IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

February 20, 2013 Session

HARDEMAN COUNTY v. JUDY I. MCINTYRE, ET AL.

Direct Appeal from the Circuit Court for Hardeman County

No. 08-02-0331/08-02-0351 J. Weber McCraw, Judge

No. W2012-01690-COA-R3-CV - Filed March 27, 2013

This case concerns the liability for a collision involving a vehicle operated by one of the

appellees and an ambulance operated by the appellant county. After a bench trial, the trial

court awarded damages to appellee driver against the appellant. After a thorough review of

the record, we reverse and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which ALAN E. HIGHERS,

P.J.,W.S., and HOLLY M. KIRBY, J., joined.

James I. Pentecost and Melissa K. Van Pelt, Jackson, Tennessee, for the appellants,

Hardeman County, Tennessee and Hardeman County Emergency Medical Services.

David A. Stowers and Stephen L. Hale, Bolivar, Tennessee, for the appellees, Judy McIntyre

and Billy McIntyre.

Jay G. Bush, Jackson, Tennessee, for the appellee, Judy I. McIntyre.

OPINION

I. Background

On August 14, 2007, Appellant Hardeman County Emergency Medical Services 

(“Ambulance Service”) employees Derrick Love and Jennifer Fortune were involved in an

automobile accident while responding to an emergency call in Whiteville, Tennessee. The

Ambulance Service is operated by Appellant Hardeman County, Tennessee (“Hardeman

County,” and together with Ambulance Service, “Appellants”). 
At the time of the accident, the ambulance was traveling westbound on two-lane Tate

Road, through several curves, approaching the turn off to Jones Road. There is no stoplight

or stop sign on Tate Road at the turn off to Jones Road. The ambulance decelerated upon

seeing at least two cars stopped on Tate Road preparing to turn left onto Jones Road. After

the first car, a pickup truck, turned left, the ambulance proceeded to cross the double yellow

line on Tate Toad and merged into the left lane, in an attempt to go around the car that

remained stopped on Tate Road. As the ambulance was passing the stopped car, a TownCar,

the car’s driver, Appellee Judy I. McIntyre, attempted to turn left onto Jones Street, colliding

with the ambulance. Both the ambulance personnel and Ms. McIntyre sustained injuries in

the collision. 

On June 5, 2008, Hardeman County filed a complaint against Ms. McIntyre for

damages arising fromthe collision, including property damage and medical expenses for the

ambulance personnel that were incurred by Hardeman County. On August 6, 2008, Ms.

McIntyre and her husband filed a separate complaint for damages against HardemanCounty,

ambulance driver Derrick Love, and the Ambulance Service. The two cases were

consolidated by agreement of the parties on September 29, 2011.

A bench trial was held on May 15, 2012. The parties stipulated to the medical

expenses of both parties and the property damage to Hardeman County. The first witness

to testifywas Annette Anderson. Ms. Anderson was driving the pickup truck in front of Ms.

McIntyre’s car that turned left onto Jones Road prior to the collision. Ms. Anderson testified

that the accident occurred during daylight and there were no adverse conditions on the road,

such as rain or snow. She further testified that the ambulance had engaged both its

emergency lights and siren throughout the events at issue in this case, and that she clearly

heard and saw the ambulance prior to the collision. According to Ms. Anderson, she

proceeded to turn onto Jones Road because the ambulance was far enough away at that time

that she could safely make the turn. Ms. Anderson testified that, when she observed the

ambulance, it was going “fast”and “quick” down Tate Road westbound toward the turn off

at Jones Road. However, Ms. Anderson further testified that, after she turned onto Jones

Road, she did not observe the ambulance again and admitted that she had no “knowledge of

how fast the ambulance was going.” Instead, she testified that shortly after turning on Jones

Road, she heard the sound of a collision, pulled her car to the side of the road, exited the car

and saw that the Town Car and the ambulance had collided. 

Jennifer Fortune, an emergencymedical technician with the Ambulance Service also

testified as to the circumstances surrounding the collision. Prior to the collision, the

ambulance was traveling down Jones Road in response to an emergency call regarding a

possible drug overdose in Whiteville, Tennessee. Ms. Fortune testified that Tate Road

-2-
contains several curves, but that the portion of the road immediately proceeding the turn off

to Jones Road is a “straight away.” According to Mr. Fortune, who was a passenger in the

ambulance, the ambulance decelerated upon approaching the turn off to Jones Road until

the pickup truck turned, then proceeded to clear the intersection. As the ambulance was

going through the intersection, however, the Town Car turned left, colliding with the

ambulance and pushing it into a fire hydrant. Ms. Fortune testified that the ambulance’s

lights and siren were engaged the entire time and that the Town Car did not have a blinker

on indicating its intent to turn left. Ms. Fortune described the ambulance’s movement at the

turn off, stating that it “approached [the turn off] still using lights, and sirens are still

running, we yielded, [and] proceeded around [Ms. McIntyre’s Town Car] with caution.”

According to Ms. Fortune, when the driver of the ambulance became aware that Ms.

