# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) GREGORY HILL, et al , ) Shelby Law No. 70577-9 and 70576-9 T.D. ) Consolidated Plaintiff/Appella

nts. ) ) VS. ) C.A. No. 02A01-9803-CV-00078 ) CITY OF GERMANTOWN, et al , ) ) Defendants/App

ellees/Cross-App

ellants. ) )

_____________________________________________________________________________ From the Circuit Co

urt of Shelby

County at Memp

his. Honorable Robert L. Childers, Judge
R. Sadler Bailey , Andrew C. Clarke , BAILEY & CLA

RKE, Memphis, Tennessee Attorneys f

or Plaintiffs/Appe

llants Gregory

Hill, et al. Louis P. Chiozza, Jr. , Memphis, Tennessee Attorney fo

r Plaintiffs/Appe

llants Ronald Crowde

r, et al. John C. Duffy

, WATSON, HOLLOW & REEVES, Knoxville, Tennessee Attorney for Defendants/Appellees/Cross-Appellants, City of Germantown

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) HIGHERS, J. : (Concurs)1 Under this policy, officers are permitted to pursue a fleeing suspect based on the officer’s belief that a quick response is critical to prevent possible loss of life or serious injury. The officer is directed to use common sense and good judgment when determining whether a particular situa

tion requires the

officer to eng

age in a high sp

eed chase. The

pursuit of traffi

c offenders is not necessarily prohibited under this written policy. On the date of the accident that is the subject of the case at bar, however, there was an informal policy at the Germantown Police Department that an officer should not engage in a high speed pursuit of a tra ffic offender. Thi s ap peal involves two separate but consolidated actions arising out of an automobile

accident betwe

en a vehicle bein

g pursued by tw

o officer s of the Germantown Police Department

and a vehicle con taining Deborah H ill, Amberly Hill, a

nd Walterine Crow

der. As a result of the accident, Deborah Hill and Walterine Crowder were

killed and Amberly Hill sustained per sonal injuries. The trial court found that the negligence of the two officers and the City of Germanto wn wa s a thirty-five percent proximate cause of the accident and entered a judgment ag ainst the City of Germantown in the amount of $130,

000.00 for the dea

th Deborah Hill, $130,000.00 for the d eath of Wa lterine Crowder, and $52,944.50 for the personal injuries of Amberly Hill. The trial cou

rt also aw arded the Plaintiffs $25,558.52 in discretionary costs. The Plaintiffs have appealed and the Defendants h

ave cross-appe

aled. For the rea

sons set forth

below, we affirm the ru

ling of the trial co

urt.
Factual History

Chad Cunningham was hired as a part -time r eserve officer by the Germantown Police Department

in September of 1994 and began working two to three shifts per month in December of 1994. As a reser

ve offic er, Cunningham received approximately 100 hours of general classroom training on how to perform basic police duties. During this training, each reserve officer was given
a copy of the Germantown Police Department’s wr itten policy rega

rding police pursu

its. 1 In March of 1995, Officer Cunningham became a full-time officer. After being hired as a full-time officer, Officer Cunningham did not immediately receive formaltrai ning with respect t o police pursuits because there was a six mon

th waiting list to get into the police academy. It is standard procedure at the Germantown Police Department to allow newly hired officers to receive on-the-job training under the supervision of a more experienced officer when the new office r has not yet attended the police academy.2 On the date of the accident, Officer Hardy ha d approximately three years of experienc e as a police officer.

On April 11, 1 995, Officer Cunningham was on patrol in his Germantown Police cruiser. Officer John

Phillip Hardy, who was training and supervising Cunningham, was riding as
a passenger in the patrol car. 2 At approximately 4:45 p.m., Officers Cunningham and Hardy noticed
a gray 1985 Buick

Regal traveling west on Poplar Avenue with an improperly displayed registration tag. At the instruction of Officer Hardy, Officer Cunningham activated the blue lights of the patrol
car and began to follow the Buick. Initially, it appeared that the driver of the Buick was attempting to pull over. As the Buick approached the intersection of Poplar A venu e and Riverdale Avenue, however, O fficers Cunningh am and Hardy obse

rved a puff of smo

ke and the Buick be

gan to accelerate. O

fficer Hardy a

ctivated the sire

n of the patrol ca

r and the office

rs continued to

pursue the Buick, reaching s

peeds in excess

of the forty mile per hour speed limit. The Buick continued to accelerate, reaching a top sp eed in excess of ninety miles per hour. As the Buick approached Kirby Parkway, Officer Cunningham announced over the radio of the patrol car that the suspect’s vehicl

e
was refusing to stop. Lieutenan t Mike Hill

of the Germantow

n Police Departme

nt then got on his police radio and asked Officer Cunningham “what are the charges.” Officer Cunningham responded “traffic only” and informed Lieutenant Hill that they were “pulling off.” After losing sight of the Buick, Officer Hardy instructed Officer Cunningham to slow down and stop pursuing the fleeing vehicle. The Buick sped over the hill at the intersection of Poplar Avenue and Kirby Parkway, veered across the center line, and collided with a vehicle being driven b y Walterine Crowder. DeborahHill and her twenty-eight month old dau ghter Amberl y were passengers in the Crowder vehicle.

