CHARLOTTE REGENSTREIF AND CARA REGENSTREIF v. LINDA O. PHELPS
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001538-MR
CHARLOTTE REGENSTREIF AND
CARA REGENSTREIF
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 98-CI-02335
v.
LINDA O. PHELPS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
Judge.1
KNOPF AND SCHRODER, Judges; and MARY COREY, Special
KNOPF, JUDGE:
Charlotte and Cara Regenstreif, mother and
daughter, appeal from a judgment of the Fayette Circuit Court,
entered May 26, 2000, dismissing their complaint against Linda O.
Phelps.
The Regenstreifs seek damages from Phelps for personal
injuries and property loss allegedly caused by Phelps’s negligent
operation of her automobile.
Following a trial in May 2000, the
jury returned a verdict for Phelps, and the trial court entered
judgment in accordance with that verdict.
1
The Regenstreifs
Senior Status Judge Mary Corey sitting as Special Judge by assignment of the Chief
Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
contend that they received an unfair trial, one marred by the
improper admission of certain evidence and by an incorrect jury
instruction.
Although the Regenstreifs have identified matters
of genuine concern, we are convinced that the trial court’s
errors, if any, were harmless.
Accordingly, we affirm.
The auto accident giving rise to this litigation
occurred about 8:15 on the morning of February 7, 1996.
Charlotte was taking Cara to school and had just backed her car
from the garage onto the quiet, subdivision street that fronts
their house in Lexington.
Their path lay around a gentle curve
to their left and up a slight incline.
They had barely begun
going forward when a car traveling in the opposite direction came
around the curve, moved over onto their side of the street, and
drove straight toward them.
Charlotte testified that she
immediately came to a stop and sounded her horn.
little time to do anything else.
There was
In a very few seconds the on-
coming car collided head-on with theirs.
Phelps, the driver of the other car, testified that she
had been on her way to another home in the subdivision, where she
worked as a nanny.
The morning had been cold, but she had
experienced no trouble driving during the trip from her home in
Versailles to Lexington.
She had turned into the subdivision, as
she had done many times before, without noticing anything unusual
about the street.
As she entered the curve above the
Regenstreifs’ property, however, she felt her car begin to slide
to her left.
She applied her brakes and attempted to steer the
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car back to the right, but it had continued sliding down the
incline straight into the Regenstreifs’ car.
The Regenstreifs alleged that Phelps had been driving
too fast; Phelps contended that she had come upon black ice.
In
support of their claim, the Regenstreifs testified that their car
had been “totaled” and that both of them had felt a terrific jolt
upon impact and had suffered significant injuries.
Charlotte
testified that the ground and road had not seemed in the least
bit icy.
Phelps testified that her speed had been no more than
ten miles-per-hour.
damage.
Her car, she claimed, had incurred almost no
And the road, she said, had proved after the accident to
be almost too slippery to walk upon.
The case thus presented a classic issue for the jury.
With respect to Phelps’s alleged negligence, the trial court
instructed the jury as follows:
INSTRUCTION NO. 3
It was the duty of the Defendant, Linda O.
Phelps, in driving her automobile to exercise
ordinary care for the safety of other persons
using the highway, and this general duty
included the following specific duties:
(a) To keep a lookout ahead;
(b) To have her automobile under reasonable
control;
(c) To drive at a speed no greater than was
reasonable and prudent, having regard for the
traffic and for the conditions of the
roadway, insofar as it was known to her or in
the exercise of ordinary care should have
been known to her, and not exceeding the
speed limit;
(d) To exercise ordinary care generally to
avoid collisions with other vehicles on the
roadway; and
(e) To drive and keep her automobile on the
right hand side of the roadway.
All of these duties are subject, however,
to this qualification: that if immediately
before the accident the Defendant encountered
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a sudden emergency by the presence of ice on
the surface of the roadway and if the
emergency thus presented was not caused or
brought about by any failure of the Defendant
to perform her duties as set forth above,
then the Defendant was not required
thereafter to adopt the best possible course
in order to avoid the apparent danger but was
required to exercise only such care as the
jury would expect an ordinary prudent person
to exercise under the same conditions and
circumstances.
