                IN THE COURT OF APPEALS OF TENNESSEE
                                                              FILED
                            AT KNOXVILLE                     July 28, 1999

                                                           Cecil Crowson, Jr.
YVONNE WIMPEE CANNON,            )                     Appellate C ourt
                                     C/A NO. 03A01-9901-CV-00023
                                 )                              Clerk
     Plaintiff/Counter-Defendant-)
     Appellee,                   )
                                 )
v.                               )
                                 )
CITY OF CHATTANOOGA,             )
                                 )
     Defendant/Counter-Plaintiff-)
     Appellant.                  )
                                 )
                                 )
                                 )
CHARLOTTE BLALOCK, Individually )
and as guardian and next friend )
of AMBER STONECIPHER,            )
                                 )   APPEAL AS OF RIGHT FROM THE
     Plaintiff-Appellee,         )   HAMILTON COUNTY CIRCUIT COURT
                                 )
v.                               )
                                 )
JAMES WIMPEE and YVONNE WIMPEE   )
CANNON,                          )
                                 )
     Defendants,                 )
                                 )
RICHARD A. PHILLIPS,             )
                                 )
     Defendant,                  )
                                 )
and                              )
                                 )
CITY OF CHATTANOOGA,             )
                                 )   HONORABLE L. MARIE WILLIAMS,
     Defendant-Appellant.        )   JUDGE



For Appellant                        For Appellee Yvonne
                                       Wimpee Cannon
KENNETH O. FRITZ
MICHAEL A. McMAHAN                   CONRAD FINNELL
Special Counsel                      Conrad Finnell, P.C. &
Chattanooga, Tennessee                 Associates
                                     Cleveland, Tennessee

                                     ALVIN Y. BELL
                                     Bell, Turner & Hobbs
                                     Chattanooga, Tennessee

                                     For Appellee Charlotte Blalock

                                     JEFFREY W. RUFOLO
                                     Summers & Wyatt, P.C.
                                     Chattanooga, Tennessee


                          O P I N IO N

AFFIRMED AND REMANDED                                        Susano, J.

                                 1
            This case arises out of an automobile accident

involving an emergency rescue vehicle (“the rescue truck”) and

three other vehicles.    The rescue truck was driven by Richard A.

Phillips (“Phillips”), an employee of the defendant/counter-

plaintiff, the City of Chattanooga (“the City”).    The other

vehicles involved in the collision were a Ford Ranger truck

driven by James Wimpee (“Wimpee”) and owned by Wimpee’s mother,

plaintiff/counter-defendant Yvonne Wimpee Cannon (“Cannon”); a

Mercedes driven by plaintiff Charlotte Blalock (“Blalock”); and a

Ford Explorer driven by an unidentified individual who is not a

party to this lawsuit.



            Following a bench trial, the court found that Phillips,

as the driver of the rescue truck, was 100% at fault for the

accident; it also held that Phillips’ negligence was imputed to

the City.    Accordingly, the trial court found that the City was

liable to Cannon for the damages to her vehicle in the amount of

$3,500.   The trial court held the City liable for damages of

$18,500 on Blalock’s individual claim for injuries sustained in

the accident, and $6,500 on Blalock’s claim on behalf of her

granddaughter, Amber Stonecipher (“Stonecipher”), who was also

injured in the accident.    The trial court also dismissed a

counterclaim filed by the City against Cannon.    The City appeals,

contending that the trial court erred in assigning 100% of the

fault to it, in failing to apportion any percentage of fault to

Wimpee, and in dismissing its counterclaim against Cannon.      We

affirm.




