# FILED Oct. 20, 1995 Cecil Crowson, Jr
. Appellate Court Clerk ALL EN D. HEFLI

N and wife, ) JEAN LaRUE HEFL

IN, as Natural ) Parents and Next-of-Kin of ) HUGH ALL

EN HEFLI

N, Deceased, ) Plaintiff s/Appella nts, )

) Stewart C ircuit ) No. 1730 VS. ) ) Appeal No. ) 01-A-01-9504-CV-00131 STEWART COUNTY, TENNESSEE, ) a Political subdivision of the State of ) Tenness ee; DAV ID HICKS, in his ) officia l capac ity a s Sheriff

of Stewa rt ) County , Tennes see; JOHN S. WATKI NS, ) JOE HENRY CRUTCHER and WANDA ) LUFFMAN, in their of

ficial capacities as ) Deputy Sheriff s for the Stewart C ounty ) Sheriff 's Depa rtment; L EON HOL

LI S, ) DALTON BAGWEL

L and GREG ) BARROW, in their official capacities as ) employ ees of the Stewar

t County ) Ambulance Service, ) Defend ants/Appe

llees. )

IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CI RCUIT COURT OF STEWART COUNTY AT DOVER, TENNESSEE

HONORABLE ROB ERT E. BURCH, JUDGE

JOSEPH H. JOHNSTON P.O. Box 120874 Nashville, Tennessee 37212 ATTORNEY FOR PLAI

NTIFFS/APPEL

LANTS
George A. Dean PARKER, LAWRENCE, CANTRELL & DEAN 200 Fourth Avenue North, 5th Floor Nashville, Tennessee 37219 ATTORNEY FOR DEFENDANTS/APPEL LEES

AFFIRMED AND

REMANDED HENRY F. TODD

PRESIDING

JUDGE, MIDDL

E SECTION SAMUEL

L. L EWIS, JUD GE, CONCU RS WILL IAM C. KOCH, JR., JUDGE, FIL ES SEPARATE CONCURRING OPINI ON-2-

ALL EN D. HEFLI

N and wife, ) JEAN LaRUE HEFL

IN, as Natural ) Parents and Next-of-Kin of ) HUGH ALL

EN HEFLI

N, Deceased, ) Plaintiff s/Appella nts, )

) Stewart C ircuit ) No. 1730 VS. ) ) Appeal No. ) 01-A-01-9504-CV-00131 STEWART COUNTY, TENNESSEE, ) a Political subdivision of the State of ) Tenness ee; DAV ID HICKS, in his ) officia l capac ity a s Sheriff

of Stewa rt ) County , Tennes see; JOHN S. WATKI NS, ) JOE HENRY CRUTCHER and WANDA ) LUFFMAN, in their of

ficial capacities as ) Deputy Sheriff s for the Stewart C ounty ) Sheriff 's Depa rtment; L EON HOL

LI S, ) DALTON BAGWEL

L and GREG ) BARROW, in their official capacities as ) employ ees of the Stewar

t County ) Ambulance Service, ) Defend ants/Appe

llees. )

O P I N I O N
The captioned plaintiffs have appealed fr om the dismissal of their suit against the defendant, Stewart County , Tennessee, arising out of the suicide of Hug h Allen Heflin in the Stewart C ounty

Jail. No com

plaint is ma

de on app eal as to

the summar

y di smissal of

all other defendants. This suit is limited to damages for pain and suffer ing of deceased. Damag es for wr

ongful d eath hav e been r

ecover ed in fed eral court.

The Trial Court heard the suit against the County without a jury under the Governmental Tort Liability Act, found that death of deceased was due to 60% fault of the deceas ed and 40 % fault of gover nmental e mploy ees, and

dismissed t

he suit.

