December 11, 2001
Volume 7 — Number 228

What follows is the case style or name, first paragraph, author's name, and the names of attorneys for the parties of each opinion released eletronically today to TBALink.

This Issue (IN THIS ORDER):
 
02 New Opinion(s) from the Tennessee Supreme Court
00 New Opinion(s) from the Tennessee Supreme Court Workers' Compensation Panel
00 New Document(s) or Proposed Rule(s) from the Tennessee Supreme Court
02 New Opinion(s) from the Tennessee Court of Appeals
00 New Opinion(s) from the Tennessee Court of Criminal Appeals
00 New Opinion(s) from the Tennessee Attorney General (PDF format)
00 New Judicial Ethics Opinion(s)
00 New Formal Ethics Opinion(s) from the Board of Professional Responsibility
 

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. JOHN R. FARNER, JR.

Court:TSC

Attorneys:

R. Wayne Culbertson,  Richard A. Spivey, and Timothy Reid Wilderson,
Kingsport, Tennessee, for the appellant, John R. Farner, Jr..

Paul G. Summers, Attorney General & Reporter; Michael Moore, Solicitor
General; Patricia C. Kussmann, Assistant Attorney General; H. Greeley
Wells, District Attorney General; and Teresa Murray-Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.                           

Judge: DROWOTA

First Paragraph:

The primary issue presented in this appeal is whether Tennessee law
recognizes a co-perpetrator rule which bars the defendant's
convictions for criminally negligent homicide on the basis that the
victims were co-participants in the drag race.   After fully and
carefully considering the record in this case in light of the relevant
authorities, we conclude that no rule of Tennessee law bars the
defendant's convictions for criminally negligent homicide as a matter
of law.  We hold that causation in criminal cases generally is a
question of fact for a properly instructed  jury, that a victim's
contributory negligence is not a complete defense but may be
considered in determining whether or not the defendant's conduct was a
proximate cause of death, and that a jury's determination of the
causation issue will be reviewed on appeal under the familiar
sufficiency of the evidence standard and not disturbed so long as the
evidence is sufficient to support the jury's determination.  Because
the trial court in this case failed to provide the jury with an
instruction on proximate causation, an essential element of the
offense, and because the jury was erroneously provided an instruction
as to criminal responsibility, a theory that the State now concedes is
inapplicable, the defendant's convictions for criminally negligent
homicide must be reversed.

To prevent needless litigation and to promote judicial economy, we
exercise our discretion and address two other issues which will likely
arise at any retrial - the propriety of Officer Farmer testifying as
an expert and the admissibility of the computer animated visualization
of the accident.  We conclude that Officer Farmer may properly testify
as an expert so long as the trial court is assured that Officer
Farmer's opinions are based on relevant scientific methods, processes,
and data, and not upon mere speculation.  However, we further conclude
that the computer animated visualization should not be admitted unless
the State can establish that the visualization is based on accurate
and complete information and that it fairly illustrates the expert
opinion of Officer Farmer as to how the accident occurred.  The
convictions for criminally negligent homicide are therefore reversed;
the convictions for reckless endangerment with a deadly weapon, drag
racing, and leaving the scene of an accident involving injury or death
are affirmed.  The judgment of the Court of Criminal Appeals is
affirmed in part, reversed in part, and the case is remanded to the
trial court for further proceedings consistent with this opinion.

http://www.tba.org/tba_files/TSC/farnerjohnr.wpd

STATE OF TENNESSEE v. COLICO S. WALLS

Court:TSC

Attorneys:

W. Mark Ward and Garland Erguden, Assistant District Public Defenders,
Memphis, Tennessee, for the appellant, Colico S. Walls.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore,
Solicitor General; Lucian D. Geise and Mark A. Fulks, Assistant
Attorneys General; William L. Gibbons, District Attorney General; and
Jennifer S. Nichols, Assistant District Attorney General, for the
appellee, State of Tennessee.                         

