IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
FILED
_____________
April 6, 2018
released at 3:00 p.m.
No. 17-0080 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
DANIEL W. MILLER AND
THE CITY OF PARKERSBURG,
Defendants Below, Petitioners,
V.
KEVIN ALLMAN,
Plaintiff Below, Respondent.
____________________________________________________________________
Appeal from the Circuit Court of Wood County
Honorable Jeffrey B. Reed, Judge
Civil Action No. 14-C-2790
AFFIRMED
____________________________________________________________________
Submitted: March 13, 2018
Filed: April 6, 2018
Duane J. Ruggier II Harry G. Deitzler
Jacob D. Layne Hill, Peterson, Carper, Bee &
Pullin, Fowler, Flanagan, Brown & Poe Deitzler
Charleston, West Virginia Charleston, West Virginia
Attorneys for Petitioners Attorney for Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE WALKER dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. The requirement in W. Va. Code § 17C-9-5 (1971) (Repl. Vol. 2017),
that a motorist yield the right-of-way to an emergency vehicle, is contingent upon the
motorist having a reasonable opportunity to hear the emergency vehicle’s siren or see its
flashing lights to allow the motorist sufficient time to yield the right-of-way.
2. “W. Va. Code, 17C-2-5(d) (1971), requires the driver of an emergency
vehicle to exercise due care under the circumstances to avoid collisions between the
emergency vehicle and persons or property.” Syllabus point 4, Peak v. Ratliff, 185 W. Va.
548, 408 S.E.2d 300 (1991).
3. In order for a party’s counsel to obtain copies of juror qualification
questionnaires of persons selected as prospective petit jurors, W. Va. Code § 52-1-5a(e)
(2014) (Repl. Vol. 2016) requires counsel to request copies of the questionnaires from the
circuit court clerk.
4. “The curative admissibility rule allows a party to present otherwise
inadmissible evidence on an evidentiary point where an opponent has ‘opened the door’ by
introducing similarly inadmissible evidence on the same point. Under this rule, in order to
i
be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) The
original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be
similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary
fact as the original inadmissible evidence.” Syllabus point 10, State v. Guthrie, 194 W. Va.
657, 461 S.E.2d 163 (1995).
5. “The decision of whether to admit evidence of compromise offers [or
settlements] for a purpose other than to ‘prove liability for or invalidity of the claim or its
amount,’ W. Va. R. Evid. 408, is within the sound discretion of the circuit court.” Syllabus
point 7, State ex rel. Shelton v. Burnside, 212 W. Va. 514, 575 S.E.2d 124 (2002).
6. Syllabus point 3 of Lacy v. CSX Transportation, Inc., 205 W. Va. 630,
520 S.E.2d 418 (1999), has been superseded by Rule 103(b) of the West Virginia Rules of
Evidence.
7. Rule 103(b) of the West Virginia Rules of Evidence provides that when
a “court rules definitively on the record – either before or at trial – a party need not renew an
objection or offer of proof to preserve a claim of error for appeal.” This provision applies
to preserving a claim of error by the party who opposed the ruling, not a claim of error by the
ii
party who prevailed on the ruling. Thus, a party who obtained a favorable definitive ruling
on an issue must timely object if the opposing party violates the ruling.
8. “Courts must not set aside jury verdicts as excessive unless they are
monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous, and
manifestly show jury passion, partiality, prejudice or corruption.” Syllabus, Addair v.
Majestic Petroleum Co., 160 W. Va. 105, 232 S.E.2d 821 (1977).
9. A plaintiff’s testimony alone is sufficient to prove lost wages as long
as the testimony reasonably establishes the claim.
iii
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
1
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
1
The deputy was the official law enforcement crash reconstructionist for the
accident.
2
Mr. Allman provided videotaped deposition testimony from two motorists who
were present at the time of the accident. They also testified that Mr. Allman would not have
been able to see Mr. Miller before he pulled onto Murdoch Avenue. One of those witnesses
testified as follows:
Q. Would you tell me what you remember about the crash?
A. I was sitting up the turning lane on Murdoch to go up
Lakeview. And I heard a whooshing noise. Like a – like a car
going really fast beside of me. And I turned, and I looked at my
(continued...)
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
2
(...continued)
passenger Cami, and I said, what was that? And the car went
past us. And we saw it was a police car.
Lights and sirens didn’t – there were no lights and sirens until
after he was past me. And then we – all of a sudden there was
somebody pulling out of the Buffalo Wild Wings parking lot.
And the next thing I know – it was so fast, the officer was up
underneath the end of his car. And that’s about it.
Q. Was there anything the other person could have done to avoid
being hit?
A. Going at that rate of speed – maybe if the lights and sirens
had been on further. But they weren’t on until after he passed
me. So even if he wanted to get out of the way, there wasn’t
enough time.
3
Mr. Miller also sustained injuries as a result of the collision.
4
Mr. Miller and his wife filed a counterclaim against Mr. Allman. The
counterclaim was eventually settled without trial by Mr. Allman’s insurer. According to Mr.
Allman’s brief, the settlement was for a nominal sum.
5
It appears that the circuit court did reduce the jury award by the amount of
$4,477.13, at the request of the Petitioners, as a result of first-party insurance proceeds that
Mr. Allman received.
3
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.
4
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.
5
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:
6
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
7
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
regard for the safety of all persons using the highway.
(Emphasis added). For purposes of this appeal, the statute is not ambiguous.
Well-established rules of statutory construction require that “[a] statutory provision which
is clear and unambiguous and plainly expresses the legislative intent will not be interpreted
by the courts but will be given full force and effect.” Syl. pt. 2, State v. Epperly, 135 W. Va.
877, 65 S.E.2d 488 (1951). The plain wording of the statute requires motorists to yield the
right-of-way when an emergency vehicle approaches with its lights flashing and
“visible . . . from a distance of five hundred feet,” and its siren audible. See Lewis v. Kirk,
168 W. Va. 199, 202, 283 S.E.2d 846, 848 (1981) (“This statute provides that where an
emergency vehicle has its siren and flashing lights in operation, the driver of every other
vehicle must yield the right of way[.]”); Peak v. Ratliff, 185 W. Va. 548, 554, 408 S.E.2d
300, 306 (1991) (“W. Va. Code, 17C-9-5 (1971) . . . require[s] the drivers of other vehicles
to yield the right-of-way when an emergency vehicle approaches with its lights and sirens or
other audible signal in operation.” (footnote omitted)). The wording of the statute makes it
8
obvious that the requirement that a motorist yield the right-of-way is only possible when a
motorist reasonably should have heard a siren or seen flashing lights. To conclude
differently would make the requirement of flashing lights and an audible siren superfluous.
