                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                 November 18, 2009 Session

  JONATHAN PARKER v. HENDERSON COUNTY, TENNESSEE ET AL.

              Direct Appeal from the Circuit Court for Henderson County
                     No. 05199     Donald P. Harris, Senior Judge


                 No. W2009-00975-COA-R3-CV - Filed February 4, 2010


The plaintiff/appellee, Jonathan Parker (“Mr. Parker”), was shot once in the right shoulder by Officer
David Stanhope (“Ofc. Stanhope”) of the Lexington Police Department during the execution of a
search warrant at Mr. Parker’s residence. The trial court held the City of Lexington (“the City”)
liable for the injury that Mr. Parker suffered. The court determined that Sergeant Jeff Middleton
(“Sgt. Middleton”) was negligent in failing to properly supervise Ofc. Stanhope during the operation
and that Ofc. Stanhope negligently created the dangerous situation leading to the use of deadly force.
The court awarded $40,000 in damages to Mr. Parker, which accounted for his fault in failing to
immediately respond to police commands. 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 H OLLY M. K IRBY, J. and
J. S TEVEN S TAFFORD, J., joined.

John D. Burleson and Dale Conder, Jr., Jackson, Tennessee, for the appellant, City of
Lexington, Tennessee.

Jeffrey P. Boyd, Jackson, Tennessee, for the appellee, Appellee, Jonathan Parker.

                                            OPINION

                             I. Background and Procedural History

        On November 19, 2004, Investigator Chris James (“Inv. James”) of the Henderson County
Sheriff's Department learned through reliable informants that a black male known as “Big Man” was
in possession of crack cocaine packaged for resale. “Big Man” was said to be in possession of the
drugs at a residence in French's Trailer Park in Lexington, Tennessee. Inv. James incorporated this
information into an affidavit and obtained a search warrant from Judge Steve Beal of the General
Sessions Court of Henderson County authorizing the search of the residence in question, “Big Man,”
and any persons or vehicles on the premises. Inv. James had previously contacted Sgt. Middleton
of the Lexington Police Department, leader of the local S.W.A.T. team, regarding the anticipated
search. Sgt. Middleton agreed to lead the operation and instructed Ofc. Stanhope to conduct
surveillance at the residence. Upon the issuance of the warrant, Sgt. Middleton convened the
S.W.A.T. team at the Lexington Police Department to prepare for the operation.

         Sgt. Middleton determined that a dynamic execution of the warrant, which would have
involved forcibly entering the residence by surprise, was unnecessary; rather, the officers would
conduct a “classic ruse”: (1) the officers would place a fictitious loud-music complaint, (2) Ofc.
Stanhope would approach and lure “Big Man” away from the residence, (3) Ofc. Stanhope would
detain “Big Man” and radio for backup, and (4) the remaining officers would arrive to help execute
the warrant. The purpose of this plan was to protect the officers and any unknown persons
occupying the residence. 1 Although Sgt. Middleton did not articulate a plan “B,” he testified that
the officers were trained to proceed with a contingency plan of containment and call out. If the ruse
failed, the officers would immediately take action to contain the suspect and then call him out of the
residence – e.g.: “Come out with your hands up!” Only if attempts at call out and negotiation failed
would the officers proceed to force the suspect out.

        At or around 10:25 p.m. on November 18, 2004, Ofc. Stanhope parked his vehicle
approximately seventy-five feet from the targeted residence and initiated his approach. When Ofc.
Stanhope arrived, Mr. Parker was sitting on the steps of the residence, talking on a cellular phone,
and drinking a beer. As Ofc. Stanhope exited his marked police vehicle, Mr. Parker arose, entered
his residence, and closed the door behind him. This spurred Ofc. Stanhope to sprint towards the
front door of the residence with his weapon holstered. He knocked, announced “police search
warrant,” and tried the door handle with no success. At this time, he heard Mr. Parker moving
towards the rear of the residence and radioed for backup.

