of her health, Ms. Easley confirmed that none of her scans had demonstrated a broken 

bone. Furthermore, Ms. Easley stated that Methodist North did not prescribe physical 

therapy; rather, she acknowledged that it was her lawyers who instructed her to go to 

physical therapy. 

Before Ms. Easley closed her proof, Mr. Haynie’s response to an interrogatory she 

had propounded to him during this litigation was read into the record,

2

in which Mr. Haynie 

had stated in pertinent part as follows: “Shortly before the incident, I was heading west on 

A.W. Willis Avenue. I was stopped behind two vehicles at the light . . . . When the light 

turned green, the two vehicles in front of me began to move. As I [let] my foot off the brake 

of the vehicle, the plaintiff suddenly and without warning walked into my truck.” 

The City called one witness, Mr. Haynie, in its defense. Mr. Haynie testified he was 

stopped in the curb lane of A.W. Willis Avenue, heading west, in the moments immediately 

before the incident. He also stated that he was stopped because of a red light, not to let 

anybody cross the street. In characterizing the incident itself, Mr. Haynie testified that,

“[w]hen the light turned green, I let my foot off the brake, Ms. Easley stepped into my

 

2 Ms. Easley’s initial complaint included Mr. Haynie as a party to the lawsuit, but he was dismissed 

as a party prior to trial.
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truck.” He further testified that Ms. Easley “simultaneously” stepped off the curb when he 

released the brake. As to Ms. Easley’s allegation that he was on his cell phone while 

operating the vehicle, he denied using his cell phone until after exiting the vehicle and 

speaking with Ms. Easley, after which he used his phone to dial 911. 

During cross-examination, Mr. Haynie was questioned further concerning his use 

of a cell phone, but he did not alter his testimony. On redirect examination, Mr. Haynie 

confirmed he was never cited for using his cell phone, but he admitted that there were no 

other witnesses to independently verify his testimony.

In the resulting judgment following trial, the trial court found the City liable for Mr. 

Haynie’s action of having struck Ms. Easley as she was attempting to cross the street. It 

further found that Mr. Haynie failed to yield the right of way to Ms. Easley, and that he 

failed to pay proper attention while driving when he struck her. 

The trial court found that Ms. Easley’s injuries were serious and required emergency 

treatment at Methodist North Hospital, diagnostic treatment, and physical therapy. The 

court determined that Ms. Easley incurred $22,432.95 in medical special damages, and that 

these bills were reasonable per Ms. Easley’s expert witness, Dr. Apurva Dalal. As for other 

damages, the trial court found that Ms. Easley incurred $525.00 for a week’s lost wages 

and awarded her an additional $67,307.85 for pain and suffering as well as loss of 

enjoyment of life. In support of the damages for pain and suffering, the court noted that 

Ms. Easley needed to be on crutches for a month and endured “a long and arduous treatment 

to recover from her injuries.” The total sum of the court’s award to Ms. Easley amounted 

to $106,580.06. The trial court found at one place in its written order that the City was

90% at fault in this matter, while attributing 10% of the fault to Ms. Easley.3 Of further 

note, the trial court found as part of its judgment that the City had “committed negligence 

in the negligent hiring and retention of Paul Haynie.”

The City now appeals from the trial court’s judgment, raising multiple issues.

ISSUES PRESENTED

In its appellate brief, the City presents the following issues for this Court’s review, 

restated verbatim:

1. Whether the trial court erred in deciding Plaintiff was less than 50 percent at 

fault. 

2. Whether the trial court erred in deciding Plaintiff carried her burden of proof by 

a preponderance of the evidence. 

 

3 As discussed later in this Opinion, in light of other findings detailed herein, the trial court’s 

attempt to allocate fault was both incomplete and internally inconsistent.
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3. Whether the trial court erred in deciding Plaintiff carried her burden of proof by 

a preponderance of the evidence and was entitled to a judgment for Appellant’s 

negligent hiring and retention of employee Paul Haynie. 