-The Fac tsOn Septem

ber 3, 19 87, dece ased wa s arres ted and incarce rated in the Stewa

rt County jail about 8:00 A.M. Thereafter, he was observe d by a jail employ ee at 8:57, 9:40, 10:31 and 11:15 A.M. At 12:06 P.M ., the dec eased w as found h anging from the t

op of his shower sta

ll-3-

by means of a

noose of strips of bed sheet around his neck. His hands and fee t were bound together with strips of bed sheet, and a washcloth or towe l was stuffed in his mouth. The water was running in the shower stall. Dec eased was unconscious when found; and, at 12:30 P.M., he was pronounced dead by strangulation.

In September, 1987, the written policies of the Stewa rt County Jail required: For the preservation of security and maintenance of order, every inmate wi ll be clas sified up on admissio n to this fa cility and will be assigned housing according to the classification.

. . . . This facility will make ever y reasona ble effort to provide separate housing for each of the following categories of inmates: . . . I nmates with specia

l problems(e.g. alcoholi cs, narc otic addicts, mentally

disturbe d inmates, inmates w ith communi cable diseases) . . . 1. Review of Records: The Chief or the booking office r will review the admissions records and any existing facility recor

ds concerning the inmate for the following information: . . . i. Evidence of suicidal tendency 2. Classification: The booking officer will assign the inmate a classification code in the order listed below: . . . e. Special Problem -"SP" ( special problem) -" T" (t ru st y)

. . . . 1. All incoming inmates will be classified according to the classifi cation c ode durin g the bo oking pr ocess, ut ilizing all known information at the time of booking. The classification system is described in POL ICY (1) of this chapter.
On Septem

ber 3, 19 87, the records of the offic e of Sher

iff of Stewart Coun

ty
conta ined t he fol lowi ng:

6/22/85. Mont. Co. advised this dept. that they have a re port of a Hugh Heflin at Memorial Hospital emerg ency room of an attempted suicide. Mont. Co. wanted to know if we were aware of situation. 10-50-4- The Sheriff testified: Q. Do you know wh

ether he was take n, as a ma tter of f act, to the psy cholog ical clin

ic -- to th e Dover Psyc hologic al Clinic in the spring of 1987? A. Yes, sir. Q. Do you know that he w as taken there on more than one occasion? A. Yes, sir.

. . . . Q. Is it usual for prisoners to be taken ba ck and forth for psychological counseli ng while

incarc erated

in y our jail? A. Yes, sir.
The Sheriff also testified of an occasion on June 8, 1987, when dece ased made a disturbance in the "drunk tank" of the jail, and of a n occasion when deceased had c omplained of abuse by a

n arresting officer, but the investiga tion revealed he had beaten himself.

Deceased was not classified as a " special needs prisoner," subject to observation eve ry 15 minutes, but as an ordinary pr isoner subject to hourly obser vation.

-The Proc eedingsThe plaintiffs filed suit in federal court for violation of civil rights of dec eased and obtained a jury ve

rdict and judgment for $154,000.00 for wrongful death. However, damage s for pain and suff ering w ere not a

llowable under the federa l statutes and wer

e not incl uded in the fede ral cour t judgme nt.

The pre sent suit in

the state court wa s amende d to limit re quested d amage s to pain and suffering suffered by

deceased prior to loss of consciousness.-5- The Tria l Judge fi led the f

ollowing "Findings of F act and C onclusion s of L aw:" 1. The deceased was afra id to go to jail but the record does not show that this f act was c ommunica

ted to the defenda nt's ag ents. 2. The deceased was a potential esca pe risk and defendant knew it. 3. The deceased had previously inflicted injuries upon himself while in jai l and def endant w as awar

e of this. 4. The defendant was aware tha t the deceased had emotional and drug problems and had been re gularly visiting the mental health c linic during his la st stay in the jail

