Kathy L. Russell and William A. Russell v. The City of Lawrenceburg

• Court: Court of Appeals of Tennessee
• Decided: November 1, 1995
• Docket: 01A01-9505-CV-00200
• Status: Published

Opinion

KATHY L. RUSSELL and ) WILLIAM A. RUSSELL, ) ) Plaintiffs/Appellees, ) Appeal No. ) 01-A-01-9505-CV-00200 v. ) ) Lawrence Circuit THE CITY OF LAWRENCEBURG, ) No. C-12941 ) Defendant/Appellant. ) FILED Nov. 1, 1995 COURT OF APPEALS OF TENNESSEE Cecil Crowson, Jr. MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEAL FROM THE CIRCUIT COURT FOR LAWRENCE COUNTY

AT LAWRENCEBURG, TENNESSEE

THE HONORABLE JAMES L. WEATHERFORD, JUDGE

PAUL B. PLANT P. O. Box 399 Lawrenceburg, Tennessee 38464 ATTORNEY FOR PLAINTIFFS/APPELLEES

PATRICK A. FLYNN P. O. Box 90 207 West 8th Street Columbia, Tennessee 38402-0090 ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

SAMUEL L. LEWIS, JUDGE O P I N I O N

Defendant, City of Lawrenceburg, has appealed from the trial

court's finding that the proximate cause of the accident in which

plaintiffs suffered injuries and damages was the negligence of the

City of Lawrenceburg's agent and employee, Officer George L.

Barturen.

The trial court found that plaintiff Kathy Russell received

injuries and damages which would merit a judgment substantially

greater than $130,000.00. Nevertheless, she could only receive a

judgment in the amount of $130,000.00 because Tennessee Code

Annotated section 29-20-403 limits the liability of the City of

Lawrenceburg. The court further found that plaintiff William A.

Russell's loss of consortium claim entitled him to a judgment in

the amount of $65,000.00.

Defendant's first issue is: "Whether the evidence, pursuant

to de novo review, preponderates against the ruling of the trial

court such that it requires a reversal of the trial court."

We review the trial court record in this non-jury case de

novo with a presumption of correctness as to the findings of fact

made by the trial court. Thus, a finding of fact will stand unless

the evidence preponderates against it. Tenn. R. App. P. 13(d).

"Any conflict in testimony requiring a determination of the

credibility of a witness or witnesses is for the trial court and

binding on this Court unless from other real evidence we are

compelled to conclude to the contrary." State ex rel. Balsinger v.

Town of Madisonville, 222 Tenn. 272, 282, 435 S.W.2d 803, 807

(1968).

2 We find nothing in the evidence in this case that pre-

ponderates against the findings of the trial court. The facts

clearly show that the negligence of the City of Lawrenceburg's

employee and agent was the proximate cause of this accident.

The accident occurred inside the City of Lawrenceburg.

Officer Barturen described the events leading up to the accident in

his incident report which he prepared on the day of the accident.

He was traveling on U.S. Highway 43 at 25 to 30 miles per hour.

Just before the accident occurred, he took his eyes off the road.

When he looked back up, he saw the back end of the plaintiffs' van

and applied his brakes. He was unable to stop and collided with the

rear of the van.

Officer Barturen told plaintiff William A. Russell, who was

a highway patrolman, that he was sorry and that the accident was

his fault. He stated that there was nothing he could do, that he

had no time to react, and that he had hit Mrs. Russell's van.

Also, Officer Barturen told the investigating officer, Trooper

Carroll, that the accident was his fault. He explained that he had

reached down for his microphone and then hit the van in the rear

knocking it into the tractor trailer. He stated that the length of

time between his looking up and seeing the van and the collision

was so short that he really did not notice whether the van had

lights on or not. It was just there and "bam." Officer Barturen

admitted that he never saw the tractor trailer until after the

accident and that he never saw Mrs. Russell strike the tractor

trailer before he struck her van in the rear. Finally, Officer

Barturen did not know if his vehicle left any skid marks at the

scene of the accident.

Plaintiff Kathy Russell testified that she was traveling

north on U. S. Highway 43. She recognized the vehicle driven by

3 Officer Barturen as an unmarked police car. She noticed Officer

Barturen changing lanes frequently apparently in an attempt to stay

in the fastest lane.

Mrs. Russell stated that she saw the brake lights come on

the tractor trailer in front of her. She applied her brakes and

began to come to a stop. Although Mrs. Russell could not say if

she was at a dead stop, she did testify that she was not getting

any closer to the tractor trailer and that she was not going to hit

the tractor trailer. Mrs. Russell saw Officer Barturen in her rear

view mirror and saw that he was looking down. She realized that he

was not going to see her in time to stop. She testified that when

Officer Barturen looked up she saw his face in her rear view

mirror. In her opinion, his face looked as if he suddenly realized

that he was going to hit her and knew there was no way he could

stop in time. She further testified that Officer Barturen struck

her vehicle in the rear and knocked her into the rear of the

tractor trailer. After the accident, Officer Barturen apologized

to her stating that he was sorry and that it was all his fault.

