        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE                       FILED
                                                      September 29, 1999

THOMAS E. DRAKE, and wife,     )                      Cecil Crowson, Jr.
DEBRA DRAKE,                   )                     Appellate Court Clerk
                               )
      Plaintiffs/Appellants.   )
                               )           Appeal No.
VS.                            )           01-A-01-9810-CV-00525
                               )
BILL MANSON, Individually and )            Wilson Circuit
WILSON COUNTY, WILSON          )           No. 9717 and 10051
COUNTY SHERIFF AND             )
DEPARTMENT, and its Employees, )
SERGEANT BILLY WILLIAMS        )
and OFFICER DONNA CAMP;        )
and CITY OF MT. JULIET,        )
TENNESSEE, and MT. JULIET      )
POLICE DEPARTMENT,             )
                               )
      Defendants/Appellees.    )

     APPEAL FROM THE CIRCUIT COURT OF WILSON COUNTY
                 AT LEBANON, TENNESSEE

              THE HONORABLE BOBBY CAPERS, JUDGE


WILLIAM L. MOORE, JR.
119 Public Square
Gallatin, Tennessee 37066
      Attorney for Plaintiffs/Appellants

THOMAS I. CARLTON, JR.
CHRISTOPHER S. DUNN
2700 Nashville City Center
Nashville, Tennessee 37219
     Attorneys for Defendant/Appellee Wilson County

DARRELL G. TOWNSEND
DERRICK C. SMITH
300 James Robertson Parkway
Nashville, Tennessee 37201-1107
      Attorneys for Defendant/Appellee City of Mt. Juliet

               AFFIRMED IN PART; REVERSED IN PART;
                         AND REMANDED

                                           BEN H. CANTRELL,
                                           PRESIDING JUDGE, M.S.
CONCUR:
CAIN, J.
COTTRELL, J.
                                OPINION



              A motorist was severely injured when his car was broadsided by a

speeding vehicle, driven by an armed robbery suspect who had been fleeing in

a stolen car from pursuit by police officers. The injured motorist’s suit named

the fleeing suspect, Wilson County, the City of Mt. Juliet, and individual police

officers. The trial court granted summary judgment to all the defendants except

for the driver of the stolen car. We affirm as to the individual officers, but

reverse as to the County and City.



                             I. A Dangerous Pursuit



              On November 13, 1995, Thomas Drake was traveling eastward on

Leeville Pike Road in Wilson County. As he was attempting to make a left turn

at that road’s intersection with Crowell Lane, his car was struck on the driver’s

side by a car which was traveling eastward at a high rate of speed in the

westbound lane of Leeville Pike Road. Mr. Drake suffered severe and disabling

injuries in the collision.



              The car that collided with Mr. Drake’s vehicle was driven by Bill

Manson, an armed robbery suspect who, with four companions, had been fleeing

from pursuit by Mt. Juliet police and Wilson County deputies prior to the

collision. On June 10, 1996, Mr. Drake filed suit for his injuries, naming as

defendants Bill Manson, Wilson County, the Wilson County Sheriff and Sheriff’s




                                      -2-
Department, Sergeant Billy Williams, Officer Donna Camp, the City of Mt.

Juliet, and the Mt. Juliet Police Department.



               Mr. Drake claimed that the high speed pursuit of Mr. Manson was

conducted in a negligent way, and that such negligence was a proximate cause

of his injuries. The Mt. Juliet and Wilson County defendants filed motions for

summary judgment. They denied being guilty of any negligence, and asserted

that the actions of Bill Manson were the sole cause of the accident.1 On June 16,

1998, the trial court granted summary judgment to all of the defendants except

for Bill Manson. The judgment was certified as a final judgment for purposes of

appeal, pursuant to Tenn. R. Civ. P. 56.04, whereupon it reached this court.



                               II. Summary Judgment



               Summary judgment is an appropriate vehicle for disposing of a

claim only when there is no dispute as to material facts, and the moving party is

entitled to judgment as a matter of law. Rule 56.04, Tenn. R. Civ. P. Byrd v.

Hall, 847 S.W.2d 208 (Tenn. 1993). Summary judgment is not to be regarded

as a substitute for trial of disputed factual issues.               Gonzales v. Alman

Construction Co., 857 S.W.2d 42 (Tenn. App. 1993). A trial court ruling on a

summary judgment motion must view the pleadings and the evidence before it

in the light most favorable to the opponent of the motion, Wyatt v. Winnebago

Industries, 566 S.W.2d 276 (Tenn. App. 1977), and must draw all reasonable




       1
        The motion of the City of Mt. Juliet contained an argument that Mr. Drake was himself
negligent, but this theory has not been asserted on appeal.

