City of Louisville v. Maresz

• Decision Date: 10 July 1992
• Docket Number: No. 90-CA-002134-MR,90-CA-002134-MR
• Citation: 835 S.W.2d 889
• Parties: CITY OF LOUISVILLE and William J. Mooney, Appellants, v. Richard M. MARESZ, Interez, Inc., and Zurich-American Insurance Group, Appellees.
• Court: Kentucky Court of Appeals

Page 889

835 S.W.2d 889

CITY OF LOUISVILLE and William J. Mooney, Appellants, v. Richard M. MARESZ, Interez, Inc., and Zurich-American Insurance Group, Appellees.

No. 90-CA-002134-MR.

Court of Appeals of Kentucky.

July 10, 1992.

Jerald R. Steinberg, Winston E. King, Louisville, for appellants.

J. Michael Smither, Michael J. Darnell, John W. Phillips, Louisville, for appellees.

Before EMBERTON, JOHNSON and WILHOIT, JJ.

JOHNSON, Judge.

This is an appeal from a judgment of the Jefferson Circuit Court entered August 29, 1990, that gave effect to a jury verdict dated August 24, 1990, finding appellant, William J. Mooney, to be 95% at fault and appellee, Richard M. Maresz, to be 5% at fault in causing an automobile accident in Louisville, Kentucky on December 16, 1986, and finding the appellee, Maresz, incurred a total of $420,261.00 in damages and the appellant, City of Louisville, incurred $4,404.85 in damages. Appellant alleges error in the jury instructions on three separate grounds, and that the jury verdict awarding damages for future medical expenses is not supported by the evidence.

The appellant alleges error in the jury instructions on the following grounds:

1. The trial court prejudicially erred by including a "sudden emergency" qualification in Jury Instruction No. 1.

2. The trial court prejudicially erred by holding the defendants to a standard higher than ordinary care in Jury Instruction No. 4.

3. The trial court prejudicially erred by improperly implying that the emergency vehicle exceptions in Jury Instruction No. 3 were specific duties.

On December 16, 1986, appellant, Joe Mooney, was traveling eastbound on Interstate 64 in Louisville, Kentucky. Mooney, a police officer for the City of Louisville, was driving his police cruiser while on duty and in transit from police headquarters in downtown Louisville to his assigned district in the east end of the City. While on I-64, a "run" came over the police radio concerning an accident in the west bound lane of I-64 just east of the Cochran Tunnel. The "run" was not assigned to Officer Mooney; however, Officer Mooney informed the radio dispatcher that he would go by the scene to assist if necessary. As Officer Mooney approached the tunnel, he was positioned in the left lane of I-64. Appellee, Richard Maresz (who has no independent recollection of the accident) was traveling five or six car lengths behind appellant. A witness, Mr. Stephen A. Deutsch, was traveling in the same lane five or six lengths behind Maresz. After passing through the tunnel, Officer Mooney began to slow down and pull onto the left shoulder of I-64. Prior to his vehicle stopping, Officer Mooney was struck from behind by Maresz's vehicle. Deutsch testified that Officer Mooney's brake lights came on at least 100 yards prior to the collision and Maresz's brake lights did not come on until the last moment. In December 1987 Maresz brought a negligence action against the appellants. The appellants answered the complaint and also counter-claimed for their damages. Intervening Plaintiffs filed their complaints to recover what they had paid out to, and on behalf of, Maresz, and to answer the counter-claim of the defendants. A jury found both parties at fault. In awarding Maresz $420,261.00 and the City of Louisville $4,404.85, the jury assessed appellant Mooney 95% at fault and appellee Maresz 5% at fault.

The trial court instructed the jury in Instruction No. 1 as follows:

It was the duty of Richard Maresz, in driving his automobile, to exercise ordinary care for the safety of other persons using the highway, and this general duty included the following specific duties:

(a) To keep a lookout ahead for other persons and vehicles in front of him or so near to his intended line of travel as to be in danger of collision;

(b) Not to follow another vehicle more closely than was reasonable and prudent, having regard for the speed of the respective vehicles and for the traffic upon and condition of the highway;

(c) To have his automobile under reasonable control;

(d) To exercise ordinary care generally to avoid collision with other persons and vehicles on the highway;

(e) To drive at a speed no greater than was reasonable and prudent, having regard for the traffic and for the condition and use of the highway.

All of the foregoing duties are subject, however, to this qualification: If immediately before the accident, the plaintiff was suddenly and unexpectedly confronted by the presence of Joseph Mooney's vehicle on the traveled portion of the highway so close that it appeared to the plaintiff in the exercise of reasonable judgment that he was in imminent danger of collision with the Mooney automobile and such emergency was not caused or borught (sic) about by any failure of the plaintiff to perform the duties set forth above, then he was required thereafter to exercise only such care as an ordinarily prudent person would exercise under the same conditions and circumstances.

