### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON SEPTE MBER 19, 2001 Session DARIN SHAFFER, ET AL 

### . v. SHELBY COU NTY, TENNES SEE

Direct Appeal from the Circuit Court for Shelby County No. 86335-9 T.D.; The Honorable Robert L. Childers, Judge

No. W2000-02215-COA-R3-CV - Filed January 11, 2002

This appeal involves an accident in which a mother and son were hit by

an automobile. The mother received fatal inj uries in th

e accid ent. The survivor s brought an act

ion aga inst Shelby

County for t h e wrongf

ul death o f the mothe

r and for neglig ent infliction of emotional dist ress with respec t to the son. A jury found Shelby County liable for $12,039 ,049 .01. The a ward wa s reduced in accordance

with the G overnme

ntal Tort Liab ility Act (the GTLA) to $260,000.00 plus discretionar y costs of $5,434.55. The plaintiffs appealed the reduction of

liability alleging

that the GTLA violated the Tennessee Constitution and s ho uld be judicially abrog ated. The plaintiffs further allege tha t even if th e GT LA is upheld, liability should be capped at $350,000.00 a s opposed to $260,000.00. Shelby County also raises several issues in this appeal. First, Shelby County alleges that

it was performing a di sc re ti on ar y fu nc ti on , w hi ch im mu ni ze s i t f ro m l ia bi li ty. Sh el by c ou nt y al so contends that the proof shows the mother to be at fault and fails to s how that the son suffered a serious emotional in ju ry. In addition, Shelby County arg

ues that the ver dicts were exc essive and were tainted by inapprop riate arguments made

du ri ng th e p la in ti ff s’ cl os in g. Fi na ll y, Shelby County alleges that the trial court erred by

assessing discretionary

costs, which caused the award to exceed the GTL A’s statutory cap on da

mages. For the f

ollowin g reas ons, we reverse the trial court’s awa rd of discretionary c osts and affirm the trial court in all other respects.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Affirmed in Part, Reversed in Part and Remanded
A LAN E. H IGHERS , J., delivered the opinion of the court, in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined.
Thomas J. Cullen, Jr., Ericka L. Kleiman, Baltimore, MD; Scott A. Frick, Memphis, TN, for Appellan ts Carroll C. Johnson, Memphis, TN, for Appellee, Shelby County, Tennessee1 Th e rem ainin g tw enty -five p ercen t of fau lt was a llocate d to a non -par ty. -2- Paul G. Summers, Attorney General & Reporter, Michael E. Moore, Solicitor Ge neral, Laura T. Kidwell, Assistant Attorney General, Nashville, TN, for Interve nor-Appellee, State of Tennessee

OPINION I. Facts and Procedural History

On October 2, 1996, Andrea Shaffer (Ms. Shaffer) was struck and killed by an automobile. The accide

nt occur red while Ms

. Shaffer was jogging westb ound in the Riverwood Farms Subdivision on the north side of Riverwood Farms Parkway immediately adjace

n t to the curb. Darin Andrew Shaffer (Darin) , Ms. Shaffer ’s son, wa s with her at the time

of the ac cident. D arin

was being pushed in a jogg ing stro ller, whi ch was a lso hit by the autom

obile. Ms. Shaffer was survived by her husband, Darin Leo Shaffer (Mr . Shaffer), and two minor chi ldren, Dari n and Jenna Shaffer (Jenna; Ms. Shaffer’s husband and children shall be collectively referred to as Appellants).
Under various theor ies o f negligence, Appellants filed a complaint against numerous defenda nts including Shelby County , Tennessee (Appellee) for the wrongf ul death o f Ms. Shaffer and for injuries sustained by Darin. Appellan ts claimed that Appellee was under a contractual obligation witha subdivision de veloper to install a sidewalk along the parkway where the accident occurred. A ltho ugh developers normally assume the duty to install sidewalks, Appellee ha d been pai d $42,570.42 by t

he developer in 1 986 to comp lete the p roject. At the time of the accident, in 1996, Appellee had not yet finished the sidewa lks due to complaints lodged by f ellow residents in the developm ent. Appellan

ts claime d that the

failure to comple

te the project constituted negligence on the part of Appellee and was the direct and pr oximate cause of M s. Shaffer’ s death and Darin’s injuries.
The matter was tried before a jury . The jury found in fa vor of Ap pellants an d allocated seventy-five

