# FILED July 12, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

________________________________________________ JOHN F. NICHOLS AND KERRY L. STEWART, Davidson Circuit No. 89C-3148 Plaintiff s-Appell ees, Vs. C.A. No. 01A01-9509-CV-00393 METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defend ant-App ellant, STATE OF TENNESSEE, Defendant-Appellee.

___________________________________________________________________________

FROM THE DA

VIDSON CO UNTY CIRCU IT COURT THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE

John C. Lye

ll, II, of Nashville For Plaintiffs-Appellees James L. Murphy, III, Director of Law, Department of Law of the Metropolitan Governm ent of Na shville and Davidso n County John L. Ke

nnedy of Nashville For Appellant Charles W. Burson, Attorney General and Reporter Rachel L. Steele, Assistant Attorney General For Appellee, State of Tennessee
AFFIRMED AND R

EMANDED Opinion fi led:
W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S. CONCUR: ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This appeal arises out of an automobile accident which oc curred in Nashville at the fourway intersection of Charlotte Avenue and Eakin-Wea kley Drive (Seventh Aven u e North) on October 24, 1988. Pl aintiffs , John F. Nic hols and K

erry L. S tewart, filed suit

against d efenda nt,1 Eakin-Weakley is not a “through street,” rathe r it leads to parking lots on the side of the state capitol building. 2 Metropolitan Government of Nashville and Davidson County (Metro), fo r personal injuries sustained in the acc ident. They also filed cla ims with the

Tenness ee Claims Commission a gainst the State of Tennessee. Subsequently, theclaims commission cases were transferred for tria l to the circuit court

and consolidatedfor tria

l with the p laintiff

s’ action s against

Metro in th

e circu it court. With

respect to Metro, plaintiffs’ complaint alleges that on October 24, 1988, there was

a traffic signal light “down” at the intersection of Eakin-Weakley Drive

and Charlotte Avenue. The complaint alleges that because the traffic signal wa s down, Billy C. Stair, a state employee, crashed into plaintiffs’ vehicle at approximately 6:15 p.m. The complaint avers that Metro was negligent because of the failure of its employees to promptly warn of the downed traffic signal and to provide proper traffic control after ha ving notice of the dangerous condition created by the “downed

” signal. The complaint further avers that the negligence of Metro’s employees was a direct and proximate cause of plaintiffs’ injuries. Metro’s answer admits that the traffic light at the intersect io n was down, admits that there

was a collision at the intersection, and joins issue on the remaining allegati ons of the complain t. Metro avers that the negligence of Billy Stair, in conjunction wi th th e negligence of the plaintiff s, was the proximate cause of the collision and the resulting injuries. Metro further avers that the decision not to provide emergency relief at the intersection was a discretionary act for which immunity from suit is preserved by T.C.A. § 29-20-205 (1980). The intersection of Charlotte and Eakin-Weakley is controlled by tra ffic sign als in all four directions. Plaintiff Kerry Stewart was driving her vehicle westbound on Charlotte Avenue when her vehi cle was struck by Billy C. Stair who was traveling southbound on Eakin-Weakley Drive. At the time of the collision, the traffic signal co ntrolling w estbound t raffic on Charlo tte
was green, and the traffic signal controlling southb ound traffic on Eakin-Weakley was inoperative due to an accident prior to the accident in thi s case. Immediately prior to the accid e ntin this case, Mr. Stair was exiting Eakin-Weakley Drive 1 and was o n his way h ome from work. Mr. Stair is an employee of the State of Tennessee, a nd at the time of the collision,2 Eakin-Weakley is on the north side of Charlotte Avenue and becomes Seventh Avenue

North once a motorist crosses Charlotte Avenue traveling south.

