KATHY S. DILLON, and husband        )
DONALD L. DILLON,                   )
                                    )
      Plaintiffs/Appellants,        )
                                    )    Tennessee Claims Commission
VS.                                 )    No. 304797
                                    )
                                    )
STATE OF TENNESSEE,                 )    Appeal No.
                                    )    01A01-9701-BC-00020
      Defendant/Appellee.           )


                  IN THE COURT OF APPEALS OF TENNESSEE
                                                            FILED
                       MIDDLE SECTION AT NASHVILLE
                                                               June 20, 1997

              APPEAL FROM TENNESSEE CLAIMS COMMISSION,Cecil W. Crowson
                 MIDDLE DIVISION, OF DAVIDSON COUNTY Appellate Court Clerk
                       AT NASHVILLE, TENNESSEE

       HONORABLE W. R. BAKER, COMMISSIONER, MIDDLE DIVISION


John Knox Walkup
Attorney General & Reporter

Michael W. Catalano
Associate Solicitor General
500 Charlotte Avenue
Nashville, Tennessee 37243-0497
ATTORNEYS FOR DEFENDANT/APPELLEE

Gary R. Gober
Harry L. Weddle
2505 21st Avenue, Suite 301
Post Office Box 121497
Nashville, Tennessee 37212
ATTORNEYS FOR PLAINTIFFS/APPELLANTS


                        MODIFIED AND REMANDED.



                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:

BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
KATHY S. DILLON, and husband                   )
DONALD L. DILLON,                              )
                                               )
       Plaintiffs/Appellants,                  )
                                               )        Tennessee Claims Commission
                                               )        No. 304797
VS.                                            )
                                               )
STATE OF TENNESSEE,                            )        Appeal No.
                                               )        01A01-9701-BC-00020
       Defendant/Appellee.                     )



                                        OPINION


       This appeal arises from the injury of a passenger in a motor vehicle which was struck in

the rear by a Tennessee Highway Patrol Cruiser operated by a Trooper of the patrol. The State

Claims Commission found the fault of the Trooper to be 85% and that of the driver of vehicle

occupied by the injured passenger to be 15% and assessed damages accordingly. The State filed

a petition for judicial review by this Court, presenting the following issues:

                1. Trooper Christian saw the Dillon car followed by a car
                driving erratically. He pursued the erratic car, crested a rise,
                saw only Dillon and immediately turned on his emergency
                equipment. When Dillon slowed and moved toward the right
                shoulder, Christian attempted to pass, but Dillon began to
                turn left. Christian veered to the right and hit Dillon’s rear
                bumper. Did the Commissioner err in holding that Trooper
                Christian breached his duty of care to Dillon?

                2. When Mr. Dillon began to turn left, he activated his left
                turn signal less than 50 feet before the turn in violation of
                state law. Based on this act, the Commissioner held that Mr.
                Dillon was only 15% at fault. Did the Commissioner err in
                that Trooper Christian was 85% at fault?


       The Claimants present the issues in the following form:

               1. Whether the Tennessee Claims Commissioner erred by a
               preponderance of the evidence in holding that an experienced
               highway patrol officer failed to use due regard for the safety
               of the plaintiffs by initiating a high-speed chase around them
               from the rear over hilly terrain in the dark on a rain-wet road
               after turning on his emergency equipment two-tenths of a
               mile back at 50 m.p.h. in a 30 m.p.h. residential area and then,
               despite having total visual command of the situation, crashing
               violently into the rear of the car as it sat entirely in the right
               lane of a shoulderless, two-lane road in front of the plaintiffs’
               driveway with the turn indicator blinking?

                                              -2-
               2. Whether the Commissioner, after assessing the credibility
               of the witnesses and the weight of all the evidence at trial,
               erred in apportioning 85% of the fault to the negligent trooper
               who had ample time and distance to slow his cruiser to a
               controllable speed under the road conditions and known
               presence of the plaintiffs; and who testified that he knew
               beforehand that the wetness of the road would diminish his
               ability to stop or slow his cruiser, yet maintained an
               uncontrollable speed on approach of the plaintiffs’ vehicle
               from the rear, despite his admitted personal knowledge that
               the driver of the plaintiffs’ vehicle might not have then
               perceived his cruiser two-tenths of a mile behind him at 50
               m.p.h.?


