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Miller v. Allman

Supreme Court of West Virginia

April 6, 2018

DANIEL W. MILLER AND THE CITY OF PARKERSBURG, Defendants Below, Petitioners,
v.
KEVIN ALLMAN, Plaintiff Below, Respondent.

          Submitted: March 13, 2018

          Appeal from the Circuit Court of Wood County Honorable Jeffrey B. Reed, Judge Civil Action No. 14-C-2790

          Duane J. Ruggier II, Jacob D. Layne, Pullin, Fowler, Flanagan, Brown & Poe, Charleston, West Virginia Attorneys for Petitioners.

          Harry G. Deitzler, Hill, Peterson, Carper, Bee & Deitzler, Charleston, West Virginia, Attorney for Respondent.

          JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.

         SYLLABUS

         1. The requirement in W.Va. Code § 17C-9-5 (1971) (Repl. Vol. 2017), that a motorist yield the right-of-way to an emergency vehicle, is contingent upon the motorist having a reasonable opportunity to hear the emergency vehicle's siren or see its ¶ashing lights to allow the motorist sufficient time to yield the right-of-way.

         2. " W.Va. Code, 17C-2-5(d) (1971), requires the driver of an emergency vehicle to exercise due care under the circumstances to avoid collisions between the emergency vehicle and persons or property." Syllabus point 4, Peak v. Ratliff, 185 W.Va. 548');">185 W.Va. 548, 408 S.E.2d 300 (1991).

         3. In order for a party's counsel to obtain copies of juror qualification questionnaires of persons selected as prospective petit jurors, W.Va. Code § 52-1-5a(e) (2014) (Repl. Vol. 2016) requires counsel to request copies of the questionnaires from the circuit court clerk.

         4. "The curative admissibility rule allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has 'opened the door' by introducing similarly inadmissible evidence on the same point. Under this rule, in order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence." Syllabus point 10, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         5. "The decision of whether to admit evidence of compromise offers [or settlements] for a purpose other than to 'prove liability for or invalidity of the claim or its amount, ' W.Va. R. Evid. 408, is within the sound discretion of the circuit court." Syllabus point 7, State ex rel. Shelton v. Burnside, 212 W.Va. 514, 575 S.E.2d 124 (2002).

         6. Syllabus point 3 of Lacy v. CSX Transportation, Inc., 205 W.Va. 630, 520 S.E.2d 418 (1999), has been superseded by Rule 103(b) of the West Virginia Rules of Evidence.

         7. Rule 103(b) of the West Virginia Rules of Evidence provides that when a "court rules definitively on the record - either before or at trial - a party need not renew an objection or offer of proof to preserve a claim of error for appeal." This provision applies to preserving a claim of error by the party who opposed the ruling, not a claim of error by the party who prevailed on the ruling. Thus, a party who obtained a favorable definitive ruling on an issue must timely object if the opposing party violates the ruling.

         8. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and manifestly show jury passion, partiality, prejudice or corruption." Syllabus, Addair v. Majestic Petroleum Co., 160 W.Va. 105, 232 S.E.2d 821 (1977).

         9. A plaintiff's testimony alone is sufficient to prove lost wages as long as the testimony reasonably establishes the claim.

          OPINION

          DAVIS JUSTICE.

         This is an appeal by the Petitioners, defendants below, Daniel W. Miller ("Mr. Miller") and the City of Parkersburg, from an order of the Circuit Court of Wood County denying their motion for new trial. The Petitioners sought a new trial after an adverse jury verdict in favor of the Respondent, Kevin Allman ("Mr. Allman"). The jury found that the Petitioners were at fault when their police vehicle rear-ended Mr. Allman's vehicle while he was driving. In this appeal, the Petitioners assign the following as error: (1) giving two improper jury instructions, (2) failing to provide a copy of the jury qualification form, (3) limiting cross-examination of a witness, (4) improper closing argument, and (5) improper general and special damages. After carefully reviewing the briefs, the arguments of the parties, the legal authority cited, and the record presented for consideration, we affirm.

         I.

