# FILED
June 20, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk KATHY S. D ILLON, and husba nd ) DONALD L. DILLON, ) ) Plaintiffs/

Appellants , ) ) Tennessee

Claims C ommi ssion VS. ) No. 304797 ) ) STATE OF TEN

NESSEE, ) Appeal No. ) 01A01-9701-BC-00020 Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEAL FROM TENNESSEE CLAIMS COMMISSION, MIDDLE DI

VISION, OF

DAVIDSON

COUNTY AT NASHVILL E, TENNESSEE HONORABLE W.

R. BAKER , COMMISSI ONER, MID DLE DIVISION John Knox Walkup Attorney Gene

ral & Reporter Michael W. Catalano Associate Solicitor General 500 Charlotte Avenue Nashville, Tennessee 37243-0497 ATTORNEYS FOR DEFENDANT/APPEL LEE Gary R. Gobe

r Harry L. Wed dle 2505 21st Avenue, Suite 301 Post Office Box 121497 Nashville, Tennessee 37212 ATTORNEYS FOR PLAI NTIFFS/APPEL

LANTS 

### MODIFIED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE WILL IAM C. KOCH, JR., JUDGE-2-

KATHY S. D ILLON, and husba nd ) DONALD L. DILLON, ) ) Plaintiffs/

Appellants , ) ) Tennessee Claims Commission ) No. 304797 VS. ) ) STATE OF TEN

NESSEE, ) Appeal No. ) 01A01-9701-BC-00020 Defendant/Appellee. )


### O P I N I O N
This appeal arises from the injury of a passenger

in a motor v ehicle w

hich was struck in the rear by

a Tennessee Highway

Patrol Cruiser operated

by a Troope

r of the patrol. TheState Claims Commission found the fault of the Trooper to be 85% and that of the drive r of vehi cle occupied by the injured passenger to be 15% and assessed damages accor

dingly. The State filed a petition for judic ial revie

w by this Court, present

ing the f ollowing issues: 1. Tr oo pe r C hr is ti an sa w t he Di ll on ca r fol lo we d b y a ca r driving erratically . He pursued the erratic car, c rested a rise, saw on ly D il lo n a nd im me di at el y t urned o n his emergency equipmen t. When Dillon slowed and moved toward the right sho uld er, Christian

attempte d to pass, but Dillon began to turn left. Christian veere d to t he right and hit Dillon’s rear bumper. Did the Commissionererr in holding that Trooper Christian breached his duty of care to Dillon? 2. When Mr. Dillon began to turnleft, he activated his left turn signal less than 50 feet bef ore the turn in violation of state law. Ba sed on thisact, the Commissionerheld that Mr. Dillon was only 15% at fault. Did the Commissione r err in that Troo per Chris tian was 8 5% at fa ult?
The Claima

nts prese nt the issue s in the fo llowing f orm: 1. Whether the Te nn es se e C la im s C om mi ss io ne r e rr ed by a preponderance

of the evidence in holding that an experienced highway patrol of ficer f ailed to use due r egard for the s afety of the plaintiffs by initiating a hig h-speed chase around them from the rea r over hi lly

terrain in the dark on a

rain-wet road after turni ng on hi s emergency equipment two-tenths of a mile back at 50 m.p.h. in a 30 m.p.h. residential area and then, despite having total visual command of the situation, crashing vi olently into the re ar of the

car as it sat entir

ely in the ri gh t lane of a shoulderless, two-lane road in front of

the plain tiffs’ drive way with t he tur n ind icato r blin king?-3- 2. Whether the Commissioner, after assessing the credibi lity of the witnesses and the weight of all the evidenc e at t rial, erred in apportioning 85% of the fault to the neglig ent trooper who had ample time and distance to slow his crui ser to a controlla ble speed under the road conditions and k n own presenceof the plaintiffs; and who testified that he knew beforehand

t hat the wetne ss of the r oad would

diminish his ability to stop or slow hi s cruiser, ye t maintained an uncontro llable

s peed o n approa

ch of the plaintiff s’ vehic le from the rear, d espitehis admitted personal knowledge that the driver of the plaintiffs’ vehicle might not have then perceived his cruiser tw o-tenths of a mile behind him at 50 m.p.h.?
I.

THE FACTS
With minor exceptions noted hereafter, the facts are undisputed.

