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Leach v. Metropolitan Government of Nashville11/15/2002
Second Avenue South is a two-lane one-way street in Nashville. There is a bus stop located near the intersection of Second Avenue South with Hart Avenue. On December 23, 1996, the plaintiff, Krishina Leach [Ms. Leach], and her three-year-old son, Jacob, were on the sidewalk on the East side of Second Avenue headed for the bus stop. Ms. Leach was holding Jacob's hand, but he pulled away from her and ran into Second Avenue. Ms. Leach pursued him, and both were struck by a tow truck owned by the Metropolitan Government of Nashville and Davidson County and operated by its employee, William Heer, Jr. Jacob was killed and his mother was seriously injured. She and the father of Jacob, Richard Moore, filed suit against the Metropolitan Government of Nashville and Mr. Heer for the alleged wrongful death of Jacob. She also sued to recover damages for her injuries. The action was filed pursuant to the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. ยง 29-20- 101, and was tried without a jury. The trial court held: (1) because there was no proof of comparative fault on the part of Krishina Leach, the principles of comparative fault were inapplicable; (2) a three-year old child cannot be charged with negligence; (3) there was no evidence that Mr. Heer was speeding; (4) that the presence of children is a warning to the operators of vehicles to drive with due care; (5) that Mr. Heer was familiar with the accident area and knew that children were frequently in that area; (6) that Mr. Heer had an unobstructed view of 300 feet and should have seen Jacob and Ms. Leach from that distance. The maximum amounts allowable under the TGTLA were awarded. The defendant appeals and presents for review, as restated, the issues of whether the evidence preponderates against the judgment, and whether the court erred in exonerating Ms. Leach from negligence. Our review is de novo on the record with a presumption of correctness unless the evidence preponderates against the judgment. Rule 13(d), Tenn. R. App. P.
The Evidence
I.
William Heer was an employee of the defendant on the day of the accident. He was driving a tow truck, towing a pick-up truck, northbound on Second Avenue South. As he approached the intersection of Hart Street, he was traveling northwardly in the left-hand lane. He was familiar with the residential area and was aware that children lived there; that traffic was not heavy; that Second Avenue South is a thoroughfare; that as he proceeded north on Second Avenue he did not clearly see the mother and child on the sidewalk, except peripherally; that the child was in the middle of the right-hand lane, about 75 feet away, when first seen, and that he immediately applied his brakes, but struck both mother and child.
He testified that he saw the mother at the same time he saw the child. The child was running but Mr. Heer was not asked further about the mother.
II.
Officer Keith Sutherland investigated the accident. He testified that the speed limit on Second Avenue South was 35 miles per hour, that there was no evidence that the tow-truck had exceeded the speed limit, and that he measured skid marks of 128 feet.
III.
Tom Hayes testified that he was following the tow truck, and saw Jacob and his mother on the sidewalk from a distance of 150-300 feet. Jacob was pulling against his mother's hand "as if he wanted to cross the street," and suddenly he pulled free and ran into the street, directly in front of the tow truck.
Mr. Hayes testified that he was traveling about 30 miles per hour when he saw Jacob trying to get his hand loose. He described the tow truck as being driven in a slow and cautious man
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