         Ofc. Stanhope immediately started toward the rear of the residence, which was very dark, and
drew his weapon. After Ofc. Stanhope turned the northeast corner of the residence, Mr. Parker
appeared in the back door of the residence holding an item in each of his hands. As Mr. Parker
leaned out to shut his back door, Ofc. Stanhope ordered him to show his hands and to “drop it, drop
it, drop it.” Ofc. Stanhope fired three shots toward Mr. Parker within a “split second,” striking him
once in the right shoulder. Mr. Parker dropped the items in his hands, a cellular phone and beer
bottle, and retreated to the safety of his home. He exited the front door and was restrained by the
other officers, immediately asking why an officer had shot him. A search conducted of the residence
with his consent revealed no illegal drugs. A twenty-two caliber rifle, however, was found in a

       1
         Sgt. Middleton testified that he would have used a different plan if Inv. James had
communicated the fact that “Big Man” was seen with a weapon on his person just one day prior.
The trial court determined that Inv. James was negligent in not relaying this information;
however, the court found that Inv. James’ negligence was not a proximate cause of Mr. Parker’s
injury. Neither party challenged this ruling on appeal.


                                                 -2-
bedroom closet.

        Mr. Parker was not arrested on any charges arising out of the incident. Instead, officers
transported him to the Henderson County Community Hospital where he received treatment for a
bullet wound. Fortunately, Mr. Parker recovered from his injury and obtained a job at Fencemaster
in Jackson, Tennessee within a year. He worked there for two years before attending classes at the
Tennessee Technology Center in pursuit of a degree in tool and die making. At the time of trial, Mr.
Parker had successfully parlayed a temporary job with United General Nations, a company that
builds automotive parts, into a permanent position. Nevertheless, a bullet remains in Mr. Parker’s
shoulder, which causes him pain and discomfort.

         Mr. Parker filed suit in state and federal court following the incident. See Parker v.
Henderson County, Tennessee, 450 F. Supp. 2d 842 (W.D. Tenn. 2006).2 Mr. Parker’s complaint
in state court sought compensatory and punitive damages against multiple defendants on claims of
gross negligence, negligence, assault, battery, and false arrest. On January 13, 2009, the trial court
entered an order that granted summary judgment to all defendants on all claims with the exception
of the claims in negligence against the City and Henderson County and claims in intentional tort
against Ofc. Stanhope in his individual capacity. At the conclusion of a bench trial, the court
dismissed the claims against Henderson County and Ofc. Stanhope but held the City liable for the
negligence of its officers.

       The trial court’s memorandum and order found, in pertinent part:

               2. Sergeant Jeff Middleton was negligent in failing to properly supervise Ofcr.
       David Stanhope. Sgt. Middleton knew that if the ruse was not successful, Ofcr.
       Stanhope would proceed alone in the containment of the suspect. Ofcr. Stanhope, in
       effect, was sent in alone to execute a search warrant where the suspect may have
       reason to believe he was the target of policy activity. Without backup, the danger of
       someone being injured in such a situation is greatly increased. The injury in this case
       occurred while Ofcr. Stanhope was operating alone. The court finds the failure to
       supervise to be an operational activity for which the City of Lexington is liable under
       the Governmental Tort Liability Act. The court finds Sgt. Middleton’s negligence

       2
        Mr. Parker’s federal court complaint alleged violation of 42 U.S.C. § 1983, violation of
the Tennessee Constitution, negligence, gross negligence, assault, battery, and false arrest.
Parker, 450 F. Supp. 2d at 846. The United States District Court for the Western District of
Tennessee granted summary judgment on the majority of Mr. Parker’s federal claims. Id. at 857.
The federal court declined to exercise supplemental jurisdiction over Mr. Parker’s Tennessee
Governmental Tort Liability Act claims and his claims of assault, battery, and false arrest. Id.
The court did exercise jurisdiction over the alleged violation of the Tennessee Constitution and
granted summary judgment in favor of the defendants. Id. at 856. The court found that summary
judgment was not appropriate as to the excessive force claim alleged against Ofc. Stanhope, id. at
854, but the parties indicated at oral arguments that Mr. Parker voluntarily non-suited this claim.


                                                 -3-
       to be a proximate cause of the injury to Mr. Parker and finds the degree of his fault
       to be 40% of the total fault.

               3. Ofcr. David Stanhope of the Lexington Police Department was negligent
       in placing himself in harm’s way prior to the arrival of the other officers. His doing
       so significantly increased the danger of someone being injured, and he could have
       observed the rear of the trailer from cover. The court finds Ofcr. Stanhope was
       engaged in an operational activity for which the City of Lexington is liable under the
       Governmental Tort Liability Act. The court finds the negligence of Ofcr. Stanhope
       to be a proximate cause of the injury to Mr. Parker and places the degree of his fault
       at 40% of the total fault.

