dissenting.
I respectfully dissent. I am of the opinion, based upon the concurrent findings of the trial court and the Court of Appeals, that the death of Carlis Ray Kennedy was proximately caused by the joint and concurring negligence of the City of Spring City Police Officer Clyde Henderson, who was acting within the course and scope of his employment, and the negligent conduct of the Defendant, Richard L. Thomas. As I read the majority opinion, Tennessee does not recognize a cause of action for the negligent conduct of a police officer arising out of a police pursuit when an innocent third party is injured. I say this because the Court of Appeals found “there is substantial evidence of the officer’s negligence and we concur with the trial court’s finding this negligence was a contributing proximate cause of decedent’s injuries and resulting death.” We thus have concurrent findings of the trial court and the Court of Appeals on the factual question of negligence and proximate cause, and our review of such questions is limited.
As I pointed out in my dissent in Nevill v. City of Tullahoma, 756 S.W.2d 226, 234 (Tenn.1988), our review of findings of fact is set out in T.C.A. § 27-1-113, “[t]o the extent that the findings of the chancery court and the Court of Appeals concur, they shall, if there be any evidence to support them, be conclusive upon any review of the facts in the Supreme Court.” As Justice Tomlinson stated in Hoover Motor Exp. Co., Inc. v. Clements Paper Co., 193 Tenn. 6, 9, 241 S.W.2d 851, 852 (1951), “[i]f there is any material evidence to sustain *167the concurrent finding of fact then the Supreme Court is bound thereby not only as to that finding but as well to an inference or conclusion reasonably drawn from the evidence that it is a fact.” In Howard v. Haven, 198 Tenn. 572, 577, 281 S.W.2d 480, 482 (1955), Chief Justice Neil stated that factual issues on which the trial court and Court of Appeals made concurrent findings were foreclosed for further review by the Supreme Coprt. See, Arnold v. Hayslett, 655 S.W.2d 941, 947 (Tenn.1983). Thus, our review of the factual issues involved in this case is limited, if not foreclosed.
Judge Franks, speaking for the Court of Appeals, points out that “[I]t is clear from Officer Henderson’s testimony that he approached the attempted arrest as he would an ordinary traffic violation. He testified he expected the vehicle to stop when he turned his blue lights on and observed there are ‘not very many that don’t stop.’ This, despite the knowledge that he suspected this operator was the same person who had earlier fled another pursuing officer, wrecking another vehicle and had stolen this vehicle shortly before the attempted stop.” The Court of Appeals later states: “In high speed chase cases the issue is whether the officer breached a standard of care applicable to police officers in the discharge of their duty to suppress lawless conduct. Smith v. Nieves, 197 N.J. Super. 609, 485 A.2d 1066 (1984). Stated another way, the issue is whether the pursuit was reasonable under the circumstances, Simmen v. State, 55 N.Y.2d 924, 434 N.E.2d 242, 449 N.Y.S.2d 173 (1982), and whether the conduct of the arresting officer constituted ‘common and accepted good police practices,’ Myers v. Town of Harrison, 438 F.2d 293 (2d Cir.), cert. denied 404 U.S. 828 [92 S.Ct. 64, 30 L.Ed.2d 57] (1971).”
In the case at bar, we have the testimony of Trooper Fred Ewton, who investigated the accident, and of Dr. George Kirkham, Plaintiff’s expert witness, both of whom testified that in making a felony stop they would not have initiated emergency equipment without assistance from another officer. Dr. Kirkham stated that the actions of Officer Henderson “were very seriously violative of well-established police standards and procedures.” These witnesses’ testimony certainly constitutes “material evidence to sustain the concurrent findings of fact” and we are bound thereby. This is why I must assume that Tennessee now falls within the minority view that no cause of action exists against police officers for their negligent conduct in a high speed chase where the pursued vehicle strikes and injures an innocent third party. See, Biscoe v. Arlington County, 738 F.2d 1352, 1365-6 (D.C.Cir.1984), cert. denied 469 U.S. 1159, 105 S.Ct. 909, 83 L.Ed.2d 923 (1985); Tetro v. Town of Stratford, 189 Conn. 601, 458 A.2d 5, 8 (1983).
The majority opinion appears to place emphasis on the 1986 amendment to T.C.A. § 55-8-108 by citing Section (e) before its conclusion that “[tjhere was no showing of negligence on the part of Officer Henderson in the operation of his automobile.” Section 108(e) states:
“The fact that law enforcement personnel pursue an actual or suspected violator of a law or ordinance who flees from such pursuit shall not render the law enforcement personnel, or his or their employees, liable for injuries to a third party proximately caused by the fleeing party unless the law enforcement personnel were negligent in his or their conduct and such negligence was a proximate cause of the injuries to the third party.” [Emphasis added.]
„ Under the emphasized portions of the recent amendment if any law enforcement personnel are negligent in their conduct and such negligence was a proximate cause of the injuries to the third party, then they are liable. T.C.A. § 55-8-108 does not confer immunity from tort liability for negligence, particularly in view of the wording of Section 108(b)(3) “so long as he does not endanger life or property.” Section 108(d) sets out the standard of care required of the driver of an authorized emergency vehicle as “the duty to drive with due regard for the safety of all persons” under the existing circumstances. The duty owed un*168der the statute extends to “all persons” including an innocent third party.
As stated earlier, two courts have found negligence on the part of Officer Henderson and it is, therefore, difficult to see how the majority reaches its conclusion of “no showing of negligence on the part of Officer Henderson.” The majority opinion fails to explain why the concurrent findings of the trial court and the Court of Appeals are not binding on this Court, when there is clearly “evidence to support” their findings. T.C.A. § 27-1-113.
The Court of Appeals concludes its well-reasoned opinion by stating: “the evidence establishes the officer knew or reasonably should have known that the felon who had just wrecked another vehicle in a high-speed chase would again resist arrest by fleeing in a dangerous manner. Moreover, the officer, by electing to attempt the arrest with this knowledge in violation of accepted police standards for a felony arrest in an area where others would likely be, amounted to ‘a reckless disregard for the safety of others.’ T.C.A. § 55-8-108.”
I would affirm the judgment of the trial court and the Court of Appeals finding that the death of Carlis Ray Kennedy was proximately caused by the joint and concurring negligence of Officer‘Henderson and Richard L. Thomas.