4. Whether the trial court erred in deciding Plaintiff carried her burden of proof by 

a preponderance of the evidence and was entitled to a judgment for future 

medical expenses, future mental anguish, “future injuries” and future emotional 

pain and suffering. 

5. Whether the trial court erred in deciding Appellant’s employee Paul Haynie 

failed to yield right of way. 

6. Whether the trial court erred in deciding Plaintiff carried her burden of proof by 

a preponderance of the evidence that Plaintiff was entitled to an award of 

$106,580.06 for pain and suffering past and future medical expenses. 

7. Whether the trial court erred in denying Appellant’s Tennessee Rule of Civil 

Procedure 41.02 Motion for Involuntary Dismissal.

STANDARD OF REVIEW

The standard of review in a non-jury case is de novo with a presumption of 

correctness accorded to the trial court’s findings of fact. Curry v. City of Hohenwald, 223 

S.W.3d 289, 291 (Tenn. Ct. App. 2007). Nevertheless, these findings shall be set aside if 

the evidence preponderates against them. Cross v. City of Memphis, 20 S.W.3d 642, 645 

(Tenn. 2000). As an affirmative defense to its negligence, a defendant may allege that the 

plaintiff contributed to the injury at issue through their own negligent actions. McIntyre v. 

Balentine, 833 S.W.2d 52, 58 (Tenn. 1992). Tennessee has adopted a form of modified 

comparative negligence known as the “49 percent” rule. Id. at 57. As explained by our 

Tennessee Supreme Court, “so long as plaintiff’s negligence remains less than the 

defendant’s negligence the plaintiff may recover; in such a case, plaintiff’s damages are to 

be reduced in proportion to the percentage of total negligence attributable to the plaintiff.” 

Id.

DISCUSSION

This case was tried before the trial court pursuant to the Tennessee Governmental 

Tort Liability Act, which is codified at Tennessee Code Annotated section 29-20-101 et 

seq. Although this legislative enactment generally reaffirms the grant of sovereign 

immunity afforded to governmental entities, it also removes immunity under certain 

circumstances. As the Tennessee Supreme Court has outlined:

[I]n addition to reaffirming the general grant of immunity, the GTLA also 

enumerates certain statutory exceptions where governmental immunity is 

specifically removed. Id. § 29–20–202(a) (immunity removed for injuries 

resulting from the negligent operation of a motor vehicle or other equipment 

by a governmental employee in the scope of employment); id. § 29–20–
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203(a) (immunity removed for injuries caused by a defective, unsafe, or 

dangerous condition on a public roadway or sidewalk); id. § 29–20–204(a) 

(immunity removed for injuries caused by dangerous or defective conditions 

associated with public structures or improvements); id. § 29–20–205 

(immunity removed for injuries caused by the negligence of governmental 

employees with certain exceptions). Furthermore, the GTLA also lists 

specific types of claims for which immunity is not removed. Id. § 29–20–

205(2) (immunity not removed for “[f]alse imprisonment ..., false arrest, 

malicious prosecution, intentional trespass, abuse of process, libel, slander, 

deceit, interference with contract rights, infliction of mental anguish, 

invasion of right of privacy, or civil rights”); Hughes v. Metro. Gov't of

Nashville & Davidson Cnty., 340 S.W.3d 352, 369–70 (Tenn.2011) 

(discussing the manner in which section 29–20–205(2) applies); Limbaugh

v. Coffee Med. Ctr., 59 S.W.3d 73, 84 (Tenn.2001) (same).

Young v. City of LaFollette, 479 S.W.3d 785, 790 (Tenn. 2015). In this case, as discussed 

below, Ms. Easley has sued the City pointing to alleged negligence on the part of Mr. 

Haynie. Ms. Easley has further alleged a claim for the City’s alleged negligent hiring, 

supervision, and training of Mr. Haynie.