               4. Jonathan Parker was negligent by failing to drop the items in his hands
       when Ofcr. Stanhope yelled a warning. The degree of his fault is reduced because
       he was holding rather innocuous items and would naturally be slow to comprehend
       the officer wanted him to drop them. The court finds the negligence of Mr. Parker
       to be a proximate cause of his injury and places the degree of his fault at 20%.


       ....

              5. Mr. Parker’s damages proximately caused by the fault of the parties are
       $50,000.00. 3

The City timely filed a notice of appeal.

                                       II. Issues Presented

       The City raises the following three issues, as we perceive them, for review:

       (1)     Whether the City is immune from liability for its officers’ negligent acts pursuant
               to the “civil rights” exception in Tennessee Code Annotated section 29-20-205(2);

       (2)     Whether the evidence preponderates against the trial court’s determination that
               Sgt. Middleton, in effect, sent Ofc. Stanhope in alone to detain “Big Man” and
               execute the warrant;

       (3)     Whether the court erred in finding that Ofc. Stanhope’s actions were not
               reasonable under the circumstances.
       3
         The court’s memorandum contained two findings numbered “5” with the first concerning
whether the officers negligently failed to stop a green Cadillac that may have left the residence
shortly before the execution of the search warrant. The parties have not addressed this finding on
appeal.

                                                -4-
Mr. Parker does not challenge any aspect of the trial court’s ruling. Our review, therefore, is
limited to the issues that the City raises and addresses in its brief.

                                      III. Standard of Review

        This Court reviews the judgment of a trial court in a bench trial de novo upon the record,
according a presumption of correctness to the factual findings of the court below. Tenn. R. App.
P. 13(d); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citation
omitted). We will not disturb a trial court’s findings of fact unless a preponderance of the
evidence is to the contrary. Berryhill v. Rhodes, 21 S.W.3d 188, 190 (Tenn. 2000) (citation
omitted). Factual determinations based on a trial judge’s assessment of witness credibility
receive a higher degree of deference; we will depart from the trial court’s determination only if
clear and convincing evidence shows the finding to be in error. Wells v. Tenn. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999) (citations omitted). Our review is de novo with no presumption of
correctness if the trial court does not produce findings of fact. Archer v. Archer, 907 S.W.2d
412, 416 (Tenn. Ct. App. 1995) (citations omitted). Questions of law are similarly reviewed de
novo with no presumption of correctness. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)
(citation omitted).

                                            IV. Analysis

                                         A. Final Judgment

         As an initial matter, we must consider whether this Court has subject matter jurisdiction over
the present appeal. “Subject matter jurisdiction concerns the authority of a particular court to hear
a particular controversy.” Meighan v. U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996)
(citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). The subject matter jurisdiction of this
Court is limited to final judgments except where otherwise provided by statute or procedural rules. 4
City of Jackson v. Hersh, No. W2008-02360-COA-R3-CV, 2009 WL 2601380, at *3 (Tenn. Ct. App.
Aug. 25, 2009) (no perm. app. filed) (citing Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn.
1990)). Generally, in order for this Court to have jurisdiction, the trial court’s judgment must
adjudicate all of the claims, rights, and liabilities of the parties, leaving the court “with nothing to
adjudicate.” Ball v. McDowell, 288 S.W.3d 833, 836-37 (Tenn. 2009) (citing In re Estate of
Henderson, 121 S.W.3d 643, 645 (Tenn. 2003)).

       There is some question as to whether the trial court’s order is a final judgment in this case

       4
         Rule 54.02 of the Tennessee Rules of Civil Procedure, for example, permits courts to
“direct the entry of a final judgment as to one or more but fewer than all of the claims or parties
only upon an express determination that there is no just reason for delay and upon an express
direction for the entry of judgment.” Tenn. R. Civ. P. 54.02. Additionally, Rules 9 and 10 of the
Tennessee Rules of Appellate Procedure provide for discretionary appeals that do not require a
final judgment. See Tenn. R. App. P. 9(a); Tenn. R. App. P. 10(a).


