Present: All the Justices
RHONDA HANCOCK-UNDERWOOD,
ADMINISTRATOR OF THE ESTATE
OF MELVIN RAY HANCOCK, DECEASED
OPINION BY
v. Record No. 080425 JUSTICE DONALD W. LEMONS
January 16, 2009
RICHARD I. KNIGHT
FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
In this appeal, we consider whether the trial court erred
in refusing to instruct the jury on “unavoidable accident” and
“sudden emergency.” For the reasons stated below, we will
affirm the judgment of the trial court.
I. Facts and Proceedings Below
On May 21, 2005, an automobile accident occurred on Route
130 in Amherst County involving vehicles driven by Richard I.
Knight (“Knight”) and Melvin Ray Hancock (“Hancock”). Hancock
was driving with his wife, Rhonda Hancock (“Rhonda” or
“Administrator”), and his son, Charles Hancock (“Charles”),
traveling west on Route 130 between 10:00 and 11:00 o’clock at
night when his van crossed the centerline and struck Knight’s
truck, which was traveling east on Route 130. Before the
collision, Knight saw Hancock’s van coming toward him and
moved his truck, which had a trailer in tow, over to the
right-hand side of the road as far as possible. Nonetheless,
Hancock’s van collided with Knight’s truck. While Knight was
severely injured from the collision, he survived, but Hancock
did not.
Knight filed a complaint against Hancock’s estate in the
Circuit Court of Amherst County seeking $500,000 in damages.
At trial, Rhonda and Charles both testified that Hancock
complained of a severe headache “a minute[,] minute and-a-
half” before “he . . . slumped over the wheel” and that he had
not been “sleepy” or “tired” prior to his complaint. After
the accident, Hancock was conscious and able to talk to
Charles and Rhonda for a few minutes, however his speech
became “slurred,” and “almost baby like,” and “then he just
stopped speaking.”
A neurological expert, Dr. John Gordon Burch, testified
that Hancock “suffered an acute medical crisis” as he operated
his vehicle. Specifically, Dr. Burch testified that Hancock
suffered “an acute intracranial event. And most likely an
intracranial hemorrhage.” Further, Dr. Burch testified that
it was “extremely unlikely” that Hancock fell asleep and that
Hancock did not have “a migraine headache.”
At the conclusion of the presentation of evidence in a
one-day jury trial, the Administrator sought jury instructions
on both the “unavoidable accident” and “sudden emergency”
doctrines. The trial court refused to give either
instruction. The jury returned a verdict for Knight in the
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amount of $490,000. The trial court entered judgment on the
verdict. We awarded the Administrator an appeal upon two
assignments of error:
1. The trial court erred in refusing to give the
defendant’s “sudden emergency” instruction where
substantial evidence demonstrated that the defendant
suffered from a medical emergency at the time of the
accident.
2. The trial court erred in refusing to give the
defendant’s “unavoidable accident” instruction where
substantial evidence demonstrated that the defendant
suffered from a medical emergency at the time of the
accident.
II. Analysis
A. Standard of Review
When we review a trial court’s decision to refuse jury
instructions, the evidence is viewed in the light most
favorable to the proponent of the instruction. Rose v.
Jaques, 268 Va. 137, 150, 597 S.E.2d 64, 71 (2004).
Furthermore,
[a]s we have made clear in the past, “[a]
litigant is entitled to jury instructions
supporting his or her theory of the case if
sufficient evidence is introduced to support
that theory and if the instructions correctly
state the law.” Schlimmer v. Poverty Hunt
Club, 268 Va. 74, 78, 597 S.E.2d 43, 45
(2004); accord Honsinger v. Egan, 266 Va. 269,
274, 585 S.E.2d 597, 600 (2003). The evidence
introduced in support of a requested
instruction “must amount to more than a
scintilla.” Schlimmer, 268 Va. at 78, 597
S.E.2d at 45 (citing Justus v. Commonwealth,
222 Va. 667, 678, 283 S.E.2d 905, 911 (1981)).
"If a proffered instruction finds any support
in credible evidence, its refusal is
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reversible error." McClung v. Commonwealth,
215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).
Holmes v. Levine, 273 Va. 150, 159, 639 S.E.2d 235, 239
(2007).
When we review the content of jury instructions, our
“ ‘sole responsibility . . . is to see that the law has been
clearly stated and that the instructions cover all issues
which the evidence fairly raises.’ " Molina v. Commonwealth,
272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) (quoting Swisher
v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)).
Whether the content of the instruction is an accurate
statement of the relevant legal principles is a question of
law that, like all questions of law, we review de novo. Alcoy
v. Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301,
303 (2006).
