Miller v. Allman

• Citation: 813 S.E.2d 91
• Decision Date: 06 April 2018
• Docket Number: No. 17-0080,17-0080
• Court: Supreme Court of West Virginia
• Parties: Daniel W. MILLER and The City of Parkersburg, Defendants Below, Petitioners, v. Kevin ALLMAN, Plaintiff Below, Respondent.

813 S.E.2d 91

Daniel W. MILLER and The City of Parkersburg, Defendants Below, Petitioners,

v.Kevin ALLMAN, Plaintiff Below, Respondent.

No. 17-0080

Supreme Court of Appeals of West Virginia.

Submitted: March 13, 2018

Filed: April 6, 2018

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

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

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