3 The Metro Transit Authority dispatcher placed the call to the police dispa tcher after receiving a call from a Metro bus driver who r eported that there had been an ac cident at the corner of Seventh Avenue North and Charlotte Ave nue. The bus driver apparently did not mention that the traffic signal had been knocked down. 3 he was driving an automobile owned by the State of Tennessee. Plaintiff Stewart testified that there were no warning signs indicating that the traf fic light for Eakin-W eakley w as inoper

ative, a nd that Sta

ir's auto mobile ap

peared suddenly and that there

was no chance to avoid him. Mr. Stair testified that he was familiar with the area and the intersection since Eakin-Weakley was his normal and customary route to and from work. Mr. Stair also testi fied tha

t he did not slow down at the intersection of Charlotte and Eakin-Weakley, because he thought he had a green light. He further testified that he did not notice that the traffic light controlling Eakin-Weakley Drive was missing, and that his view of westbound traffic on Charlotte Avenue was obstructed by a wall along the northea st corner of Eakin-Weakley. Approxima

tely two hours prior to the accident involving the plaintiffs, a tractor-trailer struck the pole which held the traffic signal facing Eakin-W eakley Drive. 2 The Metro Police dispatch records indicate that a call was rec eived at 4:17 p.m. from a dispatcher at the Metro Transit Authority

regard ing an ac cident in

volving a t

ractor -traile r at Seve nth Avenue North

and Charlotte. 3 The call

from the M etro Tra

nsit Author

ity dispatc

her to the

poli ce dispa tcher indicated that there were no personal injuries, thus, the police dispatc her "assigned [the call] a lower priority relative to a personal injury accident.” The Me tro Police dispatch record s contain

no indicatio n that the

Metro Tr

ansit Auth ority dispatcher notified the Metro Police dispatcher that the traff ic signal wa s “downe d.” The p olice disp atcher testifie d that she

called out a dispatch at 4:37 p.m. and that ther e was a response and arrival at 4:41 p.m. Apparently two officers answered the call but took no action and left the scene at 4:41 p.m
. and 4:43 p.m. One of the two officers who was originally dispatched to the intersection, Dan iel Crock ett, was a gain dispatchedat 5:10 p.m. Officer Crockett arrived at the intersec tion at 5:25 p.m., whereupon he investigated the scene, wrote out the accident repor t, and left the intersection with three directions of traffic controlled (by signal). The fourth direction of traffic, which, prior to the4

accide nt, was controlled by the signal facing Eakin-Wea k ley, was left uncontrolled. Officer Crockett left the intersection without directing traffic, without putting up warning signs, and without directing anyone else to put up warning signs. Officer Crockett testi f ied that he di d notstay to direct traffic, because traf fic on Eakin-Weakley was very “ligh t.” He testified that the training he received at the police aca demy regarding inopera

tive signa ls was to pe

rsonally direct traffic when volume was heavy and when he f

elt direction was necessary, "but not to do

so when tra

ffic flow was light or non-existent." Officer Crockett testified that in a downed signal situation, standard police procedu re was to notify the county-wide dispatcher of the inoperative signal; the county-wide dispatcher would then notify Metro Traffic and Parking employees that

a signal wa s in need of repair. Office r Crocke tt furthe r testified that although he di d not rec all contacting ei ther the county-wide dispatcher or Metro Traf fic and Parking, he was sure he contacted one of the two because that was standard proc edure. The record indicates that Metro Traffi c and Parking did not receive notification that the signal was out of service until 9:50 a.m.
on October

26, 1988, t

wo days a

fter the accide nt involvi ng the plaintiffs, and then only after reviewing the accident report that was fi led by O fficer Crockett concerning the tractor-trailer accident that knocked down the pole. Terry Grissim, a Metro Traffic and Parking employee who re p airs traffic

signals, testified that a "knock-down" situation in which one traffic light is down at

a four-way intersection and the remaining three directions are left con trolled, i s a "dange rous cond

ition." Mr. Grissim testified that

a "knockdown is . . . [a] top priority." Mr. Grissim testified that it was his normal procedureto maintain a log of his repair activities, and he testified that he mainta

ined this log

on October 24, 1988. He stated that whenever he receiv ed a call regard

ing an inop erative

signal, he noted the time

of the call and the location of the inoperative signal in his log. The log was introducedinto evide