McIntyre was proceeding to turn left, he attempted to accelerate to prevent a collision.

However, his attempt was unsuccessful. Ms. Fortune further testified that she was unsure

of the exact rate of speed the ambulance was traveling down Tate Road, but that she was

sure that the ambulance was not exceeding fifteen miles per hour over the posted speed limit,

which is the Ambulance Service’s internal policy limit for speed in an emergency situation.

Ms. Fortune was also unsure of the exact speed limit on Tate Road where the accident

occurred, but testified that she believed the speed limit to be thirty-five miles per hour. Ms.

Fortune further testified that the ambulance was not required by internal policy to stop at the

turn off to Jones Road because the turn off was not a true intersection.

Ms. McIntyre testified, in contrast, that she is usually in the habit of using her turn

signal at the turn off to Jones Road and that she travels this same path every day that she

goes into work. Ms. McIntyre believed that she had used her blinker on the day of the

collision as was her usual habit. Ms. McIntyre testified that prior to the collision, she heard

the ambulance siren, but after looking in all directions, was unable to locate the ambulance.

According to Ms. McIntyre, she could also no longer hear the siren and she believed that the

ambulance personnel had “turned [the siren] off.” Ms. McIntyre admitted, however, that she

was listening to the radio at the time and did not turn the radio down despite hearing the

siren. Because she could neither hear nor see the ambulance approaching, Ms. McIntyre

proceeded to execute a left-hand turn onto Jones Road, resulting in the collision. According

to Ms. McIntyre, she never saw the ambulance and was, therefore, unable to speculate as to

the ambulance’s speed. Ms. McIntyre was taken by another ambulance to a hospital. She

testified, over objection, that while she was in the emergency room, she overheard the

ambulance driver admit to a police officer that he was driving approximately eighty miles

per hour prior to the collision. Ms. McIntyre also alleged that the ambulance driver stated

that both his lights and siren were on and that he believed that Ms. McIntyre had yielded to

the ambulance prior to attempting to pass her Town Car. The police officer allegedly

responded that he would falsify the police report to state that the ambulance was only

traveling forty miles per hour. Ms. McIntyre admitted, however, that she never saw the

-3-
alleged speakers at the hospital, that she had never met either the ambulance driver or the

police officer, that she was not familiar with either speaker’s voice, and that the police report

at issue did not contain a speed at which the ambulance was traveling. Although the

ambulance driver was named as a defendant in the complaint, it appears from the record that

he was never served with process, nor did he participate in any way in the proceedings.

Neither the ambulance driver nor the police officer was called to testify. 

Several photographs depicting the damage to Ms. McIntyre’s car were also admitted

into evidence without objection. The photographs show extensive damage to the driver’s

side and front of Ms. McIntyre’s car. Ms. McIntyre further testified that she suffered various

injuries, including a broken collar bone, four broken ribs, internal bruising, and an ankle

injury as a result of the crash. According to Ms. McIntyre, although she healed from the

majority of her injuries in approximately four months, she had lingering pain for a year after

the accident.

Finally, Lela Ashworth, Ms. McIntyre’s sister, testified about a conversation she had

with Ms. Fortune at the hospital after the accident. According to Ms. Ashworth, she was

called to the hospital due to her sister’s accident. At the hospital, Ms. Ashworth spoke with

Ms. Fortune, who allegedly informed Ms. Ashworth that the ambulance had been traveling

at eighty miles per hour prior to the collision, but “slowed down” before the accident

occurred. Ms. Ashworth testified, however, that Ms. Fortune did not state what speed the

ambulance was going at the time of the collision. In her previous testimony, however, Ms.

Fortune denied that she told anyone that the ambulance was traveling eighty miles per hour.

In addition, Ms. Fortune testified that she never heard Mr. Love or any one else state that the

ambulance was going eighty miles per hour. 

At the conclusion of the evidence, the trial court made oral findings of fact and

conclusions of law. In pertinent part, the trial court found:

First of all, there’s a lot of argument about the speed of

the ambulance. The Court does not find that the ambulance was

traveling at 80 miles per hour. Although the Court does find

that based on the photographs that the ambulance was traveling

at a pretty good rate of speed, because there is substantial

impact according to the photographs.

The Court also finds that Ms. McIntyre testified that she

heard the ambulance and then it was cut off, and she looked

around and didn’t know where it was. And then there was

testimony later that she had a radio on listening to gospel music. 

You know, the court kind of wonders if you had heard a

-4-
siren and didn’t know where it was, why you would have the

radio on, why you would not just pull to a stop or to the side of

the road until you could locate the source of the siren, to locate

the ambulance, so I’m a little troubled by that.

The Court is going to ultimately find that the ambulance

driver was 60 percent at fault based on his disregard for

possible results and the safety of all persons. Even though he

does have the ability to pass cars, cross double yellow lines, to

make emergencymaneuvers, he still needs to do so with regards

to safety for all persons. 

And, again, based on impact, it appears that he should

have lowered his speed as he maybe passed which is an

appropriate pass. He must do so with due caution.