percen t of the fa

ult t o Appellee. No fault was apportioned to Ms. Shaffer. 1 The jury awarde d Appella

nts damages totalin g $16,05 2,065.34 a s follows: Andrea Shaffer - pain and suffe ring $5,000,000.00 Medical Expenses $41,173.14 Funeral Expenses $10,892.20 Pecuniary va

lue of life of Andrea Shaffer $500,000.00 Darin Leo Shaffe

r - Loss of Consortium $2,500,000.00 Jenna Shaffer - Loss of Consortium $5,000,000.00 Darin Andrew Shaffer - L oss of Consortium $2,500,000.00 Darin An drew Sha

ffer - E motional D istress $500,000.00.-3-

Ac co rd in gl y, $12,039,049.01 of the damages were allocated to Appelleebased on th eir per centage of fault.
Soon after the verdict was announced, Appe llee filed a motion to s et the lia bility limits in accordance

with Sections 29-20-101 et. seq. of the Tennessee Code, the Governmental Tort Liab ility Act (t h e GTLA). Appellants’ opposition to the motion filed by Appellee consisted in part of allegations that the GTLA viol ated the Tennessee Constitution and should be judicially abrogated. The State of

Tennessee intervened to defend the constitutionality of the GTL A and has also taken part in this appeal.
The trial court granted Appe l lee’s motion and set Appellee’s liability a t $260,000.00: $130,000.00 for the wrongful death of Ms. Shaffer and $130,000.00 for Darin’s individual claim. Appellan ts appeal from that decision and both sides have raised numerous issues for our review.
II. Issues Appellan ts raise t he follow ing issue s in this app eal:
1. Whether sovereign immunity should be abrogated in Tennessee;
2. Whether

the liab ility

li mits proscribed in the Governmental Tort Liability Act violate the Tennessee Constitution;
3. Whether

the trial court er red in sub jecting the awa rds for lo ss of consortiumto the statutory limits proscribed in the Governmental Tort Liability Act; and
4. Whether

the trial court erred by

not taking into acc ou nt the loss o f consor tium claimsin setting Appellee’s total liability a t $260,000.00 as opposed to $350,000.00. Appellee raises th e following issue s in this app eal:
5. Whether

the decision of Shelby County to defer construction of sidewa lks in Riverwood Farms Subdivision was a discretionary function for which the county is immune from liability pursuant to Section 29-20-205 of the Tennessee Code;
6. Whether

the proof was sufficient to sustain the claim of the minor plaintiff for neg li gent inflictio n of emotio nal distre ss;
7. Whether

the trial court erred by

refusing to grant Appellee’ s motion for directed verdict based on Ms. Shaf

fer’s a lleged fault;
8. Whether the verdicts were excessive;-4-

9. Whether

counsel for

Appellants made an inappropriate argument in closing state ments; and
10. Whether the trial court erred in awarding discretionary c osts.
III. Law and Analysis
With regard to the first issu e, Appellants rel y on gener al consid eration s of public

policy in reaching their conclusion that this Court shoul d jud icial ly aboli sh so vereign immunity. As stated by the Tennessee Supreme Court, “only in the absence of any

declaration in [the Constitution and statutes] may [public policy ] be determined from judicial decisions. . . . All questions of policy are for the determination of the legislature, a n d not for t

he court s. . . . Wher

e courtsintrude in

to their decrees their opinion on questions of public policy, they in effect constitute the judicial tribunals as lawmaking bodies in usurpation of the powers of the legislature.” Smith v. Gore , 728 S.W.2d 738, 747 (Tenn . 1987 ) (quo ting Cavend er v. He witt ,, 239 S.W. 767, 768 (1921)). Further, as we have previous ly

stated, s overeig

n immun ity in Tennessee a rises from our constitution as well as our statutory scheme. Austin v. City o f Memphis , 68 4 S.W.2d 6 24, 637 (Tenn. Ct. App. 1984). Ac co rd in gl y, Appellant’s lengthy criticism of the policy def ined under the d o ctrin e of so vereign immunity and the Genera

l Assembly ’s refu sal to abolish it i s misplace d. This Cour t lacks a uthority to nullify the doctrine

based on such gr ounds, an d as such, we refu se to debate the public policy issue. Constitutionality of the GTLA With regard to the

second issue, Appellants assert that the GTL A’s cap on damages violates three provisions of the Tennessee Constitution: Article I, Sections 8, 17, and 21. We disa

gree with Appellant’s contentions, however, and for the following reasons, hold that the GTL A’s statutory cap on damages does not violate the Tennessee Constitution. We will first

discuss the constitu

tionality of the GT

LA with respe ct to Artic le I, Section 17 of the Te nnessee Constitution . Article