         FACTUAL AND PROCEDURAL HISTORY

         The record indicates that Mr. Miller is a police officer for the City of Parkersburg, West Virginia. On August 22, 2013, Mr. Miller was assigned to work at the Parkersburg High School. At some point shortly after Mr. Miller arrived at the high school, he had to leave to return to his home in Vienna, West Virginia, to attend to an emergency involving a water leak in his basement. After meeting briefly with a plumber at his home, Mr. Miller left in his police cruiser to return to the high school. While en route to the high school, at about 10:00 a.m., Mr. Miller heard a police officer on his radio state that he was in foot-pursuit of a suspect. In response to the apparent distress communication, Mr. Miller activated his lights and siren and began traveling at a high rate of speed southbound on Grand Central Avenue in Vienna.

         According to the record, Grand Central Avenue consists of three lanes in each direction. Its name changes to Murdoch Avenue at the intersection with Lakeview Drive. Before Mr. Miller crossed the Lakeview Drive intersection, Mr. Allman pulled out southbound from a parking lot onto Murdoch Avenue. A Deputy sheriff testified at trial that Mr. Miller approached the Lakeview Drive intersection at a minimum speed of sixty-five mph and skidded 151 feet before rear-ending Mr. Allman's vehicle on Murdoch Avenue.[1]According to the deputy, the skid marks and speed of Mr. Miller's vehicle indicate that Mr. Allman could not have seen Mr. Miller's car when he pulled out onto Murdoch Avenue.[2]

         Mr. Allman sustained injuries as a result of the collision. [3] On October 14, 2014, Mr. Allman filed the instant civil action against the Petitioners.[4] After a long period of discovery, the case was tried before a jury in November 2016. The jury returned a verdict in favor of Mr. Allman and awarded damages in the amount of $213, 887.50. This appeal followed the denial of the Petitioners' post-trial motions.[5]

         II.

         STANDARD OF REVIEW

         In this proceeding we are called upon to review the circuit court's denial of the Petitioners' motion for new trial or remittitur. In undertaking such a review, we have held the following:

This Court reviews the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. pt. 1, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va. 105, 736 S.E.2d 338 (2012), superseded by statute on other grounds as recognized in Martinez v. Asplundh Tree Expert Co., 239 W.Va. 612, 803 S.E.2d 582, 587 (2017). We have also held that

[a]lthough the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). In view of the foregoing standard, we will address the dispositive issues raised in this appeal. We will add additional standards for our review where relevant.

         III.

         DISCUSSION

         The Petitioners have set out several issues as assignments of error: (1) improper jury instructions, (2) jury qualification form, (3) limiting cross-examination of a witness, (4) improper closing argument, and (5) awarding improper general and special damages. We will address each issue separately.

         A. Jury Instructions

         The first two issues raised by the Petitioners involve jury instructions that were given by the trial court. The Petitioners argue that the trial court erred in the wording of a jury instruction on the duty to yield to an emergency vehicle, and on the standard of care of a police officer operating an emergency vehicle.

         We have held that "[a]n erroneous instruction is presumed to be prejudicial and warrants a new trial unless it appears that the complaining party was not prejudiced by such instruction." Syl. pt. 2, Hollen v. Linger, 151 W.Va. 255, 151 S.E.2d 330 (1966). It has also been recognized that,

[t]he formulation of jury instructions is within the broad discretion of a circuit court, and a circuit court's giving of an instruction is reviewed under an abuse of discretion standard. A verdict should not be disturbed based on the formulation of the language of the jury instructions so long as the instructions given as a whole are accurate and fair to both parties.

Syl. pt. 6, Tennant v. Marion Health Care Found., Inc., 194 W.Va. 97, 102, 459 S.E.2d 374, 379 (1995). It has been further held by this Court that,

A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misle[d] by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, as long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion.

Syl. pt. 4, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995). Finally, although the wording of individual instructions is within a trial court's discretion, "the question of whether a jury was properly instructed is a question of law, and the review is de novo." Syl. pt. 1, in part, State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). In consideration of these standards, we will address separately each of the Petitioners' instructional assignments of error.

