Velocity Express Mid-Atlantic v. Hugen, Record No. 022877.

• Decision Date: 12 September 2003
• Docket Number: Record No. 022877.
• Citation: 585 S.E.2d 557,266 Va. 188
• Court: Virginia Supreme Court
• Parties: VELOCITY EXPRESS MID-ATLANTIC, INC. v. Brian F. HUGEN.

585 S.E.2d 557

266 Va. 188

VELOCITY EXPRESS MID-ATLANTIC, INC. v. Brian F. HUGEN.

Record No. 022877.

Supreme Court of Virginia.

September 12, 2003.

John Charles Thomas; E. Duncan Getchell, Jr. (M. Christine Klein; Brian J. Schneider; Robert L. Hodges; Amy M. Pocklington; Hunton & Williams; McGuireWoods, on briefs), Richmond, for appellant.

Jeffrey A. Breit (John W. Drescher; John L. Watts; Boyd Scarborough; Breit, Drescher & Imprevento; Griffin, Pappas & Scarborough, on brief), Norfolk, for appellee.

Amicus Curiae: American Tort Reform Association (Sherman Joyce; Victor E. Schwartz; Mark A. Behrens; Cary Silverman; Shook, Hardy & Bacon, on brief), in support of appellant.

Present: All the Justices.

OPINION BY Chief Justice LEROY R. HASSELL, SR.

I.

In this appeal, the primary issue that we consider is whether the plaintiffs closing argument to the jury deprived the defendant of its right to a fair and impartial trial.

II.

Plaintiff, Brian F. Hugen, was seriously injured in an automobile accident on August 28, 2000. The accident occurred around 7:00 a.m. on State Route 32 in the City of Suffolk. Route 32 is a two lane highway that extends in northern and southern directions. The speed limit is 55 miles per hour.

Michael T. Ross was driving a car in the northern lane of travel. Plaintiff was driving his car in the same direction behind Ross' vehicle. Ross observed a white van approaching from the opposite direction. Defendant, Velocity Express Mid-Atlantic, owned the white van which was operated by its employee, Alvin J. Winston. The van "drift[ed] over" into Ross' lane of travel. Trying to avoid a collision, Ross steered his car "all the way to the shoulder of the road," and defendant's van "sideswipe[d]" Ross' car. Defendant's van then collided with plaintiff's car in plaintiffs lane of travel.

After the accident occurred, Winston told defendant's safety director: "I don't know what happened. Besides me, there were two other vehicles. The next thing I remember was when we got side to side of each other, I heard a mirror go off the van. Then when I went swerving, when I swerved in the wrong lane and hit another car and I tried to hit the brakes and tried to get over, somehow the van wouldn't get over. And then the van hit on the other car driving straight down the lane, other car going the other way." Winston told a police officer at the scene of the accident that Winston "never saw the first vehicle that he collided with."

As a result of the accident, plaintiff sustained catastrophic injuries, and he suffered permanent physical and mental disabilities. Plaintiff was in a coma for 62 days following the accident. He suffered a compression fracture of the thoracic vertebrae, a broken femur, a fractured hip, multiple fractures to his right ankle, collapsed lungs, and severe brain injuries. He experienced multi-system organ dysfunction, acute renal failure, multiple incidents of deep venous thromboses, and pneumonia. He has developed a rare condition known as heterotopic ossification, which causes abnormal new bone formations and ultimately will cause his joints to fuse together, thereby preventing him from moving his body. The severe stiffness in the joints caused by the heterotopic ossification has almost completely restricted plaintiffs use of his arms, hips, legs, and knees. Eventually, plaintiff will have a total ankylosis or "frozen jaw" that will prohibit him from opening his mouth, and his jaw will become "permanently locked." Plaintiff will lose all his teeth, and he will have to be fed through the insertion of a surgically-implanted tube into his stomach.

Plaintiff's brain injuries have impaired his memory, attention span, and abilities to concentrate, understand, and follow instructions. He ranks in the bottom five percent of the population in terms of his mental functions. As a result of his brain injuries, plaintiff eats excessive quantities of food because he is unable to discern when he is full. Consequently, plaintiff, who weighed approximately 175 pounds before the accident, now weighs 282 pounds. His weight impairs his ability to breathe, adversely affects his heart, and increases the risk of further blood clots.

