DANIEL W. MILLER AND THE CITY OF PARKERSBURG, Defendants Below, Petitioners,
KEVIN ALLMAN, Plaintiff Below, Respondent.
Submitted: March 13, 2018
from the Circuit Court of Wood County Honorable Jeffrey B.
Reed, Judge Civil Action No. 14-C-2790
J. Ruggier II, Jacob D. Layne, Pullin, Fowler, Flanagan,
Brown & Poe, Charleston, West Virginia Attorneys for
G. Deitzler, Hill, Peterson, Carper, Bee & Deitzler,
Charleston, West Virginia, Attorney for Respondent.
JUSTICE WALKER dissents and reserves the right to file a
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.
" 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
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.
"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).
"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).
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superseded by Rule 103(b) of the West Virginia Rules of
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.
"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).
plaintiff's testimony alone is sufficient to prove lost
wages as long as the testimony reasonably establishes the
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.
AND PROCEDURAL HISTORY
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.
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.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.
Allman sustained injuries as a result of the collision.
On October 14, 2014, Mr. Allman filed the instant civil
action against the Petitioners. 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
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
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.
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.
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
[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
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
Yielding right-of-way to an emergency vehicle.
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.
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.").
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.
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).  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
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.
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
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.  Therefore, we
reject the Petitioners' contention that the jury
instruction was an inaccurate statement of the law.
The standard of care for operating an emergency
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
(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
(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 [§ 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