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Miller v. City of Parkersburg

Miller v. City of Parkersburg

Case No. 
Opinion Date: 
Opinion Author: 
Justice Davis

Petitioner, Daniel W. Miller, was a human resources officer at Parkersburg High School. On August 22, 2013, he left the school and went to his home in Vienna for personal reasons. While returning to the school, he was involved in a crash with Respondent, Kevin Allman. Respondent alleges that Petitioner was rushing to return to his assigned duty station at the high school at a high rate of speed. Therefore, Respondent did not see or hear Petitioner’s car as he entered onto the highway moments before the wreck. Respondent received serious injuries and was off work for 20 weeks. 

Respondent sued Petitioner, alleging that his negligence caused the crash. Petitioner, in turn, alleged that Respondent should have yielded to his police car pursuant to W.Va. Code 17C-9-5, which requires drivers to yield to emergency vehicles. The trial court instructed the jury that a driver’s duty to yield under W.Va. Code 17C-9-5 “is contingent upon the other vehicle driver having the opportunity to perceive, see or hear, the approaching police car.” The jury found Petitioner to be 100% negligent and awarded damages, including damages for lost wages.


Petitioner raised multiple issues. We will address three of them here. First, did the trial court correctly instruct the jury of the driver’s duty to yield under W.Va. Code 17C-9-5?  Second, did Petitioner preserve an alleged error involving Respondent’s “golden rule” arguments where a motion in limine was made and granted, but Petitioner failed to object? Third, was Respondent entitled to recover lost wages where the only proof in support of those damages was Respondent’s own testimony?


In addressing the duty-to-yield issue, the Supreme Court focused on the language of W.Va. Code 17C-9-5.  Specifically, the Court highlighted language limiting the duty to situations where the emergency vehicle is using an “audible…siren, exhaust whistle or bell” and is equipped with “at least one flashing lighted lamp…which is visible under normal atmospheric conditions from a distance of 500 feet.”  From this language, it was “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.”  Indeed, to suggest otherwise would render “the requirement of flashing lights and an audible siren superfluous.” 

Petitioner cited Davis v. Cross, 152 W.Va. 540, 164 S.E.2d 899 (1968), arguing that the duty to yield is unrelated to the driver’s ability to actually see or here an approaching emergency vehicle.  The Court, however, pointed out that the driver in Davis offered no proof that the emergency vehicle’s sirens and lights were not, in fact, functioning property.  Indeed, the only witness who testified for the driver stated that she could not remember hearing a siren--nothing more.  Accordingly, the Court found that 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.”

Petitioner also argued that Respondent engaged in an improper golden rule argument. Petitioner had previously filed a motion in limine addressing golden rule arguments, which the trial court had granted. However, Petitioner did not make a contemporaneous objection. Petitioner argued that he was not required to object, citing Lacey v. CSX Transportation, Inc., 205 W.Va. 630, 520 S.E.2d 418 (1999).

To begin with, the Supreme Court found that Lacey was not controlling because it was superseded by Rule 103 of the Rules of Evidence. Rule 103(b) reads as follows: “Once the court rules definitively on the record--either before or at trial--a party need not renew an objection or offer proof to preserve a claim of error for appeal.” Thus, a party who has objected to a trial court’s in limine ruling is not required to object again in order to preserve the error. However, the unanswered question was “whether Rule 103(b)’s exception to making an objection applies to a party who obtained a favorable definitive motion in limine ruling.”  Canvasing federal case law from a cross the country, the Supreme Court held that “a party who obtained a favorable definitive ruling on an issue must timely object if the opposing party violates the ruling.”

Finally, the Court addressed the jury’s award of damages for lost wages. Respondent testified that he “figured up” his lost wages himself, and by his calculations the total wage loss came to “about 4500 bucks.” Respondent did not offer any additional testimony or documentary evidence addressing his wage loss. Petitioner argued that Respondent’s testimony alone was insufficient. Citing a substantial body of case law, the Court stated in a new syllabus: “A plaintiff’s testimony alone is sufficient to prove lost wages as long as the testimony reasonably establishes the claim.” 

Justice Walker dissented, complaining that the majority’s opinion “creates a new exception to [a] clear statutory duty.”  Justice Walker stated that the requirements for visible lights and audible signals imposed “an objective perception requirement rather than a subjective one.”  Thus, in her view, “once an approaching emergency vehicle has activated its lights and siren, surrounding drivers are deemed to have constructive notice of the vehicle.” 



The Supreme Court applied a common-sense interpretation of W.Va. Code 17C-9-5.  The fact that the legislature conditioned the duty to yield on visible lights and audible signal is a clear indication that the standard was meant to be a subjective one.

This opinion also provides an important practice point for trial lawyers.  It is not enough to obtain a favorable ruling on a motion in limine.  If the in limine ruling is violated, the party who obtained that ruling must make a timely objection in order to preserve the error for appeal.  Failure to do so will in all likelihood constitute a waiver.

Finally, the Court’s new syllabus on wage loss is very helpful, especially in smaller cases.  But remember that the test is one of reasonableness.  The plaintiff’s testimony alone is sufficient only if that testimony “reasonably establishes the claim.”  In this case, Respondent was able to personally calculate a relatively small amount of wage loss.  Importantly, however, Petitioner did not object and did not cross examine Respondent regarding his wage loss calculations.  Just what is, and is not, reasonable will have to be determined in the future on a case by case basis.

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