I, Se ction 17, t

he Open C ourts Prov

ision, pro vides: That all courts shall be open; a nd every man, for an injury done him in

his lands, goods, person or reputation, shall have remedy by due course

of law, and right and justice administe

red witho ut sale, d enial, or delay . Suits may be broug ht against the State in su ch manne

r and in su ch court s as the L egisla ture may by l aw direct. Based o n the sec ond sente nce in Art icl e I, Section 17 , our supr eme cour t has held that, “[t]he

State of Tenness ee, as a

soverei gn, is immu

ne from s uit except a s it conse nts to be sued.” Brewington v. Brewington , 387 S.W.2d 777, 779 (Tenn. 1965) (quoting Hill v. Beeler , 286 S.W.2d 868, 869 (Tenn. 1956)). Accordingly , this provision has been deemed a grant of sovere ign immunity to our State.
In acc ord anc e wi th Art icl e I, Section 17 of the Tennessee Co nstitution, the Gene ral Asse mbly enacted the GTLA, which

directs the manner in which our State can be sued. The GTLA states that all governmental entities are immune from suit except where other wise provided within the GTLA. T ENN
. C ODE A NN . § 29-20-201(a) (2000). This immunit y protect s gover

nmental e ntities fr om suits arising from the e

xercise a nd discha rge of any of the en tity ’s funct

ions, whe ther governmental or pr op ri et ar y. Id. In addition, for suits that are allowed, the relevant liability of a gove rnmenta l entity is capped at $130,000.00 per individual and $350,000.00 per “acc ident, occurrence, or act.” Id. at § 29-20-403(b)(2)(A).-5-

Appellants’ contention is thatthe GTLA impinges funda mental rights secured by

Article 1, Section 17 an d requires strict scrutiny review. In support of this contention, Appellants asse rt that the GTLA takes away

their “constitutional right of court access.” Further, because a fundame ntal right has been impinged and

bec aus e th e GT LA lacks na rrow tai loring a

nd a compe

lling sta te intere st, Appellants argue that the GTL A violates the Tennessee Constitution.

To arrive at

their broad assertion, Appellants appear to focus mer ely on the first sentenc e of Article 1, Section 17, which grants individuals access to the courts. Appellant’s argument, however, appare ntly overlooks the second sentence in Article I , Section 17. That provision providesthat this Statehas been empo wered to allow or deny c laims brought against it upon action of the Genera l As se mb ly. The pas sage of the GT LA wa s a direc t exercise

of this au thority . We must als o remember that Appellan ts were never de

nied acc ess to the

courts. Although the damages awar ded by the

jury exceeded the applicable cap on damages, Appellants were given adequate compensation as defined by our Constitution and General Asse mbly. Appellan ts also off er a sec ond arg

ument with

regard to the

alleged unconstitutionality of the GTLA in li ght of A rti cle I, Section 17 . Appella nts assert that before the enactment of the GTL A, at common law, a direct

cause of action against Appellee w ould have existed. Beforeenactment of the GTLA , courts held

that gov ernment

al entitie s committing

torts in pur suit of pro

prietar y e ndeavor s, as opposed to

gover nmental f unctions, could not b e shie ld ed fr om li ab il it y un de r s ov er ei gn im mu ni ty. See Crowe v. John W. Harton Memorial Hospital , 579 S.W.2d 888, 891 (Tenn. Ct. App. 1979). Ac co rd in gl y, Appel lants allege that the contract entered into by Appellee to construct the sidewalk was proprietary

in nature and, thus, would hav e opene d the door to liability . Extinguis hment of th is claim by the ena

ctment of the GTLA, Appellants ave r, renders the enactment unconstitutional.
We hold the distinction between proprietary and governmental

