                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               November 18, 2010 Session

         TOMMIE HAMPTON v. CITY OF MEMPHIS, TENNESSEE

               Direct Appeal from the Circuit Court for Shelby County
                    No. CT-004090-04     Donna M. Fields, Judge


              No. W2010-00469-COA-R3-CV - Filed December 14, 2010


Plaintiff was injured when Defendant Madden drove his vehicle at a high speed and in the
wrong direction on an exit ramp of I-40/240 and collided head-on with Plaintiff’s vehicle.
Plaintiff filed a negligence action against Defendant Madden and against the City of
Memphis pursuant to the Governmental Tort Liability Act. In his complaint, Plaintiff
asserted Memphis City police negligently pursued Defendant Madden, and that this
negligence proximately caused Plaintiff’s injuries. The trial court found Plaintiff’s injuries
were caused solely by the acts of Defendant Madden and entered judgment in favor of the
City of Memphis. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Joe M. Rogers, West Memphis, Arkansas, for the appellant, Tommie Hampton.

Barbaralette G. Davis, Assistant City Attorney, and Henry L. Klein, Memphis, Tennessee,
for the appellee, City of Memphis.

                                         OPINION

      This lawsuit arises from a motor vehicle accident on the morning of July 16, 2003, in
which Plaintiff/Appellant Tommie Hampton (Mr. Hampton) was injured when his vehicle
was struck head-on by a Ford Explorer operated by Defendant Jeffrey Madden (Mr.
Madden). The accident occurred on the Warford Street exit ramp of westbound I-40/240,
where Mr. Madden, having exited the interstate, made a U-turn in order to re-enter the
highway and return to Arkansas. Mr. Madden was traveling at a high-rate of speed in the
wrong direction when he collided with Mr. Hampton. When he exited I-40/240, Mr. Madden
was being followed by a pick-up truck that, unbeknownst to him, was operated by undercover
Memphis City police. Mr. Hampton suffered serious injury as a result of the accident, and
incurred medical expenses in excess of $100,000.

       On July 15, 2004, Mr. Hampton filed a cause of action pursuant to the Governmental
Tort Liability Act (“GTLA”) in the Circuit Court for Shelby County against Mr. Madden, the
City of Memphis, and four Memphis police officers, individually and in their official
capacities. In his complaint, Mr. Hampton asserted Mr. Madden was fleeing what he alleged
was a high-speed pursuit by Memphis police officers at the time of the accident. He asserted
the police were negligent in their pursuit of Mr. Madden, and that his injuries were
proximately caused by the officers’ negligence. Mr. Hampton asserted he sustained serious
and permanent injuries as a result of the collision. He sought compensatory damages not to
exceed two-million dollars and punitive damages.

       The City of Memphis (“the City”) answered in October 2007, denying Mr. Hampton’s
allegations and asserting the doctrine of comparative fault. The City further asserted that Mr.
Hampton’s injuries were directly and proximately caused by the acts of a third party. On
October 25, 2007, the trial court entered consent orders dismissing the claims against the
police officers in their individual capacities. The trial court also entered a consent order
dismissing Mr. Hampton’s claim for damages in excess of the $250,000 permitted by the
GTLA, and his claim for punitive damages.

        Following a three-day bench trial in February 2009, the trial court entered a judgment
in favor of the City. In its order, the trial court found that Mr. Hampton’s injuries were not
proximately caused by the actions of the police officers, but “were the result of a criminal
traveling the streets and highways of Memphis, Tennessee under the influence of drugs.”
The trial court entered a judgment in favor of the City on September 16, 2009. On October
14, 2009, Mr. Hampton filed a motion to amend the trial court’s findings and conclusions and
to alter and amend the order. The trial court denied the motion on February 1, 2010, and Mr.
Hampton filed a notice of appeal to this Court on February 24, 2010.

       Upon review of the record, we determined that the trial court’s February 2010 order
was not a final judgment where Mr. Hampton’s claim against Mr. Madden did not appear to
have been disposed of by the trial court, and where the trial court had not ruled on Mr.
Hampton’s February 6, 2009, motion to draw an adverse inference against the City. We
issued an order requiring Mr. Hampton to show cause why the appeal should not be
dismissed for failure to appeal a final judgment. The trial court subsequently entered an
order of voluntary non-suit against Mr. Madden, and an order denying Mr. Hampton’s
motion to draw an adverse inference. Having determined that the trial court’s order now is

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final, we turn to the issues raised by Mr. Hampton on appeal.

                                       Issues Presented

        Mr. Hampton raises five issues for our review. However, the determinative issue, as
we perceive it, is whether the trial court erred in its determination that the actions of the City
police officers were not the proximate cause of the injuries sustained by Mr. Hampton in the
collision with Mr. Madden’s vehicle.