                                                  -5-
pursuant to Rule 3(a) of the Tennessee Rules of Appellate Procedure. Rule 3(a) provides that “any
order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
parties is not enforceable or appealable and is subject to revision at any time before entry of a final
judgment adjudicating all the claims, rights, and liabilities of all parties.” Tenn. R. App. P. 3(a).
The final order in this case does not expressly address Mr. Parker’s claim for punitive damages.
Punitive damages, however, are not recoverable on claims of ordinary negligence under the
Tennessee Governmental Tort Liability Act (“TGTLA”) – the only basis for recovery at trial.5 See
Tipton County Bd. of Educ. v. Dennis, 561 S.W.2d 148, 152 (Tenn. 1978). We therefore conclude
that the court’s order implicitly denied Mr. Parker’s claim for punitive damages, which were not
recoverable as a matter of law. Because the court’s order adjudicates all of the claims, rights, and
liabilities of the parties, we will proceed to address the merits of this appeal.

                                            B. Immunity

       The City first argues that it cannot be held liable for the negligence of its officers because
Mr. Parker’s injury arose during a violation of his civil rights. The TGTLA provides, in pertinent
part:

       Immunity from suit of all governmental entities is removed for injury proximately
       caused by a negligent act or omission of any employee within the scope of his
       employment except if the injury arises out of:

               ....

               (2) false imprisonment pursuant to a mittimus from a court, false arrest,
       malicious prosecution, intentional trespass, abuse of process, libel, slander, deceit,
       interference with contract rights, infliction of mental anguish, invasion of right of
       privacy, or civil rights[.]

Tenn. Code Ann. § 29-20-205(2) (2000) (emphasis added). It is the City’s position that the term
“civil rights” includes violations of federal civil rights laws and the federal constitution. See,
e.g., Huff v. City of Camden, Tenn., No. 07-2644, 2009 WL 276770, at *11 (W.D. Tenn. Jan. 30,
2009) (citation omitted); Woodby v. Bradley County, Tenn., No. 1:07-cv-3, 2008 WL 5245361, at
*12 (E.D. Tenn. Dec. 16, 2008). The City maintains that it is immune from liability in this case
because Mr. Parker’s claims, in essence, derive from a violation of his federal civil rights. See
Hale v. Randolph, No. 1:02-CV-334, 2004 WL 1854179, at *17 (E.D. Tenn. Jan. 30, 2004). Mr.
Parker, however, has neither pleaded nor argued in the present proceeding that the City or its
officers violated his federal civil rights. Nor has the City shown that Mr. Parker established a
violation of his civil rights in federal court. Thus, there is no basis for this Court to conclude that
Mr. Parker’s injury arose out of a violation of his federal civil rights. The City may be held liable
for the negligent acts or omissions of its officers that proximately caused Mr. Parker’s injury.
       5
        Mr. Parker did not challenge the dismissal of the intentional tort claims brought against
Ofc. Stanhope in his individual capacity.

                                                 -6-
                                            C. Negligence

        The City next argues that neither Sgt. Middleton nor Ofc. Stanhope were negligent. As a
general matter, the elements of negligence in Tennessee are: “(1) a duty of care owed by the
defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care
amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate
or legal cause.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 355 (Tenn. 2008) (citing
Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn. 2006); Draper v. Westerfield,
181 S.W.3d 283, 290 (Tenn. 2005)). The City does not challenge whether the officers owed a
duty of care to Mr. Parker, whether Mr. Parker suffered an injury, whether the officers’ actions
were proximate or legal causes of Mr. Parker’s injury, or whether the officers’ actions were
causes in fact of Mr. Parker’s injury. Our review, therefore, will focus solely on the arguments
presented in the parties’ briefs, which pertain exclusively to factual questions presented to and
decided by the trial court.

                                   i. Negligence of Sgt. Middleton

        The City challenges the finding of negligence on behalf of Sgt. Middleton on a single front;
it argues that the trial court erroneously concluded that Sgt. Middleton, in effect, sent Ofc. Stanhope
in alone to execute the warrant. The City argues that four other officers were waiting nearby to
execute the search warrant or to provide backup for Ofc. Stanhope. These officers were available
and prepared to respond once Ofc. Stanhope alerted them to his need for assistance. The City argues
that these officers arrived to help Ofc. Stanhope execute the contingency plan of containment and
call out as he was moving to the east side of the residence. According to the City, “[n]ot only was
David Stanhope not acting alone, but he knew the other officers were coming to his assistance.”
There was evidence to this effect; however, we do not find the evidence to preponderate against the
trial court’s determination.