DeborahHill and Walterine Crowder were transported by Helicopter to the Regional Medical Center where they both subsequently died. Amberly Hill, who was conscious and crying at the scene of the a

ccident, was tak

en to LeBonheur Hospital and treated for a cut over her right eye. Following the accident, Amberly Hill displayed a variety of emotional problems. Amberly’s father took her to see Dr. Randolph Dupont, a psychiatrist, who concluded that Amber ly was s uffering from post-traumatic stress syndrome.
Procedural History3 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).

4 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).

On June 19, 1995, Gregory Hill filed a complaint individually and in a representative capacity against the City of Germantown for the wrongful death of his wife Deborah Hill and the personal injuries of his daughter Amberly Hill. Also on June 19, 1995, Ronald Crowder filed a separate complaint individua

lly and in a repre

sentative capac

ity against

the City of Germantown for the wrongful death of his wife Walterine Crowder. The City of

Germantown filed separate answers t o the Hill and Crowder complaints on September 5, 1995, raising comparative fault as an affirmative defense. On March 29, 1996 and April 10, 1996 respectively, Hill and Crowder amended their complaints against the City of Germantown, naming as additional defendants Officer Cunningham, Officer Hardy, and Eddie Boatwright, the Chief of Police of the City of Germantown. Thereafter

on June 14, 1996, separate amended answers to the Hill and Crowder complaints were filed on behalf of the City of Germantown, Boatwright, Officer Cunningham, and Officer Hardy.

The Hill action and the Crowder action were consolidated for trial. The trial judge, sitting without a

jury, 3 took the matter under advisement and entered an order finding that Officers Cunningham and Hardy were negligent in engaging in a high speed pursuit of a traffic violator, that the City of Germantown was negligent in fa

iling to adequatel

y train Offic

er Cu nningham with respect to high speed police pursuits, an d t hat the negligence of the Defendants was a thirty-five percent proximate cause of the accident. Additionally, the court assessed the Plaintiffs’ damages at $401,249.32 for the death of Walterine Crowder, $621,07 1.46 for the death of Deborah Hill, and $151,270.00 for th e pers onal injuries of Am berly Hill. After

taking into accoun

t the Defendants ’ degree of fault and the lim its imposed by the Tennessee G overnmental Tort

Liability Act, 4 the trial judge awarded the Plaintiffs $130,000.00 for the death of Walterine Crowder, $130,000.00 for the death of Deborah Hill, and $52,944.50 for the personal injuries of Amberly Hill.

The Plaintiffs subsequ

ently filed a motion

to alter or

amend the judgment, a motion for prejudgment inter

est, a motion for discretionary costs, and a second motion to alter or amend thejudgment. Thereafter, the trial judge entered an

order granting in part and denying in part the motion to alter or amend, an order denying the motion for prejudgment interest, an order granting in part and denying in part

the motion for discretionary costs, and an order denying the second motion to alter or amend. Both the Plaintiffs and the Defendants have appealed the ruling of the trial court.

Issues

The issues raised

on appeal, as we

perceive them, a

re as follows:

I. Did the trial cour

t err in finding tha

t th e C ity of Germantowndid not act with deliberate indifference to the rights of the Plainti ffs and in thus ruling the City of Germantown was not liable under 42 U.S.C. § 1983? II. Did the trial court err in comparing the fa ult of the Defendants with t

he fault of the fle

eing suspect? III. Did the tri al court e rr in failing to enter a judgment against Officer Cunningham for the damages incurred by the Plaintiffs in excess of the caps imposed by the Tennessee Governmental Tor

t Liability Act? IV. Did the trial court err in failing to award the Plaintiffs damages for loss of spousal and parental consortium for the wrongful deaths of Deborah Hill and Walterine Crowder? V. Did the tr

ial court err in finding tha t Amberly Hill sustained damages for her personal injuries in th e amount of $151,270.00? VI. Did the trial court err in awardingthe Plaintiffs a total of $25,588.52 in discretionary costs and in

apportioning 100% of these costs against the D

efendants?
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 may not reverse the findings of fact made by the trial judge unless they are contra ry t o the preponderance of the evidence. See, e.g., Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. App. 1996). This presumption of
cor rectness,however, does not attach to the trial judge’s legal determinations or the trial court ’ sconclusions that are based on undisputed facts. See, e.g., NCNB Nat ’l Ba nk v. Th railkill , 856

S.W.2d 150, 153 (Tenn. App. 1993).
42 U.S.C. § 1983

At trial, the Plaintiff

s alleged that,

in failing to adequately train Officer Cunningham withregard to high speed police pursuits, the City of Germantown and

Chief Boatwright violated the substantive due process rights of Deborah Hill and Walterine Crowder. In City of Cant

on v. Harris , 489 U.S. 378 (1989) , the United States S upreme Court rec

ognized that, unde

r certain circums tances, a municipality cou ld be held liable un

der 42 U.S.C. § 1983 f

or constitutio

na l violations resulting from the municipality’s failure to train its employees. See id. at 387. The Court then set forth the

standard to be ap

plied in such case

s as follows:

We hold today that the inadequacy of police training may serveas the basis for § 1983 liabi lity only where the failure to train a

mounts to deliberate indifference

to the rights of

persons with whom the police come into contact

.
Id. at 388. Thus, in the i

nstant case, the C

ity of Germantown

may be held liable

under § 1983 only if it is determined that, in

failing to adequately train Officer Cunningham, the City of Germantown acted with deliberate indifference to the rights of Deborah Hill and Walterine Crowder.