. 5. The deceased was well known to the Sheriff a nd his staff. They detected no change in his demeanor nor did his demeanor give them any

reason to be on notice that the deceased intended suicide o r any self-ha rm. 6. The deceased had appare ntly attempted suicide once be fore and this fact was on a complaint card in the Sheriff's of fice. The Stewart County Sheriff 's Off ice was not involve d in the inv estiga tion and it only came to their a

ttention when Montgomery County called about it. The Sheriff is not chargeable with the knowle dge of the prior suicide attempt. 7. The operations manual of the jail required that special needs pr isoners b e observ ed at lea st every 15 minutes

. 8. The de ceased

was last s een at 11 :30 a.m. 9. Trusty Richardson hea rd the shower running between 11:40 and 11:45. 10. The deceased was found at 12:06. Having made the foreg oing findings of fact, the Court now makes the following conclusions of law: 1. That the

defenda nt was not o n notice t

hat dece ased wa s a suicide risk. 2. That defendant was on notice that decease d was a risk to harm himself and, therefore, should have been cla ssified as a special needs prisoner. He, therefore, should have bee n observed at least every

15 minutes. 3. If deceas ed had been obser ved eve ry 15 minutes , he would have been discovered before he lost consciousness but the hanging probably

would not have been prevented. 4. Double locking of the cell block was not a factor in the hanging. The sheet would have been seen. 5. Defendant breached duty to deceased. 6. Co mp ar at iv e f au lt do es ap pl y. a. This is n ot an inte

rvening /superse ding ca

use b. Deceased was responsible for his own actions. No indica

tion of men

tal illnes s. 7. The Court finds deceased 60% at fault, with the remainder of the fa ul t c ha rg ed to St ew ar t C ou nt y. 8. Damages for pain and suffe ring set at $5,000. a. Even i f duty

had not be en brea

ched, deceased

would have sustained some of the roughly less than 20 minutes of pain. Defendant is responsible for that portion after the breach. This would be less than approximately 15 minutes.-6- 9. The ca

p under th

e Tenne ssee Gov ernment al Tort L iability Act. This is not the same cause of action. [sic]
Ju dg me nt wa s e nt er ed fo r t he de fe nd an t C ou nt y.

On appea l, plaintif fs prese nt two issue s, of which the firs t is: I. Whether the Trial Court's a pplication of Doctrine Modified Comparative Negligence to Appor tion to Fault [sic] between the defe ndant' s employ

ees and t he actio ns of plai

ntiffs' decede nt which c aused hisself-inf licted inj ury

was err or as a matter of law.
Appellants insist that the doctrine of comparative neglige nce as declared in McInty re v. Balentine, Tenn. App. 1992, 833 S.W.2d 52, is applicable only where both parties have engaged in some neg ligent conduct which proximately c aused the injury a nd that the doctrine is inapplicable if one of the parties was innocent of negligence.

In McIntyre, th e C ou rt di d s ay: In Tennessee, the r

ule as initially stated was that " if a party, by his own gross negligence , brings an injury upon himself, or contributes to such injury, he c annot recover ," for, in such cases, the party

"must be regarded as the a uthor of his own misfortun e." Whirley v. W hiteman, 38 Tenn. 610, 619 (1858). In subsequent decisions, we have continued to follow the general rule that a plaintiff' s contributory negligence completely bars r

ecovery . . . . Equally entrenc

hed in Tennessee jurisprudence are e xceptions to the general all-or-nothing rule : contributory negligence does not absolutely bar recovery w here defend ant's conduct was intentional, see, e.g., Stagner v. Craig, 159 Tenn. 511, 514, 19 S.W.2d 234, 2 34-35 (19 29); Memphis St. Ry. v. Roe, 118 Tenn. 601, 612- 13, 102 S.W. 3 43, 346 (1 907); . . . . (Emphasi s supplied.) McIntyre, 833 S.W.2d at 54.
However, the quoted statements were a pa rt of a review of the law prior to the quoted opinion. N othing is found in th at opinion indicatin g that it i s inapplic able to in tentiona l fault of th e i nj ur ed pa rt y.-7- Moreover, the rule in McIntyre is not limite d to incide nts of negligenc e, for it r

efers to both neg ligenc e and fa

ult. For e xample, the

opinion sta

tes: Although we conclude that the all-or-nothing r ule of contributory negligence must be replac ed, we nevertheless decline to abandon totally our faul t-based tort sy stem. We do

not agr ee that a party should necessarily

be able to recover in tort even though he may be 80, 90, or 95 percent at fault. We therefore re ject the pure form of comparative fault.

