William Gillman and Boxley Aggregates of West Virginia, LLC d/b/a Boxley Materials, Defendants Below, Petitioners
Jessica Morton, Plaintiff Below, Respondent
William Gillman and Boxley Aggregates of West Virginia, LLC
d/b/a Boxley Materials, by counsel Christopher J. Sears,
appeal the Circuit Court of Raleigh County's February 10,
2017, order following a non-jury trial finding in favor of
respondent related to an automobile accident. Respondent
Jessica Morton, by counsel Benny G. Jones, filed a response
in support of the circuit court's order. Petitioners also
submitted a reply.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.
October 14, 2011, Respondent Jessica Morton was driving a
pick-up truck in Beckley, West Virginia, and Petitioner
William Gillman, an employee of Boxley Materials, was
operating a water tanker truck as part of his job duties.
While traveling from Boxley Materials' quarry toward
Beckley, Mr. Gillman pulled the truck off the road into the
Bradley PSD entrance to turn around. After turning the truck
on the PSD premises, Mr. Gillman was pulling onto a roadway
to return to the Boxley Materials facility. Meanwhile,
respondent rounded a curve, and the two were involved in a
vehicle accident. Respondent alleged below that she suffered
serious and permanent injuries to her right knee, head, and
back and incurred medical bills in the amount of $55, 309.53.
Respondent filed her complaint on May 9, 2013, alleging
negligence against petitioners.
parties agreed to conduct a bench trial, which trial took
place on October 31, 2016. Following the bench trial, the
circuit court entered is February 10, 2017, "Order
Following Non-Jury Trial." The circuit court found that
the tanker truck driven by Mr. Gillman was unlicensed and
unregistered but was equipped with emergency flashing lights
at the time of the incident. It further found that Mr.
Gillman did not have the correct driver's license or
proper endorsements to operate the water tanker truck on the
highway. The circuit court determined that while Mr. Gillman
did not see any vehicles approaching when he
commenced to drive the water tanker truck onto the highway .
. . after reaching the highway, he observed
[respondent's] pick-up truck approaching. [Mr.] Gillman
did not know how far his water tanker truck had proceeded
onto the highway before he first spotted [respondent's]
vehicle coming toward him. . . . When [he] first observed
[respondent's] pickup-truck, he was only partially
blocking the roadway, but decided to continue to drive across
the roadway, thereby blocking any possible avenues of escape
vehicle struck the water tanker truck at a right angle on the
front left corner of the tanker truck.
order, the circuit court noted that Mr. Gillman and
respondent were the only witnesses to the accident.
Respondent testified that she came around the curve traveling
at twenty-eight to thirty miles per hour (in a forty mile per
hour zone) and noticed petitioners' truck pulling out in
front of her. She tried to brake, blew her horn, and swerved
to the right to avoid hitting it. However, she could not
avoid the collision. The circuit court found that, unlike
respondent's testimony, Mr. Gillman's testimony was
not straight forward, noting that he could not recall
pertinent aspects of the incident; he was also unable to
provide some basic information about the tanker truck and the
accident itself. Mr. Gillman responded on numerous occasions
that he did not know, could not say, or could not remember.
Therefore, the circuit court found respondent's testimony
to be more credible than Mr. Gillman's and accorded Mr.
Gillman's testimony "no significant weight."
circuit court concluded that while both Mr. Gillman and
respondent were negligent, Mr. Gillman was at fault for the
subject accident, stating that had he promptly stopped his
vehicle after seeing respondent he would have left an escape
route open for her to take to avoid impact. Instead, he
continued pulling onto the roadway, negligently blocking both
lanes of the road. It noted that the parties had agreed that
respondent's injuries were proximately caused by this
accident and that the total medical bills of $55, 309.53 were
necessary and reasonable. The parties also agreed that
respondent would not present a claim at trial for future
medical bills. The circuit court awarded respondent $165, 000
in damages but attributed 20% of the negligence to her, so it
reduced that award to $132, 000, plus post-judgment interest
and costs. The circuit court also awarded respondent
pre-judgment interest on her medical bills but also reduced
that by 20%. In that order, the circuit court also denied
petitioners' motion for judgment as a matter of law.
Petitioners appeal from that order.
In reviewing challenges to the findings and conclusions of
the circuit court made after a bench trial, a two-pronged
deferential standard of review is applied. The final order
and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court's underlying
factual findings are reviewed under a clearly erroneous
standard. Questions of law are subject to a de novo
Syl. Pt. 1, Public Citizen, Inc. v. First Nat. Bank in
Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).
single assignment of error is essentially that the circuit
court erred by failing to employ the sudden emergency
doctrine in analyzing the facts and circumstances of the
accident. In support of this assertion, petitioners argue
that Mr. Gillman was confronted with a sudden emergency
because respondent came into view after Mr. Gillman had
already begun pulling onto the roadway.
order to determine whether the sudden emergency doctrine is
applicable, a court must determine the following:
(1) Whether the defendant was confronted with a sudden
emergency; (2) if so, whether the emergency was created by
the defendant; and (3) if the defendant was confronted with a
sudden emergency not created in whole or in part by his own
negligence, whether in the circumstances of such emergency he