nce and showed th at Mr. Gr

issim had been repa

iring tra ffic signals all day

on October 24th, and that

he received no notification of the downed light facing Eakin-Weakley. Mr. Grissim stated that

it would normally take approximately eight hours to re-erect a downed pole and install a new light, andthat he did not have the equipment to erect a temporary stop sign at the intersection of Eakin-Weakley and Charlotte Ave nue. However, he also stated that if he had been notified of the downed signal, he could have placed the remaining intersection signal5

lights “in a flash operation.” Ernest Clark Poteete, the Sup erin tendent of Operations at Metro Traffic and Par king, stated in his deposition that Metro Traffic and Parking has methods of providing

alterna te traffic control during a peri od of sign al failure, including putting the signals on flash and having someone direct traffic. At the conclusion of the nonjury trial, the trial court found Met

ro and the State ea ch fifty percent at fault for the plaintiffs ’ injurie s, and the court entered judgment for Nichols in the amount of $30,000.00 and for Stewart in the amount

of $180,000.00. Only Metro has appealed. Metro’s first, second, and fourth issues are interrelated a nd will be considered together. As stated in Metro’s brief, these issues are:

1. Whether

the tria l court's findings of negligence against the metropolitan government are supported by a prepo nderance of the evidence? 2. Whether the trial cou

rt's conc lusion of negligenc e agains tthe metropolitan government and/or assignme nt of comp arative

fault are cle arly er

roneous? 4. Whether

the discr

etionar y functio n im m unity from tort liability applies to a decision of a metro police officer regarding manual traffic direction? The Governmental Tort Liability Act, T.C.A. § 29-20-101 et seq. (1980 and Supp. 1995) is premised on absolute immunity for governmental entities except as specifically re moved by the Act. See Collier v. Memphis Light, Gas & Water Div. , 657 S.W.2d 771 (Tenn. App. 1983); Pate v. City of

Martin , 586 S.W.2d 834 (Tenn.App. 1979). T.C.A. § 29-20-205 (1980) provides in pertine nt part: Immunity from suit o f all gove

rnmenta l entities is re moved for injury proximately caused by a negligent act or omission of

any employee within the scope of his employment except if the injury: (1) Arises out of the e xercis e or per formanc e or the f

ailure to exerci se or perform a discretionary function, whether or not the discretion is abused . . . . Metro contends that

following the first accident, Officer Crockett’s decision to answer another callrather than stay at

the inter section a

nd direc t traffi c was disc

retiona ry rathe r than ope rationa l, because officia l police p olicy pro vides an o fficer with discr

etion to dir

ect or no t direct t

raffic4 The testimony at trial established that Metro Police policy allows an officer to leave a n intersection with a disabled traffic light as long as the traffic volume is “light.” 6 depending upon the officer’s assessment of the traf fic volume or flow. 4 Metro further contends that although a police o fficer may normally be considered an ope rational employee, there are instances in which an operational employee is entitled to discretionary immunity. Metro as serts that Officer Crockett’s decision to answer anothe r call rather than stay at the intersection and direct traffic involved a balancing of policy c onsidera ti ons and was, therefore, discretionary.

In Bowers by Bowers v. City of Chattano oga , 826 S.W.2d 427 (Tenn. 1992), our Supreme Court, in adopting the “planning-operational” test for determining what decisions are discretionary, stated:

Under the plann

ing-oper ational t est, decisions that rise to the level of planning or policy making are considered discretionary acts which d o not give rise to tort liability, while decisions that are merely o

peratio nal are

not consid

ered dis cretion ary act s and, therefore, do not give

rise to immunity. See Carlson v. State , 598 P.2d 969, 972 (Alaska 1979). The distinction between planning and operati onal depe

nds on the t

ype of de cision ra

th erthan merely the identity of the decision maker. See id . We caution that this distinc tion serves only to aid in determining when discretionary function immunity applies; discre t ionary function immunityattaches to all conduct properly involving the bala ncing of polic y considerations. Therefore, there may be occasions where an “operation al act ” is entitled to immunity, where, for instance, the operational actor is properly charged with balancing policy considerations. See United Stat es v. Gaubert , 499 U.S.