Infirmity of Final Order

We begin our substantive discussion by pointing to several points of confusion that 

the trial court’s final order has generated. The final order on appeal contemplates two 

separate claims of negligence alleged by Ms. Easley. The first claim alleges negligence on 

the part of Mr. Haynie, for which the City is vicariously liable. The second claim alleges a 

direct claim of negligence on the part of the City for the negligent hiring, supervision, and 

training of Mr. Haynie. As a general rule, “[t]he Trial Court has the responsibility to 

apportion fault to anyone having a degree of culpability.” Lindgren v. City of Johnson City, 

88 S.W.3d 581, 585 (Tenn. Ct. App. 2002). For example, in the case where an employer is 

found both vicariously liable for an employee’s actions and directly liable for its own 

negligence, the trial court must apportion fault between the plaintiff, employee, and 

employer. Binns v. Trader Joe's E., Inc., --- S.W.3d ----, ----, 2024 WL 1503703, at *5-6

(Tenn. Apr. 8, 2024). 

Here, the trial court found that the City was both directly negligent for the “negligent 

hiring and retention” of Mr. Haynie and vicariously liable for the negligence of Mr. Haynie 

as the driver. In this circumstance, the trial court should have apportioned fault among Mr. 

Haynie, the City, and Ms. Easley, because the City is, at least per certain conclusions 

appearing in the trial court’s order, both directly and indirectly liable to Ms. Easley. And 

yet, the oral ruling finds Mr. Haynie 90% at fault for his negligent operation of a motor 

vehicle, holding the City vicariously liable, and Ms. Easley 10% at fault for crossing 

outside of a crosswalk, without determining the apportionment of fault to the City for the 
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negligent hiring claim. However, in the immediate text appearing in the subsequent written 

order, the court does not attribute any percentage of fault directly to Mr. Haynie; instead, 

it attributes 90% liability directly to the City. Compounding the confusion related to this 

matter, the oral ruling is itself incorporated by reference into the written order. In this case, 

we cannot discern a coherent apportionment of fault as to Mr. Haynie or the City with 

respect to the trial court’s findings of negligence. Clearly in our view, in light of the 

particular findings of negligence made therein, the trial court’s final judgment fails to 

completely and correctly apportion fault among the parties.

Aside from the confusion and internal inconsistency that is connected to the trial 

court’s order, we note that the record in this case does not even support the conclusion that 

the City was independently negligent in relation to a claim for, as found by the trial court, 

“negligent hiring and retention.” Of note, in addition to the typical elements of a 

negligence claim, a plaintiff pursuing a claim for negligent hiring and retention must show 

that the employer knew, or should have known, that the employee was unfit for their job. 

Brown v. Mapco Express, Inc., 393 S.W.3d 696, 703 (Tenn. Ct. App. 2012). We cannot 

find any evidence in the record demonstrating that the City knew or should have known 

that Mr. Haynie was unfit for his job. The trial court’s written order simply states that the 

City “committed negligence in the hiring and retention of Paul Haynie[,]” without 

providing any findings of fact that would appropriately support such a conclusion. 

Frustratingly, the court’s oral ruling, which was incorporated into the final order by 

reference, fails to shed any further light, simply stating as follows: “The Court also finds if 

the City of Memphis knew or exercised . . . due diligence in a reasonable inquiry [it] should 

have known of Paul A. Haynie’s ability to drive in an illegal, unlawful, negligent and 

reckless manner.” The trial court fails to point to any evidence introduced at trial 

supporting this finding, nor could it have done so. 

Indeed, upon our review of the record, we cannot discern where any evidence of 

Mr. Haynie’s alleged unfitness was ever introduced during the trial. In keeping with our 

observation, the City’s brief argues, correctly, that no evidence was ever advanced at trial 

in support of a claim for negligent hiring or retention. Indeed, it is unclear this claim was 

even meaningfully pursued by Ms. Easley, outside of merely including it in her pleadings.