                                      Standard of Review

       Causation is a question of fact to be determined by the trier of fact. E.g., Hale v.
Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005). We review the trial court’s findings of fact de
novo upon the record, with a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not reverse the trial court’s factual
findings unless they are contrary to the preponderance of the evidence. We review the trial
court’s conclusions on matters of law de novo, however, with no presumption of correctness.
Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000). The trial court’s
determinations on matters of witness credibility are accorded great deference. Wells v. Tenn.
Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). We therefore will not re-evaluate a trial
judge’s credibility determinations unless they are contradicted by clear and convincing
evidence. Id.

                                          Discussion

        We begin our discussion with the well-recognized elements of a tort action alleging
negligence: (1) a duty of care owed to the plaintiff by the defendant; (2) conduct on the part
of the defendant that falls below the standard of care so as to constitute a breach of that duty;
(3) an injury or loss suffered by the plaintiff; (4) causation in fact; and (5) proximate or legal
cause. Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008)(citations
omitted). The elements of duty and injury are not issues in this case. Rather, the
adjudication of this matter in the trial court focused on the questions of breach of duty and
causation.

       In its September 2009 order, the trial court made no finding with respect to the issue
of breach of care, but entered judgment in favor of the City upon finding that the acts of the
police did not proximately cause Mr. Hampton’s injuries. Thus, although the parties have
devoted considerable portions of their briefs to this Court to the question of whether the
police were “in pursuit” of Mr. Madden when the accident occurred, and breached the
standard of care by failing to follow proper pursuit procedures, this issue is not determinative

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to our disposition of this matter on appeal. Our review of the trial court’s judgment is
confined to whether the evidence contained in the record preponderates against the trial
court’s determination that Mr. Hampton did not carry his burden of proof with respect to the
element of causation.

        The plaintiff in a negligence action is required to prove, by a preponderance of the
evidence, two distinct elements of causation: cause in fact and proximate cause. E.g., Hale
v. Ostrow, 166 S.W.3d 713, 718 (Tenn. 2005)(citations omitted). Both types of causation
ordinarily are questions of fact for the trier of fact “‘unless the uncontroverted facts and
inferences to be drawn from them make it so clear that all reasonable persons must agree on
the proper outcome.’” Id.(quoting Haynes v. Hamilton County, 883 S.W.2d 606, 612
(Tenn.1994) (citing McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991))). In order
to demonstrate causation in fact, the plaintiff must prove that the defendant’s conduct
contributed directly to the plaintiff’s injury. Id.(citations omitted). If the plaintiff’s injury
would not have occurred “but for” the defendant’s conduct, then that conduct is a cause in
fact of the injury. Id. The defendant’s conduct does not need to be the sole cause of the
plaintiff's injury, but it must be a cause. Id.

        Proximate cause concerns the imposition of legal liability following the determination
of cause in fact. Id. at 719. Proximate cause, or legal cause, limits the chain of causation.
Id. at 718. Notwithstanding that the plaintiff’s injury would not have occurred “but for” the
defendant’s action, the defendant will not be liable for injuries not substantially caused by
his conduct or a reasonably foreseeable result of his conduct. Id. at 719. The courts have
developed a three-pronged test to establish proximate cause: (1) the conduct of the defendant
must have been a “substantial factor” in causing the injury; and (2) no rule or policy relieves
the wrongdoer from liability; and (3) the harm or injury could have been reasonably foreseen
or anticipated “by a person of ordinary intelligence and prudence.” Id. (quoting Haynes v.
Hamilton County, 883 S.W.2d 606, 612 (quoting McClenahan v. Cooley, 806 S.W.2d 767,
775 (Tenn.1991))).

       In this case, it is undisputed that undercover police officers traveling in an unmarked
pick-up truck followed Mr. Madden onto I-40/240 from the Wal-Mart Store on Austin Peay
Highway in Memphis on the morning of the accident. It also is undisputed that Mr. Madden
admitted to having used illegal drugs that morning, that medical syringes containing
methamphetamine were found in his vehicle following the accident, and that he had
purchased and shoplifted Sudafed from the store in order to manufacture crystal
methamphetamine. Further, it is not disputed that when Mr. Madden collided with Mr.
Hampton, he was traveling the wrong way on the Warford Street exit ramp after having
exited I-40/240 onto the ramp and making a U-turn to proceed back up the roadway. After
summarizing the testimony, the trial court entered an extremely detailed order and found:

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       [Mr.] Madden made the unfortunate decision to travel the wrong way on an
       interstate exit because he was lost. He was not familiar with the Warford area
       and had made the erroneous decision to travel against traffic before he even
       saw the undercover officers. His statements that he traveled faster because of
       the pickup following him were not believable, in light of all the officers’
       testimony and the physical evidence.