During a jury trial, plaintiff and defendant relied upon expert witness testimony to establish life care plans that plaintiff will require because of his dire medical condition. Plaintiff's expert witnesses testified that plaintiff will need the services of a licensed practical nurse 24 hours each day for the remainder of his life. Robert D. Voogt, one of plaintiff's expert witnesses, testified that plaintiff needs the assistance of a licensed practical nurse because this type of nurse can provide the appropriate nursing care that plaintiff currently requires and will require in the future. Defendant's expert witness, Robert H. Taylor, testified that a certified nursing aide, who has less training and is less expensive than a licensed practical nurse, can provide the 24-hour daily care that plaintiff needs. Taylor testified that a certified nursing aide would cost approximately $96,360 per year, which, when added to the other costs, resulted in a life care plan that will cost $4,123,193.50. Plaintiff presented evidence, however, that a licensed practical nurse would cost $425,955 per year, which, when added to other costs, resulted in a life care plan that cost $17,091,000.

The jury returned a verdict in favor of plaintiff in the amount of $60,000,000. The circuit court entered a judgment confirming the verdict and defendant appeals.

III.

Defendant asserts that the trial court erred in failing to instruct the jury on the defense of sudden emergency. Defendant claims that the van operated by its employee, Winston, was forced into plaintiffs lane of travel when Ross' car collided with defendant's van. We disagree with defendant.

The sudden emergency doctrine relieves a person of liability if, without prior negligence on his part, that person is confronted with a sudden emergency and acts as an ordinarily prudent person would act under the circumstances. See, e.g., Jones v. Ford Motor Co., 263 Va. 237, 262, 559 S.E.2d 592, 605 (2002); Bentley v. Felts, 248 Va. 117, 120, 445 S.E.2d 131, 133 (1994); Carolina Coach Co. v. Starchia, 219 Va. 135, 141, 244 S.E.2d 788, 792 (1978); Pickett v. Cooper, 202 Va. 60, 63, 116 S.E.2d 48, 51 (1960); Southern Passenger Motor Lines, Inc. v. Burks, 187 Va. 53, 60, 46 S.E.2d 26, 30 (1948).

Additionally, we have stated:

"Ordinarily the question of application of the sudden emergency doctrine is for the triers of fact. When evidence is conflicting or different inferences may be drawn from the evidence, it is for the jury to say (1) whether [the operator of the automobile] was confronted with an emergency; (2) whether the emergency, if one existed, was created by [the operator's] own negligence; and (3) whether [the operator of the vehicle] conducted himself as an ordinarily prudent person might have done under the same or similar circumstances."

Cowles v. Zahn, 206 Va. 743, 746-47, 146 S.E.2d 200, 203 (1966); accord Ford Motor Co., 263 Va. at 262, 559 S.E.2d at 605; Starchia, 219 Va. at 141, 244 S.E.2d at 792.

In the present case, the circuit court correctly concluded that defendant was not entitled to a jury instruction on the sudden emergency doctrine. The accident was caused by the negligence of defendant's own employee. For example, Ross, the driver of the car that collided with defendant's van before that van collided with plaintiff's car, testified as follows:

"Q: Okay. Now, in your own words tell the members of the jury what happened from the time you observed the van.

"A: Well, from the time I observed the van I noticed that [Velocity's van] was kind of drifting over to my lane. And I went over to the shoulder to try to avoid a collision, and it never worked. You know, he got far enough over where he hit me, and I went off the road, lost control.

. . . .

"Q: How much of the van came into your lane, from your observation?

"A: From my observation I would say over half."

And, contrary to defendant's assertions, the evidence of record clearly demonstrates that the accident occurred in the lane of travel occupied by Ross and plaintiff. Simply stated, a sudden emergency did not exist.

IV.

A.

Plaintiff's counsel made the following remarks during his closing argument to the jury:

"The physical pain and mental anguish [plaintiff] suffered in the past and any that he may reasonably be expected to suffer in the future. We men are a proud lot at times probably to our detriment on occasion and sometimes our pride gets in our way. It is inconceivable to me that a man who cared for himself, who cared for his family, who on his wedding day to help his wife took her to Williamsburg in lieu of a trip to the islands so that she could be near her mother who was seriously and mentally ill at that point in time, a man who has taken care of himself and his family all of his life, a man who is basically now reduced to a role reversal. That is what has happened here, a complete, unequivocal role reversal.

"He can't perform sexually. Can't imagine what that is like. He can't basically do anything for himself. If you sit there by yourself with your arms still seated in a chair and just don't move

"[COUNSEL FOR DEFENDANT]: Your Honor, I am going to object to that argument as being in violation of the golden rule, Your Honor.

"[COUNSEL FOR PLAINTIFF]: I will rephrase it to avoid any problem.

"THE COURT: You can't put the jury in that position.

"[COUNSEL FOR PLAINTIFF]: [Velocity Express] can't find a doctor. But they don't want a doctor. They want a miracle. Just like the happening of this accident. No amount of witnesses would satisfy Velocity Express. You could have four bishops on the side of the road watching what is going on and they still could claim somehow it wasn't their fault.

"Ladies and gentlemen, it is all well and good that Corporate

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