Christy Holmstead testified that she was looking at the

tractor trailer. It appeared to be hit and lurch forward. She did

not recall hearing any impact, but she saw the van behind the

truck.

Brent Franklin, the driver of the tractor trailer, testified

that he was traveling north on Highway 43 when a car pulled out in

front of him. He had to apply his brakes to keep from hitting the

car. He did not feel the need to bring his truck to a complete

stop to avoid hitting the car, but merely wanted to slow enough to

let the car get out of his way. After he saw that he was going to

miss the car, he let off his brakes and started to change gears.

As he changed gears, he felt a bump. He looked in his mirror and

4 saw glass flying. He realized that someone had hit him. Further,

he testified that he asked Officer Barturen if he had hit Mrs.

Russell and Officer Barturen replied "evidently so."

Mrs. Russell's and Officer Barturen's immediate recollec-

tions of the accident were that Officer Barturen's car struck Mrs.

Russell's van in the rear and knocked it into the rear of the

tractor trailer. The record contains no testimony that would

contradict these recollections. In addition, the physical evidence

supports the trial court's findings. The investigating officer,

Trooper Carroll, did not find any skid marks, debris, or pavement

gouges worthy of notation on his accident report. He also

testified that after the accident there was a distance of two or

three feet between the van and the tractor trailer and six to eight

feet from the rear of the van to the front of Officer Barturen's

police car. Based on these observations, Officer Carroll testified

that the accident scene was consistent with the descriptions given

to him by Mrs. Russell and Officer Barturen.

After review of this record, we are of the opinion that the

evidence does not preponderate against the finding of the trial

court that the proximate cause of the accident was the negligence

of Officer Barturen and that the unidentified car was not in any

way the proximate cause of the accident. This issue is without

merit.

Defendant's second issue is: "Whether the evidence

preponderates against the trial court's finding that the plaintiffs

are entitled to a judgment of $130,000.00."

Tennessee Code Annotated section 29-20-403 provides as

follows:

Minimum limits of not less than one hundred thirty

5 thousand dollars ($130,000.00) for bodily injury or death of any one (1) person in any one (1) accident, occurrence or act and not less than three hundred fifty thousand dollars ($350,000.00) for bodily injury or death of all persons in any one (1) accident, occurrence or act, and in cases arising out of the ownership, maintenance and use of automobiles to a limit of not less than fifty thousand dollars ($50,000.00) for injury to or destruction of property of others in any one (1) accident, occurrence or act. The provisions of this subdivision apply to any action arising on or after July 1, 1987;...

Tenn. Code Ann. § 29-20-403(b)(2)(A)(Supp. 1994). This provision

simply means that a governmental entity is not liable to a

plaintiff injured in any one act or occurrence for more than the

amount set forth in the statute. It does not, however, restrict

the plaintiff's damages to that amount.

The trial court was of the opinion that it could not award

total damages in excess of $130,000.00; therefore, it awarded a

total of $130,000.00 to plaintiffs. After oral argument, this

court held that the trial court's judgment was not final because it

awarded damages to the plaintiffs together and did not designate

the amount of judgment awarded to either plaintiff. To cure the

defect, this court remanded the case to the trial court for the

entry of a proper judgment. On remand, the trial court reiterated

its judgment of $130,000.00 for plaintiff Kathy Russell and entered

judgment of an additional $65,000.00 for plaintiff William Russell.

We are of the opinion that the evidence does not preponderate

against either of these awards.

Doctors have treated Mrs. Russell for gall bladder problems

since the late 1970's and early 1980's. Mrs. Russell has also

suffered from pancreitis and diabetes. In 1980 or 1981, she had a

portion of her pancreas removed. Later, in 1982, doctors performed

additional surgery and removed 90% of her pancreas. Despite her

diabetes, Mrs. Russell rehabilitated herself after the second

pancreas surgery to resume normal activities. At the time of the

6 accident in 1990, she was suffering from no physical problems which

limited her activity in any way. She camped, played badminton and

basketball, was able to jump on trampolines, swim, and enjoy riding

a knee board pulled by motor boat.

Prior to the accident, Mrs. Russell enjoyed a spontaneous

personal relationship with her husband. This relationship was a

very important part of their married life. Now, their personal

relationship is practically nonexistent. Since the accident, Mrs.