Asked to decide whether Phelps had breached any of these duties,
the jurors unanimously found that she had not.
Insisting that
this instruction was prejudicially flawed, the Regenstreifs
appeal.
The Regenstreifs contend that the trial court erred by
including in the instruction the last paragraph, the so-called
sudden emergency qualification.
They note that in Bass v.
Williams,2 another case involving a collision on the plaintiff’s
side of an allegedly icy road, this Court overturned a judgment
for the defendant, based on a similar instruction, and held that
“it is error to instruct the jury on a sudden emergency theory.”3
The court noted the often-expressed criticism that the emergency
instruction can be redundant and that it risks over-emphasizing
evidence favorable to the defendant.4
The court also worried
that the sudden emergency instruction, one of many mitigating
devices to have evolved during the era of contributory
2
Bass v. Williams, Ky. App., 839 S.W.2d 559 (1992).
3
Id. at 563.
4
See Myhaver v. Knutson, 942 P.2d 445 (Ariz. 1997); Jeffrey F. Ghent, “Modern Status
of Sudden Emergency Doctrine,” 10 ALR 5th 680 (1993); Dan B. Dobbs, The Law of Torts, § 131
(2001).
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negligence, did not harmonize with the then fairly new rule of
comparative fault.5
“It is our opinion,” wrote the court,
that the instruction has a quality to it that
diminishes the duties of the defendantdriver, . . . and is in violation of the
“direct proportion to fault” concept in
Hilen.6
It is difficult to view the trial court’s disregard of Bass as
anything but error.
Even if the court erred, however, we are
convinced that, in this instance, the error was harmless.
In Shewmaker v. Richeson,7 a case that considered a
defendant’s right to an express instruction addressing his theory
that the plaintiff’s acts were the “sole cause” of any injury,
the former Court of Appeals explained that “the purpose of
instructions,”
is to submit the applicable law relating to
the issues in the controversy for the
guidance of the jury in arriving at a just
and proper verdict. . . . The objective is to
present an issue or issues in a form
intelligible to the jury. . . . The
overriding test is whether the issues are
submitted accurately and adequately.
. . .
The right to an affirmative instruction on
defendants' theory of the case is most
frequently encountered in criminal cases. . .
. As a general rule if the principal
instruction submits the Commonwealth's theory
in readily understandable language and its
negative completely and adequately covers the
defense, the defendant is not entitled to an
5
But cf. Moran v. Atha Trucking, Inc., 540 S.E.2d 903 (W.Va. 1997) (explaining the
view, apparently now the majority view, that, although there is reason for caution, the sudden
emergency idea is not necessarily incompatible with the idea of comparative fault).
6
Bass v. Williams, 839 S.W.2d. at 563-64 (citing Hilen v. Hays, Ky., 673 S.W.2d 713
(1984)).
7
Shewmaker v. Richeson, Ky., 344 S.W.2d 802 (1961).
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affirmative instruction. . . . This same
principle properly may be applied in civil
cases.
. . .
There is another possible objection to giving
a separate instruction on the theory of the
defense which has been adequately covered by
an instruction fixing the conditions of
liability. That is, it may violate our rule
against giving undue prominence to certain
facts and issues.
. . .
Upon reconsideration of the matter we have
concluded that this defense [the “sole cause”
defense] is not an affirmative one which
necessitates a separate instruction. If the
issue is (as it normally will be) properly
and adequately presented by the principal or
primary instruction, the defendant is not
entitled to an additional instruction
thereon. (The defenses of "accident" and
"sudden emergency" may fall in the same
category. See Summers v. Spivey's Adm'r, 241
Ky. 213, 43 S.W.2d 666, and Agee v. Hammons,
Ky., 335 S.W.2d 732 . . . .)8
Thirty years prior to Bass, therefore, and before the advent of
comparative fault, our high court had indicated that a suddenemergency instruction was inappropriate if the primary
instruction regarding the defendant’s duties adequately presented
the issue.
