Gilbert v. W. Va. Dep't of Transp., 15-0994
| Decision Date | 10 November 2016 |
| Docket Number | No. 15-0994,15-0994 |
| Parties | Michael Gilbert, individually and as Administrator and personal representative of the Estate of Patrick M. Gilbert, deceased, Plaintiff Below, Petitioner v. West Virginia Department of Transportation, Division of Highways, Ronnie Lee Conrad, and John Doe(s), Defendants Below, Respondents |
| Court | West Virginia Supreme Court |
Petitioner Michael Gilbert, individually and as Administrator and personal representative of the Estate of Patrick M. Gilbert, deceased, by counsel Michael A. Jacks, appeals the "Order Denying Plaintiff's Motion to Set Aside Verdict and For a New Trial" entered by the Circuit Court of Kanawha County on September 14, 2015. Respondents West Virginia Department of Transportation, Division of Highways, Ronnie Lee Conrad, and John Doe(s), by counsel James D. Stacy II, filed a response. Petitioner filed a reply.
This 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.
Factual and Procedural Background
This case stems from a motor vehicle accident that occurred on Interstate 79, about ten miles south of Weston, West Virginia, on March 6, 2011. On that day, Respondent Ronnie Conrad, an employee of Respondent West Virginia Division of Highways ("DOH"), was driving a DOH Ford F-250 truck southbound in the right-hand lane to patrol the stretch of the interstate between Weston and Flatwoods. The weather was overcast, snow was falling, and slush was forming on the roadway. Mr. Conrad's coworker, James Mimms, was in the passenger seat.
As Mr. Conrad drove through a right-hand curve, Mr. Mimms spotted a disabled vehicle on the right-hand berm facing northbound that had spun one-hundred and eighty degrees to face oncoming traffic. Mr. Mimms advised Mr. Conrad that he spotted the vehicle and that he believed the driver was still inside. In response, Mr. Conrad slowed his truck and pulled onto the right-hand berm. Behind the truck driven by Mr. Conrad was a Toyota Corolla being driven southbound by Patrick Gilbert ("Mr. Gilbert"), petitioner's twenty-year-old son. With Mr. Gilbert in the Toyota were his sister, Jamie Spik, who was seated in the front passenger seat, and his brother, Kyle Gilbert, who was seated in the back seat. The three siblings were traveling from Pittsburgh to South Carolina. It is undisputed that Mr. Gilbert collided with the left rear corner of the DOH truck and died as a result of the accident.
Soon after the collision, West Virginia State Police Trooper Roy Allen Moss, who was traveling southbound through the same stretch of interstate, came upon the disabled vehicle in the right-hand berm facing the opposite direction. Trooper Moss spoke to the driver, who was uninjured. As Trooper Moss traveled further south, he came to Mr. Gilbert's Toyota that was off of the interstate. Trooper Moss attempted to interview Ms. Spik and Kyle Gilbert, who were outside of the vehicle, but neither could state what had occurred. Trooper Moss then came to Mr. Conrad's truck in the berm. He interviewed Mr. Conrad and Mr. Mimms, both of whom stated that they had been struck from behind by the Toyota after they had pulled off of the interstate and were slowing down in the berm. Trooper Moss took measurements from the accident scene that he incorporated into a diagram.
Petitioner filed a wrongful death action against Mr. Conrad and the DOH, claiming that Mr. Conrad's negligence caused the accident that resulted in his son's death. The matter proceeded to a jury trial in February of 2015. Petitioner's theory at trial was that Mr. Gilbert struck the DOH truck while the DOH truck was still at least partially on the interstate in the process of slowing down and pulling onto the berm, as opposed to striking the DOH truck after it was already on the berm. Petitioner supported this theory with the testimony of Ms. Spik, who claimed that something was directly in front of them that caused Mr. Gilbert to slam on his brakes and turn sharply to the right. Ms. Spik testified that these memories came to her approximately a couple of days to a month after the accident. Petitioner also claimed, through expert testimony, that Mr. Conrad must have slowed the DOH truck too abruptly, as evidenced by (1) the testimony that Mr. Simms told Mr. Conrad about the disabled vehicle two to four seconds after spotting it; (2) the fact that it typically takes a driver one to one-and-a-half seconds to apply the brakes after deciding to stop; (3) the testimony that Mr. Conrad was traveling at approximately fifty miles per hour when he passed the disabled vehicle; and (4) assuming the estimates of stop-time and Mr. Conrad's speed were accurate, Mr. Conrad would have had to apply his brakes very hard to come to a stop at the point of collision.
Respondents' evidence was that Mr. Conrad used his right turn signal light before he started to pull onto the berm; that Mr. Conrad was trained not to use his overhead warning lights until he was on the berm; that Mr. Conrad had been traveling on the berm for several feet before being struck by the Toyota; that Mr. Conrad did not stop on the roadway, but rather had moved to stop on the shoulder of the highway, in accordance with his training; and that Mr. Conrad, in accordance with his habit, did not decelerate rapidly when preparing to move onto the shoulder, but rather, traveled significantly beyond the disabled vehicle. Additionally, Mr. Mimms testified that they were on the shoulder when Mr. Gilbert struck them, and the impact forced the DOH truck back onto the highway; that Mr. Conrad used his right turn signal before pulling onto the shoulder; and that Mr. Conrad did not decelerate rapidly, as petitioner alleged.
Respondents also relied upon expert testimony to show that Mr. Gilbert was negligent in the accident. The expert testified that Mr. Conrad's tire mark from his left rear tire showed that his truck was completely on the shoulder when it was struck from behind; that based upon the distance between the disabled car and the point of impact, there should have been ample time for Mr. Gilbert to brake to avoid the collision, instead of Mr. Gilbert slamming on his brakes and going into spin; and that the estimates of the time it took for Mr. Simms to report spotting the disabled car to Mr. Conrad and the time it took for Mr. Conrad to begin slowing down had to be too long, given that the DOH truck was only three-hundred and fifty feet from the disabled car at the time of impact.
The jury returned a verdict in favor of respondents, finding that Mr. Conrad committed no negligence in the collision. Petitioner filed a motion to set aside the verdict and for a new trial in which he argued that (1) the verdict was against the clear weight of the evidence, and (2) the circuit court erroneously refused to allow petitioner's expert to testify that Mr. Conrad violated West Virginia Code § 17C-13-3(a)(17), which prohibits stopping on a controlled access highway under certain conditions. By order entered on September 14, 2015, the circuit court denied petitioner's motion, and this appeal followed.
Discussion
This Court has held as follows when addressing a motion to set aside a jury verdict and grant a new trial:
Syl. Pt. 5, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983). With these standards in mind, we turn to petitioner's arguments.
Petitioner raises six assignments of error on appeal, the first of which is that the circuit court wrongfully limited and precluded certain testimony from petitioner's expert witness. At trial, petitioner called an accident reconstructionist to testify that Mr. Conrad stopped too abruptly on the highway, causing Mr. Gilbert to crash into him while the DOH truck was still on the road, rather than off the road as respondents contended. The expert's report concluded that Mr. Conrad violated West Virginia Code § 17C-13-3(a)(17), which states that stopping a vehicle on a controlled access highway is a misdemeanor. Additionally, petitioner complains that the circuit court did not allow petitioner's expert to mention the West Virginia Commercial Driver's License manual in his testimony. This Court has held that a circuit court's admission or exclusion...
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