CHARLESTON – The West Virginia Supreme Court of Appeals has issued a ruling denying a police officer and the city of Parkersburg a new trial in lawsuit filed by a man who was injured when he was rear-ended by a police officer.

The appeal was brought by Daniel W. Miller and the city of Parkersburg after an order filed in Wood Circuit Court denied their motion for a new trial, which they were seeking after a jury found that they were at fault when their police cruiser rear-ended Kevin Allman’s vehicle while he was driving.

Justice Robin Jean Davis authored the majority opinion. Justice Beth Walker dissented and authored a separate opinion.

In the appeal, the petitioners claimed the trial court gave two improper jury instructions, failed to provide a copy of the jury qualification form and limited cross-examination of a witness, among other things.

“After carefully reviewing the briefs, the arguments of the parties, the legal authority cited and the record presented for consideration, we affirm,” Davis wrote.

Miller is a police officer for Parkersburg and, on Aug. 22, 2013, was assigned to work at Parkersburg High School. At some point shortly after arriving at the school, he had to leave to return home to Vienna, due to an emergency at his home involving a water leak in his basement.

After briefly meeting with the plumber at his home, Miller left to return to the high school and, while en route, he heard a police officer on his radio state that he was in foot-pursuit of a suspect and, in response to the apparent distress communication, he activated his lights and siren and began traveling at a high rate of speed southbound on Grand Central Avenue in Vienna.

Before Miller cross the Lakeview Drive intersection, Allman had pulled out southbound from a parking lot when Miller rear-ended him at a minimum speed of 65 miles per hour.

According to a deputy who testified at the trial, Allman could not have seen Miller’s car when he pulled out onto the road. Allman sustained injuries as a result of the collision and filed a lawsuit against Miller and the city on Oct. 14, 2014.

The jury returned a verdict in favor of Allan and awarded him damages in the amount of $213,887.50. The trial court then denied post-trial motions and the officer and city then appealed to the Supreme Court.

The petitioners argued that the trial court erred in the wording of the jury instructions on the duty to yield to an emergency vehicle and on the standard of care of a police officer operating an emergency vehicle, according to the opinion.

The trial court “properly instructed the jury, in essence, that Mr. Allman had to produce evidence that he did not hear the siren or see the flashing lights of the petitioners’ emergency vehicle in time to yield the right-of-way.”

Davis said the Supreme Court rejects the petitioners’ contention that the jury instruction was an inaccurate.

“In considering the jury instructions as a whole, we find no error in the trial judge’s use of the phrase ‘higher standard’ in the jury instructions,” Davis wrote. “The jury instructions as a whole made clear that the standard of care was that of a police officer exercising reasonable care while operating an emergency vehicle, not that of a civilian driver operating a vehicle.”

The court also found no error in the other claims and affirmed the trial court’s denial of the petitioner’s post-trial motion for new trial and remittitur.

In her dissent, Walker said the majority’s opinion endorses a jury instruction that creates a new exception to the clear statutory duty of a citizen to yield the right-of-way to an approaching emergency vehicle.

“I agree with the majority that this statute is clear and unambiguous; however, I find that the statute imposes merely an objective perception requirement rather than a subjective one,” Walker wrote. “That is, once an approaching emergency vehicle has activated its lights and siren, surrounding drivers are deemed to have constructive notice of the vehicle.”

Therefore, the trial court’s instruction, which limited the duty to yield to a driver’s subjective perception, is clear error as it does not accurately reflect the law and has the reasonable potential to mislead the jury as to the correct legal principle, according to Walker’s dissenting opinion.

Walker said not only did the jury instruction misstate the appropriate legal standard, but also it was prejudicial to Miller as it prevented the jury from determining whether Allman should have observed the emergency vehicle’s lights and siren with sufficient time to react and whether Allman should have yielded to the emergency vehicle.

“Additionally, it rendered meaningless the testimony of several eyewitnesses who testified that they saw and heard the emergency vehicle,” Walker wrote. “Accordingly, I would reverse and remand for a new trial with direction to correct the instruction.”

W.Va. Supreme Court of Appeals case number: 17-0080

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