Again, the Court finds that Ms. McIntyre is 40 percent at

fault because she heard the ambulance yet she did not take due

care to locate where it was. She did not take the due care to turn

her radio off or even lower the windows to locate the source of

this. 

So the Court finds that she’s partially at fault as well

with regards to the damages to the automobile. . . . 

The trial court went on to award Ms. McIntyre damages for lost wages, medical

expenses, and pain and suffering. The judgment totaled $86,488.13, which was to be

reduced by Ms. McIntyre’s own percentage of fault. The trial court entered an order

memorializing its ruling from the bench on June 29, 2012. The trial court’s oral ruling was

incorporated by reference into the order. Appellants filed a timely notice of appeal. After

receiving the record, however, this Court concluded that the order entered was not a final

order because it did not adjudicate Ms. McIntyre’s claim against ambulance driver Derrick

Love. Accordingly, this Court entered an order on October 29, 2012 directing the trial court

to enter a final order adjudicating this claim. On November 14, 2012, the trial court entered

an order dismissing Ms. McIntyre’s claim against Mr. Love, noting that Mr. Love was never

served, and therefore was never properly before the Court. The trial court also specifically

noted that it had denied any claims for property damage asserted by Ms. McIntyre. 

II. Analysis

Appellants raise a number of issues in their appellate brief; however, fromour review

of the record and the parties’ briefs, we discern the dispositive issue in this case to be

whether Ms. McIntyre proved a breach of the standard of care on the part of the Ambulance

Service. Because this case was tried by the trial court, we review the trial court’s findings

-5-
of fact de novo with a presumption of correctness, unless the evidence preponderates

otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the

trial court’s conclusions of law and our review is de novo. Blair v. Brownson, 197 S.W.3d

681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)).

Both Ms. McIntyre’s and Hardeman County’s claims against each other are based on

theories of negligence. The prima facie elements of negligence are as follows:

In order to establish a prima facie claim of negligence, basically

defined as the failure to exercise reasonable care, a plaintiff

must establish the following essential elements: “(1) a duty of

care owed by defendant to plaintiff; (2) conduct below the

applicable standard of care that amounts to a breach of that

duty; (3) an injury or loss; (4) cause in fact; and (5) proximate,

or legal cause.

Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 2009) (quoting McCall v.

Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). Appellants essentially argue that Ms. McIntyre

failed to prove that they breached the duty of care in operating the ambulance at the time of

the collision. With respect to the breach of duty element of a claim for negligence, our

Supreme Court has held:

Assuming a duty is owed, it must be determined whether

defendant has exercised reasonable care under the

circumstances. If defendant has not, the duty has been breached.

In this regard, we have observed that “[t]he term reasonable

care must be given meaning in relation to the circumstances.

Ordinary, or reasonable, care is to be estimated by the risk

entailed through probable dangers attending the particular

situation and is to be commensurate with the risk of injury.”

McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891, 895 (Tenn. 1996) (citations

omitted). Whether the defendants breached the duty is a question of fact. Winkler v.

Pinnacle Properties I, LLC, M2011-02616-COA-R3-CV, 2012 WL 2989135, *4 (Tenn.

Ct. App. July 20, 2012). In a non-jury case such as this one, we review the record de novo

with a presumption of correctness as to the trial court's determination of facts, and we must

honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P.

13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

Appellants argue that nothing in the record supports the trial court’s implicit finding

-6-
that the Ambulance Service breached the duty to exercise reasonable care. To support this

argument, Appellants cite to Tennessee Code Annotated Section 55-8-108, which exempts

emergencyresponders fromsome traffic laws. Tennessee Code Annotated Section 55-8-108

provides, in pertinent part:

(a) The driver of an authorized emergency vehicle, when

responding to an emergency 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 forth in this section, but subject to the conditions

stated in this section.

(b)(1) A driver of an authorized emergency vehicle operating

the vehicle in accordance with subsection (a) may:

(A) Park or stand, notwithstanding other provisions of this

chapter that regulate parking or standing;

(B) Proceed past a red or stop signal or stop sign, but only after

slowing down as may be necessary for safe operation;

(C) Exceed the speed limits so long as life or property is not

thereby endangered; and

(D) Disregard regulations governing direction of movement or

turning in specified directions.1

Ms. McIntyre argues, however, that Tennessee Code Annotated Section 55-8-108 does not

operate to excuse ambulance drivers from operating with due care, citing subsection (b)(2),

which states that: 

Subdivision (b)(1) shall not relieve the driver of an authorized

emergency vehicle from the duty to drive with due regard for

the safety of all persons, nor shall subdivision (b)(1) protect the

driver from the consequences of the driver's own reckless

disregard for the safety of others.

Tenn. Code Ann. § 55-8-108(b)(2). Accordingly, Tennessee law provides that ambulance

drivers are not required to strictly adhere to all traffic laws when responding to an

emergency call, but must exercise these special privileges with “due regard for the safety of

Although the statute concerns the duty of the driver of the ambulance rather than the ambulance

1

service, neither Hardeman County nor the Ambulance Service has appealed the ruling that they may be liable

for Mr. Love’s negligence, regardless of Ms. McIntyre’s failure to make him a proper party to this suit.

