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Berry v. City of Memphis

Court of Appeals of Tennessee, Memphis

April 13, 2015


February 25, 2015 Session

Direct Appeal from the Circuit Court for Shelby County No. CT00310304 Karen R. Williams, Judge

Roane Waring, III, Memphis, Tennessee, for the appellant, City of Memphis.

James M. Gulley and Daniel F.B. Peel, Memphis, Tennessee, for the appellee, Fairy Berry.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Brandon O. Gibson, J., joined.




On May 31, 2003, Fairy Berry and her daughter, Demetria Rhodes, [1] were injured when her vehicle was struck by Officer Fred Williams' police car at an intersection. Ms. Berry was rendered unconscious because of the impact, and responders removed her from her vehicle using the jaws of life. She was immediately transported to Saint Francis Hospital's ("hospital") emergency room where she received treatment, including x-rays and a CT scan. Ms. Berry sustained a large contusion on her head and numerous musculo-skeletal injuries to her head, neck, back, and chest. However, Ms. Berry's x-rays showed no abnormalities. The hospital discharged Ms. Berry several hours later. Two days after the accident, Ms. Berry saw her private doctor complaining of a headache, neck pain, lower back pain, and leg pain. Her doctor referred her to HealthSouth for physical therapy, and she completed treatment at HealthSouth on July 23, 2003. HealthSouth recommended several exercises for Ms. Berry to complete at home, which Ms. Berry did. On May 27, 2004, Ms. Berry filed a complaint against the City of Memphis and Officer Williams alleging negligence.

On March 4, 2013, the trial court presided over a bench trial, which spanned several days, concluding on April 11, 2013.[2] At trial, three witnesses testified in person, including Ms. Berry; Demetria Rhodes, Ms. Berry's daughter and passenger at the time of the accident; and Carolyn Hughey, Ms. Berry's friend. Two more witnesses, Officer Williams and Dr. Robert H. Ball, M.D., testified by deposition. Although liability was an issue at trial, liability is undisputed for purposes of this appeal. Accordingly, we focus our recitation of the facts on the subject matter of this appeal, which include Ms. Berry's physical injuries and non-economic damages.

Ms. Berry's testimony detailed her injuries resulting from the accident. Immediately following the accident, Ms. Berry experienced pain in her neck, back, legs, and head. She testified that, following the accident, her consciousness went in and out. She also testified that she had multiple bruises on her body from the accident, specifically on her legs, chest, and back. She testified that the bruises on her back resulted from when her "seat crushed on my back." Additionally, she stated that her air bag never deployed. Ms. Berry, who has been employed by the Internal Revenue Service for nearly 30 years, missed approximately 45 days of work as a result of the accident. Although the accident had occurred ten years prior to trial, Ms. Berry testified that she still experienced pain on a daily basis. She also stated that she now requires a special chair to alleviate her pain while sitting at her job, and she also must periodically walk around to help with the pain associated with prolonged sitting. Still, Ms. Berry stated that she believed continual physical therapy to be unnecessary, testifying: "I just didn't go back to therapy. But I do the exercises that they gave me. And with my chair and my stretches, the things that I know that helps me during the day, I just - - daily basis, those things help me, so I just continue to do those to function through my daily activities."

Ms. Berry's daughter, Ms. Rhodes, also testified about the accident and how it affected her mother. She corroborated her mother's testimony concerning the accident and the impact. She also stated she sustained minor injuries in the accident. Concerning her mother after the accident, Ms. Rhodes testified: "I thought she was dead, when I was first sitting there and after she wasn't talking. But I'm - - I'm just thankful that we're alive." She recounted trying to wake Ms. Berry up after the accident by tapping her on her shoulder and saying "Mama. Mama." She testified that she watched a nurse on the scene take Ms. Berry's pulse. Ms. Rhodes stated that Ms. Berry was either unconscious or unresponsive when she initially was admitted into the hospital.

Carolyn Hughey, Ms. Berry's friend, also expounded on Ms. Berry's injuries and her recovery. She visited Ms. Berry at the hospital immediately following the accident. Ms. Hughey similarly testified that, upon her arrival at the hospital, Ms. Berry "was out" and not responding or communicating. She testified that for the next three weeks she came to Ms. Berry's house to assist her with household duties because Ms. Berry had difficulty walking and remained in pain. Ms. Hughey stated that even six months after the accident, Ms. Berry still showed signs of her injury and complained of pain. Further, Ms. Hughey testified that Ms. Berry continues to walk differently, "wobbly like, " because of the accident.

Regarding Ms. Berry's medical treatment and bills, Dr. Robert H. Ball testified by deposition as an expert witness. Dr. Ball has experience as a family physician in internal medicine, physical therapy, and emergency medicine, although he had not worked in an emergency room for around 25 years. After summarizing and explaining the costs for Ms. Berry's treatment, he testified that Ms. Berry's medical bills were reasonable and necessary.

On May 27, 2014, the trial court issued a letter to all counsel and parties detailing its findings of facts and conclusions of law. After determining that Ms. Berry was not at fault, the trial court ultimately found in favor of Ms. Berry in the amount of ...

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