functions to be irrelevant to our analysis. As this Court so aptly stated in Crow : The Legislature

possesse s unlimited

power to enact l a ws except a s specif ically limited by the Constitution. Dennis v. Se ars, Roebuck & Co. , 223 Tenn. 415, 446 S.W.2d 260 (1969). There is no ex press constitutional prohibition against the extension of immunity

to municipa

lities ope rating in their pr

oprieta ry , as well a s their gover nmental, capacities. The traditional rationale for establishing a special category of immunity

for municipalities exercising their governmental func tions include that the city does not profit from the exerc ise of its governmental functions, Howard v. City of Worcester , 153 Mass. 426, 27 N.E. 11 (189 1), that the c ity c annot pro perly conduct gover nment if it must utilize its tax revenues to compensate for the torts of its agents , and that

it is unreaso nable to holdthe city liable for the torts committed by its agents in the performance of sta te-imposed duties, Boise De velopmen t Co. v. Bo ise City , 30 Idaho 675, 167 P. 1032, 1034 (1917).
The Legislature

could re asonably

find that these, or similar, concerns compel the extension of immunity here involved. Moreover, as Justice Henry pointed ou

t in Cooper v. Ruther

ford Coun

ty , supra , th e specific distinction between governmental and proprietary

functions has eluded the Tennessee cou rts and ha s been a source of-6-

inconsistentdecision s in this State; by extending immunity to municipalities in the exercise of all functions, the Legislature has acc orded a g

reater measure of cert ainty to this confused area of the law. Acc ordingly we find the provisions of the Tennessee Governmental Tort

Liab ility Act whic h extend immu

nity to municipalities operating in their pr oprieta ry capaci ties to be a

valid leg islative e nactmen t.

Id. at 892. Although in Crow , this Court was discussing liability with respect to municipalities, the samereasoning applies to cou nties. Thu s, we hold

that the GTLA cannot be dee med unconstitutional with respect to Article I, Sec tion 17.
Appellan ts also contend that the GTLA violates the Te nnessee Constitution

in light o f Article I, Sections 8 and 21. Article I, Section 8, known as the Law of the L and Clause, provides, “[t]hat no man shall be taken or

imprisoned, or

disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner

destroyed or de

prived of his life, liberty or property, but by

the judgment of his peers or the law of the land.” This provision has been interpreted as being synony mous with the due process guarantees of the Fifth and Fourteenth Amendments of the United States Constitution. Planned Pa

renthood of Middle

Tenn. v. Su

ndquist , 38 S.W.3d 1, 35, n. 10 (Tenn. 2000).
Appellan ts argue that the G TLA is in viol ation of A rticle I , Section 8 due to the dispara te treatment given to plaintiffs proceeding against g overnmental entities that c ommi t tort s. Alt hough all damages awarded to plaintiffs proc eeding under the GTL A are capped a

t the sa me level, Appellan ts’ contention is that plaintiffs more severely injured suffer greater impair ment by the cap. In effect, Appellants argue tha t the GTLA establishes various classes, with membership to such classes being d

efined b y the level o f injury suffer ed. For example, w

here som e plain tiffs wi th relative ly minor injuries may be

fully compensated f

or their loss, others suffering relatively serious injuries may not. When members of a class whose damages should exceed the damag es cap imposed under the GTL A are lim ited in re covery , Appella

nts conte nd that such disparate treatment violates the Constitution.

We find this argument to be without merit. As this court stated in King-B raddwell Partner ship
v. Johnson Controls, Inc. , 865 S.W.2d 18, 21 (Tenn. Ct. App. 1993), under the United States Constitution, and simila

rly Article I, Se ction 8 of

the Tennessee Co nstitution, only rationa l basis review is required when no fundamental right is infringed and no suspect c lass is affected. Here, no suspect class dist inction de servin g strict sc rutiny review e xists. Furth

er, Appe llants hav e failed

to articula te any fundame

ntal right being in fringe d. Our re

view of th

e applic able

case law reveals the sameresult. Accordin gly , there b eing no suspect c lass or fu

ndamenta l right in volved, th e GTL A is entitled to a rational basis review. As pointed out in Crow , a ra tiona l basi s exi sts for limi ti ng the liability of a gove

rnmental entity for torts committed by its agents.
Appellan ts point to a s econd a

ll eged flaw in the GTL

A, which they c ontend violates the Tennessee Constitutions’s equal protection guarantees. Appellants contend that Section 29-20--7-

403(d), now designated “Obsolete” in the Tennes see Co de, was e nacted t o benefi t two touri sts injured by a municipal elec tri c company to avoid inadequate compensation for their injuries. As stated by Appellan ts, “[t]he r emoval of liability limitationsin this one instance highlights the GTL A’s inherent unfairness. . . .”