The collision occurred on U.S. Highway 70N which is a two lane paved highway with no shoulde

r adjoining the pa

vement on

the north side due t

o a ditch near the

pavemen t.

Plaintiff Donald Di llon was dr

iving hisvehicle

westwar d in the described area

at a very slow speed searching for a dr iveway on the

south (left) side of the roadway which driveway

he intended to enter by turning left across the (south) east-bound lane of the roadway . It was dark and raining, causing lowvi si bi li ty. Approximately 3/10 of a mile to the east of the sce ne, there is a c rest in the level of the road obscuring vehicle s beyond the cr est. East of said crest, th e speed limit was 55 m.p.h., but west of the crest, the speed limit was 30 m.p.h.

For some distance before arriving at the scene, M r. Dillon n oticed a

nother pr ivate ve hicle (not the patrol cruiser), approaching at a high rate of speed

shifting his headlights high and low
as though trying

to pass. At some point near the crest, the speeding vehicl e passe d the Dillon vehicle and continued westward at a hig h rate of speed.-4- At about t

his time, the Trooper was approaching the sce ne from the west, movi n g eastward, faci n g the Dillon vehicle. Seeing the antics of the speeding vehicle, the Trooper decided to chase and intercept the speeding ve hicle, but it was necessary to chang e direc tion to do so. After passing the Dillon vehicle, the Trooper c ontinued eastward to a point where t h e reversal of direction was accomplished and the Trooper approached the scene, w estbound a

t a high rate of speed with siren and emerg ency lig hts activated. The cruiser was not visible to Mr. Dillon until it passed the crest in the road 3 /10 of a mile fro m the Dillon vehicle. Mr. Dillon testified that he never heard the siren or saw the blue lights until just before the collision, but that at the time of the collision he had moved to the extreme right of hi s l an e a nd wa s m ov in g s lo wl y.

The trooper testified that he saw the brake signa l of the Dillon vehicle and the movement to the right

portion of the west bound lane and presumed that Mr. Dillon was y ielding the right of way, and tha

t he (the Trooper) began

the mo vement to

pass the D illon vehic le on the l eft, using the southern (east-bound) lane; but the Dillon vehicle beg an to display a signal for a left turn and be gan to m ove to the left (southerly ) portion of the west bound lane; and that the Troope r t hen expected Mr. Di llon to turn left acr oss the sou

th (east b ound) lan

e which w ould result in the cruiser striking the Dillon broadside.

The Trooper

testifie d that his o nly

alterna tive was t o attempt t

o pass to the right

of the Dillon vehicle, but that

he was unable to do so, succeeding only in hitting the Dillon vehicle in the rear instead of the side.

The points of contact with the Dillon vehicle included the entire rear, that is, from the le ft end to the rig

ht end of t he rear bumper. Wh

en struck, the Dill on vehicl e was entir ely within the west bound lane.-5- II. THE LAW
T.C.A. § 55 -8-108 r

eads in pe rtinent pa rt as foll ows: Authorized emergency vehicles . - (a) The driver of a n authorized emergency vehicle, when respondingto a n emer gen cy

call, or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set fo rth in this section, but subject to the conditions here i n stated.

- - - - (3) Exceed the

speed limi

ts so long as life or property are not thereby e ndangered; and (4 ) Disregard regula

tions governing direction of movement or turning in specif ied dire ctions. (c) The exemptions herein granted to an authorized emergency

vehicle shall ap pl y only

when such vehicle

is making use of audible and visual signals meeting the require ments of the applicable laws of this state, except that an authorized emergency

vehicle operated as a police vehicle may be equipp ed with or

display a red li ght onl y in co mbination with a blue light visible from in front of th e vehicle. (d) The foregoing provisions shall not relieve the dr iver of an authorized emerg ency

vehicle from the d

uty to drive with due regard for the s afety

of all pe rsons, nor shall such provisions protect the driver

from the consequences of the driver’s own reckle ss disreg ard for

the safe ty o f others
. T.C.A. § 55 -8-143 r

eads in pe rtinent pa rt as foll ows: Signa ls for turns . - (a) E very driver w ho intendsto start, stop or turn, or partly turn f rom a direct line, shall fir st see that such

movement

can be ma

de in saf ety , and whenever the operation of any

other vehicle may be

affected by

such movement , shallgive a signal required in this section, plainly visible to the driv er of suc

h other ve

hicle of the inten tion to make such movement. (Emphasis supplied.) T.C.A. § 9- 8-403 (a

