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IN THE COURT OF APPEALS OF TENNESSEE, AT JACKSON

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FILED

) March 17, 1999 GREGORY HILL, et al, ) Shelby Law No. 70577-9 and 70576-9 T.D. ) Consolidated Cecil Crowson, Jr. Appellate C ourt Clerk Plaintiff/Appellants. ) ) VS. ) C.A. No. 02A01-9803-CV-00078 ) CITY OF GERMANTOWN, et al, ) ) Defendants/Appellees/Cross-Appellants. ) ) _____________________________________________________________________________ From the Circuit Court of Shelby County at Memphis. Honorable Robert L. Childers, Judge

R. Sadler Bailey, Andrew C. Clarke, BAILEY & CLARKE, Memphis, Tennessee Attorneys for Plaintiffs/Appellants Gregory Hill, et al. Louis P. Chiozza, Jr., Memphis, Tennessee Attorney for Plaintiffs/Appellants Ronald Crowder, et al. John C. Duffy, WATSON, HOLLOW & REEVES, Knoxville, Tennessee Attorney for Defendants/Appellees/Cross-Appellants, City of Germantown

OPINION FILED: AFFIRMED AND REMANDED

FARMER, J. CRAWFORD, P.J.,W.S.: (Concurs) HIGHERS, J.: (Concurs)

This appeal involves two separate but consolidated actions arising out of an automobile accident between a vehicle being pursued by two officers of the Germantown Police Department and a vehicle containing Deborah Hill, Amberly Hill, and Walterine Crowder. As a result of the accident, Deborah Hill and Walterine Crowder were killed and Amberly Hill sustained personal injuries. The trial court found that the negligence of the two officers and the City of Germantown was a thirty-five percent proximate cause of the accident and entered a judgment against the City of Germantown in the amount of $130,000.00 for the death Deborah Hill, $130,000.00 for the death of Walterine Crowder, and $52,944.50 for the personal injuries of Amberly Hill. The trial court also awarded the Plaintiffs $25,558.52 in discretionary costs. The Plaintiffs have appealed and the Defendants have cross-appealed. For the reasons set forth below, we affirm the ruling of the trial court.

Factual History

Chad Cunningham was hired as a part-time reserve officer by the Germantown Police Department in September of 1994 and began working two to three shifts per month in December of 1994. As a reserve officer, Cunningham received approximately 100 hours of general classroom training on how to perform basic police duties. During this training, each reserve officer was given a copy of the Germantown Police Department's written policy regarding police pursuits.1 In March of 1995, Officer Cunningham became a full-time officer. After being hired as a full-time officer, Officer Cunningham did not immediately receive formal training with respect to police pursuits because there was a six month waiting list to get into the police academy. It is standard procedure at the Germantown Police Department to allow newly hired officers to receive on-the-job training under the supervision of a more experienced officer when the new officer has not yet attended the police academy.

Under this policy, officers are permitted to pursue a fleeing suspect based on the officer's belief that a quick response is critical to prevent possible loss of life or serious injury. The officer is directed to use common sense and good judgment when determining whether a particular situation requires the officer to engage in a high speed chase. The pursuit of traffic offenders is not necessarily prohibited under this written policy. On the date of the accident that is the subject of the case at bar, however, there was an informal policy at the Germantown Police Department that an officer should not engage in a high speed pursuit of a traffic offender.

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On April 11, 1995, Officer Cunningham was on patrol in his Germantown Police cruiser. Officer John Phillip Hardy, who was training and supervising Cunningham, was riding as a passenger in the patrol car.2 At approximately 4:45 p.m., Officers Cunningham and Hardy noticed a gray 1985 Buick Regal traveling west on Poplar Avenue with an improperly displayed registration tag. At the instruction of Officer Hardy, Officer Cunningham activated the blue lights of the patrol car and began to follow the Buick. Initially, it appeared that the driver of the Buick was attempting to pull over. As the Buick approached the intersection of Poplar Avenue and Riverdale Avenue, however, Officers Cunningham and Hardy observed a puff of smoke and the Buick began to accelerate. Officer Hardy activated the siren of the patrol car and the officers continued to pursue the Buick, reaching speeds in excess of the forty mile per hour speed limit. The Buick continued to accelerate, reaching a top speed in excess of ninety miles per hour. As the Buick approached Kirby Parkway, Officer Cunningham announced over the radio of the patrol car that the suspect's vehicle was refusing to stop. Lieutenant Mike Hill of the Germantown Police Department then got on his police radio and asked Officer Cunningham "what are the charges." Officer Cunningham responded "traffic only" and informed Lieutenant Hill that they were "pulling off." After losing sight of the Buick, Officer Hardy instructed Officer Cunningham to slow down and stop pursuing the fleeing vehicle. The Buick sped over the hill at the intersection of Poplar Avenue and Kirby Parkway, veered across the center line, and collided with a vehicle being driven by Walterine Crowder. Deborah Hill and her twenty-eight month old daughter Amberly were passengers in the Crowder vehicle.

Deborah Hill and Walterine Crowder were transported by Helicopter to the Regional Medical Center where they both subsequently died. Amberly Hill, who was conscious and crying at the scene of the accident, was taken to LeBonheur Hospital and treated for a cut over her right eye. Following the accident, Amberly Hill displayed a variety of emotional problems. Amberly's father took her to see Dr. Randolph Dupont, a psychiatrist, who concluded that Amberly was suffering from post-traumatic stress syndrome.

Procedural History

On the date of the accident, Officer Hardy had approximately three years of experience as a police officer.

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On June 19, 1995, Gregory Hill filed a complaint individually and in a representative capacity against the City of Germantown for the wrongful death of his wife Deborah Hill and the personal injuries of his daughter Amberly Hill. Also on June 19, 1995, Ronald Crowder filed a separate complaint individually and in a representative capacity against the City of Germantown for the wrongful death of his wife Walterine Crowder. The City of Germantown filed separate answers to the Hill and Crowder complaints on September 5, 1995, raising comparative fault as an affirmative defense. On March 29, 1996 and April 10, 1996 respectively, Hill and Crowder amended their complaints against the City of Germantown, naming as additional defendants Officer Cunningham, Officer Hardy, and Eddie Boatwright, the Chief of Police of the City of Germantown. Thereafter on June 14, 1996, separate amended answers to the Hill and Crowder complaints were filed on behalf of the City of Germantown, Boatwright, Officer Cunningham, and Officer Hardy.

The Hill action and the Crowder action were consolidated for trial. The trial judge, sitting without a jury,3 took the matter under advisement and entered an order finding that Officers Cunningham and Hardy were negligent in engaging in a high speed pursuit of a traffic violator, that the City of Germantown was negligent in failing to adequately train Officer Cunningham with respect to high speed police pursuits, and that the negligence of the Defendants was a thirty-five percent proximate cause of the accident. Additionally, the court assessed the Plaintiffs' damages at $401,249.32 for the death of Walterine Crowder, $621,071.46 for the death of Deborah Hill, and $151,270.00 for the personal injuries of Amberly Hill. After taking into account the Defendants' degree of fault and the limits imposed by the Tennessee Governmental Tort Liability Act,4 the trial judge awarded the Plaintiffs $130,000.00 for the death of Walterine Crowder, $130,000.00 for the death of Deborah Hill, and $52,944.50 for the personal injuries of Amberly Hill.

The Plaintiffs subsequently filed a motion to alter or amend the judgment, a motion for prejudgment interest, a motion for discretionary costs, and a second motion to alter or amend the

There is no right to a jury trial with respect to actions brought pursuant to the Tennessee Governmental Tort Liability Act. See Tenn. Code Ann.

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