Henson v. Klein

• Decision Date: 26 August 2010
• Docket Number: No. 2007-SC-000795-DG,2008-SC-000204-DG.,2007-SC-000795-DG
• Citation: 319 S.W.3d 413
• Parties: Elaine T. HENSON and St. Paul Fire and Marine Insurance Company, Appellants/Cross-Appellees,v.David KLEIN, Appellee/Cross-Appellant.
• Court: United States State Supreme Court — District of Kentucky

319 S.W.3d 413

Elaine T. HENSON and St. Paul Fire and Marine Insurance Company, Appellants/Cross-Appellees,v.David KLEIN, Appellee/Cross-Appellant.

Nos. 2007-SC-000795-DG, 2008-SC-000204-DG.

Supreme Court of Kentucky.

Aug. 26, 2010.

COPYRIGHT MATERIAL OMITTED

Brian Edward Clare, Judson Fuller Devlin, Fulton & Devlin, Louisville, KY, Counsel for Appellants/Cross-Appellees.

Catherine Marie Cundiff Sewell, Peter J. Sewell, Derek Patrick O'Bryan, Sewell, O'Brien & Neal, PLLC, Louisville, KY, Counsel for Appellee/Cross-Appellant.

Opinion of the Court by Justice VENTERS.

This case arises from the collision of two personal watercrafts on Lake Cumberland, one operated by Appellant, Elaine Henson, and the other operated by Appellee, David Klein. A judgment based on a jury verdict was entered in the trial court in Klein's favor. The Court of Appeals affirmed the judgment. We granted discretionary review to consider Henson's argument that the jury was incorrectly instructed on the sudden emergency doctrine, and to re-examine our holding in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky.2004).¹ We conclude that the sudden emergency jury instruction is essential to a proper determination of liability in emergency situations. Accordingly, we reaffirm Regenstreif, and affirm the decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

As a result of the collision, Henson sued Klein, alleging that his negligence caused her injuries. St. Paul Fire and Marine Insurance Company paid workers' compensation benefits to Henson, and intervened in the action to assert its right of subrogation against Klein. By agreement prior to trial, St. Paul allowed its interest in the matter to rise or fall with Henson's claim and did not participate in the trial. Although both Henson and St. Paul have appealed, for the reader's convenience, we refer throughout this opinion to both Appellants collectively as “Henson.”

Evidence at trial established the following facts. Henson, director of business development for a construction company, assisted her employer in entertaining several business guests for a weekend on a houseboat on Lake Cumberland. Henson's friend, Klein, accompanied her to assist as needed. The houseboat was equipped with two personal watercrafts which were available for use by the hosts and their guests.

“Personal watercraft” is defined by KRS 235.010(4) as a vessel which uses an internal combustion engine to power a jet pump for its primary source of propulsion, and is operated by a person sitting, standing, or kneeling on the vessel, as opposed to a conventional boat, within which passengers and operators ride. Personal watercrafts are more commonly known by their brand names, such as Jet Ski, WaveRunner, or Sea-Doo. The two involved here were Sea-Doos, and we will refer to them throughout this opinion by that name.

Like most boats, a Sea-Doo has no mechanical brake. Stopping is normally achieved by releasing the throttle to stop the forward propulsion. With no rudder, steering is achieved by turning a handlebar that changes the direction of the jet thrust. As a result, steering efficacy is significantly reduced when the throttle is released. Because they operate under different mechanical systems and in an entirely different environment, the driving characteristics of personal watercrafts are very different from automobiles, motorcycles, or other vehicles that operate on land.

During the weekend outing, Henson decided to take a ride on one of the Sea-Doos. Her employer asked Klein to follow her on the other Sea-Doo. He complied. After about an hour, they decided to return to the houseboat. Henson led the way, with Klein trailing behind her and off to the left, in what may be described as the “wingman formation.” The testimony placed Klein thirty to forty-five feet behind Henson and ten to twenty feet to her left. Elmer Knable, one of the business guests on the houseboat, witnessed the impending collision between Henson and Klein.

Knable testified that as the two Sea-Doos drew near the houseboat, Henson looked back over her left shoulder and shouted something to Klein. As she did so, she suddenly turned her Sea-Doo sharply to the left and abruptly decelerated to a stop directly in Klein's path. Klein reacted by leaning his body to the left and steering toward the left in an apparent effort to avoid Henson, but within seconds his Sea-Doo struck the forward left side of Henson's craft. The collision left Henson with serious injuries. Knable testified that if Henson had not abruptly turned to the left and stopped, Klein would not have hit her. No evidence was offered to suggest that Henson was confronted with an object or obstacle that she sought to avoid by stopping or turning to the left.