Russell has spent most of her days lying in bed. She gets up only

to go to the bathroom and to take an insulin shot. When she is

able to find a comfortable position with the use of heating pads,

she must lie as still as possible. The Russells no longer sleep in

the same bed because Mrs. Russell's back hurts and she must get up

throughout the night. As a result, if they sleep in the same bed,

Mr. Russell is unable to get adequate rest in order to work the

next day. Mrs. Russell is not able to sit for long periods of time

because she is in constant pain. She does not eat regular meals,

but drinks Ensure, because she does not have an appetite. In

addition to her pain, Mrs. Russell feels guilty for not being able

to contribute more to her family than she does. Mrs. Russell last

worked in June 1990, two and one half months after the accident.

She left her job because she was in pain and felt she was not

properly carrying out the duties of her job.

Dr. McCohn performed disk surgery on Mrs. Russell's back in

October 1990. After the operation, Mrs. Russell was in constant

pain. Only a few days after her discharge, an ambulance had to

take her back to the hospital. On 16 October 1990, Dr. McCohn

performed a second operation to remove a piece of bone which was

compressing a nerve.

Plaintiff Mrs. Russell has not been pain free since the

7 accident. She can clearly distinguish the pain associated with the

pancreitis from the pain associated with the automobile accident.

Since the surgery, the pain has steadily increased to the same

intensity as she experienced before her back surgery. She

continues to have contact with Dr. McCohn's office, but she

attempts to limit her trips to the doctor because of the extreme

pain involved in travel. The only relief Mrs. Russell finds for

her pain is to lie on her side with heating pads stuck under her

and wrapped around her tightly. Unfortunately, she is able to

remain in this position for only a short period of time. She has

not found any other position to ease her pain.

Mrs. Russell suffered significant physical impairments and

monetary loss as a result of the accident. At the time of the

accident, she was 37 years of age. On the date of trial, she was

41. Dr. McCohn's opined that Mrs. Russell suffered a 12% disa-

bility of the body as a whole because of the injury she received in

the accident. She incurred medical bills of $29,511.00, and her

prescriptions exceeded $2,007.00. Four years and eighteen weeks

passed from the date Mrs. Russell last worked to the date of trial.

Using a minimum wage of $4.25 an hour and a forty hour work week,

Mrs. Russell would have lost earnings of approximately $38,000.00.

Prior to the accident, she had a life expectancy of 41.7 years, and

at the time of trial, she had a life expectancy of 38 years. If we

assume that before the accident and her resulting injuries Mrs.

Russell would have worked until she qualified for social security,

at age 62, and that she would have made only minimum wage for her

entire work life, her loss of earning capacity from the date of

trial would have exceeded $185,000.00. Finally, Mrs. Russell's

vehicle, which was valued at $13,505.00, was a total loss.

We are of the opinion that the evidence in the record

clearly supports a judgment in excess of $130,000.00 for Mrs.

8 Russell and that the $65,000.00 judgment in favor of Mr. Russell is

well within the preponderance of the evidence. This issue is

without merit.

Defendant's third issue is: "Whether the trial court erred

in failing to assign liability to the 'phantom vehicle' and to Mrs.

Russell...."

We are of the opinion that the trial court's finding of

liability in this case is supported by the preponderance of the

evidence. The driver of the tractor trailer testified that he had

his vehicle under control and that there was no danger of him

colliding with the "phantom vehicle." He also testified that when

he felt the impact behind him he had already begun to gear down and

move forward. Plaintiff Mrs. Russell testified that she had her

vehicle under control and that the distance between her vehicle and

Mr. Franklin's truck was not closing when Officer Barturen's car

struck her van in the rear. Officer Barturen testified that when

he looked back up he was too close behind Mrs. Russell's van to

stop without striking it. Further, he told the investigating

officer that "he hit the van in the rear end and knocked it into

the tractor/trailer."

The proximate cause was Officer Barturen's negligence in

looking down and taking his attention away from the proper

operation of his automobile. We find no negligence on the part of

Mrs. Russell. In addition, we are of the opinion that the evidence

does not show that the driver of the "phantom automobile" was

guilty of negligence. In any event, it was for the trier of fact

to determine such negligence. The trial court resolved the issue

finding that the phantom party was without fault. The evidence

does not preponderate against the trial court's finding that

neither the plaintiff nor the driver of the phantom automobile

9 contributed to the accident.

Therefore, it results that the judgment of the trial court

is in all things affirmed, and the cause is remanded to the trial

court for any further necessary proceedings. Costs on appeal are

taxed to the defendant/appellant, City of Lawrenceburg.

__________________________________ SAMUEL L. LEWIS, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, P.J., M.S.

_________________________________ BEN H. CANTRELL, J.