. . . . In all trials where the issue of c omparative fault is before a jury, the trial court sha

ll instruct the jury on the effe ct of the jury's f inding as to the percentage of negligence as between the plaintiff or plaintiffs and the defendant or defenda nts. . . . McIntyre, 833 S.W.2d at 57.

The wor d, f aul t, is bro ade r th an t he w ord , ne gli gen ce, and in clu des in ten ti ona l ac ts . It includes, "an error or defect of judgment or of conduct; any deviation from prudence, duty or rectitude; " Black's Law Dictionary, Fourth Edition.

This Court views intentional fault of either party as being a circumstance which should be considered by

the finder of fact in making a finding as to the degree of fault of ea ch
pa rt y pr od uc in g t he in

ju ry.

Plaintiff s next arg ue that pu blic polic y r

equiresthat comp arative

fault not b e availa

ble to defendants having a duty to protect the injured party from intentional self-inflicted injury. Appellants cite an unpublished opinion of this Court filed on November 18, 1988, wherein a prisoner sued for injuries received when c ourt officers left him unsupervised in a conferenc e room and he jumped through an open sixth floor window. The Trial Court rendered summary judgme

nt for the government. This Court held that if self inflicted injury was

reasona bly forese eable, t

he custod ian did ha ve a duty to protect, and tha

t it was ina

ppropria te to hold as a

matter of law that t he condu ct of pla

intiff wa s an indep endent in terveni ng cau se of his injury. I

n the present case, the suit against the county was not dismissed by summary-8-

judgment, but was heard upon the merits with the result stated above. The Trial Court evidentl y f ound some d

uty to protec t, for it f

ound the County

40% at fa

ult.

While priso n officia

ls are no t insurer s of the sa fety of prisoners, the

y a re oblig ated to exercise reasonable care to protect the life and health of persons in their custody

. Cockrum v. State, Tenn. App. 1992, 843 S.W.2d 433.

Plaintiffs rely upon the finding of the Trial Court that the employe es of the defendant County breache d their duty of following their own rules designed to reduce the da nger of self-inflicted harm. It should be empha sized that the duty of defenda nts was not to prevent harm to deceased, but to comply with the regulations designed to reduce the danger of harm. The defendant County

was not an insurer of the safety of deceased.

It ha s been re asoned th at compa rative f ault doesnot apply

where th e injury is due in part to an intentional act of the injured party , as in the case of a person who knowingly steps into the path of an unlawfully speeding vehicle. Victor E. Schwartz, Comparative Negligence § 5-4(c) 2d Ed., 1994.

In Hickey v. Zezulka, Mich. 1992 , 487 N.W.2d 106, survivors sue d Michig an State University for a

suicide which occurred while decea sed was in a holding cell on the university campus in the custody of campus police. The deceased wa s allegedly intoxicated. He was pl aced in t

he holding

cell at 3: 20 A.M. No ne of his p ersonal article s, clothin g or belt

were re moved in vi olation of

an applic able poli cy

requiring remov al of objects which could harm an o fficer . The cell had a te n foot ce iling, a concre te bench and abov e it, meta

l bracke ts extending out from the wall. The custodial officer did not observe the pr isoner from 3:20 A.M. until 3:57 A.M. when she found him hanging from the bracke ts by a noose composed of his bel t. The Michigan Su

preme Cou

rt held tha

t the custo dial offi cer wa s neglig ent in failing to remove the belt, but not guilty of such deliberate indifference a s would render her-9-

unconditionally liable. The first opinion of the Court then stated tha t the failure to remove the belt a nd failur e to timely

observe "crea ted a stimulus for the

plaintiff 's act" so as to remove the defense of independent interve ning act, and that the refusal of a c harge on independent intervening act should be affirme d.