See Syl. pt. 4, State ex rel. Hardesty v. Aracoma - Chief Logan No. 4523, Veterans of
Foreign Wars of U.S., Inc., 147 W. Va. 645, 645, 129 S.E.2d 921, 922 (1963) (“It is always
presumed that the legislature will not enact a meaningless or useless statute.”).
The Petitioners argue that the decision in Davis v. Cross, 152 W. Va. 540, 164
S.E.2d 899 (1968), supports their contention that there is no requirement that a motorist hear
an emergency vehicle’s siren or see its flashing lights. In Davis, the defendant, a municipal
fire truck driver, was responding to an emergency call with his lights and sirens activated
when he drove through an intersection and collided with a motorcycle driven by the plaintiff.
The plaintiff sued the defendant for negligence.6 The jury ultimately returned a verdict in
favor of the plaintiff, but the trial judge set aside the verdict and entered judgment for the
defendant. The trial judge found that the evidence established that the defendant used due
care and slowed his vehicle at a stop sign before entering the intersection. The dispositive
issue on appeal was whether the defendant complied with the requirements of an emergency
vehicle under W. Va. Code § 17C-2-5 (1971) (Repl. Vol. 2017).7 After a careful review of
6
The plaintiff sued other parties who were dismissed prior to trial.
7
This statute is discussed in the next section.
9
the evidence, this Court found “that the defendant complied fully with the requirements of
Code 1931, 17C-2-5, as amended, thereby being entitled to the exemptions granted therein.”
Davis, 152 W. Va. at 548, 164 S.E.2d at 904. In reaching this conclusion, the opinion
addressed the duty imposed on motorists under W. Va. Code § 17C-9-5 as follows:
Furthermore, in these circumstances, the defendant had a right
to believe that other drivers in the area would observe the
provisions of Code, 1931, 17C-9-5, as amended. That statute
provides, in effect, that upon the immediate approach of an
authorized emergency vehicle properly equipped and operated
with the required audible signal and lights, the driver of every
other vehicle shall yield the right of way and stop until such
emergency vehicle has passed. This the plaintiff failed to do,
even though all of the positive evidence in the record showed
unequivocally that the vehicle driven by the defendant sounded
an audible signal and exhibited the necessary red lights.
Davis, 152 W. Va. at 546-47, 164 S.E.2d at 903 (emphasis added). The opinion noted that
the defendant and four witnesses testified that the siren was audible and lights were displayed
as required by the statute. The plaintiff testified that he did not hear the siren nor see flashing
lights. The plaintiff also called a witness who testified to hearing the siren in her home, but
did not recall hearing it when she came outside. The opinion found the plaintiff’s evidence
insufficient:
The evidence of the plaintiff and his witness is negative
in character. The most that can be said of it is that they did not
hear the siren. That, however, is no evidence that it was not
sounded. Concerning positive and negative evidence, this Court,
in Cavendish v. Chesapeake & Ohio Ry. Co., 95 W. Va. 490,
121 S.E. 489, said in Syllabus 2: “Whether a conflict arises
between positive and negative evidence of this character
depends upon the facts and circumstances of each case from
10
which it may be determined whether such negative evidence has
any probative value.” Considering the facts and circumstances
of this case, we think the evidence of the plaintiff and Mrs.
Murphy is purely negative and is entitled to very little weight in
comparison with the positive evidence adduced at the trial. . . .
Davis, 152 W. Va. at 547, 164 S.E.2d at 903.
Contrary to the Petitioners’ contention, the decision in Davis does not stand for
the proposition that the issue of whether a plaintiff hears an emergency vehicle’s siren or sees
its flashing lights is irrelevant. Instead, Davis places a burden on a motorist to produce
“sufficient evidence” that he did not hear a siren or see flashing lights in order to yield the
right-of-way as required by W. Va. Code § 17C-9-5. Consequently, we now hold that the
requirement in W. Va. Code § 17C-9-5, that a motorist yield the right-of-way to an
emergency vehicle, is contingent upon the motorist having a reasonable opportunity to hear
the emergency vehicle's siren or see its flashing lights to allow the motorist sufficient time
to yield the right-of-way.
In view of the decision in Davis and our holding, 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
11
right-of-way.8 Therefore, we reject the Petitioners’ contention that the jury instruction was
an inaccurate statement of the law.
2. The standard of care for operating an emergency vehicle. The
Petitioners next argue that the trial court improperly instructed the jury on the standard of
care of a police officer operating an emergency vehicle. The instruction given provided as
follows:
When a policeman exercises the privilege of exceeding the
speed limit or going through a red light at an intersection, the
policeman is held to the duty of care and standard of a trained
police officer who should be aware of all risks and hazards
associated with exceeding a speed limit in traffic or going
through a red light in an emergency vehicle. That is a higher
standard and duty than that required of an individual when the
risks and hazards of exceeding the speed limit in traffic or
taking an emergency vehicle through a red light have not been
taught to such individual. The policeman driving his cruiser is
held to the duty of care and level of knowledge of a reasonable
and prudent, properly trained police officer.
(Emphasis added). The Petitioners argued below and in this appeal that the instruction
“improperly stated that Officer Miller was subject to a ‘higher standard’ of care.” The
Petitioners contend that this instruction is inconsistent with the standard set out under W. Va.
Code § 17C-2-5. This statute provides the following:
8
Mr. Allman produced sufficient evidence to establish his burden. We should
also note that the issue of the sufficiency of the evidence has not been raised by the
Petitioners. The Petitioners have limited their argument to challenging the propriety of the
jury instruction.
12
(a) The driver of an authorized emergency vehicle, when
responding to an emergency call or when in the pursuit of an
actual or suspected violator of the law or when responding to
but not upon returning from a fire alarm, may exercise the
privileges set forth in this section, but subject to the conditions
herein stated.
(b) The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this
chapter;
(2) Proceed past a red or stop signal or stop sign, but only
after slowing down as may be necessary for safe operation;
(3) Exceed the speed limits so long as he does not
endanger life or property;
(4) Disregard regulations governing direction of
movement of [or] turning in specified directions.
(c) The exemptions herein granted to an authorized
emergency vehicle shall apply only when the driver of any said
vehicle while in motion sounds audible signal by bell, siren, or
exhaust whistle as may be reasonably necessary, and when the
vehicle is equipped with at least one lighted flashing lamp as
authorized by section twenty-six [§ 17C-15-26], 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, except that an authorized emergency vehicle
operated as a police vehicle need not be equipped with or
display a warning light visible from in front of the vehicle.
(d) The foregoing provisions shall not relieve the driver
of an authorized emergency vehicle from the duty to drive with
due regard for the safety of all persons, nor shall such provisions
protect the driver from the consequences of his reckless
disregard for the safety of others.
W. Va. Code § 17C-2-5.
13
As previously mentioned, the decision in Davis, supra, examined this statute.