         1. Yielding right-of-way to an emergency vehicle.

         The Petitioners contend that the trial court erred in giving Mr. Allman's jury instruction on the statutory duty of a citizen to yield to an emergency vehicle. The instruction given by the trial court was as follows:

Upon the immediate approach of an authorized emergency vehicle, such as a police car, operating emergency lights and siren, West Virginia Code § 17C-9-5 requires that the driver of every other vehicle shall yield the right-of-way, and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
The required compliance with that code section is contingent upon the other vehicle driver having the opportunity to perceive, see or hear, the approaching police car. That other driver is not expected to yield and pull over in response to the approach of an emergency vehicle if that driver does not see or hear the emergency vehicle within sufficient time to react as required by law. Also, the emergency vehicle law does not operate to relieve the driver of a police car, regardless of his lights and siren, from the duty to drive with due regard for the safety of all person using the highway.

(Emphasis added). The Petitioners argue that this instruction is an inaccurate statement of the law. According to the Petitioners, the controlling statute, W.Va. Code § 17C-9-5 (1971) (Repl. Vol. 2017), does not "predicate[] the duty to yield to an emergency vehicle upon the drivers' sensory perception of the approaching emergency vehicle[.]" We disagree.

         To begin, the relevant text of W.Va. Code § 17C-9-5 provides as follows:

(a) Upon the immediate approach of an authorized emergency vehicle equipped with at least one flashing lighted lamp of a color authorized by section twenty-six, article fifteen of this chapter, which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle other than a police vehicle when operated as an authorized emergency vehicle, and when the driver is giving audible signal by siren, exhaust whistle, or bell:
(1) The driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway. . . .
(b) This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

(Emphasis added). For purposes of this appeal, the statute is not ambiguous. Well-established rules of statutory construction require that "[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect." Syl. pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). The plain wording of the statute requires motorists to yield the right-of-way when an emergency vehicle approaches with its lights flashing and "visible . . . from a distance of five hundred feet, " and its siren audible. See Lewis v. Kirk, 168 W.Va. 199, 202, 283 S.E.2d 846, 848 (1981) ("This statute provides that where an emergency vehicle has its siren and flashing lights in operation, the driver of every other vehicle must yield the right of way[.]"); Peak v. Ratliff, 185 W.Va. 548, 554, 408 S.E.2d 300, 306 (1991) (" W.Va. Code, 17C-9-5 (1971) . . . require[s] the drivers of other vehicles to yield the right-of-way when an emergency vehicle approaches with its lights and sirens or other audible signal in operation." (footnote omitted)). The wording of the statute makes it obvious that the requirement that a motorist yield the right-of-way is only possible when a motorist reasonably should have heard a siren or seen flashing lights. To conclude differently would make the requirement of flashing lights and an audible siren superfluous. See Syl. pt. 4, State ex rel. Hardesty v. Aracoma - Chief Logan No. 4523, Veterans of Foreign Wars of U.S., Inc., 147 W.Va. 645, 645, 129 S.E.2d 921, 922 (1963) ("It is always presumed that the legislature will not enact a meaningless or useless statute.").

         The Petitioners argue that the decision in Davis v. Cross, 152 W.Va. 540');">152 W.Va. 540, 164 S.E.2d 899 (1968), supports their contention that there is no requirement that a motorist hear an emergency vehicle's siren or see its flashing lights. In Davis, the defendant, a municipal fire truck driver, was responding to an emergency call with his lights and sirens activated when he drove through an intersection and collided with a motorcycle driven by the plaintiff. The plaintiff sued the defendant for negligence. [6] The jury ultimately returned a verdict in favor of the plaintiff, but the trial judge set aside the verdict and entered judgment for the defendant. The trial judge found that the evidence established that the defendant used due care and slowed his vehicle at a stop sign before entering the intersection. The dispositive issue on appeal was whether the defendant complied with the requirements of an emergency vehicle under W.Va. Code § 17C-2-5 (1971) (Repl. Vol. 2017). [7] After a careful review of the evidence, this Court found "that the defendant complied fully with the requirements of Code 1931, 17C-2-5, as amended, thereby being entitled to the exemptions granted therein." Davis, 152 W.Va. at 548, 164 S.E.2d at 904. In reaching this conclusion, the opinion addressed the duty imposed on motorists under W.Va. Code § 17C-9-5 as follows:

Furthermore, in these circumstances, the defendant had a right to believe that other drivers in the area would observe the provisions of Code, 1931, 17C-9-5, as amended. That statute provides, in effect, that upon the immediate approach of an authorized emergency vehicle properly equipped and operated with the required audible signal and lights, the driver of every other vehicle shall yield the right of way and stop until such emergency vehicle has passed. This the plaintiff failed to do, even though all of the positive evidence in the record showed unequivocally that the vehicle driven by the defendant sounded an audible signal and exhibited the necessary red lights.

Davis, 152 W.Va. at 546-47, 164 S.E.2d at 903 (emphasis added). The opinion noted that the defendant and four witnesses testified that the siren was audible and lights were displayed as required by the statute. The plaintiff testified that he did not hear the siren nor see flashing lights. The plaintiff also called a witness who testified to hearing the siren in her home, but did not recall hearing it when she came outside. The opinion found the plaintiff's evidence insufficient:

The evidence of the plaintiff and his witness is negative in character. The most that can be said of it is that they did not hear the siren. That, however, is no evidence that it was not sounded. Concerning positive and negative evidence, this Court, in Cavendish v. Chesapeake & Ohio Ry. Co., 95 W.Va. 490, 121 S.E. 489, said in Syllabus 2: "Whether a conflict arises between positive and negative evidence of this character depends upon the facts and circumstances of each case from which it may be determined whether such negative evidence has any probative value." Considering the facts and circumstances of this case, we think the evidence of the plaintiff and Mrs. Murphy is purely negative and is entitled to very little weight in comparison with the positive evidence adduced at the trial. . . .

Davis, 152 W.Va. at 547, 164 S.E.2d at 903.

         Contrary to the Petitioners' contention, the decision in Davis does not stand for the proposition that the issue of whether a plaintiff hears an emergency vehicle's siren or sees its flashing lights is irrelevant. Instead, Davis places a burden on a motorist to produce "sufficient evidence" that he did not hear a siren or see flashing lights in order to yield the right-of-way as required by W.Va. Code § 17C-9-5. Consequently, we now hold that the requirement in W.Va. Code § 17C-9-5, that a motorist yield the right-of-way to an emergency vehicle, is contingent upon the motorist having a reasonable opportunity to hear the emergency vehicle's siren or see its flashing lights to allow the motorist sufficient time to yield the right-of-way.

         In view of the decision in Davis and our holding, the trial court properly instructed the jury, in essence, that Mr. Allman had to produce evidence that he did not hear the siren or see the flashing lights of the Petitioners' emergency vehicle in time to yield the right-of-way. [8] Therefore, we reject the Petitioners' contention that the jury instruction was an inaccurate statement of the law.

         2. The standard of care for operating an emergency vehicle.

         The Petitioners next argue that the trial court improperly instructed the jury on the standard of care of a police officer operating an emergency vehicle. The instruction given provided as follows:

When a policeman exercises the privilege of exceeding the speed limit or going through a red light at an intersection, the policeman is held to the duty of care and standard of a trained police officer who should be aware of all risks and hazards associated with exceeding a speed limit in traffic or going through a red light in an emergency vehicle. That is a higher standard and duty than that required of an individual when the risks and hazards of exceeding the speed limit in traffic or taking an emergency vehicle through a red light have not been taught to such individual. The policeman driving his cruiser is held to the duty of care and level of knowledge of a reasonable and prudent, properly trained police officer.

(Emphasis added). The Petitioners argued below and in this appeal that the instruction "improperly stated that Officer Miller was subject to a 'higher standard' of care." The Petitioners contend that this instruction is inconsistent with the standard set out under W.Va. Code § 17C-2-5. This statute provides the following:

(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing direction of movement of [or] turning in specified directions.
(c) The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any said vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted flashing lamp as authorized by section twenty-six [ยง 17C-15-26], article fifteen of this chapter which is visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, except that an authorized ...

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