Henson brought suit against Klein in the Jefferson Circuit Court.² In due course, the case was tried before a jury. With respect to Klein's duties, the trial court instructed the jury as follows:

It was the duty of [Klein] ... to exercise ordinary care for the safety of other persons using the waterway, including [Henson], and this general duty included the following specific duties:

(a) To operate his personal watercraft in a reasonable and prudent manner in accordance with the “Rules of the Road” so as not to endanger human life, human physical safety or property; ^[3]

All of the above duties being subject, however, to this qualification: that if immediately before the accident [Klein] was suddenly and unexpectedly confronted with an emergency by [Henson] turning her personal watercraft into the path of [Klein's] approaching watercraft, and if such emergency was not brought about by any failure on his part to perform the duties above set forth, he was not thereafter required to adopt the best course possible in order to avoid the impending danger but was required to exercise only such care as the jury would expect an ordinarily prudent person to exercise under the same conditions and circumstances.

If you are satisfied from the evidence that [Klein], failed to comply with one or more of his duties and that such failure on his part was a substantial factor in causing the accident, you will find [Klein] at fault.

With respect to Henson, the trial gave this instruction:

It was the duty of [Henson] ... to exercise ordinary care for the safety of other persons using the waterway, including [Klein], and this general duty included the following specific duties:

(a) To operate her personal watercraft in a reasonable and prudent manner in accordance with the “Rules of the Road” so as not to endanger human life, human physical safety or property; ^[4] and

(b) Not to change the course of her personal watercraft without first determining that a course change could be made without risk of collision.^[[^5]

If you are satisfied from the evidence that [Henson] failed to comply with one or more of her duties, and that such failure was a substantial factor in causing the accident, you will find [Henson] at fault for the accident.

These instructions were followed by a proper apportionment of fault instruction. The interrogatory in the first verdict form asked the jury, “Did defendant, David Klein, fail to comply with one or more of the duties set forth in Instruction No. 1, and, if so was that failure a substantial factor in causing the collision?” The jury answered “no,” and as instructed, completed no other verdict forms, and then returned its verdict to the courtroom. Judgment was entered accordingly.

Henson appealed and argued to the Court of Appeals that the trial court erred by instructing the jury that Klein's duties were subject to the sudden emergency doctrine and by failing to instruct the jury that Henson had the right-of-way over Klein. Klein filed a protective cross-appeal to preserve his claim that the trial court erred by refusing to allow opinion testimony from an officer who had investigated the accident. The Court of Appeals affirmed the judgment on appeal without reaching the merits of the cross-appeal.

On discretionary review, Henson reiterates her arguments regarding the jury instructions. We invited the parties to submit additional oral and written arguments relating to the viability of the sudden emergency doctrine. Henson argues that because tort damages are now allocated in accordance with comparative fault principles, the sudden emergency doctrine and the jury instruction that implements it no longer serve a useful purpose and cause confusion for juries.

II. THE SUDDEN EMERGENCY DOCTRINE RETAINS A VALID AND USEFUL PLACE IN KENTUCKY JURISPRUDENCE

A. The Current Status of the Sudden Emergency Doctrine in Kentucky

In Bass v. Williams, 839 S.W.2d 559, 563 (Ky.App.1992), the Court of Appeals concluded that the shift from contributory negligence to comparative negligence eliminated the need for a sudden emergency instruction. The Bass court reasoned that the sudden emergency doctrine “has a quality to it that diminishes the duties of the defendant-driver ... and is in violation of the ‘direct proportion to fault’ concept in Hilen^[6],” and further, that it violates the concept that “[a party] is liable for an amount equal to his degree of fault, no more and no less.” Bass, 839 S.W.2d at 563; see also Stratton v. Parker, 793 S.W.2d 817, 820 (Ky.1990).

The demise of the sudden emergency doctrine in Kentucky was short-lived. Twelve years later, in Regenstreif v. Phelps, 142 S.W.3d 1 (Ky.2004), this Court overruled Bass. Regenstreif rejected the notion that the sudden emergency doctrine was incompatible with comparative negligence, finding instead that it “necessarily complements” comparative negligence “in those particular cases where additional circumstances alter the way in which one's degree of fault should be determined.” Id. at 6.

Despite Regenstreif the question of the sudden emergency doctrine's viability lingered. Now, we reaffirm its place as a necessary component of the process by which juries must determine the fault of parties...