Although Davis did not review the statute in the context of a jury instruction, its general
observations about the standard set out under the statute are relevant to the jury instruction
issue in this case. We noted the following in Davis:
The principal question involved on this appeal is whether,
under the circumstances revealed by the record, there was
sufficient evidence of negligence on the part of the defendant to
warrant submission of the case to the jury. . . .
This is not the usual case of a collision between two
ordinary vehicles. The defendant was the driver of an authorized
emergency vehicle responding to an emergency call. Therefore,
in determining whether the acts complained of constituted
primary negligence, a different standard must be applied than
that applied to the conventional driver. Pertinent to the decision
of this case is the language of Code, 1931, 17C-2-5 . . . .
....
Before the defendant is entitled to the exemptions granted
by Code, 1931, 17C-2-5, as amended, applicable to authorized
emergency vehicles, it must be shown by a clear preponderance
of the evidence that he, immediately prior to and at the time of
the collision, was sounding an audible signal. Also, the
evidence must reveal that the vehicle was equipped with and
displayed a red light visible from a distance of five hundred feet
to the front to such vehicle.
Davis, 152 W. Va. at 542-44, 164 S.E.2d at 901-02 (emphasis added). It is clear from the
statute, and the observations in Davis, that the jury instruction in this case correctly stated the
law by informing the jury that a higher standard of care applied to the driver of an emergency
14
vehicle that exceeds the speed limit or drives through a red light. The “higher standard”
imposed in this situation is that of a trained police officer, not that of a conventional driver.
The Petitioners argue that the jury instruction is inconsistent with the decision
in Peak v. Ratliff, 185 W. Va. 548, 408 S.E.2d 300 (1991). The decision in Peak does not
help the Petitioners because it did not involve an emergency vehicle running into another
vehicle. In Peak, a state trooper was engaged in a high-speed pursuit of a burglary suspect.
During the pursuit, the suspect’s vehicle collided head-on with a car driven by a third-party.
The trooper’s vehicle was not involved in the collision. The victim of the collision and her
husband sued the burglary suspect, the trooper, and the Department of Public Safety. A jury
returned a verdict in favor of the plaintiffs. However, the trial court granted a post-trial
motion for judgment filed by the trooper and the Department on the grounds that “the
evidence was insufficient to permit a finding that they had acted in reckless disregard of the
safety of the public.” Peak, 185 W. Va. at 551, 408 S.E.2d at 303. On appeal, this Court was
called upon to determine what standard of care applied to a police officer in a high-speed
pursuit of a suspect when the suspect collides with a third-party. In resolving this issue the
Court determined that W. Va. Code § 17C-2-5(d) set out two standards of care:
This provision, which is common to the statutes of other
states, appears to contain a dual standard of care. The provision
states that the driver of an emergency vehicle has the “duty to
drive with due regard for the safety of all persons,” implying a
negligence standard. However, this is followed by the statement
that the driver is not protected “from the consequences of his
15
reckless disregard for the safety of others.” This language
clearly suggests that the emergency driver is accountable only
for reckless acts or gross negligence.
Peak, 185 W. Va. at 552, 408 S.E.2d at 304. The Court ultimately concluded that the
reckless acts or gross negligence standard applied to a police officer’s high-speed pursuit
when a fleeing suspect collides with a third-party;9 and that the negligence standard applied
when a police officer collides with a third-party while operating an emergency vehicle.10 The
opinion set out these standards in Syllabus points 4 and 5 as follows:
4. W. Va. Code, 17C-2-5(d) (1971), requires the driver
of an emergency vehicle to exercise due care under the
circumstances to avoid collisions between the emergency
vehicle and persons or property.
5. Where the police are engaged in a vehicular pursuit of
a known or suspected law violator, and the pursued vehicle
collides with the vehicle of a third party, under W. Va. Code,
9
The decision in Peak v. Ratliff reasoned as follows:
Common sense dictates that a different standard ought to
apply when officers are in pursuit of a lawbreaker who, in the
ensuing chase, collides with and injures a third party. The duty
to pursue and apprehend law violators should not be fettered by
the specter of secondary liability based on a due care standard.
It is the law violator who, in his efforts to escape justice,
collides with the third party and directly causes the injuries.
Only when the officer is guilty of gross negligence or reckless
conduct in the pursuit that causes or contributes to the collision
by the lawbreaker should liability attach.
185 W. Va. 548, 554, 408 S.E.2d 300, 306 (1991).
10
Of course, this does not mean that a person who is grossly negligent in
operating an emergency vehicle that damages property cannot be held liable.
16
17C-2-5 (1971), the pursuing officer is not liable for injuries to
the third party arising out of the collision unless the officer’s
conduct in the pursuit amounted to reckless conduct or gross
negligence and was a substantial factor in bringing about the
collision.
Peak, 185 W. Va. 548, 408 S.E.2d 300.
The Petitioners do not contend that the instruction given in this case imposed
the standard set out in Syllabus point 5 of Peak. Instead, the Petitioners argue that the
instruction’s use of the phrase “‘higher standard’ was misleading and invited the jury to
presume that[,] because Officer Miller was a police officer[,] . . . he should have acted with
extraordinary care or as an ‘exceptional man.’” This argument has no merit. A careful
review of the jury instructions as a whole reveal that the trial judge properly informed the
jury that a negligence standard applied as outlined in Syllabus point 4 of Peak. See Syl. pt.
7, Tennant v. Marion Health Care Found., Inc., 194 W. Va. 97, 459 S.E.2d 374
(“Instructions must be read as a whole, and if, when so read, it is apparent they could not
have misled the jury, the verdict will not be disturbed, [though] one of said instructions
which is not a binding instruction may have been susceptible of a doubtful construction while
standing alone.”) (internal quotations and citations omitted). The trial judge instructed the
jury more fully as follows:
If you find that the defendant, Daniel Miller, failed to maintain
control of his vehicle, you may find that he was negligent, and
violated West Virginia law. . . .
17
The driver of a police car running red lights and siren is not
relieved from exercising reasonable care under the
circumstances. The provisions which allow him to go through
a red light or exceed the posted speed limit when responding to
an emergency call while running siren and lights simply mean
that the driver of the police car cannot be charged with violation
of running a red light or exceeding the speed limit if he complies
with the law. Regardless of lights and siren, the police car
driver can still be charged with negligence and failure to use due
care in the operation of the vehicle under all the circumstances
then existing.
(Emphasis added). See McClanahan v. Putnam Cty. Comm’n, 174 W. Va. 478, 483, 327
S.E.2d 458, 464 (1985) (“[T]he driver of an authorized emergency vehicle cannot be charged
with violating a motor vehicle statute for which the emergency vehicle statute provides an
exemption. Such driver, however, can be charged with failure to exercise due care in the
operation of his vehicle under all of the circumstances then existing.”).