___, 111 S. Ct. 1 267, 113 L.Ed.2d 335 (1991)(recognizing that operational activities grounded in p olicy ar e entitle d to discretionary function immunity). Id . at 430-31. Although the Bowers Court stated that discretionary immun ity may attac h in some instances to the acts of an operati onal act or, the Court also c autioned that discr etionar y immunity does not “automatically attach to all acts involving choice or judgment,” because “ to som e extent, every act involves discretion.” Id. at 431. When considering whether an act is a planning

or operational act, cou rts s hould focus on the decision making process and the propriety of judicial review of the resulting decision. Id . The Bowers Court stat ed:
If a particular course of

conduct is determined after consideration7 or debate by an individual or

group charged with the formulation of plans or p olicies, i

t strongly s uggests the result i s a planni n g decision . These d

ecisions often re sult from a ssessing p rioritie s; allocating resources; developing policies; or estab lish ing plans, specifications, or schedules. (citation omitted) On the other hand, a decision resulting fr o m a determination based on preexisting laws, re gulations , policies, or standar ds, usually indicates that its maker is performing an operational act. Similarly operational acts are those ad hoc decisions made by an i ndividual or group charged with the development

of plans or policie s. These operati onal act s, which often implementprior

planning decisions, are not “discretionary funct ions ” within the meaning of the Tennessee Governmental Tort Liability Act. In other words, “the discretionary function” exception [will] not

apply to a claim that government employees failedto comply with regulat ions or policies designed to guide their actions in a particular situation.” Aslakson v. United States , 709 F.2d 688, 692 (8th Cir. 1986). Id

. The policy of

the Metro

Police De

partmen t in an inop erative

signal situ ation is tha

t if traffic is heavy a

n office r should st

ay and ma

nually dir ect traf fic; if tr afficis light the of

ficer is free to leave and answer another call. Officer Crockett assessed the traf fic flow, determined that it was light, and left the intersection. While Metro’s policy regarding manual traffic direction in a downed signal situation may be unwise or even negligently formulated, the adoption of the policy is a discretionary function, and Metro may not be held liable w hen one of its police officers properl

y complie d with this policy. Thus, no liability may be imputed to M etro simpl y because Officer Crockett left the a ccident scene because the traf fic was “light.” Liability may be premised, however, on the intersection’s “dangerous condition” and the officer’s decision to leave without placing a call to Metro Traffi c and Par king or to

the countywide dispatcher. T.C.A. § 29-20-203 (Supp. 199 5) provid es: (a) Immunity from suit of a governmental entity is removed for any injury caused by a defective, unsafe, or dangerous condition of any stre et, alley , sid ewalk o r highway, owned and controlled by such governmental entity. “Street” or “highway” includes traffic control devices thereon. (b) This section s hall not a pply unless constructive and/or actual notice to the governmental entity of such condition be alleged and provedin addition to the procedural notice required by § 29-20- 302 [repealed]. The discretionary functionexception does not apply to proceedings under this section. Helton8

v. Knox Coun ty , No. 03-S-01-9502-CV-00015, slip op. at 16-17 (Tenn. May 13, 1996). A municipal corporation has a duty to mai ntain its streets in a reasonably safe condition and the exerci se of this duty

require s “exer

ciseof ordinary care to keep . . . streets in a re asonably safe condition for trav el day and night in the customa ry modes b y personsthemselv es exerci sing

reasona ble care.” Bryant v. J

effers on City , 701 S.W.2d 626, 626-27 (Tenn.App. 1985)(quoting Blackburn v. Dillon , 189 Tenn. 2 40, 243, 225 S.W.2d 46, 47 (1949)). In determining the liability of municipalities for dangerous conditions on public streets, ordinary principles of negligence apply. Bryant , 701 S.W.2d at 627. The trial court