) (1) pr ovides in p ertinen

t part as f ollows: The de ci si on s o f t he in di vi du al co mm is si on er s m ay b e appealed to the entire claims commission pur su ant to rules promulgated

by t he commiss ion. The decisions of the individual commissioners or, when rendered, decisions of the entirecommission regarding claims on the reg ular dock et ma

y be appealed to the Te

nnessee Co urt of Appealspursuant to the Tennessee Rules of Appellate Procedure, e xceptthat tax appealsshall go directly

to the Tennessee Supreme Court and-6- worker s’ compensa

tion appe als shall b e appea led pursu ant to the procedure for other worker s’ compensation cases under § 50-6-225(e).

TRAP Rule 13 (d) provides in pe rtinent pa rt as foll ows: (d) Findings of F act of Civil Actions.- Unless otherwis e required by

statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of th e trial court, accompanied by a presumption of th e correctness of the findin g, unless the preponderance of the evidence is otherw i se. Find ings of f act by a jury in civil actions shallbe set as ide only if there is no material evidence to support

the verd ict.
III. DECISION OF

THE COMMISSI ON
The ju dgment of the Comm issi on con tains the fo llow ing:

The trooper was trying to ca tch a westbound car

that had been dri ving re cklessly and appa rently drunken ly. His bluelight signals, his siren, and

his headl ights we re all in f ull operation (but nothis horn). At one point he had been driving 65 or seventy miles an hour . There was no impe d iment whatev erto his seein g traf fic ahe ad of him f

or at lea st a quarter of a mile, and he did in fact see the car he hit as he came up behind

it. The trooper testified that he was going “forty to fifty ” miles an

hour at th

e point of impact. The trooper

said that he hit the car the claimant was in “right smack dab in the rear.” The collision happened in the we st bo un d r ig ht la ne of

th e h ig hw ay. It is not dispu

ted that, as a matt

er of fa ct, neither the claimant nor her husband s aw or he ard any of the trooper’s signals
. The duty arises when a party should ha

ve h eard the siren or sho uld h ave see n the l ights flash ing. But Thomas v. Statedoes not sa

y th at any body has a duty to hear w hat he did nothear or see what de did not see; the holding of Thomas v. Stateis that any

body is respon siblefor

looking for on-coming traffic on an y r oad he enters or crosses. Kowalski v. Elderridge, 765 S.W.2n d 746 (Tenn. App. 1988), has no reference to the d uty of a driver who did not hear or see a signal but should have: in that case the Court held that the driver in fact did hear the signal.

- - - --7- This trooper

was tr ained and experienc ed; in particular he knew tha

t other dr

ivers somet imes cannot see or hear emergency

equipment. He ha d a fullview of all the circumst ances. This trooper made mistaken assu mptions (like thinking the car ahead of him was g oing to go straight down the highway

and not turn left) and

mistaken perceptions (like thinking t hat the ca r ahead of him had

heard or seen his signalsand was yielding ); his acting on these m istakes, when ordinary care un der the circumstances required him to slow down, was the main cause of this wreck. Butt he trooper’s actions were not the only caus e o f the wreck. As the State’s brief say s, “It is a violation of T ennessee law to mak

e a left- hand turn

into a priv ate driveway without giving a signa

l continuously

for a distance of at least fifty feet. It is undisputed i n this c ase that Mr. Dillon failed to signal his proposed left-hand turn prop er ly. This Commission ta

kes judic ial notice

that any (sic) pe ople p e rform the dangerous driving error (which as the State’s brief say s is a viola

tio n of t he law) o f signa

ling a tu rn only while the y a re making the turn rather than befor e it, and sometimes onl y a fter co ming to a full stop pr

eparat ory to making the turn; this peculiar unreasonable hesita tion and reluctanceto sue turn signals is very common, so th at any trainedand experienced highway patrolman must be familiar with it and

prepar ed for it. All things considered, p articu larly that the trooper was experienced

and well trained, that the trooper had a full clear view of every

thing involved, that the other driver never heard or saw the trooper’s signals and h ad no ob ligation to notice thembecause henever

left his own traffic lane, that there was nothing to keep the trooper from driving more carefully than he d id whilecoming up behind the other car, and that Mr. Dillon clearly violated a statute in not sig naling h

is proposed turn properly. The Commission finds that Mr. Dillon was 15% liable, andthat trooper Christian was 85% liable, f or this wreck.
IV.