The trial judge ruled in favor of the Defendants with respect to the Plaintiffs’ § 1983 claim, stating in pe

rtinent part as fo

llows:

The Court concludes that the defendant neglig ently failed to adequately

train and educa

te Officer Cunni

ngham in the instigation andcontinuation of high speed pursuit. However, the defendant’s negligence does not rise to the level necessar

y to constitu

t e a violation of the plaintiffs’ decedents’ due process liberty inter es ts secure d by either the United States or the Tenn

essee Constitutions
. The Court finds that the defendant acted in good faith in relying upon the provisions of [T.C.A.] Section 38-8-107, and in requiring a senior officer to be present in the police vehicle when a n unt rained officer was d riv ing. Although the Court finds that the defendant’s actions w ere negligent, its acti

ons were not delib

erately indiffe

rent toth e substantive due process liberty interests of the plaintiffs’ de

cedents.Additionally, in ruling on the Plaintiffs’ motion to alter or amend the judgment, the court stated in pertinent part a

s follows:

Chief Boatwright in my vi ew is guilty of gross negligence. He knew that there needed to be more training and didn ’t give it. However, he did have a senior officer in the car with Officer Cunningham who did have training. And, again, Officer Hardy was negligent, but Chief Boatwrigh t, again, did have

a senior office

r in the car. He should have done more, in my opinion, but he didn ’t
. But, agai n, thos e actions, that failure, does not rise to the level of deliberate indifference to the rights of the decedents in

this case and the injured minor.
In their appellate brief, the Plaintiffs state that they “do not appeal from the factual findings made by the Trial Court”

but that the Plaintiffs “aver that the Trial Court’s legal conclusions drawn from its factual fin

dings are e rroneous.” The Defendants argue that, by making this statement, the Plaintiffs waived t heir right to challenge on appeal the trial court’s finding that the City of Germantownand Chief Boatwright did n ot ac t with deliberate indifference. It appears, however, that the factual findings referred to by the Plaintiffs were those made regarding the events that occurred
on the day of the accident and did not include

the trial court’s

characteriza

tion of the Defen

dants’ conduct. Despite the Plaintiffs’ statement, the Plaintiffs argue at length in their brief that the conduct of the City of Germantown and Chief Boatwright did, in fact, amount to d eliberate indiff

erence to the rights of Deborah

Hill and Walterin

e Crowder. Thus, w

e conclude the Pla

intiffs did not waive their right to challenge on appeal the court’s finding with respect to this issue.

In determining whether the City of Germantown and C hief Boatwright a

cted with del iberate i ndifference, we must focus on the adequacy of the Germantown Police Department’s training program, not whether any particular officer was adequately trained. See City o f Canton , 489 U.S. at 390-91. Und e r Tennessee law, all new police officers are required to complete an inservice recruit training

program within one

year of their da

te of employment. See Tenn. Code Ann. § 38-8-107(a) (1997). On the date of the accident that is the subject of the case at bar, Off icer Cunningham had not completed this program, reportedly because there was a sixmonth waiting list to get into the po lice academy. Officer Cunningham had, however, received a copy of the Germantown Police Department’s pursuit policy during his classroom training as a reserve office. At trial, Officer Cunningham testified that, on the date of the accident , he understood that theGermantownPolice Department had a policy against chasing traffic offenders. Unde r the

GermantownPolice Departm ent’s train

ing policy, a newly hired officer who has not yet attended the police academy i

s pairedwith a more experienced officer for on-the-job training. In the instant case, Officer Cunningham was placed under the supervision of Officer Hardy, who had three years of police experience. As the senior officer, Offic er Hardy was in c

harge of Offic

er Cunningham. In hindsight, it might have been unwise for the Germantown Police Department to allow Officer Cunningham to drive a patrol car without having received his in-service training. However, the fact that the Germantown Police Department provides its new recruits with a copy of its pursuit policy andrequires that they work under the supervision of

a more experien

ced officer wh

ile waiting to

get into the police acade

my suggests that the

Germantown Police

Department i s not deliberately indifferent

to the rights of persons with whom its officer come into contact. Thus, we cannot say that the e vidence prep onderates against the trial court’s finding that the conduct of the City of Germantown and Chief Boatwright does not rise to the level of deliberate indifference.

In light of the foregoing, we conclude that the trial court properly held that the City of Germantown and Chief Boatwright were not liable to the Plaintiffs under 42 U.S.C. § 1983.
Comparative Fault

T he Plaintiffs argue that, in apportioning fault, the trial court shoul d not hav e compared the fault of the De

fendants to the fa

ult of the fleeing suspect. Rather, they contend that, disregarding the fault of the fleeing suspect, the trial court should have found that the negligence of the Defendants was a 100% proximate cause of the Plaintiffs’ injuries.