Section 29-20-40 3(d) is wholly irrelevant to our analy sis. Further, Appellants have indicated no harm caused to them under this provision. Thus, we f ind Appellants’ ar

gument with respec t to this Section to be witho

ut merit a nd hold that the GTLA is not in violation of the Tennessee Constitution.
Loss of Cons ortium
With regard to the third issue, we hold that the trial court did not err in subjecting the awards for loss of consortium to the stat utory limits prosc

ribed in the GTLA. The Tenne ssee Supreme Court recent ly addressed this issue in Hill v. City of Germantown , 31 S.W.3d 234 (Tenn. 2000). In Hill , the suprem e court held that, “loss of consortium damages in a wrong ful death claim are w holl y containedwithin the award for wrongful death.” Id. at 240. Accordingly , no distinct cause of action for loss of consortium exists under our wrongful death statute. Applying this holding to the c ase sub judice , Appella

nts’ claim for wrongful death encompasse d any claim for loss of consortium related to Ms. Shaffer’s death and damages w ere properly limited in accordance with the GTL A.
Appellan ts, in their argument, rely

on this Court’s holding in Swaff ord v. City of C hatta nooga , 743 S.W.2d 174 (Tenn. Ct. App. 1987). Such reliance, however, is misplaced. I n Swafford , common law claims for loss of consortium resulting from a personal injury , as opposed to wrongful death, were brought

agains t Chat tanoo ga

by the spouse of a tor

t victim. This Court held that with respect to common law claims for lossof consor tium, “the right to recover for loss of consortium is a right independent

of the spouse’s ri ght to recover for the injuries themselves.” Id. at 178. Given the independenceof the spouse’s cl aim, this Court, whe n closely inspecting the language

of the GTLA, held that damages for

claim s for loss of consortium fell outside the gambit of damages c overed by the GTLA. Id. at 178-79.

Our holding, however, was based on the conc lusion tha

t, at common

law, the s pouse’s r

ights were independent of the underly ing injury. Given t

h e supreme court’s stance on the lack of independencefor dama

ges for loss of co nsortium under our w rongfu l death sta

tute, our holding in Swafford has no application in this case. Accordingly , we hold that the damages awarde d for loss of consortium were properly limited by the GTL

A.

With regar

d to the fourth issue , we hold t hat the da mages a warded to Appella

nts were properl y capped at $260,000.00 as opposed to $350,000.00. As quoted above, “loss of consortium damages in a wrongful death claim are wholl y contained within the aw ard for wrongful death.” Hill , 31-8-

S.W.3d at 240. The damag es for lo ss of consortium suffered by Appellants was properly

considered to be o ne c lai m u nde r th e GT LA th at had to be limited to $130,000.00. Given that only one other pa rt y, Darin, suffe red distinct injuries, the total liability attributed to Appellee could not have exceeded $260,000.00.
Discretionary Function

With regar

d to the fift h issue, we hold that the trial court did not err in refusing to gr ant summary judgment to Appellee based on discretionary f

unction immunity. A lower court’s grant of summary judgmen t is not entitled to a p

resumptio n of corr

ectness on appea

l. McClung

v. Delta Square Ltd. Pa

rtnersh ip , 937 S.W.2d 891, 894 (Tenn. 1996). Rather we must review de novo to determine whether

the requ irementsof Tennessee Rule of Civil Procedure 56 have been met. Mason v. Seaton , 942 S.W.2d 470,472 (Tenn. 1997). A summary judgment is warranted on ly when there are no g enuine, material

factua l disputes with reg ard to the claim or defense asserted in the motion and the moving party

is entitled to a judgment as a matter of law. Bain v. We

lls , 936 S.W.2d 618, 622 (Tenn. 1997). In making our dete rmination, we must take the strongest view of the ev idence i n favor of the nonmoving party , allowing all rea son able inf erence s in his fav or and dis carding all countervailing evidence. Shadrick v. Coker , 963 S.W.2d 726, 731 (Tenn . 1998 ) (cit ing By rd v. Hal l , 847 S.W.2d 208, 210-11 (Tenn. 1993)).