        It is unquestioned that backup was available to Ofc. Stanhope and did arrive to help execute
the warrant in the present case. The focus of the court’s factual finding, however, was on the initial
period of time in which Sgt. Middleton left Ofc. Stanhope alone to contain the suspect. It is
undisputed that Sgt. Middleton’s plan called for Ofc. Stanhope alone to approach and detain the
suspect. Sgt. Middleton testified that, should the initial plan break down, Ofc. Stanhope would
proceed individually under the contingency plan of containment and call out until backup arrived.
Sgt. Middleton further testified that Ofc. Stanhope’s backup was stationed 100 to 150 yards away.
Thus, it was apparent that Ofc. Stanhope would be left alone to contain the suspect for some period
of time if the ruse failed. It was during this period of time that the danger to both the officer and the
suspect was heightened and during this period of time that the injury occurred. Backup did not arrive
until after Ofc. Stanhope had discharged his weapon three times, wounding Mr. Parker. We hold
that the evidence does not preponderate against the trial court’s factual finding.

       Even if we characterized the facts differently – holding, for example, that Sgt. Middleton
understood Ofc. Stanhope would proceed in the containment of the suspect without backup for a


                                                  -7-
short period of time – it is not apparent that the trial court would have reached a different conclusion
on the reasonableness of Sgt. Middleton’s supervision. The City has not explained, or attempted to
explain, how a different factual finding would militate against the court’s finding of negligence. As
we will explain below, the trial court’s determination of whether Sgt. Middleton acted reasonably
under the circumstances is a factual determination. The City, at a minimum, must show that the trial
court’s finding of breach of duty is contrary to a preponderance of the evidence. Not only has the
City not pointed to evidence demonstrating the reasonableness of Sgt. Stanhope’s conduct, the City
has not addressed this point at all. The trial court’s determination that Sgt. Middleton negligently
failed to supervise Ofc. Stanhope is affirmed.

                                  ii. Negligence of Ofc. Stanhope

         The negligence of Ofc. Stanhope in this case is not predicated, as one might initially assume,
on a negligent, unlawful, or excessive use of force; rather, the trial court found that Ofc. Stanhope
negligently created the circumstances leading to his use of deadly force. The City challenges the
court’s decision on two fronts: (1) the City argues that the court erred when it found that Ofc.
Stanhope “plac[ed] himself in harm’s way prior to the arrival of the other officers” and (2) the City
argues that Ofc. Stanhope’s actions were reasonable under the circumstances. Both issues involve
questions of fact. See Patterson-Khoury v. Wilson World Hotel-Cherry Road, Inc., 139 S.W.3d 281,
285 (Tenn. Ct. App. 2003) (stating that the question of whether a defendant breached his duty by
failing to exercise reasonable care is an issue of fact); Rains v. Bend of the River, 124 S.W.3d 580,
588 (Tenn. Ct. App. 2003) (citation omitted) (same).

         We first address whether the trial court erroneously found that Ofc. Stanhope placed himself
in harm’s way prior to the arrival of the other officers. The City argues that the record shows that
the backup officers were very close when Ofc. Stanhope approached the residence. Sgt. Middleton
testified that as he exited his vehicle he could hear Ofc. Stanhope yelling “Police, show me your
hands, show me your hands,” and then “[d]rop it, drop it.” The second “drop it” was “almost
immediately followed by three shots.” As the command to “drop it” was issued, Sgt. Middleton was
approaching the northwest corner of the residence. But it was not until after shots were fired that
Sgt. Middleton rounded the northwest corner. Thus, it is indisputable that Sgt. Middleton, the first
officer to arrive on the scene, was not in a position to aid his fellow officer until after Ofc. Stanhope
had confronted and wounded Mr. Parker. We hold that the evidence does not preponderate against
the trial court’s conclusion that Ofc. Stanhope placed himself in harm’s way before backup arrived.
The court’s finding is affirmed.

         We next consider whether Ofc. Stanhope breached the applicable standard of conduct by
failing to act reasonably under the circumstances.6 After a duty of care is established, the question
        6
          The City does not address the existence or scope of the duty owed to Mr. Parker in its
brief; its arguments primarily concern the reasonableness of Ofc. Stanhope’s conduct. The trial
court did not expressly articulate the standard of care it applied in finding the City negligent, but
it appears that the court applied a standard of reasonable care under the circumstances, which the
                                                                                        (continued...)