                                  2
                  I.   Facts and Procedural History



            On February 14, 1996, Phillips, an EMT firefighter with

the Chattanooga Fire Department, was dispatched with his rescue

team to the scene of an automobile accident at the intersection

of Interstates 24 and 75.    Driving a six-wheel, five-passenger

rescue truck, Phillips entered Interstate 24 East, enroute to the

accident.    At all points relevant to the instant case, Interstate

24 East consisted of three lanes of travel.    Prior to entering

the Interstate, Phillips had engaged the truck’s emergency lights

and siren.    After moving into the left lane, Phillips observed

that all three lanes of traffic were congested and that traffic

was slowing down ahead of him.    Phillips testified that he then

decided, in an effort to maneuver around the traffic, to move

left into the “breakdown lane” -- a six to seven foot wide area

between the left lane of traffic and the concrete barrier that

separated the eastbound and westbound lanes of Interstate 24.



            In the meantime, Wimpee was driving Cannon’s pickup

truck in the left lane of I-24 East, a short distance ahead of

Phillips.    Wimpee testified that as traffic began slowing, he

heard a siren from behind.    Wimpee testified that he looked in

his rear-view mirror for the source of the siren, and that as he

looked back in front of him, traffic had come to a stop.    Unsure

whether he could stop in time to avoid colliding with the vehicle

in front of him, and hoping to avoid any potential collision from

behind, Wimpee applied his brakes and pulled over to the left,

i.e., into the breakdown area.    He was able to make this maneuver

without striking the vehicle in front of him.


                                  3
            Phillips testified that, upon entering the breakdown

lane, he slowed to about 35 miles per hour and was able to pass

one or two vehicles that were traveling in the left lane.               He

stated that he then saw Wimpee’s truck pull out in front of him

into the breakdown lane.       Phillips initially steered the rescue

truck to the right, colliding with Blalock’s Mercedes.             He

applied his brakes but impacted the rear of Wimpee’s truck, as

well as that of the Ford Explorer, approximately two seconds

later.    Phillips estimated that his truck was going 25 to 30

miles per hour at the time of the collision.



            Following the accident, Cannon filed suit against the

City to recover for damages to, and the loss of use of, her

truck.    The City filed a counterclaim against Cannon, alleging

that Cannon was liable for Wimpee’s negligence, which, according

to the City, had been the proximate cause of the accident.1

Blalock filed suit as well -- both individually and as guardian

and next friend of Stonecipher -- against Cannon, Wimpee,

Phillips and the City, seeking to recover for injuries sustained

by her and by her granddaughter.2         Blalock’s claim against Cannon

and Wimpee was disposed of prior to trial.3



            After consolidation by order of the trial court, the

two cases proceeded to trial, at which time the parties


      1
       The City apparently did not allege at trial, nor does it allege on
appeal, any negligence on the part of Blalock.
      2
       Blalock evidently amended her complaint to add a claim for property
damage; however, the trial court ultimately found that claim to be barred
under the applicable statute of limitations, T.C.A. § 29-20-305. Blalock does
not appeal this or any other aspect of the trial court’s judgment.
      3
       Stonecipher’s claim against Wimpee and Cannon was subsequently settled
by the parties.

                                      4
stipulated that Phillips was an employee and agent of the City

and that he had been acting in the course and scope of his

employment at the time of the accident.



          At some point during the proceedings, the trial court

dismissed the City’s counterclaim against Cannon, finding no

basis for imputing any liability to her.



          At the conclusion of the trial, the court found, among

other things, that Phillips had violated T.C.A. § 55-8-108 by

failing to drive with due regard for the safety of other persons;

that Phillips “could have anticipated sudden stops and moves of

those traveling in traffic”; that Phillips’ “inability to keep

his vehicle under sufficient control in light of these

circumstances was negligence”; and that Phillips’ actions “which

are imputed to the City of Chattanooga [were] the sole cause of

the accident....”   Accordingly, the trial court assigned 100% of

the fault to the City.   It awarded damages of $3,500 to Cannon on

her property damage claim.     Finding that Blalock and Stonecipher

had “each suffered permanent injury in the accident and [had]

incurred reasonable and necessary medical bills and expenses,”

the trial court entered judgment in favor of Blalock in the

amount of $18,500 as to her individual claim and $6,500 as to her

claim on behalf of her granddaughter.



