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Turner v. City of Memphis

Court of Appeals of Tennessee, Jackson

December 20, 2016

KOBIE TURNER
v.
CITY OF MEMPHIS

          Session Date: November 17, 2016

         Appeal from the Circuit Court for Shelby County No. CT-004957-13 James F. Russell, Judge

         Appellee sued the City of Memphis, alleging that he was injured in a car accident caused by a police officer employed by the City. After a bench trial, the trial court ruled in Appellee's favor, awarding him $90, 000.00 in damages. Appellant appeals. On appeal, Appellant argues that the trial court erred when it found that Appellee had proven that Appellant was the proximate cause of Appellee's injuries and when it awarded Appellee what Appellant deemed to be an excessive amount of damages. We affirm.

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

          André C. Wharton, Memphis, Tennessee, for the appellant, City of Memphis.

          Mark N. Geller, Memphis, Tennessee, for the appellee, Kobie Turner.

          J. Steven Stafford, P J., W.S., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         This action arose from a motor vehicle accident ("the accident") that occurred on December 30, 2012, at approximately 12:07 a.m. The collision occurred on Third Street near the intersection of Crump Boulevard in Memphis, Tennessee, between Plaintiff/Appellee Kobie Turner ("Appellee") and Officer Tony Brown ("Officer Brown"), an employee of Defendant/Appellant City of Memphis ("Appellant"). Third Street consists of five full lanes: two lanes for traffic heading northbound, a middle turn lane, and two lanes for traffic heading southbound.[1] Appellee was visiting Memphis, Tennessee, from Charlotte, North Carolina, to attend his aunt's funeral that was to be held later in the day on December 30, 2012. It is undisputed that Appellee, while driving his cousin and the cousin's friend home, was in the lane closest to the middle turn lane heading south on Third Street and approaching Crump Boulevard. The remaining facts leading up to the collision, however, are sharply in dispute, as discussed in detail below.

         On November 18, 2013, Appellee filed a complaint against Officer Brown and the Appellant[2] in the Shelby County Circuit Court under the Tennessee Governmental Tort Liability Act, Tennessee Code Annotated sections 29-20-101 et seq., for the personal injuries sustained from the accident. Therein, Appellee alleged that he was traveling southbound on Third Street, while Officer Brown was driving northbound on Third Street in a vehicle owned by the City of Memphis. Appellee further alleged that Officer Brown "negligently and without warning, crossed traffic and struck the vehicle driven by [Appellee] head on" and that Officer Brown violated various provisions of Tennessee Code Annotated and various traffic ordinances. Appellee sought $300, 000.00 for the injuries and damages incurred, which included: (1) injuries aggravated by the accident, such as back pain, chest pain, and neck pain; (2) fright and shock; (3) past and future physical pain; (4) past and future mental and emotional anguish; (5) medical expenses itemized pursuant to Tennessee Code Annotated section 24-5-113 totaling $28, 421.18;[3]and (6) loss of property and loss of use of the vehicle requiring him to find alternative transportation to return to his home in North Carolina.

         On March 5, 2014, Appellant filed an answer, generally denying the material allegations raised in the complaint and asserting several affirmative defenses. Specifically, Appellant contended: (1) that Appellee failed to state a claim upon which relief could be granted, (2) that governmental immunity barred the action; (3) comparative fault by non-parties; (4) that a sudden emergency and superseding cause existed; (5) that Appellee's bills were not reasonable or necessary; and (6) that Appellee failed to mitigate his damages. Prior to trial, Appellee filed several motions in limine.[4] On November 2, 2015, an agreed stipulation was entered by the parties stating that "the medical records [by the ambulance and the hospital] were reasonable and necessary and incurred as a result of the . . . accident." The case proceeded to trial without a jury on November 5, 2015.