NEGLIGENCE OF M R. DILLON

The evidence does not pr epon derate against the decision of the Commission that Mr. Dillon did not see or hea r the lights or

siren (in time to obey them), a nd the finding of the Commission that Mr. D illon viola ted T.C.A . § 55-8-1 42 and 143 by f ailing to give a t imely signal before stopping or turning. The se findings must therefore be affirme d.-8- However, the Commissi on did not me ntion that M

r. Dillon f ailed to p erform t

he manda te of T.C.A. § 55-8-143, that every driver “who intends to start, stop or turn from a direct line shall first see that such movement can be made in safe ty.” I t is clear from a preponderance of the evidence that Mr. Dillon failed to observe the above e mphasized

portion of

the statut e; that his negligence

in this regard was one of the principal causes of the collision and; that, had Mr. Dillon looked before turning from a str aight lin e, he wou ld not have begun the left turn which misled the Troop er as to M

r. Dillon’ s intention s, and the collision would probably not have oc curred.

V. NEGLIGENCE OF THE TROOPER

The evidence preponderates in favor of the finding of

the Commission that the Trooper
was neglig ent acting upon a ssumpti o ns that we re not suf ficientl y w ell found

ed to justif

y hi s actions, and that

said negligenc e of the T

rooper w as the “main caus e of this wreck.” However, the preponderance of the evi dence do es not supp ort the finding tha t the fail ure to g ive timely notice of a turn is commonplace or, if so, such practice wa s known and should have been acted upon by the Trooper , or that it was subject to “judicial” (or administrative) notice by the Commission. This Court t herefo re decl ines to af firm thes e finding s.

VI. DISPOSITION OF APPEAL

The findings of fact heretofore c oncurr ed in by t his Court di stinguis h the pre sent cas e from Kowalski v. Eldridge , Tenn. App. 1988, 765 S.W.2d 746 and Thomas v. S tate , Tenn. App. 1987, 742 S.W.2d 649, cited by the State.-9- The circumstances of this particular case requ ire a revi sion of the percen tages o f fault assigned by the Commission (85% to the Trooper and 15% to Mr. Dillon). As above explained, t he failure of Mr. Dillon to first ascertain that his movement could be made w ith safet y substantia lly increases the percentag e of his fault; and the rejection of the du ty o f th e Trooper to know and act uponcommon negligence of motorists materially reduces the perc entage

of fault of the Trooper.

In Wrigh t v. City of

Knoxville , Tenn. 1995, 898 S.W.2d 177, the Supreme Court said: Alth ough it is true that the trier of fact has consider able lat itud e in alloc ating pe rcenta ges of f ault to negligent parties, see e.g., Martin v. Buss ert , 292 Minn. 29, 193 N. W.2 d 134 (197 1), appe llate cou rts may alter tho se findi ngs if they

are cle arly

erroneous. Because this case w as tried without a jury, our revie w of the issues of fact

is de novo on the record of

th e trial c ourt. How ever, w e must pre sume that the trial court’s findings were c or rect unless the preponderance

of the evidence is otherwise. Tenn. Code Ann. § 27-3-103; Tenn. R. App. P. 13(d).

In the present appeal, after revising the finding of fact

to conform with the preponderance of the evidence, this Court finds that the allocation of fault by th e Commission

was “cle arly
errone ous” and revises the judgment of the Com mission by allocating 60% of fault to the Trooper (i.e., the State) and 40% to the claimant Donald L . Dillon.

No issue is made a s to the finding of the Comm

ission of $ 220,000.0 0 total da mages. Ac co rd in gl y, this Court affirms and adopts this finding, but reduces the net award 40% or $88,000.00 to $132,000.00. Costs of thi s appeal will be pa id out of the Claims Fund of the State.-10- The cause is remanded to the Claim Commission for further appropriate pr ocedure.

MODIFIED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

____________________________ BEN H. CANTRELL , JUDGE

____________________________ WILL IAM C. KOCH, JR., JUDGE