B. Unavoidable Accident
Previously, we have defined an “unavoidable accident” as
an accident “which ordinary care and diligence could not have
prevented, or, expressed another way, is one occurring in the
absence of negligence upon the part of all the parties charged
therewith.” Holbert v. Evans, 209 Va. 210, 215, 163 S.E.2d
187, 191 (1968) (internal quotation marks omitted). The
unavoidable accident instruction proffered by the
Administrator reads as follows:
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An unavoidable accident is one which
ordinary care and diligence could not have
prevented or one which occurred in the absence
of negligence by any party to this action.
The various states are split on the propriety of giving
an unavoidable accident instruction. Upon review of the
decisions of the highest courts of the various states, it
appears that twenty states and the District of Columbia do not
permit such an instruction under any circumstance; 1 fifteen
states have strongly criticized the instruction but allow it
in rare circumstances; 2 nine states appear to allow the
1
Those states are Alaska, Alaska Brick Co. v. McCoy, 400
P.2d 454, 456 (Alaska 1965); Arizona, City of Phoenix v.
Camfield, 400 P.2d 115, 120-21 (Ariz. 1965); California,
Butigan v. Yellow Cab Co., 320 P.2d 500, 505 (Cal. 1958);
Colorado, Lewis v. Buckskin Joe's, Inc., 396 P.2d 933, 941-42
(Colo. 1964); District of Columbia, Andrews v. Forness, 272
A.2d 672, 674 (D.C. 1971); Georgia, Tolbert v. Duckworth, 423
S.E.2d 229, 229-30 (Ga. 1992); Idaho, Schaub v. Linehan, 442
P.2d 742, 746 (Idaho 1968); Indiana, Miller v. Alvey, 207
N.E.2d 633, 636-37 (Ind. 1965); Iowa, Koll v. Manatt’s Transp.
Co., 253 N.W.2d 265, 268-69 (Iowa 1977); Kentucky, Sloan v.
Iverson, 385 S.W.2d 178, 179 (Ky. 1964); Maine, George v.
Guerette, 306 A.2d 138, 143 (Me. 1973); Maryland, Fry v.
Carter, 825 A.2d 1042, 1043 (Md. 2003); Montana, Graham v.
Rolandson, 435 P.2d 263, 274 (Mont. 1967); New Hampshire, Dyer
v. Herb Prout & Co., 498 A.2d 715, 717 (N.H. 1985); New
Jersey, Vespe v. DiMarco, 204 A.2d 874, 882 (N.J. 1964); New
Mexico, Alexander v. Delgado, 507 P.2d 778, 780-81 (N.M.
1973); Oregon, Felton v. Aleshire, 393 P.2d 217, 222-23 (Or.
1964); Rhode Island, Camaras v. Moran, 219 A.2d 487, 489-90
(R.I. 1966); Utah, Randle v. Allen, 862 P.2d 1329, 1336 (Utah
1993); Vermont, Mattison v. Smalley, 165 A.2d 343, 347-48 (Vt.
1960); and West Virginia, Hunter v. Johnson, 359 S.E.2d 611,
613 (W. Va. 1987).
2
Those states are Alabama, Socier v. Woodward, 88 So.2d
783, 785 (Ala. 1956); Tyler v. Drennen, 51 So.2d 516, 524
(Ala. 1951); Arkansas, Burdette v. Madison, 719 S.W.2d 418,
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instruction; 3 and the highest courts of five states have not
addressed the issue. 4 The analytical basis used by those
states that do not permit the use of the “unavoidable
accident” instruction is easily summarized. These states
disapprove unavoidable-accident instructions, because such an
instruction merely restates the law of negligence, serves no
419 (Ark. 1986); Connecticut, Dinda v. Sirois, 347 A.2d 75, 77
(Conn. 1974); Delaware, Univ. of Delaware v. Munson, 316 A.2d
206, 207 (Del. 1974); Florida, Smith v. Canevary, 553 So.2d
1312, 1313-15 (Fla. Dist. Ct. App. 1989)(characterizing
Supreme Court of Florida jury instructions doctrine); Hawaii,
Guanzon v. Kalamau, 402 P.2d 289, 296-97 (Haw. 1965); Kansas,
Kline v. Emmele, 465 P.2d 970, 972 (Kan. 1970); Minnesota,
Holten v. Parker, 224 N.W.2d 139, 143 (Minn. 1974);
Mississippi, Tillman v. Singletary, 865 So.2d 350, 352-53
(Miss. 2003); Missouri, Hogan v. Kansas City Pub. Serv. Co.,
19 S.W.2d 707, 712 (Mo. 1929); Oklahoma, Athey v. Bingham, 823
P.2d 347, 350 (Okla. 1991); South Dakota, Howard v. Sanborn,
483 N.W.2d 796, 798-99 (S.D. 1992); Texas, Reinhart v. Young,
906 S.W.2d 471, 472-73 (Tex. 1995); Washington, Brewer v.
Berner, 131 P.2d 940, 943 (Wash. 1942); and Wisconsin, Van
Matre v. Milwaukee Elec. Ry. & Transp. Co., 67 N.W.2d 831, 833
(Wis. 1955).