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 of the attack, Williams was interviewed by Dr. Harold Jordan who found Williams to be “aggressive, grandios e, intimidating, combative, and dangerous.” Id. at 817. Despite this finding, Dr. Jordan made no attempt to protect Turner from the risk of harm create

d by the presence

of Williams at the h

ospit al. S ee id. at 817. In a negligence action brought by Turner against Dr. Jordan, the trial court instructed the jury that, in apportioningfault, it could compare the alleged intentional conduct of Williams with the alleged negligent

conduct of Dr. Jordan. See id. On appeal, the Tennessee Supreme Court disagreed, holding that “the conduct of a negligent defendant should not be compared with the intentiona

l conduct of anoth

er in determining comparative fault where the intentional conduct is the foreseeable 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 fleeing suspect in the instant case may be classified as intentional. Under Tennessee’s criminal statutes, the word intentional “ refers to a per

son who acts intent

ionally 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 actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result

from i t.” Restatement (Second) of Torts § 8A (1965).

In an attempt to emphasize the distinction betwee n cond uct 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 certain to do so, recklessly drives his automobile in an attempt to pass B’s car. As a result of this recklessness, A crashes int o B’s car, injuring 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 ). Simila rly in the instant case, there is no allegation that the fleeing suspect desired to injure the persons contained in the vehicle being driven by Walterine Crowder. Nor is there any allegation that the fleeing suspect believed that his conduct
was substantially cer

tain to result in

injuries to the persons contained in the Crowder vehicle. On the contrary, as sug

gested by the Plaint

iffs’ own exper

t witness, the goal of

a fleeing suspec

t is to avoid ap prehension by blending into traffic and remaining inconspicuous until the suspect ha s a n opportunity

to stop his or her vehicle and hide from the police. It stands to r eason, then, that asuspect

who is attempting to

remain inconspic

uous would

not intentionally crash into the vehicle of an innocent bystander.

The trial court concluded that, in attempting to elude Officers Cunningham and Hardy, the fleeing suspect acted in a reckless manner. For the reasons set forth above, we think that the trial court properly characterized the suspect’s conduct as reckless rather tha n intentional. Thus,
we find that the rule set forth in Jordan is inapplicable to the ca s e at bar and hold th at, in apportioning fault, the trial c ourt did not err in

comparing the fault of the fleeing suspect with the fault of the Defe

ndants.
Tennessee Governmental Tort Liability Act

The Tennessee Governmental Tort Liability Act limits the amount of damages that
can be awarded aga

inst a governmenta

l entity in a wrongf

ul d eath or persona

l injury action to $130,000.00 per injured part y and $350,000.00 p

er accident.Se e T enn. Code Ann. § 29-20-311 (1980 ); Tenn. Code Ann. § 29-20-403(b)(2)(A) (Supp. 1998). In the instant case, the trial judge assessedthe Plaintiffs’ damages at $401,249.32 for the wrongful death of Wa lterine Crowder, $621,071.46 for the wrongful death of Debora

h Hill, and $151,270 .00 for the perso nal inju ries o f Amberly Hill. Applying the court’s finding that the negligence of the Defendants was a thirty-five percent proximate cause of the Plaintiff’s injuries, the court then reduced the amount of the Plaintiffs’ damages to $140,437.26 for the wrongful death of Walterine Crowder, $217,375.01 for the wrongful death of Deborah Hill, and $52,944.50 for the personal inj uries of A mberly Hill. Finally, because the amount of the Plaintiffs’ damages for the wrongful deaths of Walterine Crowder andDeborah Hill exceeded the limits imposed by the Tennessee Gove rnmental Tort Lia

bility Act, the court f urth er reduced the amount of the judgment, ultimately awarding the Plaintiffs $130,000.00 for the wrongful death of Walterine Crowder, $130,000.00 for the wrongful death of Debora

h Hill, and $52,944.50 for the personal injuries of Amberly Hill.

On appeal, the Plaintiffs contend that the trial court

should have rendered a judgment against Officer Cunningham to the extent that their damages exceed the caps imposed by the Tennessee Governmental Tort Liability Act. In sup port of t his argument, the Plaintiffs rely on5 The Defendants contend that, bec

ause the City

of Germantown is n

ot immune from suit under the Tennessee Governmental Tort Liability A ct, section 29-20-310 of the Tennessee Code Annotated has no a

pplication to the c

ase at bar. As au

thority for t

his proposition, the

Defendants cite Elmes v. Hart , No. 03A01-9310-CV-00372, 1994 WL 228763 (Tenn. App. May 20, 1994), an unreported opinion of the eastern section of this court. We must note, however, that the Tennessee Supreme Court denied permission to appeal in Elmes , concurring in results only. Thus, because it has no precedential value, we are not required to follow the reasoning of Elmes when considering the applicability of section 29-20-310. See Patton v. McHone , 822 S.W.2d 608, 615 n. 10 (Tenn. Ap p. 1991)(ci ting Clingan v. Vulcan Life Ins. Co. , 694 S.W.2d 327, 331 (Tenn. App. 1987)). section 29-20-31 0 of the Tennesse e Code Annotated,

which provides in p

ertinent part as f

ollows:

No c laim may be brought against an employee or judgment entered against an employee for injury proximately caused by an act or omission of the emplo

yee within the sco

pe of the emp

lo yee’s employment

for which the governmental entity is immune in any am ount in excess of the amounts established for governmental entities in § 29-20-403, unless the act or omissio n w as willfu l , malicious, criminal, or performed for pe rso nal financial gain, or unless the act or omission was one of medical malpractice com mitted by a health carepractitione r an d the claim is brought against such health care practitioner.