                                            -3-
factual inferences in favor of the non-moving party. Dillard v. Vanderbilt

University, 970 S.W.2d 958 (Tenn. App. 1998).



            In the present case, the individual officers named in the complaint

were entitled to summary judgment as a matter of law, because when the

immunity from suit normally enjoyed by governmental entities is removed under

the provisions of the Governmental Tort Liability Act, Tenn. Code. Ann. § 29-

20-101, et seq., a corresponding immunity is conferred upon the government

employees whose alleged negligence gave rise to the cause of action. Tenn.

Code. Ann. § 29-20-310(b).



            The Wilson County Sheriff and Sheriff’s Department and the Mt.

Juliet Police Department are likewise entitled to summary judgment. It appears

to us that they were named as defendants out of an abundance of caution on the

part of the plaintiff. However, Wilson County is the only governmental body

required by law to answer for the negligence of the sheriff and his deputies,

Tenn. Code. Ann. §§ 8-8-301 and 302, while the City of Mt. Juliet is the proper

defendant to answer for the acts of its police department, see Tenn. Code. Ann.

§ 29-20-102(3).



                      III. Haynes v. Hamilton County



            We acknowledge that if this case had arisen before the Supreme

Court’s decision in the case of Haynes v. Hamilton County, 883 S.W.2d 606

(Tenn. 1994), Wilson County and the City of Mt. Juliet would also have been



                                     -4-
entitled to judgment as a matter of law. The Court’s prior opinions had

interpreted Tenn. Code. Ann. § 58-8-108, which deals with the operation of

authorized emergency vehicles, to mean that law enforcement agencies could not

be held liable for injuries to innocent third parties, when those injuries resulted

from an accident between a vehicle being pursued by the police and the third

party. The rationale for the earlier rule, as stated in the case of Kennedy v.

Spring Hill, 780 S.W.2d 164 (Tenn. 1989), was that the police should not be held

liable for attempting to perform their duty by arresting lawbreakers, and thus the

misconduct of the fleeing suspect was deemed to be the sole proximate cause of

any injuries.



                In the Haynes case, three innocent teenagers were killed in a fiery

collision that resulted from a 100 mile per hour pursuit, that began when a

Hamilton County police officer attempted to pull over a Corvette that had no tail

lights. After the accident, police learned that the Corvette had been stolen. The

parents of the teens sued the County. The trial court, considering itself bound by

the decisions in Kennedy, supra, and other cases, entered a judgment for the

county, and this court affirmed.



                The parents appealed to the Supreme Court, which then reversed its

holding in Kennedy, recognizing that a decision to initiate or to continue pursuit

can be negligent, if the risk to innocent third parties from such pursuit outweighs

the public interest in apprehending the suspect. The Court listed some factors for

the trial courts to consider when faced with the question whether such a decision

should give rise to liability, including the speed and area of the pursuit, weather



                                         -5-
and road conditions, the presence or absence of pedestrians and other traffic,

alternative methods of apprehension, applicable police regulations, and the

danger posed to the public by the suspect being pursued. 883 S.W.2d at 611.



                     IV. Disputed and Undisputed Facts



             In the case before us, it is undisputed that the pursuit of Bill Manson

began on a rural road where there was very little traffic, that the road was level

and for the most part straight, that the weather was clear, and the roadbed was

dry. The suspects were believed to be armed and dangerous, and the danger they

posed to the public had to be considered substantial. Thus, we do not believe the

decision to begin the pursuit of Mr. Manson and his companions is really at

issue.



             However, the collision itself occurred at an intersection where

traffic was heavier, in an area that the investigating police officer characterized

as urban and residential. The appellant argues that the police were negligent in

continuing the chase after the danger to other motorists increased, and has raised

questions about the duration of the pursuit and about the failure of the police to

utilize other means to apprehend the suspects.



