THE CITY OF NICHOLASVILLE POLICE DEPARTMENT AND MELISSA RHOADS, ADMINISTRATRIX OF THE ESTATE OF BURKE RHOADS APPELLANTS
SEAN ABRAHAM; NISREEN ABRAHAM; ZIANNA1 ABRAHAM; AND CHASITY GORDON APPELLEES
FROM GARRARD CIRCUIT COURT HONORABLE C. HUNTER DAUGHERTY,
JUDGE ACTION NO. 15-CI-00116
FOR APPELLANT: Jeffrey C. Mando, Daniel E. Linneman,
ARGUMENT FOR APPELLANT: Jeffrey C. Mando Covington, Kentucky
AND ORAL ARGUMENT FOR APPELLEE: Thomas K. Herren, Lexington,
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
OPINION VACATING AND REMANDING
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
Factual and Procedural History
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.
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. (R. at 1213).
Sudden emergency instruction
General standards of review
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.
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.
Trial court erred by refusing to instruct on sudden
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.
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.
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