Nevill v. City of Tullahoma

• Decision Date: 08 August 1988
• Citation: Nevill v. City of Tullahoma, 756 S.W.2d 226 (Tenn. 1988)
• Parties: Douglas NEVILL and Wife Louise Nevill, Individually, and as the Surviving Parents and Next of Kin of Connell D. Nevill, Deceased, Plaintiffs-Appellees, v. The CITY OF TULLAHOMA, Tennessee, a Municipal Corporation, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 226

756 S.W.2d 226

Douglas NEVILL and Wife Louise Nevill, Individually, and as the Surviving Parents and Next of Kin of Connell D. Nevill, Deceased, Plaintiffs-Appellees, v. The CITY OF TULLAHOMA, Tennessee, a Municipal Corporation Defendant-Appellant.

Supreme Court of Tennessee at Nashville.

Aug. 8, 1988.

John M. McCord, Henry & McCord, Tullahoma, for plaintiffs-appellees.

Stephen M. Worsham, Rick L. Moore, Robertson, Worsham, Moore & Hedges, Tullahoma, for defendant-appellant.

OPINION

FONES, Justice.

Connell D. Nevill, age 19, sustained fatal injuries as a passenger in a vehicle that was fleeing from Tullahoma Police officers at speeds approximating 100 mph when it struck a tree. This suit was brought by his parents against the City of Tullahoma and the two officers who were in the police car, David Burkhalter and William Smith.

This action was subject to the Tennessee Governmental Tort Liability Act and after a non-jury trial the trial judge awarded plaintiffs a recovery in the sum of $130,628.22, reduced by $25,000 received by plaintiffs in settlement of their claim against Wayne Culpepper, the driver of the vehicle in which Nevill was riding. The police officers were dismissed and the net judgment of $105,628.22 against the City of Tullahoma was within its insurance policy limits. No issue is made with respect to the amount of that judgment.

The Court of Appeals affirmed and this Court granted the City of Tullahoma's Rule 11 Application.

The lower courts found that the police officers were negligent in commencing pursuit and in continuing the pursuit at the speeds and presumably for the time and distance involved. Both courts found that the officers violated T.C.A. § 55-8-108, the Emergency Vehicle Statute, although there is no dispute but that the officers displayed the audio and visual signals as required to qualify for the immunities of that statute. Both courts also found that the officers were guilty of negligence in that in making the decision to pursue Culpepper they violated a provision of the Policy and Procedures Manual of the Tullahoma Police Department, by failing to obtain permission to engage in the pursuit.

We find that the sole proximate cause of the accident and resulting death of plaintiff's decedent was the negligence of Wayne Culpepper, and reverse and dismiss this suit.

The tragedy occurred on Friday night 8 July 1983, at approximately 11:30 p.m. Earlier in the evening many youths had gathered at the Fun Tunnel, located at the Northgate Mall, between North Jackson and North Atlantic Streets in Tullahoma. The Fun Tunnel was described as a sort of game room with video machines, etc. One witness, Jimmy Childers, went to the Fun Tunnel with Jimmy Bickers and Wendy Shields, who had been Wayne Culpepper's girlfriend. Culpepper appeared and was described by Childers as unsteady with slurred speech. Eventually Childers expressed the opinion that Culpepper was intoxicated. Trouble broke out between Culpepper and Bickers at the instigation of Culpepper and they went outside to settle their differences. There Childers observed Connell Nevill. Nevill, who was somewhat in the center of things, first said, "Let them fight." When Childers said, "Let's break them up," Nevill assisted him in pulling Culpepper off of Bickers. One Steve Walker, described as six foot four, weighing two hundred thirty pounds, tossed Culpepper over his shoulder and carried him away from the combat zone.

Later, Childers observed Culpepper trying to let the air out of the tires on Bickers' car. Childers and Nevill "escorted" Culpepper to his own car and Childers left the two of them standing by Culpepper's car. The next time Childers saw them, Culpepper was driving around the mall in circles, at a high rate of speed, weaving between parked cars with tires screaming. Childers estimated there were about forty people in the lot, many of them running for cover behind parked cars as Culpepper continued "cutting doughnuts" as other witnesses described it. Childers estimated that Culpepper circled four or five times.

Burkhalter was driving the police car with Smith as passenger. They were going south on North Jackson Street when they heard tires screaming and sliding. They entered the mall, observed the Culpepper vehicle "cutting doughnuts" and approached the Culpepper vehicle with blue lights on. Before they were close enough to the Culpepper vehicle to get its license number it headed for the north rear exit by Castner-Knott, turned left on North Atlantic and drove north at a high rate of speed.