-7-
all persons.” Tenn. Code Ann. § 55-8-108(b)(1)–(2). 

There is no dispute in this case that Mr. Love and Ms. Fortune were responding to

an emergencywhen the accident occurred. As such, theywere entitled to exceed speed limits

and disregard regulations governing the direction of movement. However, as explained by

the statute, this exemption is tempered by the fact that the ambulance driver may not place

life or property in danger and must exercise due regard for all drivers. The obligation to

exercise due care is, thus, not excused by the fact that the ambulance driver is responding

to an emergency call. As explained in American Jurisprudence:

[T]he fact that an emergency vehicle on an emergency call is

exempt from traffic regulations and is given the right of way

over other travelers does not relieve the driver of such vehicle

from the duty to drive with due regard for the safety of others

using the highway. The drivers of emergency vehicles do not

have the right to enter an intersection in blind reliance on their

special right of way, but such drivers have to be alert and on the

lookout for other travelers who might attempt to cross the

intersection and who are lulled into a sense of security by the

thought that they have the right of way.

8 Am. Jur. 2d Automobiles § 812 (footnotes omitted). As further explained:

The fact that an ambulance is exempt from the operation

of certain traffic regulations or enjoys certain prior rights over

other vehicles does not permit the operators of such vehicles to

drive in reckless disregard of the safety of others, nor does it

relieve them of the general duty of exercising due care for the

safety of others and their own safety.

Generally speaking, an ambulance driver is under a duty

to exercise due care for the safety of all persons, and an

ambulance driver must exercise reasonable precautions against

extraordinary dangers of the situation which duty compels the

driver to create. The fact that ambulances are exempted from

the operation of certain traffic regulations or enjoy certain prior

rights over other vehicles does not permit the operators of such

vehicles to drive in reckless disregard of the safety of others,

nor does it relieve them from the general duty of exercising due

care for the safety of others and their own safety, or from the

consequences of an arbitrary exercise of the right of way. Any

-8-
careless, arbitrary, or unreasonable exercise of the driver's

privileges is negligence. Under some statutes, the threshold for

recovery for violation of the duty to exercise due care for the

safety of all persons is recklessness, not negligence.

60A C.J.S. Motor Vehicles § 880 (footnotes omitted).

From our review of the record and the arguments of counsel in this case, it appears

that Ms. McIntyre’s theory of liability is that the ambulance driver breached his duty of care

in driving down Tate Road at an excessive rate of speed. Indeed, the trial court’s oral

findings support our conclusion, as the trial court remarked that the photographs of the

impact the ambulance had on Ms. McIntyre’s car show that the ambulance was traveling “at

a pretty good rate of speed.” The trial court made no other findings as to any fault on the part

of the ambulance driver or the Ambulance Service. Instead, the trial court even remarked

that the ambulance’s driver’s maneuver into the opposite lane of traffic was “appropriate.”

Accordingly, this Court must consider whether the evidence in the record

preponderates against the trial court’s finding that the Ambulance Service, through the

actions of the ambulance driver, breached the duty of care by traveling at an excessive rate

of speed. For the evidence to preponderate against a trial court's finding of fact, it must

support another finding of fact with greater convincing effect. Watson v. Watson, 196

S.W.3d 695, 701 (Tenn. Ct. App. 2005). We first turn to consider the evidence in the record

that supports the trial court’s finding that the ambulance driver breached the duty of care by

traveling at an excessive rate of speed.

First, the trial court heard testimony from Ms. Anderson, who witnessed the events

leading up to the collision. Ms. Anderson testified that at the time she observed the

ambulance, it was traveling “fast” and “quick.” Ms. Anderson admitted, however that she

did not observe the ambulance immediately prior to the collision and was, therefore, unable

to testify to the ambulance’s speed at the time of the accident. Because Ms. McIntyre did not

see the ambulance at any time prior to the accident, she was also unable to testify as to the

speed of the ambulance at the time of the accident. Her testimony, therefore, is not probative

of whether the ambulance was traveling at an excessive rate of speed. 

The trial court also heard testimony from Ms. McIntyre and Ms. Ashworth regarding

hearsay statements made after the collision suggesting that the ambulance was traveling

approximately eighty miles per hour at the time of the crash. The trial court, however, did

not credit this testimony and specifically found that the ambulance was not going eighty

miles per hour. Ms. McIntyre does not challenge this ruling on appeal. Accordingly, we will

likewise disregard the alleged hearsay statements suggesting that the ambulance was

-9-
traveling at a speed of eighty miles per hour.

Next, Ms. McIntyre submitted into evidence photographs depicting the impact

damage to Ms. McIntyre’s car. According to Ms. McIntyre, these photographs allowed the

trial court to make a reasonable inference that the ambulance was traveling at an excessive

rate of speed under the circumstances. It appears that the trial court credited this argument

when it found that the “impact” to Ms. McIntyre’s car showed that the car was traveling at

a “pretty good rate of speed.” Ms. McIntyre argues that the trial court’s finding was proper

because the trial court was able to infer the ambulance’s speed from the photographs and

testimony. Ms. McIntyre relies on this Court’s opinion in Ward v. Gilless, No.