Section 29-20-205 of the Tennessee Code provide s that , “[i ]mmunity from suit o f all governmentalentities is removed . . . except if the injury ar ises out of: (1) the exer cise o r performance

or the failure to exercise or perform a discre t ionary functi on, whether or not the discretion is abused.” Our supreme cour t has repeatedly defined “discretionary

function”as the following :

Where th e duty

is absolute, certain, and imperative, and is simply ministerial, the officer is liable in damages to an y one spec ially injured, either b y hi s omitting to perform the task or by per

forming it negligently

or unskillfully. On

the o ther hand, where his powers are discretionary , and to be exerted or withheld according to his own judgmen t, he is not liable to any private pe rson for a neglect

to exercis e those pow ers, nor for the consequences of a willful exercise of them, where no corruption or malice ca n b e i mp ut ed to hi m, an d h e k ee ps wi th in th e s co pe of hi s a ut ho ri ty.

Bowers v. City of C hatta nooga , 826 S .W.2 d 427, 430 (T enn. 1 992) ( quot ing Hale v. Johnston , 203 S.W. 949, 953 (Tenn. 1918)). Appellee contends, based on this definition, that the decision to delay installation of

the sidew alks in the

Riverwoo d Farms Su

bdivision w as a

discretionary f

unction and, thus, that Appellee deserve s immunity

from suit.2 W e no te that M s. Sha ffer an d D arin w ere o n the nor th side of the road at the tim e of th e acc iden t. -9- We disagree

with Appe

llee’s c ontention . Althoug h at first glance, Appellee’s decision may appear discretionary, upon c loser inspection, several facts exist that rendered summary judgment inappropriate. Appell ee offere d evidence that the contract entered into between the developer and Appellee, as well a s Shelby County regula tions, required Appellee to complete the sidewalk unless a variance was obtained from the local Land Use Boar

d (the Board). Although the Boa rd approved a variance alleviating Appellee’ s duty to complete sidewalks on the sou thern side of the road, Appellee was still requi red to com plete sidewalks on the north side. 2 Thus, Appellee was under a duty to complete the project or seek a varianc e. Because no variance wa s sought, the duty re mained. The evidence of Appellee’s duty to install sidewalks on the north side of the road rendered the re fusal to grant summary

judgment proper. Negligen t Inflictio n of Emotional Di stress
With regard to the sixth issue, we affirm the trial court and hold that the proof was sufficient to sustain Da

rin’s cla im for neg

ligent in fliction o f emotiona

l distress

. At the close of proof, Appellee made a motion fo

r direc ted verd

ict with re spect to Darin’sclaim, wh ich was d enied by the cour t. Appellee now argues that the court e rred in refusing to grant the motion.
In ruling on a motion for a directed verdict, both the trial cour t an d the appellat e court are required to review the record, discard all countervailing e vidence, take the strongest legitimate view of t he evide nce in fa vor of the non-movin g party , and allo w all rea sonable inferences in his f avor
. Williams v. Brown , 860 S .W.2 d 854, 857 (T enn.1 993) ( quot ing Cecil v. Hardin , 575 S .W.2d 268, 271 (Ten n.1978)) ; Jones v. Zay

re, Inc. , 600 S.W.2d 730, 731 (Tenn.Ct.App.1980). "The court may grant the motion o nly

if, afte r assess ing the e

vidence accord ing to the

foreg oing sta

ndards, i t determines that

reasonable minds could not differ as to the conclusions to be drawn from the evidence ." Eaton v. M cLa

in , 891 S.W.2d 587, 590 (Tenn.1994). With regard

to Appellee’s cont

ention, ou r suprem e court, in Camper v. Minor , 915 S.W.2d 437 (Te nn. 1996), set out the elements necessary to establish a claim for negligent inflict ion o f emotional distress. In addition to proving the general eleme nts for neglig ence, a

plaintiff must also show that a serious or severe emotional injury has occurred. Id. at 446. A serious or severeemotional injury occurs “where a rea sonable person, normally constitute d, would be