Because there is a complete lack of evidence supporting any claim for negligent hiring or 

retention, we conclude that the trial court’s ruling in Ms. Easley’s favor on that issue must 

be reversed.

Allocation of Fault

As touched on earlier, the trial court’s order admits of much confusion concerning 

the actors supposedly at fault in connection with the incident and the specific 

apportionment of fault among those actors in relation to same. Moreover, through our 

disposition above, we have held there was not a basis to hold the City independently at 

fault by way of a claim for negligent hiring or retention. In any event, we note that, through 
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its first issue on appeal, the City has challenged the trial court’s apportionment of fault by 

specifically asserting that the court erred in deciding Ms. Easley was less than 50% at fault 

for the incident. Having reviewed the record transmitted to us on appeal, we agree with 

the City. Indeed, having reviewed the evidence pertaining to the alleged fault of Mr. 

Haynie and the alleged fault of Ms. Easley, we agree that the evidence preponderates in 

favor of a finding that Ms. Easley was at least 50% at fault for the incident at issue. 

Although, no doubt, the trial court is accorded considerable latitude in apportioning fault 

among parties, the appellate courts have had occasion to modify these percentages when 

the evidence preponderates against the allocation of fault.4

“For the evidence to 

preponderate against a trial court’s finding of fact, it must support another finding of fact 

with greater convincing effect.” Hardeman Cnty. v. McIntyre, 420 S.W.3d 742, 749 (Tenn. 

Ct. App. 2013) (citing Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App. 2005)). 

For instance, in Bonds v. Emerson, we examined a trial court’s allocation of fault in 

a personal injury case involving an automobile accident between two drivers. The plaintiff, 

a police officer, was allegedly traveling around ninety-nine miles per hour when the 

defendant, a sixteen-year-old driver, pulled out of a driveway onto the roadway, whereupon 

the collision occurred. Bonds v. Emerson, 94 S.W.3d 491, 491 (Tenn. Ct. App. 2002). The 

trial court found that the plaintiff police officer was 20% at fault and the defendant 80% at 

fault. Because the plaintiff did not have his siren activated, he was not protected by the 

Tennessee statute entitling emergency vehicles to exceed the speed limit and was treated 

as “any private individual . . . using the public highway.” Id. at 493-94; see Tenn. Code 

Ann. § 55-8-108. In assessing each party’s respective negligence, we noted that the 

plaintiff was traveling at an excessive speed in a “relatively populated residential area.” 

Bonds, 94 S.W.3d at 494. As to the defendant, we highlighted that several witnesses 

claimed her radio was playing very loudly and that the trial court found she failed to keep 

a proper lookout, which was supported by the defendant’s testimony stating she did not see 

the plaintiff approaching. Id. In light of the evidence presented by the record, we 

reapportioned the fault to 50% for each party, thereby denying recovery. Id. at 495.

Turning to the case at hand, we conclude that the preponderance of the evidence 

demonstrates Ms. Easley is certainly more than 10% at fault for the incident; in fact, as 

previewed earlier, and discussed below, the evidence clearly preponderates in favor of a 

finding that she is at least 50% at fault. In reaching this conclusion, we note that it is 

undisputed that Ms. Easley attempted to cross the street, between two vehicles, 

approximately forty feet from a crosswalk and stoplight, and that she would not have been 

struck by the City’s truck without attempting to cross in such a fashion. Section 55-8-135 

of the Tennessee Code Annotated states that “[e]very pedestrian crossing a roadway at any 

 

4

See Cross v. City of Memphis, 20 S.W.3d 642, 645 (Tenn. 2000); Robinson v. State, No. E2011-

01540-COA-R3-CV, 2012 WL 3090930, at *16 (Tenn. Ct. App. July 31, 2012); Bonds v. Emerson, 94 

S.W.3d 491, 495 (Tenn. Ct. App. 2002).
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point other than within a marked crosswalk or within an unmarked crosswalk at an 

intersection shall yield the right-of-way to all vehicles upon the roadway.” Tenn. Code 

Ann. § 55-8-135(a) (emphasis added). Ms. Easley does not dispute she attempted to cross 

A.W. Willis Avenue approximately forty feet from a nearby crosswalk and that she 

received a ticket for doing so. Although the trial court’s final order concluded that Mr. 

