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Johnson v. Downing12/15/1999
REVERSED AND REMANDED
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This is a personal injury case. Plaintiff, Lezley M. Johnson, a Memphis police officer, appeals from the order of the trial court granting defendant, Kenneth R. Downing's motion for summary judgment.
On September 12, 1992, at the intersection of Winchester and Lamar in Memphis, Shelby County, Tennessee, plaintiff-appellant, Lezley M. Johnson, a Memphis police officer, was involved in an automobile accident with the vehicle driven by defendant-appellee, Kenneth R. Downing. The collision occurred when Downing attempted to make a left hand turn from Winchester on to Lamar and drove his vehicle in front of Johnson's vehicle. Johnson contends that she had a green light, and Downing contends that he had a green arrow.
Johnson's complaint alleges permanent injury to her right leg, including a severe fracture of the right ankle, loss of income, loss of earning capacity, and permanent disability.
Downing and his wife filed a separate action in the Circuit Court of Shelby County against Johnson and the City of Memphis under the Governmental Tort Liability Act. T.C.A. § 29-20-101 - T.C.A. § 29-20- 407 (1980 and Supp. 1998). Johnson was dismissed as immune. Johnson was not represented by her current counsel in that action, but was called to testify by an Assistant City Attorney representing the City of Memphis. Judgment was rendered in favor of the plaintiffs in that case. The trial judge found Downing to be guilty of ten (10%) percent of the negligence and Johnson to be guilty of ninety (90%) percent of the negligence in causing the accident. Although the city appealed that case, it is now a final judgment.
In the instant case, Downing filed a motion for summary judgment based on the doctrine of collateral estoppel. The trial court granted Downing's motion, finding that the prior judgment in Downing v. City of Memphis, is res judicata as to Johnson's claim against Downing. The order provides in pertinent part:
From all of which it appears to the Court that a prior judgment granted in the case of Kenneth Downing v. City of Memphis, which involved the same automobile collision at issue herein and involved testimony concerning the actions of the same individuals who are parties in this case. That judgment determined that Lezley Johnson, a City of Memphis police officer, was guilty of more than fifty percent (50%) of the fault which caused the automobile collision. The Court is of the opinion that such judgment is res judicata as to the claim of Lezley Johnson against Kenneth Downing in this case.
The court further finds that the provisions of the Governmental Tort Liability Act, which were applicable to the case of Downing v. City of Memphis, did require a separate bench trial for the governmental entity; and the court further finds from statement of counsel for the parties that the City of Memphis would not consent to trying both of these cases in one proceeding before one judge and one jury.
The issue on appeal is whether the previous decision of the Circuit Court of Shelby County, sitting without a jury as required by the GTLA, T.C.A. § 29-20-307 (1980), precludes the plaintiff from litigating her case against the defendant.
Summary judgment should be granted when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622 (Ten
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