3
Those states are Illinois, Carson, Pirie, Scott & Co. v.
Chicago Rys. Co., 141 N.E. 172, 174-75 (Ill. 1923); Flanagan
v. The Chicago City Ry. Co., 90 N.E. 688, 689-90 (Ill. 1909);
Michigan, Lober v. Sklar, 97 N.W.2d 617, 619 (Mich. 1959);
McClarren v. Buck, 72 N.W.2d 31, 32 (Mich. 1955); Nebraska,
Maloney v. Kaminski, 368 N.W.2d 447, 457 (Neb. 1985); North
Carolina, Gregory v. Lynch, 155 S.E.2d 488, 491 (N.C. 1967);
North Dakota, Reuter v. Olson, 59 N.W.2d 830, 835-36 (N.D.
1953); Ohio, Grindell v. Huber, 275 N.E.2d 614, 617-18 (Ohio
1971); South Carolina, Collins v. Thomas, 135 S.E.2d 754, 754-
55 (S.C. 1964); Tennessee, Blackburn v. Murphy, 737 S.W.2d
529, 534 (Tenn. 1987); DeMauro v. Tusculum College, Inc., 603
S.W.2d 115, 120 (Tenn. 1980); and Wyoming, Friesen v.
Schmelzel, 318 P.2d 368, 371-72 (Wyo. 1957).
4
Those states are Louisiana, Massachusetts, Nevada, New
York, and Pennsylvania.
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useful purpose, overemphasizes the defendant’s case, and is
apt to confuse and mislead the jury.
Of the states that do permit an “unavoidable accident”
instruction, many have narrowly circumscribed its use,
recognizing that it is only helpful to the jury in a very
small number of factual instances. The limitation adopted by
the Supreme Court of South Dakota is typical:
In the ordinary negligence action the jury is
adequately instructed on the ultimate issues
by instructions on negligence, contributory
negligence, burden of proof, and proximate
cause. Further instruction on unavoidable
accident usually is unnecessary. Such an
instruction may properly be given in those
cases where there is evidence of something
other than the negligence of one of the
parties [having] caused the mishap. It is
particularly apt where the further element of
“surprise” is present such as the sudden and
unexpected presence of ice, the blow-out of a
tire, the malfunction of brakes, or other
mechanical failure.
Cordell v. Scott, 111 N.W.2d 594, 598 (S.D. 1961).
To date, we have permitted an “unavoidable accident”
instruction in certain narrow circumstances. We have held:
Although we apparently have not directly
approved the granting of an unavoidable
accident instruction, it is clear that our
prior decisions on the subject have recognized
that such an instruction does have a proper
place in a negligence case and have indicated
that it is not error to grant it if the
evidence warrants. While few automobile
accidents occur without fault and the occasion
for the use of an unavoidable accident
instruction might be rare, that does not mean
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that the instruction should not be given in
the proper case.
What is a proper case is, of course, the
problem. We have made it plain that where the
only evidence of the cause of an injury is
that it resulted from human fault, an
instruction on unavoidable accident is
improper. At the other end of the spectrum,
is the case where the only evidence of the
cause of an injury is that it occurred without
human fault. In the latter instance, the
question of an unavoidable accident
instruction would be moot, since the matter
would have to be decided by the court, as a
matter of law.
In between the two extremes lies the area
where the instruction may be warranted. If,
in a case otherwise proper for jury decision,
there is a reasonable theory of the evidence
under which the parties involved may be held
to have exercised due care notwithstanding
that the accident occurred, the question of
whether injury was the result of negligence or
unavoidable accident should be covered by
appropriate instructions and submitted to the
jury.
Holbert, 209 Va. at 215, 163 S.E.2d at 191-192.
We have cautioned trial courts to “use particular care
when determining whether to grant” instructions on unavoidable
accident because they have “the tendency to afford a jury an
easy way of avoiding instead of deciding the issue made by the
evidence in the case.” Herr v. Wheeler, 272 Va. 310, 315, 634
S.E.2d 317, 320 (2006); see also Holbert, 209 Va. at 215, 163
S.E.2d at 191 (stating that because few accidents happen
without fault the occasions warranting an instruction on
unavoidable accident might be rare). While in the past we
have permitted under rare and specific circumstances an
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instruction on unavoidable accident, today we join the clear
trend in the states favoring exclusion of its use altogether.