             Just prior to the collision, Donna Camp Huddleston, a Wilson

County deputy, was driving the lead pursuit car, followed by three or four cars

driven by Mt. Juliet officers. The deputy had slowed her pursuit after the

suspects threw objects at her car, and then pointed what appeared to be a firearm



                                       -6-
at her. The deputy’s superiors had also radioed her to slow down further,

because they were going to attempt to use a “stinger,” a device designed to

puncture the tires of an oncoming car, at the intersection of Leeville Pike and

Crowell Lane. As she approached the intersection, the deputy observed that

other law enforcement officers had stopped traffic and had directed vehicles to

the southern shoulder of Leeville Pike, and she saw the plaintiff’s car turn left

into the path of the suspect’s car.



             The appellees argue since Deputy Huddleston had backed off prior

to the collision, and since this did not deter Mr. Manson from continuing to drive

in an extremely reckless fashion, the plaintiff cannot establish that the officer’s

conduct was a “substantial factor” in bringing about the harm complained of, and

thus that it could not be considered a proximate cause of Mr. Drake’s injuries.

See Haynes v. Hamilton County, supra at 611-12.



             We do not believe, however, that we are required to find that

liability cannot attach as a matter of law, as long as the pursuit slows down

before the accident occurs. In the present case, the question of exactly how long

before the accident the pursuers backed off is a material fact in dispute, as is the

question of when it became unsafe to continue the pursuit. The fact that the

suspect was driving at a high rate of speed and that the lead officer actually

witnessed the collision would seem to indicate that the pursuit ended very shortly

before the accident, or else that the pursuit actually continued, albeit in a less

intense mode.




                                        -7-
             Further, law enforcement officers appeared to have taken control of

the intersection where the accident occurred, but the presence of Mr. Drake’s car

in the middle of the intersection raises questions in regard to their management

of the traffic. We note that the City of Mt. Juliet has argued that even if we

reverse the summary judgment for the County, we should still affirm the

judgment in favor of the City, because the County’s deputy was leading the

pursuit at the time of the accident. However, there is nothing in the record to

indicate whether the Mt. Juliet officers still had their lights and sirens on at the

time of the accident, or how far behind the lead car they were. We believe that

there is enough uncertainty about the actions of the Mt. Juliet officers (including

the possibility that they had a role in the activity at the intersection) to preclude

summary judgment for the City.



                              V. Other Arguments



             The appellees further argue that a ruling against them would thwart

public policy, by deterring police officers from pursuing felons who had used

deadly force. It appears to us, however, that this amounts to the same argument

that the Supreme Court rejected in Haynes v. Hamilton County. The danger that

fleeing suspects pose to public safety is a factor that must be weighed against the

danger of continuing the pursuit, rather than one that must be considered to

outweigh all other factors.



             The appellees cite an unpublished opinion of this court, Crumley v.

City of Smyrna (Appeal No. 01A01-9607-CV-00316, filed at Nashville, January



                                        -8-
24, 1997), which involved the pursuit of a suspect (driving a stolen police car)

that resulted in injuries to an innocent third party. In that case, the trial court

applied the factors discussed in Haynes, and entered a judgment for the

defendant. This court affirmed, finding that the evidence did not preponderate

against the findings of the trial court.



             The implicit argument is that the factors militating against liability

for the governmental defendants in the present case are at least as strong as they

were in the Crumley case, and that in order to be consistent, we must rule in

favor of the appellees. We note, however, that the Crumleys received a bench

trial, and that they were able to fully develop the facts. Our review of the

Crumley case was thus accompanied by a presumption of the correctness of the

trial court’s findings, as is required by Rule 13(d), Tenn. R. App. P. No such

presumption accompanies a review of a grant of summary judgment.



             We believe that like the Crumleys, the plaintiff in this case is also

entitled to further develop his proof. In ruling for the plaintiff, we express no

opinion as to the ultimate merits of his claim. We note, however, as did the

appellees, that at trial the court is obligated to view the conduct of the police

officers “in light of how a reasonably prudent police officer would respond under

the circumstances, and not judge with the perfect vision afforded by hindsight.”

883 S.W.2d at 611.




                                           -9-
                                       VI.



             The trial court’s dismissal of the claims against Wilson County and

the City of Mt. Juliet are reversed. In all other respects, the court’s judgment is

affirmed. Remand this cause to the Circuit Court of Wilson County for further

proceedings consistent with this opinion. Tax the costs on appeal to the

appellees.




                                        _______________________________
                                        BEN H. CANTRELL,
                                        PRESIDING JUDGE, M.S.


CONCUR:



______________________________
WILLIAM B. CAIN, JUDGE



______________________________
PATRICIA J. COTTRELL, JUDGE