found that once the traffic light controlling southboundtraffic on EakinWeakley was knocked down, the four-way intersec tion became an “immediate hazard, a dangerous condition . . . .” The court found that once Officer Croc kett became aware of the disabled traffic light, the intersection became a “de fe ct in a roadway” for purposes of the Tennessee Governmental Tort Liability Act. In Bryant v. Jeffer

son City , 701 S.W.2d 626 (Tenn. App. 1985), thi s Court noted that: Courts generally hold that where a municipality h as actual or constructive notice that a stop sign is down, the city’s negligence in failing to

restore the sign is determined by the issue of whether the city had a “rea sonable

time to effect repairs.” Smith v. God in , 61 Ill.App.3d 480, 18 Ill. Dec. 754, 378 N.E .2d 21 8 (1978). What constitutes a “reasonable t im e” to make repairs will vary according to the facts of each case. Bowen v. Riv erton City , 656 P.2d 434 (Utah 1982). Id. at 627. While the case before us does not involve a “downed stop sign, ” the s ame eff ect is present ed by a do wned tra

ffic signal. I

t would appear that the word “repairs” pr ovided for the in th e above

genera l rule would include

any type o f tempora

ry measu re take n to allevia te a dangerous condition

before actual r epairs c an be co mmenced . In the c ase at bar, the officer testified that “department policy” was to notify the “county-wide dispatcher” of an inopera tive signal, and that t

he county -wide dis patcher would then notify Metro Traffic and Parking so that repairs could be commenc ed. Off icer Cro ckett tes tified tha

t this polic y was in pla

ce for “ safety

reasons . . . [t]o get the pole back up o r get th e traffic light to work.” Although the officer testified that he notified either Metro Traffic and Parking or the c ounty-wide dispatcher of the5 The northeast corner of the intersection is occupie d by the state capitol building.
6 Officer Crockett apparently determined tha t traffic was “light” based only on the number of cars in the parking lots surrounding Eakin-Weakley Drive
. 9 downed signal because “that’s pretty much standard proce dure,” he admitted on further questioning that he had no independent re collection of notifying either the county-wide dispatcher

or Metro Traffi c and Par

king. Off icer Cro ckett als o ackno wledged that there was nothing in his accident report to indicate that he had in fact made such notification. Ernest Clark Poteete, a superv

isor at Me tro Traf fic and Park

ing, testif ied that a ll calls concerning inoperative signals are documented by the time, dat e, an d identity of the caller. The records of the depart ment were introduced into evidence, and there was no record of any call received on October 24, 1988, r

egardin g the inope

rative si gnal at t

he intersec tion of Charlotte and EakinWeakley. Mr. Grissim, who was on call repairing signals on October 24, 1988, testified that he

never received a call regarding an inoperative signal at the inter section. He also te stified th at if such a call ha

d been received b y his department, he would havebeen notified because a “knockdown” is a top priority. The proof established that the dangerous condition of the intersection was exacerbated b y stone retaining walls on the northeast corner of the intersection and the fact tha t th e intersection is at the c

rest of a hill. 5 Due to the walls and the contour of Charlotte Avenue, westbound traffic on Charlotte (plaintiffs’ direction) is entirely ob scured from the view of southbound traffic

on Eakin- Weakle

y (Billy Sta

ir’s directio n), an d vice-versa. These factors contributed to the danger of the intersection, and they were e ither known or should have been known by O fficer Crockett when he investigated the accident. Reasonable c are under similar circu ms tances would require at least some steps to alleviate the danger pre sented by the intersect ion b efore leaving the intersection. Furthermore, Off icer Crockett’s testimony indicates that his determination that traffic flow was “light” was unreasonable, because at the time Officer Crockett investigated t he a ccident (5:25 p.m on a Monday in downtown Nashville), “a lot of people are leaving town . . . .” 6 The record supports the appellant’s contention that the pole and light could not have been replaced prior to the accident in question. However, the record indicate s that had