                         II.   Applicable Law



          Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us


                                   5
with a presumption that the trial court’s factual findings are

correct.    Rule 13(d), T.R.A.P.; Wright v. City of Knoxville, 898

S.W.2d 177, 181 (Tenn. 1995).   We must honor this presumption

unless we find that the evidence preponderates against those

findings.   Rule 13(d), T.R.A.P.; Wright, 898 S.W.2d at 181; Union

Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).     The

trial court’s conclusions of law, however, are not accorded the

same deference.    Campbell v. Florida Steel Corp., 919 S.W.2d 26,

35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.

1993).



            Our de novo review is also subject to the well-

established principle that the trial court is in the best

position to assess the credibility of the witnesses; accordingly,

such determinations are entitled to great weight on appeal.

Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.App. 1995);

Bowman v. Bowman, 836 S.W.2d 563, 566 (Tenn.App. 1991).



            The Supreme Court has also noted that “[a] trial court

acting as trier of fact ‘has considerable latitude in allocating

percentages of fault to negligent parties....’” Coln v. City of

Savannah, 966 S.W.2d 34, 44 (Tenn. 1998)(quoting Wright, 898

S.W.2d at 181.)    An appellate court may alter the trial court’s

allocation of fault where the lower court’s action is “clearly

erroneous.”    Coln, 966 S.W.2d at 44; Wright, 898 S.W.2d at 181.



            The appropriate percentage of fault to be apportioned

to each party “is ultimately dependent upon all the circumstances



                                  6
of the case.”     Eaton v. McLain, 891 S.W.2d 587, 593 (Tenn. 1994).

Factors to be considered by the trier of fact include, but are

not limited to, the following:



            (1) the relative closeness of the causal
            relationship between the conduct of the
            defendant and the injury to the plaintiff;
            (2) the reasonableness of the party’s conduct
            in confronting a risk, such as whether the
            party knew of the risk, or should have known
            of it; (3) the extent to which the defendant
            failed to reasonably utilize an existing
            opportunity to avoid the injury to the
            plaintiff; (4) the existence of a sudden
            emergency requiring a hasty decision; (5) the
            significance of what the party was attempting
            to accomplish by the conduct, such as to save
            another’s life; and (6) the party’s
            particular capacities, such as age, maturity,
            training, education, and so forth.



Coln, 966 S.W.2d at 44; Eaton, 891 S.W.2d at 592.



            The relevant statutory provisions are found at T.C.A.

§§ 55-8-108 and -132.      Section 55-8-108 confers upon authorized

emergency vehicles -- such as the rescue truck in this case4 --

certain exemptions from normal “rules of the road,” when such

vehicles are responding to an emergency call and operating their

emergency audio and visual equipment.          See T.C.A. § 55-8-108(a)

through (c).    The statute also provides, however, that



            [t]he foregoing provisions shall not relieve
            the driver of an authorized emergency vehicle
            from the duty to drive with due regard for
            the safety of all persons, nor shall such
            provisions protect the driver from the
            consequences of the driver’s own reckless
            disregard for the safety of others.


      4
       The parties do not dispute that the rescue truck is an “authorized
emergency vehicle” within the meaning of the statute.

                                      7
T.C.A. § 55-8-108(d).   Section § 55-8-132 provides, in pertinent

part, as follows:



          (a) Upon the immediate approach of an
          authorized emergency vehicle making use of
          audible and visual signals...:

          (1) The driver of every other vehicle shall
          yield the right-of-way and shall immediately
          drive to a position parallel to, and as close
          as possible to, the right-hand edge or curb
          of the roadway clear of any intersection, and
          shall stop and remain in such position until
          the authorized emergency vehicle has passed,
          except when otherwise directed by a police
          officer.



T.C.A. § 55-8-132(a)(1).



                           III.   Analysis


          A.   The Trial Court’s Apportionment of Fault


          The City contends that the trial court erred in

assigning 100% of the fault to it and none to Wimpee.     It insists

that some percentage of fault must be assigned to Wimpee, in view

of his failure to yield the right-of-way to the emergency

vehicle, as required by T.C.A. § 55-8-132(a)(1).