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.11 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. It was appropriately noted in Peak that “[i]t may be assumed that an emergency
11
The Petitioners also cited to the decision in Honaker v. Mahon, 210 W. Va.
53, 552 S.E.2d 788 (2001). However, Honaker is distinguishable as it did not involve an
emergency vehicle.
18
vehicle driver will have had some specialized training in the operations of his vehicle.”
Peak, 185 W. Va. at 553, 408 S.E.2d at 305.12
B. Obtaining Copies of Completed Juror Qualification Forms
The next issue raised by the Petitioners is that the trial court committed error
in failing to provide them with copies of the completed juror qualification forms (also
referred to as juror questionnaires) prior to jury voir dire. Mr. Allman argues that the
Petitioners failed to request copies of the forms as required by W. Va. Code § 52-1-5a(e)
(2014) (Repl. Vol. 2016). We agree.
To begin, W. Va. Code § 52-1-5a sets out the procedure for circuit court clerks
to issue juror qualification forms to prospective jurors. The statute also sets out the
information prospective jurors must provide, as well as penalties for any intentional
misrepresentations. The procedure for obtaining copies of juror qualification forms is set out
under W. Va. Code § 52-1-5a(e), in part, as follows:
Upon the clerk’s receipt of the juror qualification
questionnaires of persons selected as prospective petit jurors, he
12
See also Peak, 185 W. Va. at 555, 408 S.E.2d at 307 (“‘This Court has
established the standard of care where the conduct of an officer in the chase or apprehension
of a law violator results in the officer’s vehicle colliding with another person, vehicle, or
object. The officer is held to the standard of care that a reasonably prudent person would
exercise in the discharge of official duties of a like nature under like circumstances.’”
(quoting Bullins v. Schmidt, 322 N.C. 580, 582, 369 S.E.2d 601, 603 (1988))).
19
or she shall make the questionnaires of the persons so selected
available, upon request, to counsel of record in the trial or trials
for which the persons have been selected as prospective
jurors . . . .
(Emphasis added). This provision of the statute is clear and unambiguous. See Syl. pt. 1,
Dunlap v. State Comp. Dir., 149 W. Va. 266, 140 S.E.2d 448 (1965) (“Where the language
of a statute is plain and unambiguous, there is no basis for application of rules of statutory
construction; but courts must apply the statute according to the legislative intent plainly
expressed therein.”). Accordingly, we hold that in order for a party’s counsel to obtain
copies of juror qualification questionnaires of persons selected as prospective petit jurors, W.
Va. Code § 52-1-5a(e) requires counsel to request copies of the questionnaires from the
circuit court clerk.
The record in this case is clear in showing that the Petitioners failed to comply
with W. Va. Code § 52-1-5a(e), by asking the clerk to provide them with copies of the juror
qualification forms. The Petitioners contend that they made a request for the forms directly
to the trial judge and that the clerk was present when the request was made. Assuming, for
the sake of argument, that a request to the trial judge for copies of the juror qualification
forms would satisfy the statute, the record does not disclose that such a request was made.
Instead, the following exchange occurred between the Petitioners’ counsel and the trial judge
before voir dire of the prospective jurors took place:
THE COURT: Are the defendants present and ready to proceed?
20
MR. RUGGIER: We are, Your Honor, with one question. We
did not – was there a jury questionnaire that was given out to
counsel?
THE COURT: Not that I’m aware of.
MR. RUGGIER: Okay. Then we are ready to proceed.
The Petitioners rely upon the above exchange to argue that they made a request for copies
of the juror qualification forms. There was nothing in the above exchange that loosely
resembled a request for copies of the juror qualification forms. We therefore find no merit
to this assignment of error.13
13
The Petitioners, in a convoluted manner, attempt to also rely upon the
decision in Bennett v. Warner, 179 W. Va. 742, 372 S.E.2d 920 (1988). Bennett has
absolutely no application to the issue presented in this case, which explains the convoluted
way in which the Petitioners have attempted to find support in the case. The issue in Bennett
involved “the failure of the trial court to require the use of juror qualification forms in the
jury selection process[.]” Bennett, 179 W. Va. at 745, 372 S.E.2d at 923. When Bennett was
decided, the statute made it mandatory that juror qualification forms be used. Under the
current version of the statute, the use of juror qualification forms is discretionary. See
W. Va. Code § 52-1-5a(a) (2014) (Repl. Vol. 2016) (“Not less than twenty days before the
date for which persons are to report for jury duty, the clerk may, if directed by the court,
serve by first-class mail, upon each person listed on the master list, a juror qualification form
accompanied by instructions necessary for its completion.” (emphasis added)).
Finally, the Petitioners have also attempted to argue that it was plain error for
the clerk and trial judge to fail to provide them with copies of the juror qualification forms.
The plain error doctrine has no application to this issue, because neither the clerk nor the trial
judge had a duty to provide the Petitioners with copies of the juror qualification forms
without a request. The only plain error in this situation was the Petitioners’ failure to make
a request for the forms.
21
C. Cross-Examination Concerning Counterclaim Settlement
The Petitioners contend that Mr. Allman violated a pretrial motion in limine
order of the trial court by presenting evidence of the counterclaim settlement between the
parties during his direct examination. After this alleged testimony by Mr. Allman, the
Petitioners asked the trial court to permit them to cross-examine him about the settlement
agreement. The trial court denied the request. In this appeal, the Petitioners allege that such
cross-examination was proper because Mr. Allman opened the door to such testimony during
his direct examination, and because such evidence was admissible under Rule 408(b) of the
West Virginia Rules of Evidence. We will address each contention separately.
1. Opening the door. The Petitioners contend that, as a result of the following
testimony by Mr. Allman during direct examination, they had a right to cross-examine him
about the settlement agreement.
Q. And were you sued as a result of the accident?
A. Well, I was sued after I a year later got representation by
yourself, and approximately one to two days before the trial was
supposed to go to court I was counter sued by the defendant and
his wife.
Q. Asking for money from you?
A. Asking for money from me for loss of a marriage.
22
Immediately after this exchange, the Petitioners argued to the trial court that this testimony
opened the door for them to cross-examine Mr. Allman about the settlement agreement. The
trial court disagreed as follows:
THE COURT: I do not believe under the current status that the
questions of Mr. Deitzler asked of the plaintiff opens the door
to get into a settlement of the suit. There wasn’t any discussion
about, you know, how it was resolved. Only the fact that he
sued and then he got sued, so just because a suit has been filed
doesn’t mean that you can get into settlement. I guess your
request is denied.
We agree with the trial court’s ruling that Mr. Allman’s testimony did not open
the door for the admission of evidence of the settlement agreement. First, we note that the
phrase “‘[o]pening the door’ is also referred to as the doctrine of ‘curative admissibility.’”