The reason we do so is amply demonstrated by this case.
The Administrator’s request for an unavoidable accident
instruction was denied; however the trial court granted the
following instructions:
INSTRUCTION NO. 1
Your verdict must be based on the facts as
you find them and on the law contained in all of
these instructions.
The issues in this case are:
(1) Was Melvin Ray Hancock negligent?
(2) If he was negligent, was his
negligence a proximate cause of the
accident?
(3) If the Plaintiff is entitled to
recover, what is the amount of his
damages?
On all three of these issues, the Plaintiff has
the burden of proof.
Your decision on these issues must be
governed by the instructions that follow.
INSTRUCTION NO. 2
You shall find your verdict for the
Plaintiff if he has proved by the greater weight
of the evidence that:
(1) Melvin Ray Hancock was negligent; and
(2) Melvin Ray Hancock’s negligence was a
proximate cause of the Plaintiff’s
accident and damages.
You shall find your verdict for the
Defendant if the Plaintiff failed to prove
either or both of the two elements above.
INSTRUCTION NO. 5
The Plaintiff has the burden of proving by
the greater weight of the evidence that Melvin
Ray Hancock was negligent and that his
negligence proximately caused the accident and
any of the injuries to the Plaintiff.
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INSTRUCTION NO. 7
The proximate cause of an accident, injury,
or damage is a cause which in natural and
continuous sequence produces the accident,
injury, or damage. It is a cause without which
the accident, injury, or damage would not have
occurred.
INSTRUCTION NO. 8
Negligence is the failure to use ordinary care.
Ordinary care is the care a reasonable person
would have used under the circumstances of this
case.
INSTRUCTION NO. 9
The driver of a vehicle has a duty to drive
on the right half of the highway. If a driver
fails to perform this duty, then he is
negligent.
INSTRUCTION NO. 11
The driver of a vehicle has a duty to give,
as nearly as possible, one half of the main
traveled portion of the highway to a driver
proceeding in the opposite direction. When the
road is unmarked, the dividing line is the
center of the highway.
If a driver fails to perform this duty,
then he is negligent.
INSTRUCTION NO. 12
The fact that Melvin Ray Hancock’s oncoming
vehicle was in the Plaintiff’s lane of travel at
the time of the impact allows you to find that
Mr. Hancock was negligent unless you believe
from other evidence that he was not negligent.
INSTRUCTION NO. 13
A person who falls asleep while driving is
negligent.
INSTRUCTION NO. A
The fact that there was an accident and
that Mr. Knight was injured does not, of itself,
entitle Mr. Knight to recover.
Mr. Knight has the burden of proving by the
greater weight of the evidence that Mr. Hancock
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was negligent and that his negligence caused Mr.
Knight’s injuries.
Further, the trial court made it absolutely clear that
the Administrator would not be curtailed in her argument to
the jury that Hancock was free from negligence. And the
Administrator made good use of the opportunity in closing
argument as her counsel specifically referred to the
instructions given.
We have expressed great reservations about the use of an
unavoidable accident instruction. We “have recognized that
such an instruction is apt to give a jury ‘an easy way of
avoiding instead of deciding the issue made by the evidence in
the case.’ ” Chodorov v. Eley, 239 Va. 528, 531, 391 S.E.2d
68, 70 (1990) (quoting Mawyer v. Thomas, 199 Va. 897, 901, 103
S.E.2d 217, 220 (1958)). We have repeatedly stated that “it
is rarely permissible to give an unavoidable accident
instruction.” Marshall v. Goughnour, 221 Va. 265, 269, 269
S.E.2d 801, 804 (1980). In consideration of the prevailing
concerns of the states that have rejected the instruction –
that it merely restates the law of negligence, overemphasizes
the defendant’s case, and is apt to confuse and mislead – we
join those states and hold that it is error to grant an
unavoidable accident instruction. The trial court in this
case did not err in refusing it.
C. Sudden Emergency
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The Administrator also proffered an instruction on sudden
emergency, which was refused by the trial court. The
instruction read:
Rhonda Hancock-Underwood, Administrator of
the Estate of Melvin Ray Hancock contends that
Melvin Ray Hancock was confronted with a sudden
emergency. A sudden emergency is an event or a
combination of circumstances that calls for
immediate action without giving time for the
deliberate exercise of judgment.