                                                I.

                                         THE FACTS



       With minor exceptions noted hereafter, the facts are undisputed.



       The collision occurred on U.S. Highway 70N which is a two lane paved highway with

no shoulder adjoining the pavement on the north side due to a ditch near the pavement.



       Plaintiff Donald Dillon was driving his vehicle westward in the described area at a very

slow speed searching for a driveway on the south (left) side of the roadway which driveway he

intended to enter by turning left across the (south) east-bound lane of the roadway. It was dark

and raining, causing low visibility. Approximately 3/10 of a mile to the east of the scene, there

is a crest in the level of the road obscuring vehicles beyond the crest. East of said crest, the

speed limit was 55 m.p.h., but west of the crest, the speed limit was 30 m.p.h.



       For some distance before arriving at the scene, Mr. Dillon noticed another private vehicle

(not the patrol cruiser), approaching at a high rate of speed shifting his headlights high and low

as though trying to pass. At some point near the crest, the speeding vehicle passed the Dillon

vehicle and continued westward at a high rate of speed.




                                               -3-
        At about this time, the Trooper was approaching the scene from the west, moving

eastward, facing the Dillon vehicle. Seeing the antics of the speeding vehicle, the Trooper

decided to chase and intercept the speeding vehicle, but it was necessary to change direction to

do so. After passing the Dillon vehicle, the Trooper continued eastward to a point where the

reversal of direction was accomplished and the Trooper approached the scene, westbound at a

high rate of speed with siren and emergency lights activated. The cruiser was not visible to Mr.

Dillon until it passed the crest in the road 3/10 of a mile from the Dillon vehicle. Mr. Dillon

testified that he never heard the siren or saw the blue lights until just before the collision, but that

at the time of the collision he had moved to the extreme right of his lane and was moving slowly.



        The trooper testified that he saw the brake signal of the Dillon vehicle and the movement

to the right portion of the west bound lane and presumed that Mr. Dillon was yielding the right

of way, and that he (the Trooper) began the movement to pass the Dillon vehicle on the left,

using the southern (east-bound) lane; but the Dillon vehicle began to display a signal for a left

turn and began to move to the left (southerly) portion of the west bound lane; and that the

Trooper then expected Mr. Dillon to turn left across the south (east bound) lane which would

result in the cruiser striking the Dillon broadside.



        The Trooper testified that his only alternative was to attempt to pass to the right of the

Dillon vehicle, but that he was unable to do so, succeeding only in hitting the Dillon vehicle in

the rear instead of the side.



        The points of contact with the Dillon vehicle included the entire rear, that is, from the left

end to the right end of the rear bumper. When struck, the Dillon vehicle was entirely within the

west bound lane.




                                                  -4-
                                         II.

                                   THE LAW



T.C.A. § 55-8-108 reads in pertinent part as follows:

               Authorized emergency vehicles. - (a) The driver of
       an authorized emergency vehicle, when responding to an
       emergency call, or when in the pursuit of an actual or
       suspected violator of the law, or when responding to but not
       upon returning from a fire alarm, may exercise the privileges
       set forth in this section, but subject to the conditions herein
       stated.
                                     ----
       (3) Exceed the speed limits so long as life or property are not
       thereby endangered; and
       (4) Disregard regulations governing direction of movement or
       turning in specified directions.
       (c) The exemptions herein granted to an authorized
       emergency vehicle shall apply only when such vehicle is
       making use of audible and visual signals meeting the
       requirements of the applicable laws of this state, except that
       an authorized emergency vehicle operated as a police vehicle
       may be equipped with or display a red light only in
       combination with a blue light visible from in front of the
       vehicle.
       (d) The 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.


T.C.A. § 55-8-143 reads in pertinent part as follows:

                Signals for turns. - (a) Every driver who intends to
       start, stop or turn, or partly turn from a direct line, shall first
       see that such movement can be made in safety, and whenever
       the operation of any other vehicle may be affected by such
       movement, shall give a signal required in this section, plainly
       visible to the driver of such other vehicle of the intention to
       make such movement. (Emphasis supplied.)