United States v. Rucker, 188 Fed. Appx. 772, 778 (10th Cir. 2006). See also 1 Louis J.
Palmer, Jr., Robin Jean Davis, and Franklin D. Cleckley, Handbook on Evidence for West
Virginia Lawyers § 106.04 at 158 (6th ed. 2015) (“The phrase ‘opening the door’ is used by
most courts to refer to the curative admissibility rule.”). We have held that the following
must be shown for the curative admissibility rule to be invoked:
The curative admissibility rule allows a party to present
otherwise inadmissible evidence on an evidentiary point where
an opponent has “opened the door” by introducing similarly
inadmissible evidence on the same point. Under this rule, in
order to be entitled as a matter of right to present rebutting
evidence on an evidentiary fact: (a) The original evidence must
be inadmissible and prejudicial, (b) the rebuttal evidence must
be similarly inadmissible, and (c) the rebuttal evidence must be
23
limited to the same evidentiary fact as the original inadmissible
evidence.
Syl. pt. 10, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). Accord State ex rel.
Harvey v. Yoder, 239 W. Va. 781, 806 S.E.2d 437, 446 (2017). The Petitioners have not
satisfied the first prong of the Guthrie test, i.e., Mr. Allman’s testimony was not inadmissible
under Rule 408 because it did not involve the settlement agreement.14 Mr. Allman merely
informed the jury that he was sued by Petitioner Miller. The Petitioners have not cited to any
case law, nor have we found any, which holds that Rule 408 prohibits evidence that a party
was sued.
2. Admissibility under Rule 408(b). The Petitioners have also argued that
evidence of the settlement agreement was admissible as an exception under Rule 408(b). Mr.
Allman contends that evidence of the settlement was barred by Rule 408(a) and that it was
not admissible as an exception under Rule 408(b).
To begin, we will observe that the issue of presenting evidence of a settlement
is addressed in Rule 408. This rule “addresses the admissibility of evidence originating in
offers to compromise or settle civil suits.” 1 Palmer, et al., Handbook on Evidence § 408.02,
at 479. There are two provisions set out under Rule 408(a) that prohibit evidence concerning
14
Rule 408 is addressed generally in the next section.
24
settlements.15 “Rule 408(a)(1) covers offers or acceptance of offers to compromise, [and]
Rule 408(a)(2) covers any statement made during compromise negotiations.” United States
v. Dish Network, L.L.C., No. 09-2073, 2015 WL 9164665, at *3 (C.D. Ill. signed December
15, 2015).16 It has been noted that “Rule 408 statements made in settlement negotiations are
only excludable under the circumstances protected by the rule.” 1 Palmer, et al., Handbook
on Evidence § 408.02, at 479. The exceptions to the prohibitions of Rule 408(a) are found
in Rule 408(b). This rule provides as follows:
(b) Exceptions – This rule does not require the exclusion
of any evidence otherwise discoverable merely because it is
presented in the course of compromise negotiations. This rule
also does not require exclusion when the evidence is offered for
another purpose, such as proving bias or prejudice of a witness,
15
It will be noted that “[t]he general prohibition under Rule 408(a) extends not
just to settlement negotiations between the same parties in a suit, but also to the same parties
in an action growing out of a previously settled suit.” 1 Palmer, et al., Handbook on
Evidence § 408.03 at 483.
16
Rule 408(a) provides in full:
(a) Prohibited uses – Evidence of the following is not
admissible – on behalf of any party – either to prove or disprove
the validity or amount of a disputed claim, the liability of a party
in a disputed claim, or to impeach by a prior inconsistent
statement or a contradiction:
(1) furnishing, promising, or offering – or accepting,
promising to accept, or offering to accept – a valuable
consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise
negotiations about the claim.
25
negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
It has been recognized that “[t]his is an illustrative, not an exhaustive, list of the many
exceptions to the Rule 408 prohibition.” United States v. J.R. LaPointe & Sons, Inc., 950 F.
Supp. 21, 23 (D. Me. 1996). In Syllabus point 7 of State ex rel. Shelton v. Burnside, 212
W. Va. 514, 575 S.E.2d 124 (2002), we held “[t]he decision of whether to admit evidence
of compromise offers [or settlements] for a purpose other than to ‘prove liability for or
invalidity of the claim or its amount,’ W. Va. R. Evid. 408, is within the sound discretion
of the circuit court.”
According to the Petitioners, Mr. Allman’s “testimony concerning the
counterclaim was offered to establish that Officer Miller had a motive to lie to the jury
concerning the accident to benefit financially by suing Allman.” Consequently, evidence by
the Petitioners of the settlement was only for the purpose of showing that Petitioner “Miller
had no incentive to lie as the counterclaim had already been settled by the parties[.]” The
Petitioners have not cited to any authority to support this circuitous reasoning for admitting
evidence of the settlement. Whether or not Petitioner Miller had a motive to lie or tell the
truth did not end with the counterclaim settlement. Petitioner Miller’s position in his
counterclaim was the same as that asserted in Mr. Allman’s suit: he alleged innocence of
wrongdoing in both actions. We find the trial court did not commit error in prohibiting the
Petitioners from cross-examining Mr. Allman about the settlement agreement.
26
D. Closing Argument
The Petitioners next contend that during closing argument counsel for Mr.
Allman made a “golden rule” argument in violation of a pretrial ruling by the circuit court.
Mr. Allman contends that no such argument was made, and that the issue is waived because
the Petitioners failed to object to the closing remarks during the trial.
We have long held that “[t]he discretion of the trial court in ruling on the
propriety of argument by counsel before the jury will not be interfered with by the appellate
court, unless it appears that the rights of the complaining party have been prejudiced, or that
manifest injustice resulted therefrom.” Syl. pt. 3, State v. Boggs, 103 W. Va. 641, 138 S.E.
321 (1927). This Court has also recognized that “[f]ailure to make timely and proper
objection to remarks of counsel made in the presence of the jury, during the trial of a case,
constitutes a waiver of the right to raise the question thereafter either in the trial court or in
the appellate court.” Syl. pt. 6, Yuncke v. Welker, 128 W. Va. 299, 36 S.E.2d 410 (1945).
See also State v. Coulter, 169 W. Va. 526, 530, 288 S.E.2d 819, 821 (1982) (“In order to take
advantage of remarks made during an opening statement or closing argument which are
considered improper an objection must be made and counsel must request the court to
instruct the jury to disregard them.”).
27
The closing argument remarks made by counsel for Mr. Allman, for which the
Petitioners complain, were as follows:
And I’ll submit to you, let’s say, as I said in the opening, let’s
say there was an ad in the paper and it said, “Okay. You can get
rear-ended by a police officer, and you’ll be in a bad mood for
the next several years, and then have a short fuse for the rest of
your life. What amount, Kevin, do you think is fair? Would you
volunteer to step up for it?” And that’s the amount. The
amount between a willing buyer and a willing seller. That’s
what would be fair. So whatever’s fair for him.