W1999-01324-COA-R3-CV, 2000 WL 34411148 (Tenn. Ct. App. Aug. 21, 2000). 

Ward involved an automobile accident that resulted in the death of driver (“the

decedent”). Id. at *1. In Ward, the decedent’s father (“plaintiff”) filed a complaint for

damages against the Shelby County Sheriff’s Office and the Shelby County Division of

Public Works (together, “defendants”), alleging that the defendants were negligent in failing

to close the road on which the accident occurred due to flooding. Id. at *3. At the conclusion

of the trial, the trial court found that the negligence of the decedent was greater than the

negligence of the defendants and dismissed the case. Id. On appeal, the plaintiff argued that

the evidence was insufficient to show any negligence on the part of the decedent. The Court

of Appeals disagreed and affirmed the trial court. Explaining the rules of negligence with

regard to the speed of an automobile, the Court stated: 

Under Tennessee law, the standard that must be applied

in negligence cases is that of a reasonable and prudent person

in the same or similar circumstances. See Menuskin v.

Williams, 940 F.Supp. 1199, 1211 (E.D. Tenn.1996); McClung

v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 895 (Tenn.

1996); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995);

Dooley v. Everett, 805 S.W.2d 380, 384 (Tenn. Ct. App. 1990);

Kelley v. Johnson, 796 S .W.2d 155, 158 (Tenn. Ct. App.

1990). When determining whether an individual has conformed

to this standard, the trier of fact must consider the evidence

presented regarding the facts of the case and may also rely on

the considerations of logic, common sense, public policy, and

precedent. See Kelley, 796 S.W.2d at 158. When an individual

is operating a motor vehicle, he or she is required to operate the

vehicle in such a manner and at such a speed that is consistent

with what a reasonable and prudent person would do under the

same or similar circumstances. See Cawthon v. Mayo, 325

-10-
S.W.2d 629, 637 (Tenn. Ct. App. 1958); Coleman v. Byrnes,

242 S.W.2d 85, 89 (Tenn. Ct. App. 1950). Consistent with this

general rule, a motorist must proceed at a speed sufficiently

slow to enable him or her to stop in time to avoid any

obstruction or condition in the roadway that he or she had a

reason to expect. See Cline v. United States, 214 F.Supp. 66, 72

(E.D. Tenn. 1962). An acceptable speed of travel is one that is

commensurate with the then existing conditions of the roadway

and atmosphere. See Hopper v. United States, 122 F.Supp. 181,

188 (E.D. Tenn. 1953). The mere fact that a motorist is

operating his or her vehicle at a speed that is within the limit

proscribed by law does not preclude the conclusion that the

speed is excessive under the circumstances. See Cline, 214

F.Supp. at 73; Hopper, 122 F.Supp. at 188. When determining

whether an individual was operating his or her vehicle at an

excessive speed under the circumstances, it is not essential that

the trier of fact have before it direct evidence regarding this

matter; rather, a finding with respect to the speed of a vehicle

may be inferred from the facts of the case. See Nash v. Love,

440 S .W.2d 593, 598 (Tenn. Ct. App. 1968); Templeton v.

Quarles, 374 S.W.2d 654, 658 (Tenn. Ct. App. 1963).

Ward, 2000 WL 34411148, at *3 (emphasis added).

Applying the above rules to the facts of the case, the Court of Appeals concluded that

the trial court did not err in finding the decedent at fault for his own injuries when the

evidence was undisputed that it had been raining heavily, the decedent was familiar with the

road, and the road had posted signs warning high water was present. In addition, the sole

witness to the accident testified that the decedent was driving at approximately thirty-seven

miles per hour in a forty-five mile per hour zone, despite the heavy rain and warnings, which

the trial court concluded was excessive given the circumstances. 

Based on the rule expressed in Ward, Ms. McIntyre argues that the trial court could

infer excessive speed on the part of the ambulance based upon the photographs showing the

impact to her Town Car. In contrast, Appellants argue that the photographs alone are

insufficient to support a finding of excessive speed. Authority exists that evidence of

2

We note that Ms. McIntyre objects to this argument on appeal due to the fact that the Appellants 2

did not object to the admissibility of the photographs in the trial court. It is well-settled that issues are

(continued...)

-11-
violence and force of impact is a circumstance which may be considered by the fact finder

in considering the question of whether a vehicle was traveling at an excessive or negligent

rate of speed. 9 Blashfield's Cyclopedia of Automobile Law and Practice, § 6234; see also

29 A.L.R.3d 248 (noting that non-expert witness testimony is not admissible to estimate the

speed of a vehicle, as the fact finder “is as qualified to estimate the speed of a motor vehicle

from the physical facts as is the lay or nonexpert witness.”). This principle has likewise been

applied in Tennessee:

Direct testimony is not essential to warrant a finding of

excessive speed. Evidence as to the force of the impact of the

collision, or as to the distance which an automobile causing an

injury overshot the point of the accident before being brought

to a standstill, is of significance, and may be by itself, or in

connection with other circumstances, of sufficient force to

warrant a jury in finding negligence as to speed, and in drawing

an inference that the machine was traveling at a rate of speed

such as to endanger the life or limb of persons upon the

highway.