If you believe from the evidence that
Melvin Ray Hancock, without negligence on his
part, was confronted with a sudden emergency and
acted as a reasonable person would have acted
under the circumstances of this case, he was not
negligent.
The evidence introduced in support of a requested instruction
“ ‘must amount to more than a scintilla.’ ” Schlimmer, 268 Va.
at 78, 597 S.E.2d at 45 (quoting Justus, 222 Va. at 678, 283
S.E.2d at 911).
In Vahdat v. Holland, 274 Va. 417, 421, 649 S.E.2d 691,
693 (2007), we restated the essence of the doctrine as
follows:
The sudden emergency doctrine provides that
“[w]hen the driver of an automobile, without
prior negligence on his part, is confronted with
a sudden emergency and acts as an ordinarily
prudent person would have done under the same or
similar circumstances, he is not guilty of
negligence.” Pickett v. Cooper, 202 Va. 60, 63,
116 S.E.2d 48, 51 (1960) (citing Southern
Passenger Motor Lines, Inc. v. Burks, 187 Va.
53, 60, 46 S.E.2d 26, 30 (1948)); accord
Velocity Express Mid-Atlantic, Inc. v. Hugen,
266 Va. 188, 193, 585 S.E.2d 557, 560 (2003).
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Unlike an unavoidable accident instruction, a sudden emergency
instruction does not merely repeat the law of negligence. It
adds new considerations to the negligence equation. A person
confronted with a sudden emergency must “act[] as an
ordinarily prudent person would have done under the same or
similar circumstances.” This additional requirement is not
addressed in the general negligence instructions ordinarily
given (as in this case). Nonetheless, we have cautioned trial
courts about the use of this instruction. Jones v. Ford Motor
Co., 263 Va. 237, 263, 559 S.E.2d 592, 605 (2002) (“the grant
of a sudden emergency instruction is rarely appropriate”).
For example, it is foreseeable and not unexpected that a car
in a line of traffic will stop suddenly. See Garnot v.
Johnson, 239 Va. 81, 86, 387 S.E.2d 473, 476 (1990); see also
Chodorov, 239 Va. at 531, 391 S.E.2d at 70. The occurrence of
standing water on a roadway during a heavy rainstorm is not an
unexpected event justifying a sudden emergency instruction.
Herr, 272 Va. at 317, 634 S.E.2d at 321. The doctrine of
sudden emergency may not be invoked by one who creates or
contributes to the emergency by his own negligence. Bloxom v.
McCoy, 178 Va. 343, 349, 17 S.E.2d 401, 403 (1941); Thibodeau
v. Vandermark, 234 Va. 15, 18, 360 S.E.2d 171, 173 (1987).
13
In this case, the instruction proffered directed the jury
to consider Hancock’s action after being confronted with a
sudden emergency. As the trial court correctly noted:
Well, in this case Mr. Hancock didn’t take
immediate action under the defendant’s theory of
the case. He was unconscious. He had a medical
event, he was slumped over the wheel. There was
no action that he could take or did take. He
lost control of the vehicle under their theory
of the case, so I don’t think the sudden
emergency instruction applies.
The trial court was presented with a proposed instruction that
was not supported by the evidence. The trial court did not err
in refusing the instruction tendered.
We have previously stated in the context of a medical
emergency:
[W]here the driver of an automobile is suddenly
stricken by an illness, which he has no reason
to anticipate and which renders it impossible
for him to control the car, he is not chargeable
with negligence.
Driver v. Brooks, 176 Va. 317, 327, 10 S.E.2d 887, 892 (1940)
(quoting Cohen v. Petty, 65 F.2d 820 (D.C. App. 1933). In
Brinser v. Young, 208 Va. 525, 158 S.E.2d 759 (1968), we once
again relied on Cohen, and quoted the following language:
It is undoubtedly the law that one who is
suddenly stricken by an illness, which he had no
reason to anticipate, while driving an
automobile, which renders it impossible for him
to control the car, is not chargeable with,
negligence.
14
Brinser, 208 Va. at 527, 158 S.E.2d at 761 (quoting
Cohen, 65 F.2d at 821).
We do not reach the question whether an instruction
drafted in accordance with Driver and Brinser would be proper
because, in this case, the trial court was presented with a
proposed instruction that was not supported by the evidence.
The trial court did not err in refusing the instruction
tendered.
III. Conclusion
For the reasons stated, we hold that it is error to
instruct a jury on unavoidable accident. Further, the
particular instruction tendered by the Administrator
concerning sudden emergency was not supported by the evidence.
Accordingly, the trial court did not err in refusing either
instruction.
Affirmed.
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