The Petitioners contend that these remarks constitute a golden rule argument, and that the
trial court granted its pretrial motion to preclude such an argument from being made to the
jury. This Court has recognized that “[t]he so-called ‘golden rule argument’ to a jury has
been widely condemned as improper.” Ellison v. Wood & Bush Co., 153 W. Va. 506, 514,
170 S.E.2d 321, 327 (1969). The golden rule argument has been summarized as follows:
essentially a suggestion to the jury by an attorney that the jurors
should do unto others, normally the attorney’s client, as they
would have others do unto them. The typical situation in which
such an argument has been employed is the personal injury case
in which the plaintiff’s counsel suggests to the jurors that they
grant the plaintiff the same amount of damages they would want
or expect if they were in the plaintiff’s shoes. The courts have
generally found the “Golden Rule” argument improper because
a jury which has put itself in the shoes of one of the parties is no
longer an impartial jury.
Minato v. Scenic Airlines, Inc., No. 85-2767, 908 F.2d 977 (unpublished table decision),
1990 WL 98855, at *5 (9th Cir. July 13, 1990) (quotations and citation omitted). See also
Syl. pt. 4, State v. Clements, 175 W. Va. 463, 334 S.E.2d 600 (1985) (“Only an argument that
28
urges the jurors to put themselves in the place of the victim or the victim’s family is an
improper ‘golden rule’ argument.”).
The record is clear in showing that the Petitioners did not object to the
purported golden rule remark when it was made to the jury. The Petitioners contend that,
under this Court’s holding in Lacy v. CSX Transp. Inc., 205 W. Va. 630, 520 S.E.2d 418
(1999), they did not have to object at trial. This Court held the following in Syllabus point
3 of Lacy:
To preserve error with respect to closing arguments by an
opponent, a party need not contemporaneously object where the
party previously objected to the trial court’s in limine ruling
permitting such argument, and the argument pursued by the
opponent reasonably falls within the scope afforded by the
court’s ruling.
Id. This holding in Lacy does not help the Petitioners for two reasons. First, the only party
that could take advantage of the Lacy exception to an objection is the party who opposed a
motion in limine ruling. The Petitioners did not oppose the motion in limine ruling, they
made the motion in limine and it was granted. Second, and we so hold, Syllabus point 3 of
Lacy v. CSX Transp. Inc., 205 W. Va. 630, 520 S.E.2d 418 (1999), has been superseded by
Rule 103(b) of the West Virginia Rules of Evidence.
Rule 103(b) states that “[o]nce the court rules definitively on the record – either
before or at trial – a party need not renew an objection or offer of proof to preserve a claim
29
of error for appeal.”17 It has been noted that Rule 103(b) “applies to all rulings on evidence
whether they occur at or before trial, including so-called ‘in limine’ rulings.” 1 Palmer, et
al., Handbook on Evidence § 103.04, at 106. The issue of first impression for this Court is
whether Rule 103(b)’s exception to making an objection applies to a party who obtained a
favorable definitive motion limine ruling. To help resolve this issue, we look to federal
courts because Rule 103(b) was patterned after federal Rule 103(b). See Aluise v.
Nationwide Mut. Fire Ins. Co., 218 W. Va. 498, 504, 625 S.E.2d 260, 266 (2005) (“Our Rule
56 is patterned after Rule 56 of the Federal Rules of Civil Procedure. Therefore, we look to
Federal law for guidance.”); State ex rel. Paige v. Canady, 197 W. Va. 154, 160, 475 S.E.2d
154, 160 (1996) (“Because the language contained in Rule 26(c) of the West Virginia Rules
of Civil Procedure is nearly identical to Rule 26(c) as contained in the Federal Rules of Civil
Procedure, we look to federal case law for guidance.”).
Federal Rule 103(b) is identical to our state rule. The federal rule provides that
“[o]nce the court rules definitively on the record – either before or at trial – a party need not
renew an objection or offer of proof to preserve a claim of error for appeal.” This provision
was added to the federal rule in 2000. In a comment on the limitations of Rule 103(b), the
federal Advisory Committee Note to Rule 103(b) states that “if the opposing party violates
17
We have recognized that “[t]he substance of Rule 103(b) is new and was
added in 2014.” West Virginia Dep’t of Transp., Div. of Highways v. Newton, 235 W. Va.
267, 273 n.10, 773 S.E.2d 371, 377 n.10 (2015).
30
the terms of the initial ruling, objection must be made when the evidence is offered to
preserve the claim of error for appeal.” See 1 Palmer, et al., Handbook on Evidence
§ 103.04, at 105 (“Rule 103(b) applies to preserving claims of error as to an adverse ruling,
not claims of error that relate to a ruling in a party’s favor.”); 21 Charles A. Wright &
Kenneth W. Graham, Federal Practice & Procedure § 5037.16, at 805 (2d ed. 2005) (“[A]n
objection must be made when another party violates the motion in limine.”). The reason for
this is that, “[t]o hold otherwise would adopt a rule that violates principles of judicial
economy by permit[ting] counsel to sit silently when an error is committed at trial with the
hope that they will get a new trial because of that error if they lose.” Bayerische Motoren
Werke Aktiengesellschaft v. Roth, 127 Nev. 122, 140, 252 P.3d 649, 661 (2011) (internal
quotations and citation omitted).
A case that applied the limitation of Rule 103(b), that is set out in the Advisory
Committee Note, was United States v. Fonseca, 744 F.3d 674 (10th Cir. 2014). In Fonseca
the defendant was convicted of possessing stolen firearms. Prior to trial, the district court
granted the defendant’s motion in limine to preclude the government from introducing
evidence that he had previously sold several guns that were stolen. The government
introduced such evidence during the trial in violation of the motion in limine ruling. On
appeal, the defendant argued that it was error for the government to violate the pretrial ruling.
31
The Tenth Circuit found that the issue was not preserved because the defendant did not
object at trial when the violation of the order occurred:
If Defendant had raised a contemporaneous objection to the
government’s evidence of gun sales in this case, he would not
have been futilely re-raising an objection that had already been
rejected. Rather, he would have been putting the district court
on notice of his current argument that the government was
violating the court’s earlier evidentiary ruling by eliciting
testimony that fell within the scope of this ruling. . . . Our
conclusion . . . is supported by the Advisory Committee Note on
the 2000 amendment to Rule 103 of the Federal Rules of
Evidence, which states:
Even where the court’s ruling is definitive,
nothing in the amendment prohibits the court
from revisiting its decision when the evidence is
to be offered. If the court changes its initial
ruling, or if the opposing party violates the
terms of the initial ruling, objection must be
made when the evidence is offered to preserve
the claim of error for appeal. The error, if any,
in such a situation occurs only when the evidence
is offered and admitted. . . .