Judge: ANDERSON

First Paragraph:

The defendant was convicted of escape from a penal institution and
theft of property over $1,000.  The Court of Criminal Appeals
affirmed.   We granted this appeal to determine the following issues:
(1) whether a defendant's flight from the rear of a patrol car
constitutes the offense of escape from a penal institution under Tenn.
Code Ann. S 39-16-605; (2) whether the escape statute is
unconstitutionally vague; and (3) whether the trial court erred in
failing to instruct the jury on the lesser included offense of
attempted escape.  After considering the record and applicable
authority, we conclude that the legislature did not intend that a
defendant's flight from the rear of a patrol car would constitute
escape from a penal institution under Tenn. Code Ann. S 39-16-605.  We
therefore dismiss the conviction for escape from a penal institution,
but affirm the conviction for theft.  The judgment of the Court of
Criminal Appeals is affirmed in part and reversed in part, and the
case is remanded to the trial court for any further proceedings.

http://www.tba.org/tba_files/TSC/wallscolico.wpd

MICHAEL BLAIN SAMPSON, et al. v. BURL WINNIE d/b/a WINNIE  HIGH TECH
HEATING AND AIR CONDITIONING

Court:TCA

Attorneys:

Dorothy B. Stulberg and William Allen, Oak Ridge, Tennessee, for the
Appellants, Michael Blain Sampson and Grace Parton.

Gary L. McDonald, Kingston, Tennessee, for the Appellee, Burl Winnie
d/b/a Winnie High Tech Heating and Air Conditioning.

Judge: SWINEY

First Paragraph:

Michael Blain Sampson and Grace Parton ("Plaintiffs") brought suit
against Burl Winnie d/b/a Winnie High Tech Heating and Air
Conditioning ("Defendant"), alleging breach of contract and violation
of the Tennessee Consumer Protection Act.  Defendant installed a new
gas heating and air conditioning unit in Plaintiffs' home, and shortly
thereafter, Plaintiffs became dissatisfied with the new unit's
performance and Defendant's installation of the unit.  The Trial Court
dismissed Plaintiffs' Tennessee Consumer Protection Act claim but
awarded Plaintiffs damages for breach of contract in the amount of
$2,600.  Plaintiffs appeal.  We affirm.

http://www.tba.org/tba_files/TCA/sampsonmb.wpd

TIP'S PACKAGE STORE, INC., et al. v. COMMERCIAL INSURANCE MANAGERS,
INC., et al.

Court:TCA

Attorneys:

Ronald L. Grimm and Stephen W. Gibson, Knoxville, Tennessee, for the
Appellants Commercial Insurance Managers, Inc., and George P. Taylor,
IV.

James S. MacDonald, Knoxville, Tennessee, for the Appellees Rebecca J.
Jordan, deceased, by next friend and parents, Marvin H. Jordan and
Betty J. Jordan.

John K. Harber, Knoxville, Tennessee, for the Appellee Kathleen M.
Moberg, deceased, by next friend and father, Warren D. Moberg.

M. Robin Repass and John D. Lockridge, Jr., Knoxville, Tennessee, for
the Appellees Tip's Package Store, Inc., and H. Wayne Tipton.

Judge: SWINEY

First Paragraph:

Plaintiffs H. Wayne Tipton ("Tipton") and Tip's Package Store, Inc.,
(Tip's) brought this lawsuit against George P. Taylor ("Taylor") and
Commercial Insurance Managers, Inc., ("Commercial") seeking
indemnification for an agreed judgment entered against Tip's in a
lawsuit involving the tragic deaths of two young University of
Tennessee students.  Plaintiffs claim that Defendants improperly
obtained for them an "occurrence" liability policy as opposed to a
"claims made" liability policy, thereby resulting in a lack of
insurance coverage for the wrongful death claims.  After a jury trial,
the Chancery Court entered judgment in favor of both Plaintiffs in the
amount of $1,000,000 for indemnification based on the jury's answers
to interrogatories.  Defendants appeal, arguing, among other things,
that: (1) the statute of limitations had run; (2) a covenant not to
execute entered into between the families of the deceased young women
and Plaintiffs extinguished any potential liability; and (3) the
jury's responses to interrogatories were fatally inconsistent.  We
affirm in part, reverse in part, and remand.

http://www.tba.org/tba_files/TCA/tips.wpd

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