If you are satisfied from the evidence that Richard Maresz failed to comply with any one or more of these duties and that such failure was a substantial factor in causing the accident, you will find Richard Maresz at fault.

We, the Jury, find Richard Maresz at fault:

Yes ____

No ____

The jury marked "yes."

Appellee argues that the appellant failed to preserved this alleged error for appeal. We find that appellant complied with Civil Rule 51 of the Kentucky Rules of Civil Procedure by tendering an alternative instruction omitting sudden emergency. We further find that the giving of a sudden emergency instruction was in error, but that it was harmless error.

In Harris v. Thompson, Ky., 497 S.W.2d 422 (1973), this state's Highest Court discussed when an instruction on a motorist's duty should be qualified by the sudden emergency proviso. The Court stated To summarize this phase of the discussion, whether the instruction on a motorist's duties should be qualified by a proviso such as the sudden emergency theory does not depend upon whether the particular circumstance might be characterized in common parlance as a "sudden emergency," but whether it changes or modifies the duties that would have been incumbent upon him in the absence of that circumstance. In this case the qualification was made necessary because by not remaining on the right side of the road Sechrest violated a specific duty unless the exceptional circumstance of the ice on the road had the effect of relieving him from it. Had the accident taken place in his own lane of travel, or on the right side of the highway, it would not have been necessary, because then the unexpected presence of the ice would have amounted to no more than a condition bearing upon the question of whether the accident resulted from a failure on his part to comply with the more generalized duties of ordinary care. The proper criterion is whether any of the specific duties set forth in the instruction would be subject to exception by reason of the claimed emergency.

Harris, 497 S.W.2d at 428.

In this case the accident occurred in Maresz's own lane of travel. The unexpected presence of the stopped or slow-moving Mooney vehicle "amounted to no more than a condition bearing upon the question of whether the accident resulted from a failure on his part to comply with the more generalized duties of ordinary care." Harris v. Thompson, supra. "Indeed it may be said that all automobile accidents are sudden in a literal sense. But such is not the test. This distinction is set out in Harris, supra." Paducah Area Public Library v. Terry, Ky.App., 655 S.W.2d 19, 22 (1983). ¹

"The rule is that, where a person has been placed in a position of peril by the negligence of another, he may recover for his injury although he may not, as shown by subsequent events, adopt the safest course, provided he uses such care and judgment as might be fairly expected of a person of ordinary prudence under the circumstances." L. & N. v. Taylor, 104 S.W. 777, 31 Ky. Law Rep. 1142; L. & N. v. McNary, 128 Ky. 420, 108 S.W. 898, 32 Ky. Law Rep. 1266, 17 L.R.A. (N.S.) 224, 129 Am.St.Rep. 308; I.C. [L. & N. R. Co.] v. Hays, 128 S.W. 287 ; L. & N. v. Cook, 128 S.W. 83; C. & O. v. Dawson, 159 Ky. 300, 167 S.W. 125.

Chesapeake & Ohio Railway Company v. Hoskins' Administrator, 164 Ky. 575, 176 S.W. 29, 31 (1915).

This case does not present a sudden emergency, only a sudden occurrence. The evidence clearly supports the conclusion that appellant Mooney acted suddenly in slowing or stopping his vehicle. However, there is no evidence whatsoever that appellee Maresz, when presented with this sudden occurrence, chose a course of conduct which appeared at the time to have been the safest course, which now appears not to have been the best or wisest choice, and which resulted in injury. House v. Kellerman, Ky., 519 S.W.2d 380 (1975). ² In short, there is no evidence that appellee Maresz in responding to the sudden occurrence acted in such a way that he could be held negligent because of his response, thus he has no need for the sudden emergency instruction. ³ Maresz was, however, presented with a sudden occurrence that may have resulted in his inability to avoid the collision with appellant Mooney's vehicle regardless of his previous exercise of ordinary care. (See infra.)

In Webb v. Boydston, Ky., 439 S.W.2d 955, 956 (1969), the trial court gave a sudden emergency instruction when: "the Boydston car hit the Webb car in the rear while both cars were in the passing lane of the Kentucky Turnpike." The Court of Appeals recognized the problem with giving a sudden emergency instruction under such circumstances, but stated:

The real question presented to the jury was whether or not the Webb car had given sufficient warning of its sudden stop in order for Boydston to have avoided a collision, provided Boydston was using due care. Furthermore, the instruction as given referred to the operation of the " * * * automobile in...