Metro Tr affic7 The record indicates that Mr. Grissim was at work re pairing traffic signals on the aftern oon of Oc tober 24t

h, and tha t he could have re ached th

e intersection app

roximate ly thirty minutes af

ter rec eiving not

ificatio n of the in operati ve signal
. 10 and Parking been notified of the downed signal, Metro Traffic a nd Parking c ould have taken

measures to alert motorists of the dangerous condition of t he i ntersec tion, and t

hat these measures could have been implemented prior to the ac cident in this case. In summary, Officer Crockett’s failure to notify the count y-wide dispatcher of the inoperative signal and his decision to leave the intersection (a busy, d owntown, four-way intersection in which westbound and sou thb ound motorists were obscured from each other’s vision) w ith three directions of traffic controlled and one direction of traffic uncontrolled, constituted negligence. Moreover, after notice of the condition, Metro had a reasona ble time to effect some repairs or provide some type of war ning and/o r some type of traffic control. Mr. Grissim testified that had he been notifi ed of the “kno ckdown” it would have been his “top pri ority, ” and he could have placed the remaining signal lights “in a flash oper ation.” Mr. Grissim testified that once he arri ved at the intersection, it would have ta ken him ap

proximate

ly five minutes to place the lights on flash. The record indicates that had Mr. Grissim been notified of the inoperative traffic

signal at o

r near t he time Officer Crockett was dispatched (5:10 p.m.)

or when Off

icer Cro ckett ar

rived to in

vestigate the inte rsection (5 :25 p.m.), Mr. Grissim or another Met ro Tra ffic and Parking employee would have placed the tr affic signals facing Charlotte Avenue and Seventh Avenue on flash prior to the ac cident in this case. 7 Plaintiff Stewart testified that she would have definitely approached the intersection with greater caution if she had seen a flashing light. The trial cou

rt found t hat Metro ’s failur

e to provide any warning and/or traffic control at the intersection was a proxima te cause of the collision and plaintiffs’ resulting injuries. The evidence does not preponderate aga inst this finding. Appellant’s last issue

for review is “[w]he

ther the trial cou rt committe d rever sibleerror by admitting and relying upon proof of subsequent remedi al measures by the metropolitan government.” Metro co ntends tha t t h e trial court committed reversible error by admitting testimony from Mr. Stair in which Mr. Stair stated that when he saw that the signal had not been11

repaired on October 25, 1988, he called an acquaintance in the Metro Mayor ’s Office to report the problem. After Mr. Stair made various phone calls to city officials, the signal wasrepaired t he following d ay. Metro contends that the testimony was offered to show that Metro was negligent by not repairing the signal until two days after the accident in question. Metro argues that this testimony should have been excluded, because it constituted evidence of sub seque nt remedial measures under Tenn.R.Evid. 407. It appear s that this t

estimony w as irrel evant and of no pro bative va lue with respect to any of the issues in this case. However, from our review of therecord, we find that the admission of this e vidence did not af fect the judgment o

r result i n prejudi ce to the judicial p

rocess. T.R.A.P. 36(b). Metro also questions the trial court’s allocation of fault. The trial court found Metro 50% at fault for

the injuri es and da

mages wh

ich the pl aintiffs ’ sust ained. T he trier of fact has “conside rable latitude i n alloca

ting perc entagesof fault t o negligent parties.” Wright v. Cit y of Knoxville , 898 S.W.2 d 177, 181 (Tenn. 199 5). An ap pellate court may modify those findings only if they are clearly erroneous. Id . Based up on the re cord bef ore us, we cannot say that the trial court’s allocation of fault to the respective defendants wa s clearly erroneous. The appe llees’ remaining issues are pretermitted. The judgment of the trial court is affi rmed, and the case is remanded for such further procee dings as a

re nece ssary. Co sts of this a ppeal ar e assess ed again st the app ellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

_________________________________ ALAN E. HIGH

ERS, JUDGE

_________________________________ DAVID R.FARMER,

JUDGE