We accordingly reject the contention that the district court’s
unequivocal ruling in Defendant’s favor preserved for review
his current argument that this ruling was subsequently violated.
Rather, we hold that Defendant was required to raise a
contemporaneous objection at the time the alleged error
occurred – when the government introduced evidence that
allegedly should have been excluded pursuant to the district
court’s pretrial ruling. . . .
Fonseca, 744 F.3d at 683-684 (footnote & citations omitted). See also ML Healthcare
Servs., LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1305 (11th Cir. 2018) (quoting and
32
applying committee note); United States v. Alaboudi, 786 F.3d 1136, 1141 n.3 (8th Cir. 2015)
(same); United States v. Curanovic, 490 F. App’x 403, 404 (2d Cir. 2013) (same).
In view of the foregoing authorities, we hold that Rule 103(b) of the West
Virginia Rules of Evidence provides that when a “court rules definitively on the record –
either before or at trial – a party need not renew an objection or offer of proof to preserve a
claim of error for appeal.” This provision applies to preserving a claim of error by the party
who opposed the ruling, not a claim of error by the party who prevailed on the ruling. Thus,
a party who obtained a favorable definitive ruling on an issue must timely object if the
opposing party violates the ruling.
Assuming, without deciding, that the closing remark by Mr. Allman’s counsel
was a golden rule argument that was prohibited by the trial court’s in limine ruling, the
Petitioners did not preserve the issue for appellate review by timely objecting at trial to the
argument.
E. General and Special Damages
The final issue raised by the Petitioners concerns the jury’s award of damages.
The Petitioners argue that the general damages awarded were excessive, and that there was
33
insufficient evidence to support the award of special damages for lost wages. We will
address these issues separately below.
1. General damage award. The Petitioners contend that they are entitled to
remittitur or a new trial on general damages because the jury verdict was excessive. The
record indicates that the jury awarded Mr. Allman $200,000.00 as general damages. The
Petitioners contend that this award was monstrous, unreasonable, and indicative of jury
passion. Mr. Allman argues that the general damage award was reasonable in light of the
injuries he sustained.
We have long held that “[c]ourts must not set aside jury verdicts as excessive
unless they are monstrous, enormous, at first blush beyond all measure, unreasonable,
outrageous, and manifestly show jury passion, partiality, prejudice or corruption.” Syllabus,
Addair v. Majestic Petroleum Co., 160 W. Va. 105, 232 S.E.2d 821 (1977). In determining
whether there is sufficient evidence to support a jury verdict, we:
(1) consider the evidence most favorable to the prevailing party;
(2) assume that all conflicts in the evidence were resolved by the
jury in favor of the prevailing party; (3) assume as proved all
facts which the prevailing party’s evidence tends to prove; and
(4) give to the prevailing party the benefit of all favorable
inferences which reasonably may be drawn from the facts
proved.
Syl. pt. 5, in part, Orr v. Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983). We have noted:
34
There is and there can be no fixed basis, table, standard, or
mathematical rule which will serve as an accurate index and
guide to the establishment of damage awards for personal
injuries. And it is equally plain that there is no measure by
which the amount of pain and suffering endured by a particular
human can be calculated. No market place exists at which such
malaise is bought and sold. A person can sell quantities of his
blood, but there is no mart where the price of a voluntary
subjection of oneself to pain and suffering is or can be fixed. . . .
Crum v. Ward, 146 W. Va. 421, 429, 122 S.E.2d 18, 23-24 (1961) (quotations and citation
omitted). Accordingly,
A jury verdict . . . may not be set aside as excessive by
the trial court merely because the award of damages is greater
than the trial judge would have made if he had been charged
with the responsibility of determining the proper amount of the
award. This Court cannot set aside a verdict as excessive . . .
merely because a majority or all members of the Court would
have made an award of a lesser amount if initially charged with
the responsibility of determining the proper amount of the
award.
Sargent v. Malcomb, 150 W. Va. 393, 401, 146 S.E.2d 561, 566 (1966). Finally, “[b]ecause
the verdict below is entitled to considerable deference, an appellate court should decline to
disturb a trial court’s award of damages on appeal as long as that award is supported by some
competent, credible evidence going to all essential elements of the award.” Syl. pt. 4, in part,
Reed v. Wimmer, 195 W. Va. 199, 465 S.E.2d 199 (1995).
Upon a review of the proceedings below, we cannot find that the general
damages awarded by the jury was either unsupported by the evidence or improperly based
35
upon the jury’s passion and prejudice. Although the verdict form used by the jury was not
made part of the record on appeal, the trial court’s judgment order reflected the following as
considerations by the jury in awarding general damages:
Other harms and losses including, but not limited to, past,
present, and future inconvenience, annoyance, physical pain,
physical harm, inability to engage in pursuits that he enjoyed
prior to the crash, humiliation, limitations on his daily activities,
and reduction in his ability to enjoy life.
The record provides evidence to support the award of general damages for each of the
considerations set out in the trial court’s judgment order.
To start, the jury awarded Mr. Allman $9,387.50 for medical expenses. The
testimony of Mr. Allman’s treating physician, Dr. Jason Barton, was presented via a
videotaped deposition. Dr. Barton testified that he was Mr. Allman’s physician for about
eight to ten years. Dr. Barton indicated that, as a result of the collision, Mr. Allman “was
diagnosed with post-concussion syndrome and some other musculoskeletal injuries.” The
effects of the post-concussion syndrome included dizziness, headaches, emotional ability,
anxiety, and irritability. Dr. Barton also testified that Mr. Allman underwent physical therapy
and behavioral therapy with a psychologist.18 The Petitioners did not present any medical
evidence to challenge Dr. Barton’s testimony. Mr. Allman’s wife testified that, after the
18
Dr. Barton indicated that the behavioral therapy was eventually terminated
because of “financial reasons.”
36
collision, he exhibited mood swings, anger outbursts, anxiety about driving, and memory
problems. The Petitioners did not cross-examine Mr. Allman’s wife. Mr. Allman also
testified about the issues of which Dr. Barton and his wife informed the jury.
The essence of the Petitioners’ argument is that Mr. “Allman’s injuries are
simply not of the serious nature to support the substantial general damage verdict.” We have
upheld similar verdicts. See Adkins v. Foster, 187 W. Va. 730, 421 S.E.2d 271 (1992)
(finding jury award of $222,133.00 not excessive where medical bills amounted to
$2,768.00); Torrence v. Kusminsky, 185 W. Va. 734, 408 S.E.2d 684 (1991) (concluding jury
award of $207,000.00 was not excessive where medical bills totaled $8,000.00). Further, we
have held that “[d]amages may be recovered for substantial injuries, and the resulting pain
and suffering, if any, even though the injuries are not of a permanent nature.” Syl. pt. 1,
Keiffer v. Queen, 155 W. Va. 868, 189 S.E.2d 842 (1972). We find no merit to the
Petitioners’ challenge of the general damage award. The evidence in this case supports the
jury award.