But what if the issue is not adequately presented by
the primary instruction?
Harris v. Thompson.9
The Court faced that situation in
In that case, the defendant’s automobile
had slid off a highway and struck two pedestrians.
Denying any
negligence, the defendant claimed that his loss of control of his
vehicle had been occasioned by a patch of ice of which he had had
8
Shewmaker v. Richeson, Ky., 344 S.W.2d 802, 806-07 (1961) (citations omitted;
emphasis in original).
9
Harris v. Thompson, Ky., 497 S.W.2d 422 (1973).
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no notice.
The trial court embodied this theory in a separate,
sudden-emergency-like instruction, and the jury returned a
verdict for the defendant.
On appeal, the plaintiff argued that
the separate instruction had been improper.
The former Court of Appeals again acknowledged the
principle that a defendant’s denial of one or more of the
conditions upon which liability is predicated in the primary
instruction did not call for a separate instruction on that
issue.
In this case, however, the primary instruction had
expressed the defendant’s duty to remain on his side of the road
in absolute terms.
Because the defendant did not deny having
crossed to the wrong side of the road, and because his duty not
to do so was not, in fact, absolute, he was entitled to have the
instructions clarify that duty’s limits.
The trial court’s
having given a separate sudden-emergency instruction did not,
therefore, amount to reversible error.
It would have been better practice, however, the Court
continued, simply to have qualified the primary instruction.
A
suitable sudden-emergency qualification was less apt than a
separate instruction to emphasize unduly the defendant’s point of
view.
And, of course, no qualification should be included when
the primary instruction accurately incorporated any relevant
limits to the defendant’s duty.
“The proper criterion [to
determine whether an instruction should be expressly qualified],”
the Court concluded, “is whether any of the specific duties set
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forth in the instruction would be subject to exception by reason
of the claimed emergency.”10
As noted above, in Bass v. Williams, this court went
further and held that sudden-emergency instructions, whether
offered separately or as a qualification of a primary
instruction, do not comport with comparative-negligence
principles and thus ought not to be employed.
Phelps insists,
rightly, that this court was not authorized to overrule Harris
and other high-court precedent approving such instructions and,
of course, the court did not purport to do so.
The Bass court
merely held that under a comparative negligence regime, wherein
trial courts are to endeavor to set forth both parties’ duties as
accurately as possible in primary instructions, the need for a
sudden-emergency instruction should not arise.
If the primary
instruction does not meet that standard, however, then a Harrislike accommodation is not necessarily a prejudicial error.
In this case, for example, as in Harris, a qualifying
instruction was rendered necessary because Phelps’s duty to
remain on the right-hand side of the road was couched in absolute
terms.
Rather than this formalistic initial instruction followed
by a sudden-emergency qualification, however (which purported to
qualify “all” of Phelps’s enumerated duties even though most of
them were suitably qualified to begin with), comparative
negligence principles, perhaps, and Bass, more certainly,
required an initial instruction to the effect that Phelps had a
duty, “to the extent that it was reasonably possible,” to keep
10
Id. at 428.
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her vehicle under control and on the right-hand side of the
roadway.11
Had this been the initial instruction, then under
Harris itself the addition of a sudden-emergency qualification
would have been erroneous.
That was not the initial instruction, of course, and
the Regenstreifs did not suggest to the trial court that it
should be.
They did suggest that a small portion of the quoted
instruction could be deleted, but the position for which they
genuinely argued was that the initial statement of Phelps’s
duties, including her apparently absolute duty to stay to the
right, should not be qualified.
however.
That is not what Bass says,
Just as the Regenstreifs had a right to instructions
that did not understate Phelps’s duties, Phelps had a right to
instructions that did not overstate them.
Urged to choose
between clearly overstating Phelps’s duty, on the one hand, and
possibly giving undue emphasis to her defense on the other, the
trial court made an appropriate choice.