The firs t opinion of

the Michig an Supre

me Court then state s: The signers of this opinion also agree with the Court of Appeals that a comparative neglig ence instruction is improper in a jail suicide case, Hickey, supra at 617, 443 N.W.2d 180. The standard jury

instruction requested by Z ezulka provides as follows: " Plaintiff's negligence, if any, does not bar a recove ry by t he plaint iff ag ainst the d

efenda nt, but the total amount of damages to which the plaintiff would otherwise be entitled shall be reduce d by

the perc entage

that plain tiff's negligence contribu

ted as a p roximate c ause to [his/her] [inj ury

/proper ty d amage ]. This is known as comparative neglige nce." SJI2d 11.01 (emphasis added). The note on use accompany ing SJI2d 11.01 states that the instruction should be used only where there is a question for the jury reg

rading the negligenc e of the plaintiff. Therefore, this standa

rd instruction would b e approp riate in t his case only if the evidence s howed tha t Hickey acted ne glige

ntly in harming himself. In the cas e befor e us, t he tri al cou rt det ermin ed tha t Hick ey's conduct was intentional, rather than neglig ent, for purposes of applying the

standard comparative neglige nce jury instruction. Therefore, because the standa rd jury instruction should only be given w hen the pl aintiff' s negligence is a parti al proximat e cause of the injuri es that oc curred , and in thi s jail suic ide case the action taken by

the decedent was voluntary and intentiona l, we find that the standard jury instruction regarding compara tive negligence was not prope r here. . . . this Court initially accepted the doctrine of comparative negligence in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979); see also Kirby v. Larson, 400 Mich. 585, 256 N.W.2d 400 (1977). Throughout our analy sis, although we continuously refer

red to the application of the comparative "fault" of the parties, Placek, 405 Mich. at 660-662, 275 N.W.2d 511; Kirby , 400 Mich. at 642-645, 256 N.W.2d 400, we also stated that the doctrine only applies when the neglig ence of

the plain tiff bec ame an is sue in the case. I t is doubtful t hat we e nvisioned allowing an appor tionment of

fault when a pl aintiff u

ndertak es a volun

tary and inten tional ac tivity which ca uses har m to himself

, where a defendant has a

duty to-10- protect that plaintiff from harm, including injury by his own intentiona

l acts. Zezulka does not dispute that our courts and other jurisdictions do not extend comparative fault analysis to ca ses where a party

acted intentionally in ca

using harm. Rather than apportio ning fa

ult betwe en the pa

rties, one of whom

was only negligent and one of whom acte d intentionally, courts have placed o ne hundr

ed perc ent of the

fault on th

e party whose actions w ere inte

ntional. T

hus, a defendant

who inten

tionally injures a plaintiff is not entitled to mitigation of damages on the basis of the fact that the plaintiff's neglig ence was also a proximate cause of his injury. See Vining v. Detroit, 162 Mich.App . 720, 727, 413 N.W.2d 4 86 (1987) ; Melendres v. Soales, 105 Mich. App. 73, 82, 306 N.W.2d 399 (1981). . . . However, as we noted above in section V(A), a jail suicide case pr esents a n exceptio n to the rule that the re is no du

ty to give ai d to and pr

otect an other pe

rson fro m harm. Th

erefor e, if apportionment of fault is not available, a defendant who negligently

causes a person's suicide will bear the f ull burden of the plaintiff's damages, despite the f act that the plaintiff acted intentionally in harming himself. We must determine, then, if an apportionment of fault is appropriate in such a case