Tenn. Code Ann. § 29-20-310(c) (Supp. 1998)(emphasis added). 5 Additionally, the Pla intiffs note the following statement made by the trial judge regarding the conduct of Officers Cunningham and Hardy: The Courtconcludes from the testimony of the witnesses that

the police officers were

involved in ahigh speed chase down Poplar Avenue on a Friday afternoon during rush hour traffic to apprehend a minor traffic violator. The Court also concludes from the testimony of Chief Alva Edwin Boatwrigh t, Jr., that the officers violated the GermantownPolice Departm ent pol icy by engaging in such a high speedchase under the c ircumsta nces. The Court further concludes that the officers violated T.C.A. Section 55-8-108(d) by f ailing to use due care for t

h e safety of others, and by failing to discontinue the pursuit when it became e

vident t hat the likelihood of in

jury to innocent third parties was foreseeab le a nd greatly outweighed the potential benefit of apprehending the driver of a vehicle with an expiredtag. Under the circumstanc es of this case, thes

e violations constitute wilful [sic] or wanton conduct or gross negligence
. In ruling on the Plai

ntiffs’ motion to alt

er or amend, the t

rial judge also sta

ted as follows:

I’m goin g to amend my judgment a nd I’m going to find a

s a fact in this case that Officer Chad Cun ningham was guilty o f gross negligence. He was guilty of willful and wanton conduct. . . . It was more than simple negligence. It was gross negligence . . . .I will also make the finding that Officer Hardy was guilty of si mple neg ligence. He was not guilty of gross ne

gligence. He told Officer Cunningham, i n my vie w, to stop the chase, but Officer Cunningham did n’t do t hat. Officer Hardy probably should have done more to remonstra

te against andto order Officer Cunningham to stop the chase, but he didn ’t. That’ s simple negligence. It’s not gross negligence.

The trial judge in the inst ant case used the word “willful” when describing the conduct of Officer Cunningham. The court further stated, however, that the actions of Officer Cunningham amounted to “gross negligence.” We fi nd these two characterizations to be incompatible. The word “willful ” has been defined by t his court as follow

s: “Proceeding fr

om a conscious motion of the will; intending the result which actually comes to pass; intentional; not accidental or involuntary.” Claiborne and Hughes Convalescent Ctr. v. State, Dept. of Health , 881 S.W.2d 671, 677 (T enn. App. 1994). The phrase “gross negligence,” on the other hand, has been def ine d by this court as “a conscious neglect of duty or a callous indifference to consequences. . .

. [or] such entire want of care as would raise a presumption of a con scious indiffere nce to consequences.” Buckner v. Varner , 793 S.W.2d 939, 941 (Tenn. App. 1990)(quoting Thomason
v. Wayne County , 611 S.W.2d 585, 587 (Tenn. App. 19 80)). Under thes e definitions, we think the word“willful” and the phrase “gross negligence” are indicative of two distinct mental states and may not be used interchangeably.

Our review of the record in the instant case reveals no evidence suggesting that the conduct of Officer Cunningham was willful. He surely did not intend for his actions to result in an automobile

accident in which two innocent persons were killed and a third innocent person was injured. On the contrary, the evidence suggests that the collision between the suspect’s vehicle and the vehicle being driven by Walter ine Cr owder was unintentional and may be classified as an accident. There is ample evidence in the record, however, su ggesting that Officer Cunningham knew that the Germantown Police Department had an informal policy against pursuing traffic offenders andfurther knew tha

t, by engaging in a h

igh sp e ed chase down a busy thoroughfare in rush hour traffic, he was creating an unreasonable risk of harm to innocent third parties. Yet, Office r Cunningham disregarded

police policy and his duty to innocent third parties, displaying a conscious indiff erence to the consequence s of his actions. We

thus find that the e

vidence overwh

elmingly supports the conclusion that, although the conduct of Officer Cunningham may have amounte d to6 This case has been designated for publication.

gross negligence, his a

ctions were not wi

llful. Accordingl

y , even assuming that section 20-29- 310(c) of the Tennessee Code Annotated is applicable to the case at bar,we conclude that thetrial courtdid n ot err in failing to enter a judgment a

gainst Officer Cu

nningham to the exte

nt that th e Plaintiffs’ damages exceeded the limits imposed by the Tennessee

Governmental Tor

t Liability Act.
Loss of Spousal and Pare ntal Consortium

At trial, the Plaintiffs sought loss of consortium damages for the wrongful deaths of Debor ah H ill and Walterine Crowder. The trial judge, however, failed to award the Plaintiffs damages for loss of consortium, ruling that, under Tennessee law, such damages are not recoverable in a wrongful death

case. We now co

nsider whether,

in light of our supre

me court’s recent decision of January 25, 1999 in Jordan v. Baptist Three Rivers Hosp. , No. 01S01-9706-CV-00142, 1999 WL 24677 (Tenn. Jan. 25, 1999), 6 the trial court erred in failing to award the Plaintiffs damagesfor loss of spousal and p

arental consort

ium.

