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The City of Nicholasville Police Department v. Abraham

Court of Appeals of Kentucky

July 27, 2018

THE CITY OF NICHOLASVILLE POLICE DEPARTMENT AND MELISSA RHOADS, ADMINISTRATRIX OF THE ESTATE OF BURKE RHOADS APPELLANTS
v.
SEAN ABRAHAM; NISREEN ABRAHAM; ZIANNA1 ABRAHAM; AND CHASITY GORDON APPELLEES

          APPEAL FROM GARRARD CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY, JUDGE ACTION NO. 15-CI-00116

          BRIEF FOR APPELLANT: Jeffrey C. Mando, Daniel E. Linneman, Covington, Kentucky

          ORAL ARGUMENT FOR APPELLANT: Jeffrey C. Mando Covington, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE: Thomas K. Herren, Lexington, Kentucky

          BEFORE: ACREE, COMBS, AND MAZE, JUDGES.

          OPINION VACATING AND REMANDING[1]

          ACREE, JUDGE:

          Burke Rhoads, a police officer with the City of Nicholasville, died as a result of a three-car accident. A jury apportioned most of the fault for the accidents to Rhoads, though it also apportioned some to the other two drivers, Chasity Gordon and Sean Abraham. Rhoads's estate and the City of Nicholasville Police Department (collectively Appellants) claim the trial court erred by refusing to give a sudden emergency instruction and by limiting the testimony of an expert witness, Richard Parkos. Appellants also raise several arguments about the collateral source rule. We agree with Appellants regarding the refusal to give a sudden emergency instruction and the limitation on Parkos's testimony but cannot grant relief on the basis of their collateral source rule arguments.

         I. Factual and Procedural History

         On the morning of March 11, 2015, Rhoads was driving his police cruiser southbound on U.S. 27 while Gordon was approaching U.S. 27 from a side street. It is uncontested that Rhoads had the right of way. Intending to proceed north, Gordon turned left across U.S. 27's southbound lanes. Rhoads swerved left, toward the center turn lane/median, whereupon he collided with Gordon's vehicle. Rhoads's cruiser then began to spin and crossed over to the northbound lanes of U.S. 27, where it collided with the Abrahams' vehicle.

         The Abrahams sued Gordon, Rhoads's estate, and the Nicholasville Police Department and the case proceeded to a multi-day jury trial. The jury apportioned 70% of the fault to Rhoads, 29% to Gordon, and 1% to Abraham. Appellants were ordered to pay a total of over $1.38 million in damages to the Abrahams.[2] (R. at 1213).

         II. Analysis

         A. Sudden emergency instruction

         1. General standards of review

         A trial court "must instruct the jury upon every theory reasonably supported by the evidence." Sargent v. Shaffer, 467 S.W.3d 198, 203 (Ky. 2015). A party is entitled to an instruction based upon its "theory of the case if there is evidence to sustain it." Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957). "For the purpose of testing whether appellant was entitled to a 'sudden emergency' instruction, we will view the evidence in the light most favorable to him, as the jury had right to do." Ruehl v. Houchin, 387 S.W.2d 597, 599 (Ky. 1965).

         Because deciding whether to give a jury instruction "inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial[, ]" a trial court has "some discretionary leeway in deciding what instructions are authorized by the evidence . . . ." Sargent, 467 S.W.3d at 203-04. Accordingly, we review the decision of whether to give an instruction under the abuse of discretion standard. Id. at 203. To constitute an abuse of discretion, a decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id.

         2. Trial court erred by refusing to instruct on sudden emergency

         Appellees' defense of the trial court's sudden emergency ruling is grounded on the shifting sands of a contested fact - they assert Rhoads drove his cruiser at an unreasonable speed, thereby creating the emergency and depriving him of the right to the instruction. Rhoads argues that because the reasonableness of the speed was a contested fact never decided by the jury, the trial court's exercise of discretion to refuse the instruction would have been abusive. We agree.

         However, the trial court never exercised discretion whether to give the instruction because of a misapprehension of the law. The court stated, "I don't give that [sudden emergency instruction] anymore," expressing a belief that the instruction is generally incompatible with comparative negligence principles. (VR 4:12:17, 3:26:25). The assumption that the sudden emergency doctrine was subsumed in the comparative fault doctrine yielded an erroneous legal ruling. Because the defense remains viable, and because the reasonableness of Rhoads's speed was a contested issue of fact, we cannot affirm the trial court on the basis that the ruling was not an abuse of discretion.

          The sudden emergency doctrine remains "a necessary component of the process by which juries must determine the fault of parties who, finding themselves suddenly and unexpectedly in a position of imminent peril, respond in a way that might otherwise breach a specific duty of due care." Henson v. Klein, 319 S.W.3d 413, 418 (Ky. 2010). Quoting from a treatise, our Supreme Court further defined the sudden emergency doctrine as follows:

[W]hen an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor is not negligent if the actions taken are reasonable ...

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