. Zezulka has made no argument to this Court in support of her claim that the trial court erred by refusing to give a compara tive fault instruction in this case. The plaintiff notes that Zezulka breached her duty

to use ordinary c are in protecting Hickey from harm, including his own intentional act of harming himself. The plaintiff argues, then, that it would be nonsensical to allow Zezulka to plead in mitigation of damages the ve ry occurrence she neg ligently fa iled to prevent. We agree with the plaintiff that apportionment of fault on the basis of the fact that a plaintiff intentionally harmed himself is not appr opriate in a jail suicide case. Hickey, 487 N.W.2d at 120-21.
Only three justices joined in the a bove quoted first opinion.

The majority of the Michig an Court joined in a partial dissent which stated:
. . . W here a p laint iff in tenti onall y commit s an act that b rings about an injury, the risk of w hich was increased by

the defenda nt's neg ligenc e, the pla

intiff or dinarily loses any cause of action he might have because of de fendant's neglige

nce. Where, however, the defendant assumes a duty to protect the plaintiff from that injury, as in this involuntary custody situation, I agree

that the plaintiff should not lose his cause of action. I disagree, however, that the other extreme should be ad op te d - th at th e d ef

en da nt th en as su me s a ll re sp on si bi li ty, and liabi lity , for inju

ries that the plain tiff inte ntionally commits-11- upon himself. The assumption of a duty to protect the decedent while in defendant's custody merely esta

blishes a legal basis of holding d efenda nt negli gent. T

he mere existence of a duty does not automatically lead to the c onclusion that the decedent's fault should not be considered. Decedent's fault, or contributing cause of his injury , is his intentional and unreas onabl e exp osure to th e danger create d by defend ant's negligence. 2 Restatement Torts, 2d, §466, p. 511. Hickey, 487 N.W.2d at 123.
As a result, the principal opinion contains the following unusual languag e: Thus, having concluded that Zezulka should have been grante d judgme

nt not-wit hstanding the verd ict on the civil rights claim, we direct entry of judgment for Zezulka on that claim. However, a majority of the Court has found error in the trial court's failure to instruct on comparative fa ult. Therefore, we reve rse the d ecision o f the Cour

t of Appe als with r

egard to the neg ligenc e claim a

nd reman d for a ne

w trial pu rsuant to MCR 2.611(A)(1)(g), . . . . Hickey, 487 N.W.2d at 122-23.

It the refore appear s that the p ortion of the opinio n favora

ble to app ellants isa minority statement, and the statement of the majority is contrary

to the contention of appella nts.

In Champagne v. United States, N.D. 1994, 513 N.W.2d 75, in a suit for negligence of a doct or in fail ing to pr event the suicide o f a menta

l patient in his custo dy, it was hel d that, since the evidenc e showed

that the p atient re

tained e nough me ntal cap acity

to be res ponsible for his well being, consideration of comparative f ault was proper.

In a similar case, Tomfohr v. Mayo Foundation, Minn. 1990, 450 N.W.2d 121, the patient was found to lack the capacity to care for himself, and comparative fa ult was not considered.

In McNamara v. Honeyman, Mass. 1989, 546 N.E.2d 139, the deceased committed suicide in a mental hospital. T

he major ity o pinion fou

nd that the

deceas ed lacke d mental-12-

capacity to be responsible for her actions and held that comparison of fa ult was inappropriate.
Howeve r, the sa me opinion

states: Mentally ill people who are capable of forming an intent and who do ac tually

intend an act that c auses da

mage w ill be held liable fo r that da mage. ( Citing au

thority .) It

follows th at a mentally ill person can be c omparat

ively neglig ent in some circumst ances.