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
reco verable

in a wrongful death case are outlined in section 20-5-113 of the Tennessee Cod e Annotated which p

rovides as follows :

Where a person’s death

is caused by the wr

ongful act,fault , or omission of another, and suit is brought for damages, as provided for by §§ 20-5- 106 an d 20-5-107, the pa rty suing shall, if e

ntitled to damages, have the right to recover for the m enta l and physical suffering, loss of time, and necessary expenses resulting to the deceased from the persona

l injuries, and also

the damages re sulting to the parties for whose use and b enefit the right of action survives from the death consequent upon the injuries received.

Tenn. Code Ann. § 20-5-113 (1994). Tennessee courts have classified this provision as a survival statute because i t vests in a designated survivor whatever 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, 1 24 (T enn. 1976).Additionally, the courts of this st ate have repea

tedlyrejected the notionthat 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 Manage m ent Co. , 381 F.2d 670, 673 (6th Cir. 1967); Harmon v. Wolfe , 253 F. Supp. 577, 578 (E.D. Tenn. 1965); Jone s , 539 S.W.2d at 124; Southeastern Aviation, Inc. v. Hurd , 355 S.W.2d 436, 442 (Tenn. 1962); Logan v. Reaves , 354 S.W.2d 789, 790 (Tenn. 1962); Herrell v. Haney , 341 S.W.2d 574, 576 (Tenn. 1960); Memphis St. 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. 189 9); 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 cou

ld not recover consortium-type damages under Tennessee’s wr

ongful death statutes. See id. at 982 (stating 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, t he Tennessee Supreme Court revisited this holding in the recent case of Jordan v. Ba ptis t 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 2 0-5-113 also provides for a cause of action that compensates survivors for incidental damages sustained as a result of the injured party’s death. See 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 expectancy, condition of health andstrength, earnin

g capacity, and p

ersonal habits as

to sobriety

and industry. See id. at *7 (citing Spencer v. A-1 Crane Serv., Inc. , 880 S.W.2d 938, 943 (Tenn. 1994)). The court 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 rongful death statutes, a child

of the injured party could recover damages for loss of parental consortium. See id. at *8. The court

fir st noted that section 20-5-110 of the Tennessee Code Annotated provides 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 (1994)). The court concluded that, when
r eadin conjunction with s ection 20-5-110,

section 20-5-113

“seemingly permit

s considerati

on o f parental consortium damages.” Id. (citing Fosters v. Jeffe rs , 813 S.W.2d 449, 4 51 (Tenn. App. 1991)). Noting that many other jurisdictions allow the child of a tortiously killed parent to recover consortium-type damages, the court held that such damages are also recoverable under

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

We must now consider whether the holding of Jordan may be appl ied retrospectively to the case

at bar. The Tennessee Constitution provides “[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 been interpreted as prohibiting the retrospective application of a stat ute 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 824, 826 (Tenn. 197 1); Massey v. Sullivan Coun ty , 464 S.W.2d 548, 549 (Tenn. 1 971)
. This prohibition do e s 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 Alcazar v. Hayes , 982 S.W. 2d 8 45, 856 (Tenn. 1998 ); McClung v. Delta Square Ltd. Partnership , 937 S.W.2d 891, 905 (Tenn. 1996); Perez v. McConkey , 872 S.W.2d 897, 906 (Tenn. 1994); McIntyre v. Balentin e , 833 S.W.2d 52, 58 (Tenn. 1992) (directing t ha t the common law changes contained in those opinions were to be

applied retrospe

ctively to any cas

es on appeal in which the issue was properly raised in the trial court).

In Jordan , the court’s ruling did not result in a change in the common law. Rather, Jordan involved the judicial construction of a statute. A change in the judicial constru cti on of a statute becomes a part of the statute its elf and thus has the same effect as a change in the law by l egislation. See Blank v. Olsen , 662 S.W.2d 324, 326 (Tenn. 1983)(ci

tations omitte

d)
. Consequently, many courts have endorsed the posi

tion that a change in the judicial construction ofa

statute should notbe applied retrospectively. See id. (citations omitted). In Blank v. Olsen , 662 S.W.2d 324 (Tenn. 1 983), our supreme court stated as f

ollows:

There is nothing said in Pierce indic ating it is to have retrospective effect, and in the absence of such an expressed intent the rule is . . . that the decision overruling a judicia l construction of a

statute will not be given retro

active effect

.
Id. at 325. App lying this rule to the case at bar, we think it is significant that, unlike Alcazar, McClung, Perez, andMcIntyre , there is no language in Jord an providi ng for retrospective applicat ion. 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. We believe it is significantthat

the opinion in Jordan , unlike McIntyre, McClung and Perez , did not provide for retrospective application.