Templeton v. Quarles, 374 S.W.2d 654, 658 (Tenn. Ct. App. 1964) (citing Elmore v.

Thompson, 14 Tenn. App. 78, 1931 WL 1579 (Tenn. Ct. App. 1932); Phillips-Buttorf Mfg.

Co. v. McAlexander, 15 Tenn. App. 618, 1932 WL 1358 (Tenn. Ct. App. 1932)). All

inferences must be based on the evidence and “cannot be based on surmise, speculation,

conjecture, or guess[.]” Benton v. Snyder, 825 S.W.2d 409 (Tenn. 1992) (quoting Patton

v. L.O. Brayton & Co., 201 S.W.2d 981, 984 (Tenn. 1947)). We note, however, that the

cases in which speed had been inferred by a non-expert from the circumstances surrounding

the collision all involve evidence other than or in addition to photographs depicting the

damage to the vehicles as a result of the collision. In fact, in most cases, the evidence relied

on by the trial court concerned the skid marks on the road at the collision site. See Johnson

v. Attkinson, 722 S.W.2d 390, 392 (Tenn. Ct. App. 1986) (involving skid marks); Combs

v. Rogers, 450 S.W.2d 605, 608 (Tenn. Ct. App. 1969) (concluding that the evidence was

insufficient to support a finding of excessive speed when the record contained no evidence

(...continued)

considered waived on appeal by the failure to present them at trial. See ABN AMRO Mortg. Group, Inc. v.

Southern Sec. Federal Credit Union, No. W2011-00693-COA-R3CV, 2011 WL 5590320, at *4 (Tenn. Ct.

App. Nov. 17, 2011) (citing Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009)). As we perceive Appellants’

argument, however, they are not questioning the admissibility of the evidence, butrather find errorin the trial

court’s reliance on the evidence to infer excessive speed. Thus, their argument is not waived and Ms.

McIntyre’s objection is without merit. 

-12-
of skid marks); Monday v. Milsaps, 264 S.W.2d 6, 17 (Tenn. Ct. App. 1953) (“The law is

well settled that an expert witness may give his opinion as to the speed of an automobile

from the length of its skidmarks.”) (citing 32 C.J.S., Evidence, § 533). For example, the

Court in Templeton considered evidence of skid marks and the distance the pedestrian

plaintiff was thrown by the collision as probative evidence of “impact,” rather than

photographic evidence of the vehicle’s damages. Templeton, 374 S.W.2d at 658. In another

case relying on Templeton, Nash v. Love, 440 S.W.2d 593 (Tenn. Ct. App. 1968), this

Court held that the proof was likewise insufficient to allow the fact-finder to infer excessive

speed when the record contained no evidence ofskid marks on the road due to the collision, 

the distance the vehicle “overshot the point of impact,” or how far the plaintiff pedestrian

was thrown by the impact. Id. at 598. Thus, the term “impact,” as it is used in Templeton

and its progeny, refers to something more than mere photographs of the damage to a vehicle

caused by a collision. See also Ward, 2000 WL 34411148, at *3 (relying on Templeton).

The requirement that evidence other than mere photographs of vehicle damage be

considered in determining speed is not novel: “Accurate computation ofspeed from damage

to vehicles alone is not possible; it is difficult to measure the force required to distort a

particular automobile part.” 18 Am. Jur. Trials 443.

In this case, however, there is no evidence in the record regarding skid marks on the

road from the accident. Further, there is nothing in the record to indicate the weight of either

vehicle, the tire air pressure, or type and condition of the road surface at the time of the

accident. All these factors have been held “necessary to estimate the speed of the vehicle.”

Johnson, 722 S.W.2d 392. Thus, while the record does contain photographs depicting a

substantial impact to Ms. McIntyre’s car, the record is devoid of other evidence necessary

to allow the finder of fact to infer excessive speed from the circumstances. 

Finally, the record contains testimony from Ms. Fortune that the ambulance was

traveling at no greater than fifteen miles per hour over the speed limit. Taking Ms. Fortune’s

belief that the speed limit on Tate Road was thirty-five miles per hour as true, as it is

uncontroverted in the record, Ms. Fortune’s testimonysuggests that the speed the ambulance

was traveling at approximately fifty miles per hour. Nothing in the record suggests that the

trial court found Ms. Fortune’s credibility lacking. Thus, the evidence in the record supports

a finding that the ambulance was traveling up to fifteen miles above the posted speed limit. 

A finding that the ambulance was traveling above the posted speed limit does not,

ipso facto, lead to the conclusion that the ambulance driver breached his duty to drive with

due care to all persons. Indeed, the Tennessee Supreme Court has held that “[u]nusual

circumstances maymake it reasonable to adopt a course of conduct which causes a high risk

of harm to the public.” Haynes v. Hamilton County, 883 S.W.2d 606, (Tenn. 1994).