          Upon review of the record, we are of the opinion that

the evidence does not preponderate against the trial court’s

determination that the rescue truck was traveling at a speed that

was unreasonable under the circumstances and traffic conditions.

The evidence likewise does not preponderate against the trial

court’s finding that Phillips failed to exercise due regard for


                                  8
the safety of other drivers on the road, as required by T.C.A. §

55-8-108.    Despite the City’s arguments to the contrary, it is

clear that Phillips’ negligence was the proximate cause of the

accident.    Although the width of the rescue truck was not

measured, it is obvious from the photographs introduced as

exhibits at trial that the truck was significantly wider than the

six to seven foot breakdown lane through which Phillips attempted

to negotiate.      In his testimony at trial, Phillips acknowledged

that the rescue truck was wider than the breakdown lane; that he

had not previously attempted to drive this type of truck through

the breakdown lane; and that immediately prior to the accident,

he had a view ahead of about 2,000 feet, and could see the

traffic slowing down and then stopping.      Furthermore, Phillips

admitted that he had had the option of braking and remaining in

the flow of traffic, but had decided to attempt to maneuver his

truck between the left-hand lane and the concrete barrier.



            Given the foregoing, we cannot say that the evidence

preponderates against the findings of the trial court.      Rule

13(d), T.R.A.P.; Wright, 898 S.W.2d at 181.      By the same token,

we cannot say that, under the circumstances of this case, the

trial court’s allocation of 100% of the liability to the City, as

Phillips’ employer, was clearly erroneous.      Coln, 966 S.W.2d at

44; Wright, 898 S.W.2d at 181; Eaton, 891 S.W.2d at 593.


              B.    Dismissal of the City’s Counterclaim


            The City also contends that the trial court erred in

dismissing its counterclaim against Cannon.      In this context, the

City argues that Cannon was the owner of the truck driven by


                                    9
Wimpee and that she had given her son express permission to use

the vehicle “for the family’s convenience.”    In contending that

Cannon should be held liable for Wimpee’s actions, the City

relies upon the family purpose doctrine, which was recently

described by the Supreme Court as follows:



          ...the head of a household who maintains a
          motor vehicle for the general use and
          convenience of the family is liable for the
          negligence of any member of the family
          driving the vehicle, provided the driver
          received express or implied consent.

          The family purpose doctrine is applicable
          when two requirements have been satisfied.
          First, the head of the household must
          maintain an automobile for the purpose of
          providing pleasure or comfort for his or her
          family. Second, the family purpose driver
          must have been using the motor vehicle at the
          time of the injury “in furtherance of that
          purpose with the permission, either expressed
          or implied, of the owner.”




Camper v. Minor, 915 S.W.2d 437, 447 (Tenn. 1996)(citations

omitted)(emphasis added).



          In the instant case, the proof established that

although Cannon was the owner of the vehicle driven by her son at

the time of the accident, she was not the head of his household.

Therefore, the family purpose doctrine is inapplicable to the

facts before us, and we find the City’s argument on this point to

be without merit.   In any event, we have already held that the

trial court properly assigned all of the fault for the accident

to the City; thus, there is no liability attributable to Wimpee

that could be imputed to Cannon.     We hold that the trial court

did not err in denying the City’s counterclaim against Cannon.

                                10
11
                  IV.    Damages for Frivolous Appeal



            Appellee Cannon’s request for damages for a frivolous

appeal under T.C.A. § 27-1-122 is found to be without merit and

is hereby denied.       The issues raised by the appellant were fairly

debatable.    See Cole v. Dych, 535 S.W.2d 315, 323 (Tenn. 1976).



                              V.   Conclusion



             The judgment of the trial court is in all respects

affirmed.     Costs on appeal are taxed to the appellant.     This case

is remanded to the trial court for enforcement of the judgment

and the collection of costs assessed there, all pursuant to

applicable law.



                                          __________________________
                                          Charles D. Susano, Jr., J.



CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
Herschel P. Franks, J.




                                     12