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 st

atutes. We must conclude then, that the tria l judge was corre

ct, under the then

exis ting law, in

ruling that the Plaintiffs could not recover consortium-type damages for the wrongful deaths of Deborah

Hill and Walterine Crowder.
Damages of Amberly Hill

The trial court foun d that Amberly Hill h ad suffered a to

tal of $151,270.00 i

n damages as a result of the accident. The Defendants argue on appeal that

this amount is excessive andshould be substantia lly reduced. Spec

if ica lly, the Defendants contend that the trial court’s assessment

of Amberly’s damages relies on proof of emotional injuries associated with the loss

of Amberly’s mother. As we st ated above, the trial court properly held that the Plaintiffs were not entitled to recov

er damages for l

oss of spousal or pa

rental consortiu

m.
Amberly, who was twenty-eight months old at the time of the accident, was riding7 The Defendants contend that the Plaintiffs did not seek to recover under Ramsey at trial

and thus have waived the right to recover damages for neglig ent infliction of emotional distress. We disagree. The Plaintiffs’ complaint specifically states that Amberly is seeking damages for “[f]right, shock, fear and apprehension for the well-being of her mother as a re sult of the accident proximately caused by being in the fore seeable zone of danger created by the Defendant’s negligence.” Because we think that this language is sufficient to allege negligent infliction of emo tio nal dis tre ss, we fi nd n o wa ive r ofthi s th eory o f rec ove ry. as a passenger in the vehicle that was struck by the vehicle being pursued by Officers Cunningham andHardy. Oneeyewitness described the accident scene as “gruesome” and stated that Debora h Hill
was “kind of hanging out the front window.” Because Amberly was found conscious and crying at the scene, we may presume that she observed the injuries of her mother and Walterine Crowder. A firefighter

had to brea

k a window in order to remove Amberly from the v

ehicle. Accord

ing to Amberly’s medic al records, she was treated for fragments of glass in her scalp, a small laceration to her left eyebro

w, a small abrasio

n to her inner lo

wer lip, and a

laceration over her right eye. Amberly’s father

testified that, fo

llowing the accide

nt, Amberly

started waking up in the middle of the night crying. Addit

ionally, Amberly

would jump out of her car seat whenever she heard the siren of a police car or fire truck. Amberly was seen by a psychiatrist, who concluded that Amberly

was suffering from post-traumatic stress syndrome.

In Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996), the Tennessee Supreme Court abandoned

the physical manifestation or injury rule and adopted a general negligence appr

oach to claims of negligent

infliction of emotional distress. See id. at 446. Under this approach, the plaintiff may recover only if the defendant’s conduct was negligent and, a s aresult of the defendant’s negligence, the plaintiff sustained a serious or severe emotional injury. See id. The court noted in Camperthat it was notnecessarily abandoning the zone of danger test, stating as follows: “[S]ince the “zone of danger” approach is, in reality, merely a way of defining and limiting the elements of d uty and pro ximate or legal cause, the principles of the approach can likely be integrated into the general negl igence framework.” Id. at 446 n.2. In Ramsey v. Beaver s , 931 S.W.2d 527 (Te nn . 1996), 7 the court attempted to explain 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 injuries 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 plaintiff must prove that his or her em otional injury was8 Walterine Crowde r was Amberly ’s aunt. the foreseeable result of the defendant’s conduct. See id. In order t o establish foreseeability, the plaintiff must prove (1) that he or she was close enough to make a sensory observation of theinjuryproducing event, (2) that the injury to the third party was, or was reasonably perceived to be, serious or fatal, and (3) that he or she shares a close relationship with the injured third party. See id.

In the instant case, there is ample evidence t hat, but for the co

nduct of the Defe

ndants, the fleeing suspect would not have crashed into the vehicle being d riven b y Walterine Crowder. Because there isno dispute that Amberly’s emotional injuries are dire ctly related to thi

s accident,
we think that the Defendants’ conduct was also a cause in fact of these injuries. With respect to the foreseeability

of Amberly’s emotion al injuries, we note th at Amberly was ins ide the Crowder ve

hicle when the accident occurred and thus was close

enough to make a sensory observation of the injury causing event. Additionally, the injuries to Deborah Hill and Walterine Crowder were fatal. Finally,
we note that Amberly s

hared a close fa

milial relationship

with b oth Deborah Hill and Walterine Crowder. 8 We thus conclude that the elements set forth in Ramsey are satisfied in the case at bar. Accordingly, in assessing Amber ly’s damages, the

trial court could h

ave considered

the extent to which Amberly suffered emotional injuries as a result of witnessing the fatalinjuries of Debor ah Hill and Walterine Crowder.