“However, such conduct is not justified unless the end itself is ofsufficient social value. The

-13-
general public has a significant interest in not being subjected to unreasonable risks of injury

as the police carry out their duties.” Id. (footnote omitted). The question, then, is whether

traveling at a rate of speed fifteen miles per hour above the posted speed limit was

reasonable given the circumstances. Thus, we turn to consider the circumstances

surrounding the collision and whether those circumstances justify the ambulance driver’s

action in exceeding the posted speed limit.

First, it is undisputed that the ambulance was responding to an emergency drug

overdose call at the time of the collision. In addition, both Ms. Anderson and Ms. Fortune

testified that the ambulance had engaged both its emergency lights and siren throughout the

events at issue in this case. Ms. McIntyre, however, testified that she believed that the

ambulance driver at some point “turned [the siren] off.” While the trial court did not make

a specific finding that the ambulance driver had engaged his emergency lights and siren, the

trial court did find Ms. McIntyre at fault for failing to search for the ambulance after hearing

its siren. Accordingly, the trial court, at least inferentially, found that the ambulance had

engaged its siren prior to the accident. Where the trial court does not make specific findings

of fact, there is no presumption of correctness and we “must conduct our own independent

review of the record to determine where the preponderance of the evidence lies.” Brooks v.

Brooks, 992 S.W.2d 403, 405 (Tenn. 1999). Based on the testimony of both Ms. Anderson

and Ms. Fortune, we conclude that the weight of the evidence supports a finding that the

ambulance driver engaged the ambulance’s lights and sirens throughout the events at issue.

Because the ambulance driver was responding to an emergency and had engaged the

ambulance’s emergency signals, the ambulance driver was entitled to exceed posted speed

limits, so long as life or property was not endangered and he did so with due caution given

the circumstances. See Tenn. Code Ann. §55-8-108. Additionally, the only direct evidence

of speed suggests that the ambulance was traveling less than fifteen miles per hour over the

posted speed limit, which is within the Ambulance Service’s internal policy for speed in an

emergency situation. Finally, uncontradicted evidence from Ms. Fortune also shows that the

ambulance decelerated when approaching the turn off to Jones Road, proceeded around Ms.

McIntyre’s car “with caution,” and only accelerated in an attempt to avoid the collision.

These facts tend to support a finding that the ambulance was not negligent in traveling at a

speed of fifteen miles per hour over the posted speed limit.

The road conditions on the day of the accident also tend to show that the ambulance’s

speed was not excessive given the circumstances. See Haynes v. Hamilton County, 883

S.W.2d 606, 611 (Tenn. 1994) (noting that in a case involving a police chase, the “weather

and road conditions” are factors relevant to the determination of whether the emergency

vehicle was operated in a negligent manner). First, the collision occurred in broad daylight

on a clear day. No witness or party testified that there were adverse road conditions the day

of the accident, such as rain or snow. In addition, Ms. Anderson testified that even though

-14-
at least one car was behind her on Tate Road, she could clearly hear and see the ambulance

approaching. Indeed, Ms. Anderson saw the ambulance when it was far enough away that

she was safely able to turn onto Jones Road. Finally, the turn off to Jones Road occurs at a

part of Tate Road that is a straight path and is not concealed from other drivers by curves. 

The situation in this case is analogous to the situation presented in Kowalski v.

Eldridge, 765 S.W.2d 746 (Tenn. Ct. App. 1988). In Kowalksi, a fire truck was traveling

down a road when the driver ahead of the fire truck swerved to the right, then immediately

turned left into the fire truck, resulting in a collision in which the car driver died. Id. at 747.

The driver’s wife brought a wrongful death action against the operators of the fire truck. It

was undisputed that the fire truck had engaged all its emergency signals, that the car driver

did not engage his turn signal indicating his intent to turn left, and that the fire truck was

traveling approximately ten-to-twenty miles per hour faster than the car. The trial court

found that the fire truck driver was negligent “in approaching from the rear the [other]

vehicle and attempting to pass on the left without first ascertaining in his own mind that he

could do so with reasonable safety.” The trial court further concluded that the car driver’s

negligence was excused by the sudden emergency doctrine, based on expert testimony that

the car driver most likely perceived the approach of the fire truck as an emergency. Id. at

748.

The Court of Appeals, however, reversed, concluding that the sudden emergency

doctrine did not apply because the driver, in suddenly turning left, created the emergency at

issue. Id. at 747–48. In addition, the Court of Appeals concluded that the fire truck driver

acted reasonably under the circumstances in passing to the left of the car, see Tenn. Code

Ann. § 55-8-117 (detailing the procedure for passing on the left), despite the evidence that

the fire truck was traveling at a much greater rate ofspeed than the car driver. Kowalski, 765

S.W.2d at 749. 

