JEANNE JUREK and COMMONWEALTH OF KENTUCKY/ DEPARTMENT OF PERSONNEL v. EUGENE HUBBS and EMERSON ELECTRIC COMPANY
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RENDERED: JULY 2, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-000897-MR
AND
NO. 2003-CA-000936-MR
JEANNE JUREK and
COMMONWEALTH OF KENTUCKY/
DEPARTMENT OF PERSONNEL
APPELLANTS
APPEALS FROM HART CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
CIVIL ACTION NO. 00-CI-00041
v.
EUGENE HUBBS and
EMERSON ELECTRIC COMPANY
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, MINTON, and TAYLOR, Judges.
MINTON, Judge:
Kentucky/Department
Jeanne
of
Jurek
Personnel
and
the
Commonwealth
(Department
of
of
Personnel)
appeal1 from a judgment of the Hart Circuit Court in favor of
1
Originally Jurek and the Department of Personnel filed separate
appeals, with each appellant designating the other as an appellee.
Jurek’s appeal was numbered 2003-CA-000897-MR, and the appeal of the
Department of Personnel was numbered 2003-CA-000936-MR.
On July 11,
Eugene Hubbs and Emerson Electric Company (Emerson Electric).
The civil action arose from a motor vehicle accident in which
the
tractor-trailer
driven
by
Hubbs
struck
Jurek was riding, injuring her severely.
the
car
in
which
As grounds for appeal,
Jurek and the Department of Personnel assert that the circuit
court committed the following errors:
motion
for
a
directed
verdict
(1) not granting Jurek’s
regarding
Hubbs’s
alleged
violation of a provision of the Federal Motor Carrier Safety
Regulations
question
(FMCSR);
Hubbs
about
(2)
a
not
permitting
speeding
ticket
Jurek’s
that
counsel
he
to
received
approximately one month after the accident; (3) admitting into
evidence
testimony
about
other
motor
vehicle
accidents
that
occurred at the same place shortly after the accident at issue;
and (4) admitting into evidence Hubbs’s statement that he had
driven
900,000
miles
without
an
accident.
For
the
reasons
stated below, the Court reverses and remands this case to the
circuit court for a new trial.
The accident in question occurred on March 11, 1998,
between mile markers 67 and 68 on I-65 North in Hart County.
Hubbs was driving a loaded tractor-trailer for his employer,
2003, pursuant to Jurek’s motion and the agreement between Jurek and
the Department of Personnel to proceed as a single appellant as
provided in Kentucky Rules of Civil Procedure (CR) 73.01(3), the Court
ordered the two appeals to be consolidated. The Court further ordered
that the parties be realigned such that Jurek and the Department of
Personnel each be named an appellant in the appeal originally filed by
the other.
2
Emerson
Electric,
on
his
dedicated
Mississippi, to Findlay, Ohio.
route
from
Oxford,
Debbie Bishop was driving a
white Chevrolet Lumina owned by the Commonwealth of Kentucky.
Riding with her were three passengers, Rhondia Burdine, Gary
Grubbs,
and
returning
Green.
to
Jeanne
Jurek.
Frankfort
All
after
four
were
a
training
state
session
employees
in
Bowling
On that day, both Hubbs and Bishop had driven through
several areas where snow was falling but not sticking to the
road; neither had encountered ice.
never
significantly
impaired
including Bishop, disagreed.
isolated
snow
showers
in
Hubbs said that the snow
visibility,
but
other
witnesses,
There were miles in between these
which
there
was
no
snow
or
other
precipitation, visibility was normal, and the pavement was clear
and dry.
68.
They encountered snow again around mile markers 67 and
Hubbs testified that this snow did not significantly reduce
visibility, but Bishop and others testified otherwise.
The collision between Bishop and Hubbs was part of a
multiple vehicle accident that occurred in part because of ice.
Bishop and Hubbs were in the right lane with Bishop somewhat
ahead of Hubbs.
The van immediately in front of Bishop began
fishtailing then slid off the road onto the right shoulder.
The
car in front of her, which had been obscured by the van, was
either stopped in the right lane or moving so slowly that it
appeared to be stopped.
Rather than hit the van off on the
3
right shoulder, or be hit by a faster-moving vehicle which she
saw approaching in the left lane,2 Bishop remained in the right
lane and tried to slow down as much as possible.
car ahead in a low-speed collision.3
shaken
but
uninjured.