T.C.A. § 9-8-403 (a) (1) provides in pertinent part as follows:

               The decisions of the individual commissioners may be
       appealed to the entire claims commission pursuant to rules
       promulgated by the commission. The decisions of the
       individual commissioners or, when rendered, decisions of the
       entire commission regarding claims on the regular docket may
       be appealed to the Tennessee Court of Appeals pursuant to
       the Tennessee Rules of Appellate Procedure, except that tax
       appeals shall go directly to the Tennessee Supreme Court and

                                                 -5-
              workers’ compensation appeals shall be appealed pursuant to
              the procedure for other workers’ compensation cases under
              § 50-6-225(e).



TRAP Rule 13 (d) provides in pertinent part as follows:

                      (d) Findings of Fact of Civil Actions. - Unless
              otherwise required by statute, review of findings of fact by the
              trial court in civil actions shall be de novo upon the record of
              the trial court, accompanied by a presumption of the
              correctness of the finding, unless the preponderance of the
              evidence is otherwise. Findings of fact by a jury in civil
              actions shall be set aside only if there is no material evidence
              to support the verdict.


                                    III.

                 DECISION OF THE COMMISSION



       The judgment of the Commission contains the following:

                      The trooper was trying to catch a westbound car that
              had been driving recklessly and apparently drunkenly. His
              bluelight signals, his siren, and his headlights were all in full
              operation (but not his horn). At one point he had been driving
              65 or seventy miles an hour. There was no impediment
              whatever to his seeing traffic ahead of him for at least a
              quarter of a mile, and he did in fact see the car he hit as he
              came up behind it. The trooper testified that he was going
              “forty to fifty” miles an hour at the point of impact.

                      The trooper said that he hit the car the claimant was in
              “right smack dab in the rear.” The collision happened in the
              westbound right lane of the highway.

                      It is not disputed that, as a matter of fact, neither the
              claimant nor her husband saw or heard any of the trooper’s
              signals.

                       The duty arises when a party should have heard the
              siren or should have seen the lights flashing. But Thomas v.
              State does not say that anybody has a duty to hear what he did
              not hear or see what de did not see; the holding of Thomas v.
              State is that anybody is responsible for looking for on-coming
              traffic on any road he enters or crosses. Kowalski v.
              Elderridge, 765 S.W.2nd 746 (Tenn. App. 1988), has no
              reference to the duty of a driver who did not hear or see a
              signal but should have: in that case the Court held that the
              driver in fact did hear the signal.
                                            ----



                                            -6-
                      This trooper was trained and experienced; in particular
              he knew that other drivers sometimes cannot see or hear
              emergency equipment. He had a full view of all the
              circumstances. This trooper made mistaken assumptions (like
              thinking the car ahead of him was going to go straight down
              the highway and not turn left) and mistaken perceptions (like
              thinking that the car ahead of him had heard or seen his
              signals and was yielding); his acting on these mistakes, when
              ordinary care under the circumstances required him to slow
              down, was the main cause of this wreck.

                      But the trooper’s actions were not the only cause of
              the wreck. As the State’s brief says, “It is a violation of
              Tennessee law to make a left-hand turn into a private
              driveway without giving a signal continuously for a distance
              of at least fifty feet. It is undisputed in this case that Mr.
              Dillon failed to signal his proposed left-hand turn properly.
              This Commission takes judicial notice that any (sic) people
              perform the dangerous driving error (which as the State’s
              brief says is a violation of the law) of signaling a turn only
              while they are making the turn rather than before it, and
              sometimes only after coming to a full stop preparatory to
              making the turn; this peculiar unreasonable hesitation and
              reluctance to sue turn signals is very common, so that any
              trained and experienced highway patrolman must be familiar
              with it and prepared for it.