                                                  -8-
of whether the defendant breached that duty is a question of fact. Leatherwood v. Wadley, 121
S.W.3d 682, 694 (Tenn. Ct. App. 2003). The trial court resolved this question of fact – whether Ofc.
Stanhope breached the applicable standard of conduct – in favor of Mr. Parker. The Court relied
heavily on the testimony of Geoffrey Alpert (“Mr. Alpert”), Mr. Parker’s expert witness, who
pointedly testified that Ofc. Stanhope should have taken cover on the northeast corner of Mr.
Parker’s residence. His testimony was in direct contravention of the City’s expert who testified that
Ofc. Stanhope’s decision to move out from cover was reasonable. It was also in direct contravention
of Ofc. Stanhope’s testimony that stopping at the northeast corner was not an option. It follows that
the court resolved the dispute over the reasonableness of Ofc. Stanhope’s actions in favor of Mr.
Parker based on the testimony of his expert witness. The resolution of this issue in favor of the
plaintiff’s expert, Mr. Alpert, relies on an implicit finding of credibility in his testimony; counsel for
the City conceded this point at oral arguments.

        As a result, the court’s resolution of this factual dispute is entitled to substantial deference.
“[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility absent clear
and convincing evidence to the contrary.” Wells v. Tenn. Bd. of Regents, 9 S.W.3d 739,783 (Tenn.
1999). This rule applies regardless of whether the finding of credibility is express or implied. See
Herbison v. Herbison, No. M2008-00658-COA-R3-CV, 2009 WL 1634914, at *6 (Tenn. Ct. App.
June 10, 2009) (no perm. app. filed) (citation omitted). Further, “[t]he weight of the theories and
the resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact.”
Brown v. Crown Equip. Corp., 181 S.W.3d 268, 275 (Tenn. 2005) (citing McDaniel v. CSX Transp.,
Inc., 955 S.W.2d 257, 265 (Tenn. 1997)). This Court has explained that the resolution of conflicting
expert testimony “falls ‘within the province of the trier of fact . . . and where an expert witness’s
testimony is supported by the evidence and the trier of fact credits that testimony over others, there
is no basis to reverse the court’s findings.’” Estate of Fetterman v. King, 206 S.W.3d 436, 445
(Tenn. Ct. App. 2006) (quoting Atkins v. State, No. E2003-01255-COA-R3-CV, 2004 WL 787166,
at *5 (Tenn. Ct. App. Apr. 14, 2004)).

        We find insufficient basis to reverse the trial court’s conclusion that Ofc. Stanhope did not
act reasonably under the circumstances. The City makes much of its assertion that the trial court
incorrectly judged Ofc. Stanhope’s actions with 20/20 hindsight; however, as counsel for Mr. Parker
pointed out at oral arguments, every determination of whether a defendant has breached a duty of
care involves the use of hindsight. We agree that police officers often face tense and uncertain
situations; courts should examine the reasonableness of their actions with this consideration in mind.
But the City has simply failed to provide this Court with sufficient evidence to overturn the trial
court’s findings.

        The City’s most persuasive point addresses whether the trial court failed to account for the
fact that Ofc. Stanhope might have created a cross-fire situation between himself and Sgt. Middleton

(...continued)
City agreed was the proper standard at oral arguments. For the purposes of this appeal, we will
assume that the trial court found the Ofc. Stanhope did not act reasonably under the
circumstances.

                                                   -9-
if he had chosen to observe the rear of the residence from cover. The City submits that, even if the
officers had designated a shooter, observing the rear of the residence from cover on opposite sides
of the residence would have placed the non-shooting officer directly in the line of fire. The City,
however, fails to recognize that there is no potential for cross-fire whatsoever until backup arrives.
There is no indication that it would have not been reasonable for Ofc. Stanhope to move from cover
to minimize potential cross-fire once backup arrived. In light of the deference accorded to the trial
court’s finding, we hold that Ofc. Stanhope breached the applicable standard of care in this case.
Because no other argument is raised, we affirm the trial court’s finding of negligence.

                                          V. Conclusion

         For the foregoing reasons, we affirm the judgment in favor of Mr. Parker. Costs of this
appeal are taxed to the appellant, the City of Lexington, and its surety, for which execution may
issue if necessary.


                                                       _________________________________
                                                       DAVID R. FARMER, JUDGE




                                                -10-