The trial court found that the officers’ actions were not the proximate, legal cause of the
collision, and that although Mr. Hampton “suffered horrendous injuries, through no fault of
his own, these injuries were the result of a criminal traveling the streets and highways of
Memphis, Tennessee under the influence of drugs.”

       The evidence in the record does not preponderate against the trial court’s findings in
this matter. Mr. Madden testified that he exited the interstate “[b]ecause [he] thought [he]
had lost” the unmarked pick-up truck. He further testified that he did not see the pick-up
truck when he exited at the Warford Street exit, that he traveled down the ramp and pulled
off onto the shoulder of the roadway, and that he “went to make the U-turn.” He stated that
he “glanced behind [him], and the truck had come around the bend.” Mr. Madden stated that
he saw the pick-up truck “as [he] was making a U-turn.” Mr. Madden testified that he was
not familiar with the exit, and that he thought he was getting back onto the entrance ramp.
Mr. Madden also testified that he “picked-up a rate of speed trying as well to get away
again.” He further testified that he did not see the marked police car that had responded to
the undercover officers’ call for assistance until he was proceeding back up the exit ramp.

       In his brief, Mr. Hampton asserts that the trial court erred in finding that actions of the
police did not proximately cause his injuries because “flight from police pursuit that results
in injury to [a] third person is well known and documented throughout the County and
Tennessee.” He asserts that the unrebutted expert testimony in the record establishes that “a
criminal suspect in a vehicle will flee from a police chase until he escapes or crashes and will
slow down and drive safely when not chased.” Mr. Hampton emphasizes that Mr.
“Madden’s reaction to being chased was typical and resulted in the collision.”

        Upon review of the testimony, however, there is nothing to support Mr. Hampton’s
assertion that Mr. Madden knew he was being chased or even followed by the police when
he exited I-40/240 at the Warford Street exit, made a U-turn, and proceeded up the exit ramp
in the wrong direction in order to re-enter the interstate. On the contrary, Mr. Madden
testified that it did not occur to him that the passengers in the pick-up truck were police
officers. When asked why he “didn’t just pull over and stop” when he noticed he was being
followed, Mr. Madden stated, “I had no reason to pull over and stop for somebody[.] I didn’t
know who they were.” As noted above, Mr. Madden testified that he made the U-turn to

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return to the interstate before he realized that the pick-up truck was behind him. He further
testified that he did not see the marked police cars until seconds before the collision with Mr.
Hampton, when he already was proceeding the wrong way on the exit ramp. Mr. Madden
stated that he “never touched the brake” after seeing the police cars and before colliding with
Mr. Hampton because he “never had time.” He testified, “I never seen him (Mr. Hampton).
I couldn’t try to avoid him.”

        Charles Teeters (Mr. Teeters), one of the two undercover police officers who followed
Mr. Madden, testified that the unmarked pick-up truck was “[a] few car lengths” behind Mr.
Madden when Mr. Madden made the U-turn on the Warford Street exit ramp. Mr. Teeters
testified that he followed Mr. Madden “a few yards up the ramp,” and that he did not see Mr.
Hampton’s vehicle until “the time of impact . . . . [i]t may have been a fraction of a second
before impact.” Mr. Teeters also testified, “[a]t no point did this individual, in my opinion,
know that the police were following him. There is no blue lights. There is no siren. There
is no knowledge that the individuals behind him were police officers.” It is undisputed,
moreover, that the unmarked, mid-1990's pick-up truck was not equipped with either sirens
or emergency lights, and that the undercover officers were in plain clothes.

       The trial court found that “[i]t was solely Mr. Madden’s plan, and his ultimate
decision, to make the u-turn to travel up the off ramp, before spotting” the unmarked police
vehicle. The trial court stated, Mr. “Madden testified that he was unaware that he was
traveling the wrong direction on the ramp,” and that “he thought he had lost the pick-up,
intended to flee back to Arkansas, decided to make a u-turn to return to Arkansas on I-
40/240, made the turn and collided with [Mr.] Hampton.” The trial court also noted that Mr.
Madden “admitted that he had consumed drugs that morning on the way to Memphis, an hour
or so before this event.” With respect to whether Mr. Madden traveled faster because he
realized the pick-up truck was behind him, the trial court found this suggestion “not
believable, in light of all the officers’ testimony and the physical evidence.” There is no clear
and convincing evidence in the record to contradict the trial court’s findings insofar as they
are based on credibility, and the evidence does not preponderate against the trial court’s
factual findings with respect to causation.

                                            Holding

        In light of the foregoing, the judgment of the trial court is affirmed. It is unnecessary
for us to address the remaining issues raised in Mr. Hampton’s brief in light of our




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disposition of this matter. Costs of this appeal are taxed to the Appellant, Tommie Hampton,
and his surety, for which execution may issue if necessary.




                                                  _________________________________
                                                  DAVID R. FARMER, JUDGE




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