                       All things considered, particularly that the trooper was
               experienced and well trained, that the trooper had a full clear
               view of everything involved, that the other driver never heard
               or saw the trooper’s signals and had no obligation to notice
               them because he never left his own traffic lane, that there was
               nothing to keep the trooper from driving more carefully than
               he did while coming up behind the other car, and that Mr.
               Dillon clearly violated a statute in not signaling his proposed
               turn properly. The Commission finds that Mr. Dillon was
               15% liable, and that trooper Christian was 85% liable, for this
               wreck.


                                               IV.

                             NEGLIGENCE OF MR. DILLON



       The evidence does not preponderate against the decision of the Commission that Mr.

Dillon did not see or hear the lights or siren (in time to obey them), and the finding of the

Commission that Mr. Dillon violated T.C.A. § 55-8-142 and 143 by failing to give a timely

signal before stopping or turning. These findings must therefore be affirmed.




                                               -7-
       However, the Commission did not mention that Mr. Dillon failed to perform the mandate

of T.C.A. § 55-8-143, that every driver “who intends to start, stop or turn from a direct line shall

first see that such movement can be made in safety.” It is clear from a preponderance of the

evidence that Mr. Dillon failed to observe the above emphasized portion of the statute; that his

negligence in this regard was one of the principal causes of the collision and; that, had Mr. Dillon

looked before turning from a straight line, he would not have begun the left turn which misled

the Trooper as to Mr. Dillon’s intentions, and the collision would probably not have occurred.



                                                V.

                            NEGLIGENCE OF THE TROOPER



       The evidence preponderates in favor of the finding of the Commission that the Trooper

was negligent acting upon assumptions that were not sufficiently well founded to justify his

actions, and that said negligence of the Trooper was the “main cause of this wreck.” However,

the preponderance of the evidence does not support the finding that the failure to give timely

notice of a turn is commonplace or, if so, such practice was known and should have been acted

upon by the Trooper, or that it was subject to “judicial” (or administrative) notice by the

Commission. This Court therefore declines to affirm these findings.



                                                VI.

                                 DISPOSITION OF APPEAL



       The findings of fact heretofore concurred in by this Court distinguish the present case

from Kowalski v. Eldridge, Tenn. App. 1988, 765 S.W.2d 746 and Thomas v. State, Tenn. App.

1987, 742 S.W.2d 649, cited by the State.




                                                -8-
       The circumstances of this particular case require a revision of the percentages of fault

assigned by the Commission (85% to the Trooper and 15% to Mr. Dillon). As above explained,

the failure of Mr. Dillon to first ascertain that his movement could be made with safety

substantially increases the percentage of his fault; and the rejection of the duty of the Trooper

to know and act upon common negligence of motorists materially reduces the percentage of fault

of the Trooper.



       In Wright v. City of Knoxville, Tenn. 1995, 898 S.W.2d 177, the Supreme Court said:

                       Although it is true that the trier of fact has
               considerable latitude in allocating percentages of fault to
               negligent parties, see e.g., Martin v. Bussert, 292 Minn. 29,
               193 N.W.2d 134 (1971), appellate courts may alter those
               findings if they are clearly erroneous. Because this case was
               tried without a jury, our review of the issues of fact is de novo
               on the record of the trial court. However, we must presume
               that the trial court’s findings were correct unless the
               preponderance of the evidence is otherwise. Tenn. Code Ann.
               § 27-3-103; Tenn. R. App. P. 13(d).



       In the present appeal, after revising the finding of fact to conform with the preponderance

of the evidence, this Court finds that the allocation of fault by the Commission was “clearly

erroneous” and revises the judgment of the Commission by allocating 60% of fault to the

Trooper (i.e., the State) and 40% to the claimant Donald L. Dillon.



       No issue is made as to the finding of the Commission of $220,000.00 total damages.

Accordingly, this Court affirms and adopts this finding, but reduces the net award 40% or

$88,000.00 to $132,000.00. Costs of this appeal will be paid out of the Claims Fund of the State.




                                               -9-
     The cause is remanded to the Claim Commission for further appropriate procedure.



                          MODIFIED AND REMANDED.



                                         ___________________________________
                                         HENRY F. TODD
                                         PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM C. KOCH, JR., JUDGE




                                        -10-