In Cowan v. Doering , N.J. 1988, 5 45 A.2d 15 9, a menta l patient j umped fr

om a second story window. She sue d the hospital employees and doctor for negligence. The Supreme Court affirmed judgment for the plaintiff, but said:

Contributory neglig ence of a mentally disturbed plaintiff, though not expressly trea ted in our decisional law, has been the subject of debate within many jurisdictions. The modern trend appears to favor the use of a ca pacity-base d standard for the cont ribut ory neg lige nce o f men

tally distu rbed plain tiff s. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of

Torts § 32, 178 n. 39 (5th ed . 1984). T his standard tolerates a reduced standar d of care for such persons. It measures the conduc t of a mentally disturbed plaintiff in lig ht of his or her capacity

. See e.g., DeMartini v. Alexander Sanitarium, 192 Cal.App.2d 442, 13 Cal.Rptr. 564 (1961); Emory University v. Lee, 97 Ga. App. 680, 104 S.E.2d 234 (1958); Noel v. McCaig, 174 Kan. 677, 258 P.2d 234 (1953); Mochen v. State, 43 A.D.2d 484, 352 N.Y.S.2d 290 (1974); Feldman v. Howard, 5 Ohio App.2d 65, 214 N.E.2d 235 (1966), rev'd. on other grounds, 10 Ohio St.2d 189, 226 N.E.2d 564 (1967 ); Warner v. Kiowa County Hospital Authority, 551 P.2d 1179 (Okla.App. 1976).

. . . . We thus agree with the appellate Division's explanation of the capaci ty- based sta

ndard. T his standa rd reco gnizes th at a mentally disturbed plaintiff is not capable of adhering to a reasona ble pers on's sta

ndard of self-ca re, but a t the same

time holds that plaintiff responsible for the consequences of conduct that is unr

easonab le in ligh

t of the pla

intiff' s capac ity. In effect, this rule permits the application of a flexible reduced standard of care ; it does no t eliminate contribu tory neglig ence. T

hus, in a case in which an accident involves an appa rently negligent plaintiff who is ment

ally disturbe d, contri

butory neglig ence is an issue that should be determined under the capacity -based standard. Cowan, 545 A.2d at 163.-13- Appellan ts urge this Court to

impose ab solute lia

bility upon the d

efenda nt County pursuant to a public policy to be declared by this Court. This Court does not fix or declare public pol

icy which is e

nunciate d by

the Legisla

ture or th e Supreme

Court.

Traditionally, the very

commission of self-injury or suicide ha s been regarded as the result of some abnormal condition of mind, but the extent of the abnormality and the compete ncy of the actor rema

ins a fac t question

in the det erminati on of the d

egree of "fa ult" of the actor.

The Trial Judge sitting without a jury , determined the degree of f ault of the deceased. On appeal, his determination is presumed correct unless the evide nce preponderates otherwis e. Whatev er the e xact perc entage

of fault, the evide

nce doe s not prep onderat e against a finding that the "fa ult" of deceased was at least 50% of the cause of his suffering and dea th. The pa

instaking prepar ations fo r depar ture and a seven p age no te to his pa rents forgiving them for failing to wa rn of his impending arrest, and outlining details of his funera l and disposition of his possessions are circumstances reflecting upon the me ntal capacity

of deceased.

Even if it should be s hown that

the dece ased suf

fered s ome pain a

fter 11:4 5, his deliberate fault was at least 50% of the ca use of the pain for which his survivors may not recover under the rule announced in McIntyre v. Ballentine.

The foregoing rende

rs unnecessary

any discussion of appe

llants' second issue regarding the appropr

iate damages in event comparable negligence was dete

rmined to be inapplicable.-14- The judgment of the Trial Court dismissing the suit of plaintiffs is affirmed. Costs of this appeal are taxed against the appellants. The ca use is remanded to the Trial Court for

necessa ry further procee dings.

Affirmed and Remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

_____________________________________ SAMUEL

L. L EWIS, JUD GE, CONCU RS

WILL IAM C. KOCH, JR., JUDGE, FIL ES SEPARATE CONCURRING OPINI ON