Daniel W. Miller and The City of Parkersburg v. Kevin Allman
813 S.E.2d 91
W. Va.2018Background
- Officer Daniel W. Miller, driving a Parkersburg police cruiser with lights/siren activated while responding to a reported foot pursuit, rear-ended Kevin Allman after skidding 151 feet; Allman was pulling onto Murdoch Avenue from a parking lot.
- Allman sued Miller and the City of Parkersburg for negligence; a jury in November 2016 awarded Allman $213,887.50 (including $200,000 general damages and $4,500 lost wages); judgment was later reduced for certain insurance proceeds.
- Petitioners (Miller and City) moved for a new trial/remittitur raising five primary errors: two jury instructions, lack of juror questionnaire copies, limitation on cross-examination about a counterclaim settlement, improper closing argument (alleged golden-rule), and excessive/general and special damages.
- The trial court denied the motion for new trial; the Supreme Court of Appeals affirmed the denial.
- The Court addressed standards for reviewing new-trial rulings (abuse of discretion) and jury-instruction legal questions (de novo review for legal correctness of the instruction as a whole).
Issues
| Issue | Plaintiff's Argument (Allman) | Defendant's Argument (Miller/City) | Held |
|---|---|---|---|
| 1) Jury instruction on duty to yield to emergency vehicle | Statute requires motorists yield when lights/siren are operating; jury may consider whether Allman had opportunity to see/hear | Instruction improperly made duty contingent on driver’s perception; statute imposes duty objectively when lights/siren are activated | Affirmed: statute’s yield requirement is contingent on whether motorist had reasonable opportunity to perceive lights/siren; jury properly required Allman to show he did not have reasonable opportunity to perceive them (court clarifies burden) |
| 2) Jury instruction on standard of care for emergency-vehicle operation | Ordinary negligence standard applies; officer exempt from traffic rules only per statute | Officer held to a higher standard—trained police officer—when using privileges (but negligence standard still applicable) | Affirmed: instruction acceptable; a higher (officer-specific) standard of care is appropriate but jury was told negligence/due-care standard applies under the circumstances (not an absolute extraordinary standard) |
| 3) Access to juror qualification questionnaires | Court clerk must provide questionnaires upon request; Allman did not oppose providing copies | Defendants assert they requested questionnaires (to clerk/judge) and were denied | Affirmed: defendants did not make the required request to the clerk under W. Va. Code § 52-1-5a(e); no error in denial |
| 4) Cross-examination about counterclaim settlement | Evidence of settlement barred by Rule 408 but exceptions allow admission for bias/motive if opened | Defendants say Allman opened the door by testifying about being counter-sued and thus could be cross-examined about settlement; also claim Rule 408(b) permits admission to show bias/motive | Affirmed: Allman’s testimony did not open the door to settlement details; Rule 408 exceptions did not authorize the requested cross-examination; trial court within discretion to exclude settlement evidence |
| 5) Closing argument (alleged golden-rule) and preservation | Allman argues closing did not invoke golden-rule; also that defendants waived by failing to object | Defendants claim counsel made a golden-rule appeal contrary to pretrial ruling and preserved by motion in limine | Affirmed: issue waived—defendants obtained the in limine ruling but must contemporaneously object when ruling is violated; under Rule 103(b) a prevailing party must object if the opponent violates a favorable pretrial ruling |
| 6) General and special damages sufficiency/excessiveness | Evidence supported pain, concussion symptoms, therapy, and lost wages; award reasonable | Award for general damages ($200,000) and lost wages ($4,500) excessive/unsupported | Affirmed: award not monstrous or unsupported; medical and lay testimony supported general damages; plaintiff’s unchallenged testimony sufficed for lost-wage award |
Key Cases Cited
- Burke-Parsons-Bowlby Corp. v. Rice, 230 W. Va. 105 (standard for reviewing new-trial rulings)
- Hollen v. Linger, 151 W. Va. 255 (erroneous instruction presumed prejudicial)
- Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97 (formulation of jury instructions reviewed for abuse of discretion)
- State v. Guthrie, 194 W. Va. 657 (curative admissibility/"opening the door")
- Davis v. Cross, 152 W. Va. 540 (evidence burden re: whether lights/siren were operating and others’ duty to yield)
- Peak v. Ratliff, 185 W. Va. 548 (standards of care for emergency vehicles: negligence vs. reckless/gross negligence in pursuit contexts)
- Reed v. Wimmer, 195 W. Va. 199 (deference to jury awards supported by competent evidence)
- Addair v. Majestic Petroleum Co., 160 W. Va. 105 (standard for setting aside verdicts as excessive)