Both officers testified that Culpepper almost came to a stop before entering North Atlantic Street, at which time the door on the passenger side of the vehicle opened, an arm was seen on the door handle and the door was closed. The officers realized, for the first time, that there was a passenger in the vehicle. The Court of Appeals found that plaintiff's decedent had "no reasonable opportunity to exit the car before it became too dangerous to attempt to do so." Our view of this case renders it unnecessary that we address the City's issues of assumption of the risk and contributory negligence of the decedent based upon knowledge of Culpepper's intoxication.

The Court of Appeals' opinion accurately summarized the material evidence about the events of the pursuit as follows:

Certain distances along the route of the pursuit have been stipulated as follows:

From exit of parking lot
                   to John Harton drive                         .05 mi
                   to Marbury Road                              .25 mi
                   to Silver Railroad box                       .25 mi.
                   to Flowertown Rd.                            .35 mi.
                   to Drive at Patty Solomon's field of vision  .10 mi.
                   to Tullahoma City Limits                     .55 mi.
                   to accident scene                            .45 mi.
                

The officers testified that they pursued at high speed from the parking lot exit to the Silver Box (a distance of .55 mi.) and that shortly after passing the box, the siren was deactivated, speed was reduced and the Culpepper vehicle disappeared "over the hill"; that they proceeded at reduced speed and slowed down to turn into Flowertown Road, but decided to continue on Atlanta Road where the Culpepper vehicle was found 1.45 miles beyond the Silver Box. There is no measurement from the place where the Culpepper vehicle disappeared from sight, but this was evidently between the Silver Box and Flowertown Road, so that, under the testimony of the officers, the Culpepper vehicle proceeded without visible pursuit for at least 1.1 mi. after visual contact was lost.

Randy Solomon testified that he was standing with Patty Solomon on a hill overlooking Flowertown Road and Atlantic Avenue and saw the Culpepper car "with the police car right behind it" come over the hill at Flowertown Road at high speed and descend into a "flattened straight-a-way" at 75 to 80 miles per hour with the police car 2 1/2 or 3 car lengths behind the Culpepper car. From this testimony, the police were closely pursuing as far as Patty Solomon's field of vision at a point 1 mile from the beginning and .9 mile from the point of the fatal crash.

Mr. and Mrs. Arthur McBee testified that they were travelling on Atlantic Avenue beyond Flowertown Road when they saw headlights approaching from the rear at high speed, that they slowed down, the lead vehicle passed at 80 to 100 miles per hour, and 30 to 45 seconds later the police car passed at about 45 miles per hour, then accelerated and disappeared around a curve. This testimony would indicate that the police car was pursuing beyond Flowertown Road at a reduced speed until it passed the McBee's and accelerated.

The Court of Appeals then addressed the issue of proximate cause as follows:

The actual time or distance between abandonment of pursuit and crash of the pursued is not of conclusive significance, but are circumstances bearing upon proximate cause, that is, the issue of whether the pursuit had a real causal connection with the fatal crash. It is well known that "the wicked flee when no man pursueth". It is readily deducible that if a suspect is fleeing at high speed to escape a pursuing police car, the suspect will not necessarily reduce speed after disappearing from sight over a hill or around a curve, but will continue at high speed until his escape is assured. In [ Fiser ] Fizer v. City of Ann Arbor, [417 Mich. 461, 339 N.W.2d 413 (1983) ], the pursued was several miles from the pursuer, yet a recovery was held to be allowable.

This is the first time in the history of Tennessee jurisprudence that this Court has been confronted with the issues involved in a tort action seeking to impose liability on police officers for the decision to pursue law violators as well as for the manner of pursuit.

A number of our sister states have addressed these issues and the better reasoned opinions, as well as the numerical majority, hold contrary to the cases relied upon by the Court of Appeals.

In Chambers v. Ideal Pure Milk Co., 245 S.W.2d 589 (Ky.1952) police engaged the law violator in a chase covering thirteen city blocks at speeds of approximately 75 miles an hour. The law violator's vehicle crashed into the plaintiff's vehicle and the plaintiff sued for his personal injuries. In rejecting liability, the Kentucky court stated as follows:

Charged as they were with the obligation to enforce the law, the traffic laws included, they [the police] would have been derelict in their duty had they not pursued him. The police were performing their duty when Shearer, in gross violation of his duty to obey the speed laws, crashed into the milk wagon. To argue that the officers' pursuit caused Shearer to speed may be factually true, but it does not follow that the officers are liable at law for the results of Shearer's negligent speed. Police cannot be made insurers of the conduct of the culprits they chase. It is our conclusion that the action of...