unable to adequately

cope withthe circumstances of the case.” Id. (citations omitted). Further, such injuries “must be supported by expert medical or scie ntific proof.” Id. Appellee argues that the

e vidence at trial failed to establish that Darin suffered a serious or severe emotional injury . When taki ng the st ronge st legitimate view of the evidence in favor of Darin, however, we see th at a

directed verdict in Appellee’s favor would not have be en prope

r. Appel lants offere d expert medical testimony from a de velopmental neuro psycholog ist, who sufficie

ntly indicate

d that Darin had indeed suffered a seve re emotional injury. The

expert indicated that Darin suffered at the accide

nt site as w ell as imme diately after th e accid ent in the hosp ital. Accordingly , we find Appellee’s arguments to be without merit.-10-

Appellee also contends that the proof was insufficient for the jury to find

in favor of

Darin on his claim of negligent infliction of emotiona l distress

. Our standard of review as to findings of f act by a jury in a civil action is limited to determining whether there is any material evidence to support the verdict. T ENN
. R. A PP
. P. 13(d). Appellate courts do not determine the credibility of witnesses or weigh evidence on appeal from a jury ve

rdict. Pullen v. Textron, Inc. , 845 S.W.2d 777,780 (Tenn. Ct. App. 1992) (citi ng Crabtree Maso nry Co. v. C & R Constr., Inc. , 575 S.W.2d 4,5 (Tenn. 1978)). A judgment based on a

jury verdict will not be

disturbed on appeal where the record c ontains material evidence supporting that

verdict. Reynolds v. Ozark Motor L ines, Inc. , 877 S.W.2d 822, 823 (Tenn. 1994).
Again, ex pert med ical pro of was of

fered b y A

ppellant s. Althoug

h Appelle e refe

rs to th e evidence offered by

the expert as “scant,” we hold that it was sufficient to support the jury ’s verdict and render a

motion for directed verdict improper. According ly, we affirm the lower court’s decision with resp ect to the

claims of Darin fo r negli gent inf

liction of emotiona l distress

. Comparative Fault
With reg ard to the

seventh i ssue, we

hold that th

e trial c ourt did no t err by refusin g to grant A ppellee’s mo tion for directed verdict with respect to Ms. Shaffer’ s wrongful death claim. At the conclusion of Appellant’s proof, A ppellee argue d that a

directe d verdic t was prop er for tw o reason s: (1) the jury was for

cedto speculate on whether Ms. Shaffer would have use d the sidewalks if installed and (2) Ms. Shaffer’s choice to put herself in danger by running on a road with no sidewalks made her responsible for at least half the fault. On appeal, h owever, App ellee only cha llenges the trial cou rt’s ruling based on its assertion that Ms. Shaffer was in violation of Section 55-8-138 of the Tennessee Code at the time of the accident and wa s negligent as a matter of law.

Our review of the record reveal s that durin g argumen ts for the directed verdict, Appellee failed to discuss negligence

as a matter of

law with respect to the alleged statutory violation. As a general rule, appellate courts do not "consider issues not d ealt with

in the tria

l court a nd not prop erly developed

in the proof.” Reid v. Sta te , 9 S.W.3d 788, 796 (Tenn.Ct.App.1999) (quoting Harlan v. Hardaway , 796 S.W.2d 953, 957 (Tenn.Ap p.1 990)). If an issue " is not properly raised in the tr ial court, it will not be considered on appeal." Id. Accordingly , we find Appellee’s arguments on appe al with regard to this issue to be without merit. Verdi ct Amounts With regar

d to the ei ghth issu e, we hol d that t he verdicts we re not excessive. Appellee challenges the award of damages for both the wrongful death of Ms. Shaffer and for Dar in’s injur ies. We shall review, however, only the damages awarded for Darin’s injuries. With regard to the wrongful death damages, Appellee concedes that the pecunia ry value of Ms. Shaff

er’s lif e was at l east $500,000.00. Becau se th e award was reduced to $130,000.00 pursuant to the GT LA, the issue of damage s for wro ngful de ath are moot.-11-

Appellee c onten ds that, with regard to the damages a warded for Darin’s injuries, even the reduced amount of

