Russell v. Anderson County
Decision Date | 11 February 2011 |
Docket Number | No. E2010-00189-COA-R3-CV,E2010-00189-COA-R3-CV |
Parties | CURTIS ROBIN RUSSELL, et al. v. ANDERSON COUNTY, et al. |
Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Anderson County
No. A4LA0692 Jon Kerry Blackwood, Judge
This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection. The action was filed pursuant to the Tennessee Governmental Tort Liability Act ("GTLA"), Tenn. Code Ann. § 29-20-101 et seq, against the City of Clinton ("the City") by plaintiffs Curtis Robin Russell ("Mr. Russell") and Dorothy Louise Russell ("Mrs. Russell") (collectively "the Russells") as next of kin of the decedent, their son Curtis Tyler Russell ("Curtis"). The Russells settled with the driver of the vehicle, Ladislav Misek ("Mr. Misek"), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City. On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Case Remanded
Benjamin K. Lauderback, Knoxville, Tennessee, for the appellant, City of Clinton, Tennessee.
Tasha C. Blakney and Ronald C. Koksal, Knoxville, Tennessee, for the appellees, Curtis Robin Russell and Dorothy Louise Russell, as next of kin and natural parents of Curtis Tyler Russell, deceased, and Dorothy Louise Russell, individually.
This case arises out of a tragic event that occurred at a traffic intersection in the City, at approximately 7 p.m. on November 3, 2003. On that evening, seven-year-old Curtis attended a regional basketball tournament hosted at Clinton Middle School with Mrs. Russell, Curtis's natural mother, and Curtis's two sisters. Clinton Middle School, which is part of the Anderson County School system and operated by the Anderson County Board of Education, is located in the central downtown district of the City. Mr. Russell, the decedent's natural father, did not attend the basketball tournament on the evening in question. Shortly before 7 p.m. and with Mrs. Russell's permission, Curtis left the school gymnasium with his eleven-year-old cousin, R.J. Webber ("R.J."), and his cousin's friend1 to retrieve a video game from the Webber family vehicle. The three boys stopped before crossing the intersection at West Broad Street and North Hicks Street to observe the traffic conditions and traffic control devices. At or near this same time, Mr. Misek, operating a 1997 Chevrolet S10 pickup truck, was stopped at the same intersection, waiting for the traffic signal to change from red to green so that he could cross North Hicks Street. The Russells aver that while traffic was stopped, Curtis, R.J., and R.J.'s friend proceeded to cross West Broad Street on foot within the marked pedestrian crosswalk on North Hicks Street. When the traffic light turned green, Mr. Misek drove his vehicle forward into the pedestrian crosswalk and intersection, striking Curtis, who was walking slightly ahead of his two companions. Mr. Misek ran over Curtis with both the front and rear driver's side tires of his vehicle. Curtis was transported by Lifestar helicopter from the accident scene to the University of Tennessee Medical Center, where he was pronounced dead later that evening.
On October 5, 2004, the Russells filed their original complaint2 for wrongful death pursuant to the GTLA.3 Relevant to this matter, under the GTLA, Tenn. Code Ann. § 29-20-203(a). The Russells also relied upon Tenn. Code Ann. § 29-20-205, a statutory provision that removes governmental immunity for injuries caused by the negligent act or omission of an employee unless the injury arises out of a discretionary function.
The Russells averred that the City, as a result of its ownership and control of the intersection at issue, was negligent in failing to provide pedestrian signal head devices as mandated by the guidelines and standards provided in the Manual on Uniform Traffic Control Devices ("MUTCD").4 Specifically, Section 4E.03(C) of the MUTCD requires the use of pedestrian signal heads in conjunction with vehicular traffic control signals "[a]t an established school crossing at any signalized location." The Russells also claimed that the City was strictly liable for the intersection's "defective, unsafe, and dangerous" nature, of which the City had actual or constructive notice.
In its responsive pleading, the City asserted that the Russells' allegations failed to state a claim; additionally, the City raised all of the immunities to which it is entitled under the GTLA. The City also asserted an affirmative defense based on the doctrine of modified comparative negligence, claiming that the actions or omissions of Mrs. Russell "were the proximate cause of the alleged damages" and should reduce or bar the Russells' recovery.
This matter proceeded to trial on November 1 and 2, 2007. The trial court, sitting without a jury, concluded that the City was negligent in its failure to provide pedestrian head signals at the subject intersection as required by Section 4E.03 of the MUTCD. In reaching its conclusion, the trial court made a number of findings that are relevant to this appeal. First, the trial court found that pedestrian head signals were required at the intersection-located within a school zone-even after school hours. Second, the trial court determinedthat the green light variable sequencing did not provide adequate warning to pedestrians crossing West Broad Street from the island because the light is difficult to observe when the pedestrian is within two feet of the edge of the island. Consequently, the trial court concluded that the absence of such pedestrian head signals rendered the intersection "dangerous, defective, and unsafe." Third, the court found that the City had received notice of this defective and unsafe condition when a school board member had requested the installation of pedestrian head signals at the intersection several years prior to this accident.5 The trial court further concluded that the MUTCD provided notice to the City of the requirement of pedestrian head signals.
Also found negligent by the trial court was Mrs. Russell. The court determined that she did not inquire as to the location of R.J.'s mother's parked car or what route the boys would be taking to retrieve the video game. The trial court further observed that Mrs. Russell knew it was dark and was aware that Curtis had no knowledge of the area. The trial court specifically found that "a reasonably careful or prudent person would not allow her child to leave the gym under these circumstances without the company of a reasonable adult." The trial court apportioned fault to both the City and Mrs. Russell at 50% each and ordered that the Russells were barred from recovering in this matter.
On December 11, 2007, the Russells filed a motion to alter or amend judgment pursuant to Tenn. R. Civ. P. 59.04. After hearing oral arguments by both parties, the trial court issued its order on April 17, 2008, altering its original judgment "to reflect that Mrs. Russell's negligence will not bar recovery but that the damages awarded... shall be reduced in proportion to the percentage of negligence previously assigned to Mrs. Russell." The City then timely filed its notice of appeal, submitting a number of issues for review. In our previous opinion, we "pretermit[ted] all issues raised except whether the Trial Court erred in failing to consider the fault of all parties, specifically the driver of the vehicle that struck Curtis Russell." Russell v. Anderson County., No. E2008-00925-COA-R3-CV, 2009 WL 2877415, at *2 (Tenn. Ct. App. E.S., Sep. 8, 2009). We held that the trial court committed reversible error when it failed to attribute fault to Mr. Misek. Accordingly, we vacated the trial court's judgment and remanded the cause for further consideration on the issue of fault apportionment consistent with our opinion. Id. at *3. On remand, the trial court reapportioned fault, assigning 10% to Mr. Misek and 45% each to the City and Mrs. Russell. The City again timely appealed.
The City presents multiple issues for our review, which we consolidate and restate more succinctly as follows:
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