         At trial, Appellee testified that he was a stay-at-home father to one child. According to Appellee, he had previously been hit by a drunk driver in 2000 ("2000 accident") and had sustained a mild concussion and a broken femur bone in his right leg. Appellee testified that he was denied disability benefits related to the 2000 accident. However, Appellee denied seeking damages in this case for his previous injuries. Appellee recalled that on the night of the accident, he went to an establishment in downtown Memphis to see his brother perform with the house band. Although he stayed for an hour, Appellee testified that he did not eat nor drink anything. Appellee testified that he was driving the speed limit, at thirty-five miles per hour, on Third Street in the lane closest to the turn lane heading southbound and approaching the intersection at Crump Boulevard. According to Appellee, when he was a few feet from the intersection of Crump Boulevard, he "saw a police car coming from Crump [Boulevard] onto Third Street traveling northbound going around another vehicle, swerving out of control at a fast rate of speed." Appellee testified that the police car crossed over the middle turning lane into his lane of traffic, lost control of the car, and hit him head-on in the front end driver's side. Appellee introduced several exhibits depicting the aftermath of the accident and described that the impact was "hard" enough to deploy his air bag. Appellee denied seeing any dog on the road. After the impact, Appellee testified that he lost consciousness. Upon regaining consciousness, Appellee testified that he sustained loss of feeling and was in considerable pain in his head and throughout his body. Specifically, Appellee testified that his neck, head, shoulders, upper body, and lower body were in pain after the accident. Appellee testified that, because he was in pain and was unable to walk, two officers helped him out of his vehicle.

         Thereafter, Appellee testified that the paramedics arrived, helped him onto a stretcher, and took him to the Regional One Health Medical Center ("hospital"). At the hospital, Appellee was subjected to a full trauma work-up, was given a neck brace because of whiplash, was given an I.V. for dehydration, and was administered considerable pain medication. According to Appellee, he was discharged a few hours before his aunt's funeral on the same day.

         Appellee testified that the pain he felt was intensified during his stay at the hospital and the pain persisted while he was at the funeral. Further, Appellee testified that due to the damage to his vehicle, he was required to obtain a rental car through his insurance company for the drive back to North Carolina. Once he was back in North Carolina, Appellee testified that he sought treatment with a chiropractor for a couple of months. While he was receiving treatments, Appellee described that he was in "[a] lot of pain [that he's] never experienced before on that scale, and it was very uncomfortable." By April 2013, Appellee testified that he felt better, and he could move around. According to Appellee, his injuries decreased his ability to engage in physical activities, including cooking, cleaning, and getting his son to and from school, and he still suffered from frequent headaches, anxiety attacks, and unease of rest.

         Sergeant Kenneth E. Calhoun ("Sergeant Calhoun") testified that he had served as a sergeant for the Appellant for five years and is part of the Special Traffic Investigation Squad ("STIS"), a bureau within the Memphis Police Department; he had been an employee for twenty-two years. Sergeant Calhoun explained that the STIS is assigned to investigate critical accidents, fatalities, and when City equipment is involved in an accident. Such an investigation can include taking photographs of the scene, talking to the officer and others involved, recording his findings in a report, and deciding whether to issue a citation. On the night of the accident, Sergeant Calhoun testified that he arrived about fifteen to twenty minutes after he was called to the scene but that he did not see a dog. According to Sergeant Calhoun, when he interviewed Appellee, Appellee did not allege that Officer Brown turned his car at a high rate of speed, as Appellee had alleged at trial.

         Carla Turner, Appellee's wife, testified that the first time that she saw Appellee following the accident was on the night of January 1, 2013, one day after the accident. Ms. Turner stated that Appellee appeared to be in pain. According to Ms. Turner, Appellee was under the care of a chiropractor since January 2, 2013, three times a week for four months. During those four months, Ms. Turner described Appellee as depressed and unable to play his music at church. Ms. Turner also testified that Appellee often complained that his heart and feet felt like pins and needles. Ms. Turner conceded on cross-examination that Appellee's right leg injury from the 2000 accident prevented him from performing certain household tasks. According to Ms. Turner, Appellee developed anxiety and/or panic attacks that have made it difficult for ...


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