$130,000. 00 is excessive . Our supr eme cour t has held that, “[t]he amount of the verdict is primarily for the jury

to determine, and

next to the jury the most competent person to pass upon the ma tter i s the j udge who presided at the trial and heard the evidence.” Thrailkill v. Patterson , 879 S.W.2d 836, 841 (Tenn. 1994) (citations omitted). W e are also mindful that our review of findi ngs of fact by

a jury in a civil action is limited to deter min ing whether there is any material evidence to support the verdict. T ENN
. R. A PP
. P. 13(d).
Ap plying thi s standard of review, we hold that the verdict, which set da mages for Darin’s claim of negligent infliction

of emotional distress at $130,000.00, was not excessive. As discussed above, Appellan

t’s expert testifie d to the tra

uma Darin suffer

ed both at

the acc id ent site and immediately after

in the hospital. Under these circumstances, $130,000.00 is not excessive.

Closing Arguments

With regar

d to the nin

th issue, Appellee asserts that Appellant’s counsel made ina ppropria te argume nts to the jury during

the closing statements. Specifically, Appe llee argues that Appellant’s counsel displayed to the jury a poster, whichset out proposed awards for various elements of damag e. Appellee further argue s that the proposed awards influenced the jury ’s ultimate decision. It is well established that trial courts are vested with discretion in controlling the arguments of counsel throughout

the course of the trial. Perkins v. Sad ler , 826 S.W.2d 439, 442 (Tenn. Ct. App.1991) (citations omitted). In Saddler , we state d that an a ppellate court w il l gener

ally not interf

ere with discretionary

ac ti on s o f a tr ia l c ou rt un le ss it af fi rm at iv el y f

inds that the action of counsel affected the result of the trial. Id. Accordingly , our review will focus on the effects counsel’s statements had on the ver dict.
Appellee ha s point ed to no evidence in the record that indicates the stateme nts made by Appellant ’ s counsel had any impact on the outcome. Instead, that record indicates that after Appellant’s counsel made the allegedly inappropriate argument, Appellant’s counse l stated:

Ladies and gentlemen of the jury , it is your responsi bility to evalua te what th is family has lost, to evaluate the true value of Andrea’s pain and suffering, to e valuate how Darin sho uld be c omp ens ate d for th e lo ss o f hi s wi fe, how Je nna shoul d be compensated, how Darin Andrew should be compensated and how Da rin should be compensated for the emotional injury he suffered as a result of this accident. This statement confirmed to the jury

that they held the sole re sponsibility to determine any damages to be aw ar de d. Ac co rd in gl y, we refuse to disturb the discretionary action of the trial court with regard to the arguments made during closing by Appellant’s counse

l.
Discreti onary Costs
With regard

to the tenth issue, we reverse the trial court’s decision to awa rd $5,434.5 5 i n discretionary

costs to Appellants. Generally , purs uant to Rule 54.04(2) of the Tennessee Rules of Civil Pro ce dure, tr

ial cour ts maintai n discre

tion in awa

rding pa rties ce rtain co sts assoc iated wit h-12-

litigation. This Court, however, has recently discussed discretionary

costs and their limits under the GTLA.
In Cox v. Ander son County Highway Dep’t , No. 03A01-9902-CV-00074, 2000 WL 250126 (Tenn. Ct. App. March 7, 2000), we held that once the statutory maximum under the GTLA has been awarded, discretionary

costs cannot be granted by the trial court over

and above that amount. As was stated in Cox , no exceptions exist in Section 29-20-404(a) or 29-20-403, which would allow recovery in any manner

above the statutory a

mount. Id. at *8. Ac cording ly , we re verse the trial court’s decision to award discretionary costs to Appellants.

IV. Conclusion For the foregoing reasons, the decision of the lower co urt is aff irmed in pa

rt, revers ed in par

t, and remanded for further pro ceeding s c onsistent with this opinion. Costs of this appeal are taxed equally against the Appellants, Darin Shaffer, as Personal Repre sentative o f The E state of Andrea Shaffer , and in his individual capacity, and Darin Shaffer, as Parent a nd Next Friend of

Jenn a Christine Shaffer

and Dar in Andre w Shaffe

r, and the ir sureties, and the Appellee, Shelby County, for which execution may issue if necessary.

___________________________________ ALAN E. HIGHERS, JUDGE