She struck the
She and her passengers were
However,
Bishop’s
Lumina
then
went
sideways into the left lane at a 90-degree angle to oncoming
traffic, directly into the path of Hubbs.
His tractor-trailer
struck the Lumina near the left rear door area where Jurek was
seated.
details
She
suffered
concerning
serious
the
and
accident
permanent
will
be
injuries.
developed
Other
below
as
necessary.
Jurek
filed
a
complaint
against
Hubbs
and
Emerson
Electric4 on March 1, 2003, alleging a variety of claims.
May 2,
2000,
workers’
intervene.
the
Department
compensation
of
benefits
to
Personnel,
Jurek,
which
was
had
permitted
On
paid
to
The Department of Personnel’s complaint adopted by
reference Jurek’s allegations against Hubbs and Emerson Electric
2
Bishop could not recall what type of vehicle was approaching on
her left.
She only remembered that it was moving faster than her
vehicle.
3
As evidence of the minimal impact of this initial collision, the
air bag(s) did not deploy.
4
Jurek also named other defendants. Because these defendants were
dismissed prior to trial and are not involved in this appeal, we need
not address them.
4
and raised no new allegations against them.5
A jury trial was
conducted in Hart Circuit Court on February 24-26, 2003.
conclusion
verdict
of
in
negligent
Jurek’s
favor
of
entrustment
proof,
Emerson
and
the
circuit
Electric
on
the
on
court
the
directed
allegation
allegations
screening, hiring, training, and supervision.
At the
of
a
of
negligent
The trial court
further directed a verdict in favor of Hubbs on the allegation
of gross negligence, leaving the allegation of negligence on the
part of Hubbs as the only issue to be decided by the jury.
only
remaining
allegation
vicarious liability.
against
Emerson
Electric
The
concerned
The circuit court denied Jurek’s motion
for a directed verdict on the allegation that Hubbs had violated
the FMCSR.
Instead, the circuit court presented that issue to
the jury by including among Hubbs’s specific duties the duty to
comply with applicable provisions of FMCSR.
unanimous
verdict
in
favor
of
Hubbs,
The jury returned a
thereby
dismissing
all
remaining allegations pleaded by Jurek against Hubbs and Emerson
Electric.
Jurek
filed
subsequently denied.
a
motion
for
new
trial,
which
was
Jurek and the Department of Personnel then
5
Jurek and the Department of Personnel had identical interests at
trial against Hubbs and Emerson and again on appeal. Therefore, this
Court shall refer to the plaintiffs at trial and now appellants
collectively as “Jurek.” Likewise, because Hubbs and Emerson Electric
have identical interests on appeal and shared representation, we shall
refer to them collectively as “Hubbs.”
5
filed timely separate appeals which were later consolidated as
noted above.
DENIAL OF DIRECTED VERDICT ON FMSCR CLAIM
Jurek asserts that the circuit court erred in denying
her motion for directed verdict concerning the allegation that
Hubbs
violated
the
FMSCR.
These
regulations
govern
the
operation of commercial motor vehicles in the United States.
To
the extent that they establish a standard of care higher than
the
law,
ordinances,
or
regulations
of
a
particular
state
jurisdiction, a commercial driver must comply with the FMSCR.6
Jurek asserts that Hubbs violated the following provision:
Extreme caution in the operation of a
commercial motor vehicle shall be exercised
when hazardous conditions, such as those
caused by snow, ice, sleet, fog, mist, rain,
dust, or smoke, adversely affect visibility
or traction.
Speed shall be reduced when
such conditions exist. If conditions become
sufficiently dangerous, the operation of the
commercial vehicle shall be discontinued and
shall not be resumed until the commercial
motor vehicle can be safely operated.7
To
consider
further
Jurek’s
details
precipitation
allegation,
concerning
and
the
road
the
it
is
necessary
accident.
was
dry
and
When
clear,
to
provide
there
Hubbs
was
no
drove
64 miles per hour (mph); when he encountered snow, he would slow
6
49 Code of Federal Regulations (C.F.R.) § 392.2.
7
49 C.F.R. § 392.14.
6
to 50 mph, even though the snow was not yet sticking to the
roadway.
