                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    January 20, 2009 Session

    GARY L. WATTS AND JANET WATTS, Parents And Next Friends of
    CLINTON D. WATTS, Deceased v. EARNESTINE J. MORRIS, ET AL.

              Direct Appeal from the Circuit Court for Shelby County
                No. CT-002527-05     John R. McCarroll, Jr., Judge



                 No. W2008-00896-COA-R3-CV - Filed May 6, 2009



HOLLY M. KIRBY , J., concurring.

        It is with reluctance that I write separately to concur with the majority opinion in this case.

       My reluctance does not stem from any flaw in the well-written and well-reasoned majority
opinion. Rather, it stems from the knowledge that our decision will be a disincentive to the
implementation of changes to make pedestrians safer when crossing Central Avenue to reach the
University of Memphis campus.

       The calls for action to protect student pedestrians crossing Central Avenue have included
numerous letters to various officials written by University of Memphis Engineering Professor
William Jermann, dating back to 1986, letters from Engineering Professor Babajide Familoni and
former University of Memphis President Lane Rawlins dating back to 1995, and letters from current
University President Shirley Raines, concerning the numerous pedestrian-vehicle collisions on
Central Avenue and the almost daily near-misses. While a few improvements to Central Avenue
have been made, as described by Dr. Rawlins in his 1995 letter to City of Memphis Mayor W.W.
Herenton, “no amount of signage or lecturing will deter students from simply drifting and dodging
their way across the street.”

        Alas, lawsuits are an imperfect vehicle to compel change. The City cannot be held liable for
Clinton Watts’ tragic death based on an assertion that the City should have “done something” about
Central Avenue. The law requires that the plaintiff show specific action that should have been taken
by the City, and that the failure of the City to take the specified action was a legal cause of Mr. Watts
untimely death. As aptly pointed out by the majority in its opinion, this was not done in this case.


        Under these circumstances, I concur.
      ____________________________________
      HOLLY M. KIRBY, JUDGE




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