2. Special damages for lost wages. The final issue raised by the Petitioners
involves the jury award of $4,500.00 for lost wages. The Petitioners contend that the
evidence was insufficient to support the award. Mr. Allman argues that he testified as to the
37
amount of his lost wages and that the Petitioners failed to put on any evidence to rebut his
testimony.
We have held that “[a]n appellate court will not set aside the verdict of a jury,
founded on conflicting testimony and approved by the trial court, unless the verdict is against
the plain preponderance of the evidence.” Syl. pt. 2, Stephens v. Bartlett, 118 W. Va. 421,
191 S.E. 550 (1937). Accord Moore v. St. Joseph’s Hosp. of Buckhannon, Inc., 208 W. Va.
123, 125, 538 S.E.2d 714, 716 (2000). In Syllabus point 2 of Denoff v. Fama, 102 W. Va.
494, 135 S.E. 578 (1926), we held that “[a] verdict of a jury should not be set aside on the
ground of insufficient evidence, where the sufficiency depends upon the credibility of
witnesses and the reasonable inferences which may be drawn from the evidence.” Finally,
“[t]he general rule with regard to proof of damages is that such proof cannot be sustained by
mere speculation or conjecture.” Syl. pt. 1, Spencer v. Steinbrecher, 152 W. Va. 490, 164
S.E.2d 710 (1968).
In the instant proceeding, the record is clear in showing that the only evidence
of lost wages was the testimony of Mr. Allman. Mr. Allman indicated in that testimony that
he “figured up” his lost wages and that it came to “about 4500 bucks.” No other evidence
was introduced on the issue. A number of courts around the country that have addressed the
issue have held, and we so hold, that “[a] plaintiff’s testimony alone is sufficient to prove lost
38
wages as long as the testimony ... reasonably establishes the claim.” Guidry v. Bernard, 155
So. 3d 162, 169 (La. Ct. App. 2014) (internal quotations and citation omitted). See also
Roland v. Krazy Glue, Inc., 342 So. 2d 383, 385 (Ala. Civ. App. 1977) (“Without any
evidence that plaintiff’s wages were paid, we find she sufficiently showed a loss of wages
as the result of her injury. It is undisputed that she lost $254.50 in wages for the time she was
absent from work.”); Carrano v. Yale-New Haven Hosp., 279 Conn. 622, 646-47, 904 A.2d
149, 167 (2006) (“Thus, if a plaintiff presents testimonial evidence with respect to damages,
it is solely within the province of the jury to assess the credibility of the plaintiff and to weigh
the value of his or her testimony.”); Seaboard Sys. R.R. v. Taylor, 176 Ga. App. 847, 850,
338 S.E.2d 23, 27 (1985) (“The plaintiff’s testimony regarding the amount of wages she had
lost as the result of the injury was sufficient to enable the jurors to calculate the amount of
this alleged loss with reasonable certainty.”); Davis v. Bowman, 346 So. 2d 225, 227 (La.
Ct. App. 1977) (“Davis is entitled to recover an amount for lost wages. He testified that he
missed work for three days and earned $24.00 a day. A claim for lost wages may be proven
by plaintiff’s own reasonable testimony, if accepted as truthful, although it is better to
introduce corroborating testimony.”); State v. McLain, 238 Neb. 225, 229, 469 N.W.2d 539,
541 (1991) (“[W]hen a plaintiff suffers personal injury, his or her testimony regarding his or
her hourly base pay and average weekly wages is sufficient proof to permit the jury to award
damages for the plaintiff’s lost earnings.”); Frye v. Kanner, No. 2364, 27 Phila. Co. Rptr.
170, 187, 1993 WL 1156104, at * ___ (Pa. Com. Pl. Sept. 22, 1993) (“[A] plaintiff’s
39
testimony regarding his or her job, the number of hours worked, and wages is sufficient to
allow a claim for lost wages to go to the jury.”); Fletcher v. Bickford, No. E2000-01020
COA-R3-CV, 2001 WL 12224, at *9 (Tenn. Ct. App. Jan. 5, 2001) (“Plaintiff testified that
as a result of the accident, he missed 400 hours of work. . . . He also testified that his annual
salary at the time of the accident was $55,000. Plaintiff’s counsel then calculated that a
$55,000 salary equated to about $28 per hour, multiplied that by the 400 hours time lost and
argued to the jury that Plaintiff had lost wages in that amount. The Trial Court found this to
be a reasonable argument and gave an appropriate jury instruction on lost wages based on
this proof presented to the jury of Plaintiff’s annual salary of $55,000 and 400 hours time
lost. The Trial Court found no fault with this argument, and neither do we. We find this
issue to be without merit.”); Hyde-Way, Inc. v. Davis, No. 2-08-313-CV, 2009 WL 2462438,
at *10 (Tex. App. Aug. 13, 2009) (“Davis testified that his dental treatment caused him to
take ten days’ vacation from work, which cost him ‘a little over $3,000.’ The jury awarded
him $3,100; Davis’s testimony provides more than a scintilla of evidence to support this
award.”).
Although the evidence of lost wages in this case was based on the testimony
of Mr. Allman, it was the only evidence and it was never challenged. The Petitioners failed
to cross-examine Mr. Allman on the issue of lost wages, and failed to present any
independent evidence on the issue. But more importantly, there is nothing in the record to
40
show that the Petitioners asked the trial court not to give an instruction on lost wages because
of insufficiency of evidence.19 Although the verdict form was not made part of the record
on appeal, Mr. Allman has indicated that the Petitioners did not object to a lost wage option
being placed on the verdict form.20 Simply put, the Petitioners “never questioned or
contested the special damages introduced by the plaintiff during the trial.” Hagley v. Short,
190 W. Va. 672, 673, 441 S.E.2d 393, 394 (1994).
In view of the record in this case, we find no error in the jury’s verdict on lost
wages.
19
The trial court instructed the jury as follows:
If proven to your satisfaction, by a preponderance of the
evidence, you may include damages, in the following categories:
Kevin Allman’s medical cost;
Kevin Allman’s lost earnings;
....
You may award plaintiff Kevin Allman his earnings and related
benefits which you find by a preponderance of the evidence
were lost as a proximate result of the Defendants’ conduct.
20
The trial court’s judgment order included the following:
What is the total amount of fair compensation to which Kevin
Allman is entitled for wages and benefits that he lost as a result
of his injury? $4,500.00
41
IV.
CONCLUSION
In view of the foregoing, we affirm the trial court’s denial of the Petitioners’
post-trial motion for new trial and remittitur.
Affirmed.
42