Swafford v. City of Chattanooga

• Decision Date: 18 August 1987
• Citation: 743 S.W.2d 174
• Parties: Clyde A. SWAFFORD and wife, Mary Swafford, Plaintiffs-Appellees, v. CITY OF CHATTANOOGA and Clara Mae Terry, Defendants-Appellants.
• Court: Tennessee Court of Appeals

Page 174

743 S.W.2d 174

Clyde A. SWAFFORD and wife, Mary Swafford, Plaintiffs-Appellees, v. CITY OF CHATTANOOGA and Clara Mae Terry, Defendants-Appellants.

Court of Appeals of Tennessee Eastern Section.

Aug. 18, 1987.

Permission to Appeal Denied by

Supreme Court Nov. 30, 1987.

W. Lee Maddux and Randall L. Nelson, Chattanooga, for defendant-appellant, City of Chattanooga.

Jeffrey D. Boehm, Gentry & Boehm, Chattanooga, for plaintiffs-appellees.

Stephanie R. Reevers, Asst. Atty. Gen., Nashville, for the Attorney General of the State of Tennessee.

OPINION

ANDERSON, Judge.

This is an appeal from the trial court's judgment for damages for personal injury and property damage in favor of Plaintiff-Appellee Clyde A. Swafford against Defendant-Appellant City of Chattanooga, and denying recovery to Plaintiff-Appellee Mary Swafford under the provisions of T.C.A. § 29-20-101 et seq., the Tennessee Governmental Tort Liability Act. We affirm the decision of the trial court regarding Mr. Swafford's recovery, reverse its decision regarding Mrs. Swafford's recovery, and remand.

I.

On Monday, August 1, 1983, Plaintiffs-Appellees, Clyde and Mary Swafford, were traveling west on East Third Street in Chattanooga, Tennessee. East Third Street is a four-lane street east of its intersection with Central Avenue, having two lanes of traffic in each direction. Because of traffic congestion around Erlanger Hospital, the City had decided to widen East Third Street west of Central Avenue to include two lanes of traffic in each direction and a turning lane in the middle. The City accomplished this widening by adding an additional lane to the north side of East Third Street. Westbound traffic was to move to the right where it entered the newly-widened section in order to allow room for the new turning lane.

Wesco Company was awarded the contract to pave the newly-widened portion and completed its paving on Thursday, July 28, 1983. The only remaining project work was for the City of Chattanooga to install proper signs and pavement markings to channel the traffic. Because the City owned only one paint striping truck, it could not paint both white and yellow markings at the same time. By the end of the working day on Friday, July 29, the City had painted the solid white stripes delineating the extreme edges of the newly-paved section, and had painted the interrupted white stripes delineating the boundaries between the inside and outside lanes of traffic on each side of the street. In addition, the City apparently had painted unbroken white stripes delineating the right-hand side of the newly established left-turn lane at its intersections with Central Avenue and with Wiehl Avenue. The City, however, had not painted the solid and interrupted yellow lines that were to define the boundaries between the new turning lane and each of the inside lanes, and had not painted the large white arrows indicating left turns only from the inside westbound lane of East Third at Central. The result was that during the weekend of July 30th and 31st, traffic westbound on East Third Street, after crossing Central Avenue, entered a new five-lane section of the street that had only the extreme outside lanes of traffic properly defined by permanent markings. Westbound traffic in the left-hand lane of East Third moved into the middle of a thirty-two-foot wide section of unmarked, newly-paved street, while traffic in the right-hand lane moved into the unmarked, newly-paved left-hand lane. Temporary paint "daubings" had been marked in the locations where the permanent yellow lines were to define the middle three lanes, but there was no other evidence that any measures had been taken to define the lanes or to warn motorists of the free-for-all traffic flow.

The Swaffords were westbound in their pickup truck-camper on East Third Street and, as they crossed Central Avenue, moved into the new right-hand lane. Mr. Swafford, who was driving, then signaled left and moved into what he estimated to be the left lane. He then signaled again and moved into the approximate middle of the newly-paved section, and came to a stop with his turn signal on, preparing to turn into a parking lot on the south side of the street. Mr. Swafford waited for a short time for oncoming traffic to clear, checked his rear-view mirror, and then began his left turn. As he began the turn, Defendant Clara Mae Terry, apparently in the process of trying to pass the Swaffords, struck their truck on the left front side, damaging the truck and injuring Mr. Swafford.

The Swaffords sued the City, Wesco Company, and Ms. Terry, seeking damages for Mr. Swafford's injuries, for the damage to the pickup truck, and for Ms. Swafford's loss of consortium. Ms. Terry then filed a counter-claim against Mr. Swafford, Wesco Company, and the City for property damage to her automobile. Both the Swaffords and Ms. Terry demanded jury trials. Pursuant to the terms of T.C.A. § 29-20-313(b) ¹, the trial court severed the suit against the Defendant City from the suits involving the private defendants. Following the trial, the court awarded a judgment against the City in favor of Mr. Swafford for $40,000 for his injuries, and $5,000 for the damage to his pickup truck. The court awarded Ms. Swafford nothing, and dismissed the complaint of Ms. Terry against the City. The City appealed that judgment to this Court, but we dismissed the appeal and remanded because there was no showing in the record of the disposition of the suit of the Swaffords against Wesco and Ms. Terry, or the counter-suit of Ms. Terry against Wesco and the Swaffords. Following our remand, the Swaffords and Ms. Terry entered an Order of Non-suit as to Wesco. A jury trial was then conducted between the Swaffords and Ms. Terry, resulting in a jury award of $40,000 to the Swaffords and $1,000 to Ms. Terry, with a jury finding that Ms. Terry was negligent and that Mr. Swafford was contributorily negligent. This inconsistent verdict was never reduced to final judgment. The City then filed a motion for new trial in the action against it, and the Swaffords and Ms. Terry each filed motions for new trial in their jury action. The City's motion was denied, Ms. Terry's motion was denied, but the Swaffords' motion against Ms. Terry was granted. A subsequent trial between the Swaffords and Ms. Terry resulted in a mistrial. Finally, the Swaffords and Ms. Terry entered a joint Order of Dismissal between themselves only. The record thus reflected a proper adjudication of all the claims between all the parties, and the City's appeal is now properly before this Court.

II.

The City suggests that this entire action is barred under T.C.A. § 29-20-205(1) (1980). That section creates an exception to the removal of immunity from suit where the negligent act or omission of a governmental employee "arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused." The City's argument fails for two reasons. First, although the trial court discusses the issue of discretionary functions, it is apparent that its award to Mr. Swafford is based on T.C.A. § 29-20-203(a) (1980 and Supp.1986), which removes governmental tort immunity "for an injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway, owned and controlled by such governmental entity." The section goes on to say that "the terms 'street' and 'highway' shall include traffic control devices thereon," but it does not create an exception for discretionary functions.

Second, even if the trial court had found (which it did not) that the injuries here were "proximately caused by a negligent act or omission of any employee" of the City under § 29-20-205, we would not find that the placing of traffic control lanes on a five-lane thoroughfare that served, as the proof shows, 11,500 cars per day is a discretionary function. The City refers us to Davis by Davis v. City of Cleveland, but that case does not support the City's position. In Davis, this Court found that since a yellow caution light timing sequence "was set within the range prescribed by the state manual on traffic devices, ... [it] represented a judgment call by the person responsible for such setting in the exercise of his professional judgment, and [was] thus a discretionary act within...