Similarly, in this case, the ambulance driver was traveling at a greater rate of speed

than the posted speed limit when he attempted to overtake Ms. McIntyre’s car on the left

side. Ms. McIntyre, like the driver in Kowalski, turned left onto Jones Road causing the

collision with the ambulance. As previously discussed, we have concluded that the weight

of the evidence shows that the ambulance driver had engaged his emergency lights and siren

throughout the events at issue. Unlike in Kowalski, however, the facts are disputed as to

whether Ms. McIntyre had engaged her turn signal indicating her intent to turn left. The trial

court also did not make a specific finding of fact as to whether Ms. McIntyre engaged her

turn signal. Regardless of whether the turn signal was engaged, the evidence shows that the

ambulance approached the turn off to Jones Road, decelerated and then proceeded around

Ms. McIntyre’s car “with caution.” In addition, it is undisputed that Ms. Anderson was able

to see and hear the ambulance prior to it reaching the turn off to Jones Road. Finally, Ms.

-15-
McIntyre perceived the siren of an ambulance prior to the collision, but, as found by the trial

court, did not properly investigate the source of the sound, and consequently, did not yield

to the ambulance as it passed on the left side of her vehicle. Tennessee Code Annotated 55-

8-132 outlines the responsibility of a driver when an emergency vehicle approaches, stating

that the driver must “yield the right-of-way . . . and shall stop and remain in that position

until the authorized emergency vehicle has passed.” Thus, Ms. McIntyre was under a

statutory duty to yield to the ambulance as it approached. “[I]t is a general rule of law that,

in the absence of circumstances indicating otherwise, the operator of a motor vehicle has the

right to assume, and to act on the assumption, that other users of the highway will obey the

law and exercise due care.” Hampton v. Padgett, 414 S.W.2d 12, 15 (Tenn. App. Ct. 1967).

The ambulance driver in this case, thus, “had the right to assume that [Ms. McIntyre] would

lawfully respond not only to the emergency signals on the fire truck, but also to yield to a

vehicle passing on the left.” Kowalski, 765 S.W.2d at 749. 

In addition, the circumstances of this case fail to rise to the level of other cases in

which an ambulance driver or service has been found to be negligent for traveling at an

excessive rate ofspeed. See e.g., Shearn v OrlandoFuneral Home, Inc., 82 So.2d 866 (Fla.

1955) (affirming finding of negligence when ambulance driver was traveling up to ninety

miles per hour despite ordinance that only allowed emergency vehicles to travel thirty-five

miles per hour); Carter v. Acadian Ambulance Service, Inc., 342 So.2d 1145 (La. Ct. App.

1977) (finding of negligence affirmed when the evidence showed that the driver pulled into

right lane of traffic without warning, accelerated at high rate of speed, did not activate

emergency lights or siren until just before collision and took no action to avoid striking other

vehicle); Grammier-Dismukes Co. v Payton, 22 S.W.2d 544 (Tex. Civ. App. 1929)

(affirming a judgment for the plaintiff when the driver was traveling twenty to twenty-five

miles over the speed limit on a foggy day without any audible signal to warn other drivers

of its approach). Under the particular circumstances at issue in this case, we conclude that

the greater convincing weight of the evidence in the record is that the ambulance driver

acted reasonably in traveling down Tate Road at a speed of approximately fifty miles per

hour and decelerating when approaching the turn off. See Watson, 196 S.W.3d at 701.

Accordingly, the evidence preponderates against the trial court’s finding that the ambulance

was traveling at an excessive rate of speed under the circumstances. 

Nothing in the trial court’s oral ruling or written order suggests that the trial court

attributed any other fault to the ambulance driver other than the use of excessive speed.

From our review of the record, we likewise conclude that no other fault is attributable to the

ambulance driver or Ambulance Service. Accordingly, the evidence likewise preponderates

against the trial court’s finding that the ambulance driver breached his duty of care in this

case. As previously discussed, a breach of the duty of care is an essential element to any

negligence claim. Giggers, 277 S.W.3d at 364. Without a breach on the part of the

-16-
Appellants or their employees, there can be no liability. Accordingly, we reverse the

judgment against Appellants. 

Based on its lack ofliability, HardemanCountyrequests that this Court award its total

requested damages. The parties stipulated that Hardeman County incurred $24,255.16 in

damages for medical expenses and property damage. From our review of the trial court’s

order, the trial court found that Ms. McIntyre breached her duty of care in failing to look for

the ambulance after she heard the siren and consequently failing to yield to the ambulance

at the turn off to Jones Road. In addition, the trial court implicitly concluded that Ms.

McIntyre’s negligence was a cause in fact and a proximate cause of the accident, attributing

forty percent of the fault for the collision to her. Ms. McIntyre does not appeal the trial

court’s finding that she breached the duty of care or that she was partially at fault for the

accident. Having concluded that Appellants did not breach the duty of care and thus are not

negligent, as well as that Ms. McIntyre did not appeal the trial court’s finding that she was

negligent, we award Hardeman County its stipulated damages of $24,255.16. 

The judgment of the Hardeman County Circuit Court is reversed and the case is

remanded for entry of judgment in favor of Appellant Hardeman County in the amount of

$24,255.16. Costs of this appeal are taxed to Appellee, Judy McIntyre, for which execution

may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

-17-