If the trial court erred
by disregarding Bass, its error was one of mis-emphasis.
Jury
instructions that mis-emphasize rather than mis-state the law are
deemed harmless absent a sufficient indication that the jury was
confused or misled.12
We are convinced that any error of mis-
emphasis here was harmless.
The Regenstreifs also contend that the trial court
should not have permitted Phelps’s employer and the investigating
11
Cf. Mudd v. Mudd, Ky. App., 710 S.W.2d 236 (1986) (approving a “when possible”
qualification of a defendant’s duty to drive on the right-hand side of the highway).
12
Ruehl v. Houchin, Ky., 387 S.W.2d 597 (1965); City of Louisville v. Maresz, Ky. App.,
835 S.W.2d 889 (1992).
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police officer to testify concerning problems they each had
driving on the road near the accident scene shortly before and
shortly after the accident.
been unusually slick.
Both testified that the road had
Phelps’s employer, Dr. Piercy, testified
that at about 7:30 that morning her car had fish-tailed while she
drove up the curve in front of the Regenstreifs’ house.
She
testified that she had been so concerned about the condition of
the road that she had tried, albeit unsuccessfully, to call
Phelps to warn her.
The policeman dispatched to the accident,
Officer Langley, testified that, a short time after the accident,
as she had approached the scene down the curve, her vehicle went
somewhat out of control and slid past the spot at which she had
intended to stop.
Noting that, in general, evidence of other accidents
under circumstances similar to those attending the defendant’s
accident is not admissible either to prove or to disprove the
defendant’s negligence,13 the Regenstreifs sought to exclude all
of this testimony.
As with the jury instructions, however, the
Regenstreifs overstated their claim.
No less fundamental than the general rule upon which
the Regenstreifs rely is the rule that evidence inadmissible for
one purpose may yet be admissible for another.14
In Harris, for
example, the court noted that, while similar-occurrence evidence
13
Harris, supra. The proper comparison is with the “imaginary ideal, the ordinarily
prudent person acting under similar circumstances,” not with any particular person whose present
reflection of that ideal cannot be known. Id. at 429.
14
Zogg v. O’Bryan, 314 Ky. 821, 237 S.W.2d 511 (1951). Robert G. Lawson, The
Kentucky Evidence Law Handbook, § 1.10(A) (2nd Edition 1984).
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is generally inadmissible to prove negligence, it may
nevertheless be admitted to prove “certain limited issues, such
as the existence or causative role of a dangerous condition, or a
party's notice of such a condition.”15
Whether the street was
icy at the time of the accident was a material issue in this
case.
Piercy and Langley were competent witnesses to testify on
that issue.
Of course, they could have so testified without
referring to their own slips and slides.
Had the Regenstreifs
requested it, they would have been entitled to an admonition or
to a ruling limiting this testimony more closely than was done to
its valid purpose.
They were not entitled, however, to exclude
this testimony in its entirety.
Because that was their request,
the trial court did not err by denying it.16
In sum, although it may well be that the Regenstreifs
would have been entitled to more modest relief from the trial
court than the relief they requested, neither the jury
instruction with its sudden-emergency provision nor the testimony
by Piersey and Langley that they, too, had had trouble
controlling their vehicles near the scene of the accident was
subject to the blanket objection the Regenstreifs raised.
The
error by the trial court, if any, in failing to consider
alternatives to the sudden-emergency instruction was harmless.
Accordingly, we affirm the May 26, 2000, judgment of the Fayette
Circuit Court.
15
Harris, 497 S.W.2d at 429.
16
Webb Transfer Lines, Inc. v. Taylor, Ky., 439 S.W.2d 88 (1968); Department of
Highways v. Burns, Ky., 394 S.W.2d 923 (1965); Lawson, supra, § 1.20.
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ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
David A. Weinberg
Weinberg & Capello
Lexington, Kentucky
Perry M. Bentley
Todd S. Page
Stoll, Keenon, & Park, LLP
Lexington, Kentucky
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