Haynie failed to yield the right of way to Ms. Easley, we have noted in a previous opinion 

that, “it must be said as a matter of law that one crossing a street 42 feet from . . . a crosswalk is not within it and, consequently, does not have the right of way over vehicles.” 

Seahorn v. Karr, 242 S.W.2d 331, 334 (Tenn. Ct. App. 1951). As such, we conclude that 

Ms. Easley failed to yield the right of way to Mr. Haynie, in violation of section 55-8-135 

of the Tennessee Code Annotated. With this in mind, it is evident that the premise from 

which the trial court viewed the actions in this case was misguided. Ms. Easley simply, as 

a matter of law, did not have the right of way.

Typically, a plaintiff may not recover when their violation of a statute precipitates 

the alleged incident. Cook By & Through Uithoven v. Spinnaker’s of Rivergate, Inc., 878 

S.W.2d 934, 938 (Tenn. 1994). However, we have previously held that such a violation 

by a pedestrian is not an automatic bar to their recovery, but rather, it is an element to 

consider in determining the pedestrian’s negligence. DeRossett v. Malone, 239 S.W.2d 366, 

376-77 (Tenn. Ct. App. 1950). To that end, we have previously found that the extent of a 

pedestrian’s awareness of her surroundings, and the amount of traffic present in the road, 

are informative in measuring the degree of the pedestrian’s negligence. Zamora v. 

Shappley, 173 S.W.2d 721, 721-23 (Tenn. Ct. App. 1941).

Here, Ms. Easley stepped onto a busy street that was populated by numerous 

vehicles. Although Ms. Easley testified to looking to her left at Mr. Haynie, she offered 

conflicting testimony about whether Mr. Haynie was stopped to let pedestrians pass in front 

of him or if he was stopped because the light was red. Although she claimed she could 

observe Mr. Haynie using his phone, she also stated that she could not see where he was 

looking. This conflicting testimony itself demonstrates that Ms. Easley did not have an 

adequate awareness of her surroundings when she attempted to cross. Indeed, we find it 

manifestly certain that a pedestrian exercising ordinary care for her own safety would 

discern whether a vehicle was stopped to let her pass in front, or at least, that the driver had 

acknowledged she was attempting to cross in front of him. Certainly such caution should 

be exercised in a situation where, as here, the pedestrian at issue was otherwise acting to 

step off the curb between two vehicles, and was doing so outside of any crosswalk. 

Moreover, Ms. Easley was also apparently unaware that the stoplight had turned green as 

she was stepping into the street. As a result, we conclude that the circumstances of the 

instant case demonstrate that Ms. Easley did not exercise ordinary care for her own safety.

In summary, Ms. Easley failed to yield the right of way to Mr. Haynie, stepped into 

a significantly trafficked roadway between two vehicles without taking proper notice of 

her surroundings, and did so despite a nearby available stoplight and crosswalk. 
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Remarkably, Ms. Easley attempted to pass in front of Mr. Haynie even though she was 

unsure if he could see her. In light of the foregoing, we conclude that the evidence 

preponderates against the trial court’s determination that Ms. Easley is only 10% at fault. 

Veritably, the evidence demonstrates considerably more fault on the part of Ms. Easley, 

and as such, we conclude that Ms. Easley is, at least, 50% at fault in this matter. Because 

our conclusion concerning the allocation of fault bars Ms. Easley from recovering, all other 

issues raised on appeal, to the extent not addressed herein, are pretermitted.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s final judgment, dismiss the 

case, and remand this matter to the trial court for further proceedings consistent with this 

Opinion.

 s/ Arnold B. Goldin 

 ARNOLD B. GOLDIN, JUDGE