The trial court found that Amberly had sustained a total of $150,000.00 in damages
as a result of her pain, suffering, fear, and anxiety. There are no mathematical r ules or formulas for computing damages in pe rsonal inj ury cases. See, e.g., Brown v. N ull , 863 S.W.2d 425, 429-30 (Tenn. App. 1993). In such cases, the trier of fact is afforded a great deal of discretion with respect to its assessment of damag es. See, e.g ., Coakley v. Danie ls , 840 S.W.2d 367, 372 (Tenn. App. 1992). In light of our

discussion above,

we cannot say tha

t the evidence pr

eponderates ag

ainst the trial court’s finding with respect to Amberly’s damages. Accordingly, we decline the Def endants’ invitation to reduc

e the amount of Amb

erly’s damages o

n appeal.
Discretionary Costs9 In support of this proposition, the Defendants cite Duncan v. DeMoss , 880 S.W.2d 388

(Tenn. App. 1994). In Duncan , we held that the trial court could not award as discretionary costs the fees of an attorney who testified in a will contest in his capacity as the executor of the decedent’s estate. See id. at 390. We made no finding in Duncan , nor is any is sue raised in Duncan , that has any

relevance to the

case at bar. Thu

s, the Defendant

s’ reliance on th

is case is misplaced. Additionally, the Defendants cite Farrar v. Hobby , 506 U.S. 103 (1992), wherein the United States Supreme Court held that, when awarding attorney’s fees to a prevailing party under 42 U.S.C. § 1988, the court should consider the amount and nature of the prevailing party’s recovery. See id. at 114. The questio n in Farrar involved the awarding of attorney fees under a federal statute. In the instant case, however, the issue is one of discretionary costs. Thus, we think that Farrar is similarly irrelevant to our discussion of discretionary costs in the ca se at bar. The trial court awar

ded the Plainti

ffs a total of $25,588 .52 in discretiona ry costs, including $4,514.00 f

or the expert witness fee of Michael Cosgrove and $5,203.25 for the expert witness fee of Dr. Geoffrey E. Alp ert. On appeal, t

he Defendants f

irst contend the request for the expert witness fee of Dr. Alpert should not have been allowed because the testimony offered by Dr. Alpert was cumulative. Under the Tennessee Rules of Civil Procedure, discretionary costs include “reasona ble a nd necessary court reporter expenses for depositions or trials, reasonable and necessaryexpert witness fees for depos itions or tr ials , and guardian ad

litem fees.” T.R.C .P. 54.04(2)(empha

sis added). In ruling on the Plaintiffs’ motion for discretionary costs, the trial court stated as follows:

The sworn bill of costs filed by bot h pla intiffs in this case

seem to be reasonable and in order. And as f

ar as the expert

s ar e concerned, they werehelpful to the Court in this case in determining, if nothing else

-- you know, with Mr. Alpert, for example, he seemed to know what he was tal k ing about and seem ed to be very well qualifiedin looking at these cases and statistics and that sort of thing andtestifying to

the Court about in all probability what would have happened if the police officers had

in fact stopped the chase, turned off their blue lights and turned off their sirens and stopped cha sing.

. . . So I think all of these expe nses are reasonable and in line and I will award all of t

hese expenses r

equested as discr

etionary costs.

The trial judge ap parently did not believe that the testimony of Dr. Alpert was cumulative and unnecessary. Thus, we disagre e wit h th e Defendants’ contention that the trial judge should have disallowed the fees of Dr. Alpert.

The Defendants next

argue that, bec

ause the Plain

tiff s’ constitutional claim was unsuccessful,

the trial court sho

uld have awarde

d only a portion of th

e Plaintiffs’ expe

rt witness fees. 9 We disagree. The testimony offered by the Plaintiffs’ expert witnesses was relevant to thePlaintiffs’ claims based on the theories of common law negligence and negligence per

se as well

as the Plaintiffs’ constitutional claim. While we certainly agree that the tr ial court, in its discretion, could have considered the failure of the Plaintiffs’ constitutional claim when apportioning costs, we have found no rule under Tennessee law requiring the court to do so. Thus, we find no error in the trial jud ge’s failu

re to reduce the amount of the Plaintiffs’ discretionary costs to reflect that the Plaintiffs did not pr

evail with respec

t to their constitutio

nal claim.
Finally, the Defendants c

laim that, becaus

e the trial court

found that they we

re only thirty-five percent at fault, the court erred in requiring them to pay the entire amount of the award for 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 als o find this argument o

f the Defendant

s to be without merit.

A s the name suggests,

trial judges are a

fforded a grea

t deal of disc

retion whe n considering a motion for discretionary costs. Absent a clear abus e of discretion, a ppellate courts generally will not interfere with a trial court’s ass essment of costs. See, e.g., Perdue v. Green Branch Mining Co. , 837 S.W.2d 56, 60 (Tenn. 1992). Be cause we find no a

buse of discretio

n in the ins tant case, we co nclude that the trial court did not err in awarding the Plaintiffs a total of $25,588.52 in discretionary costs or in apportioning 100% of these costs against the Defendants.

Conclusion

For the reasons set

forth above, the ruling of the tr ial court is affir

med in all respec

ts. Costs on appeal are charged to the Plaintiffs, for which execution may issue if necessary.

____________________________________ FARMER, J.

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

HIGHERS, J. (Concu

rs)