He did not try to contact anyone by CB or other means
to learn the condition of the interstate and the weather to his
north.
In fact, he had his CB turned off.
Just before the
accident, he saw snow falling for the first time since Horse
Cave and slowed from 64 mph to 50 mph.
Skidding vehicles and
brake lights about one-quarter mile ahead of Hubbs alerted him
to icy conditions.
to a stop.8
Hubbs began stab braking to bring his truck
He moved to the left lane because he did not think
he would be able to stop in time to avoid hitting the vehicles
stopped in the right lane, and he could not get off on the right
shoulder without hitting other vehicles.
Hubbs continued stab
breaking and succeeded in slowing his vehicle to approximately
30 mph.
He first testified that it took him about a minute to
slow to 30 mph but later said that it was probably closer to
20 seconds.
He managed to keep his vehicle in the left lane,
despite
tendency
the
of
his
trailer
whenever he applied the brakes.9
to
want
to
slide
right
Hubbs was almost past the area
where he had originally noted the stopped vehicle in the right
lane and the van that slid off on the right shoulder when the
8
Stab breaking is a technique in which a tractor-trailer driver
alternately steps on the brakes and then eases up on the brakes. It
is designed to slow or stop a tractor-trailer without locking up the
brakes on the trailer, which could result in jack-knifing the vehicle.
9
The trailer’s tendency to slide to the right was due to both the
ice and to the banking of the road.
7
white Lumina driven by Bishop slid sideways directly in front of
his tractor-trailer.
It was so close that he could only see the
car’s white roof, and he had three seconds or less to react.
He
tried to turn into the median, but, before he could do so, he
struck the Lumina, knocking it into the median.
To keep from
hitting the car again, Hubbs continued on briefly in the left
lane before pulling off in the median.
Jurek does not dispute that Hubbs reduced his speed
from
64
before
mph
the
to
50
accident.
mph
when
he
However,
encountered
she
asserts
snow
that
immediately
pursuant
to
49 C.F.R. § 392.14, once he recognized the changeable weather
and knew that he could encounter snow again, Jurek should have
driven at a reduced speed even when the immediate weather was
fine and the road was clear.
to
drive
at
a
reduced
She asserts that this obligation
speed
continued
until
he
received
confirmation from a third party via CB or other means that the
road and weather ahead were clear.
Jurek asserts that the fact
that Hubbs was unable to bring his tractor-trailer to a complete
stop before the accident is proof that he was traveling too fast
at 64 mph given the changeable weather.
Therefore, she asserts
that she was entitled to a directed verdict on the allegation
that Hubbs violated 49 C.F.R. § 392.14.
The standard for a directed verdict was set forth in
Lewis v. Bledsoe Surface Mining Company, as follows:
8
Upon review of the evidence supporting a
judgment entered upon a jury verdict, the
role of an appellate court is limited to
determining whether the trial court erred in
failing to grant the motion for directed
verdict.
All evidence which favors the
prevailing party must be taken as true and
the reviewing court is not at liberty to
determine credibility or the weight which
should be given to the evidence, these
functions being reserved to the trier of
fact.
The prevailing party is entitled to
all reasonable inferences which may be drawn
from the evidence.
Upon completion of such
an evidentiary review, the appellate court
must decide whether the verdict rendered is
“‘palpably
or
flagrantly’
against
the
evidence so as ‘to indicate that it was
reached
as
a
result
of
passion
or
10
prejudice.’”
If
the
reviewing
court
concludes that such is the case, it is at
liberty to reverse the judgment on the
grounds that the trial court erred in
failing to sustain the motion for directed
verdict.
Otherwise, the judgment must be
affirmed.11
When the evidence, including any reasonable inferences from it,
is taken in the light most favorable to Hubbs as the prevailing
party, it is clear that there was sufficient evidence to support
the jury’s verdict in Hubbs’s favor on the issue of the alleged
violation of the FMCSR.
49 C.F.R. § 392.14 requires a driver to
reduce his speed when hazardous driving conditions, such as snow
or ice, exist.
not
state
an
Notwithstanding Jurek’s interpretation, it does
affirmative
duty
to
drive
at
a
reduced
10
speed
NCAA v. Hornung, Ky., 754 S.W.2d 855, 860 (1988) (citation as in
original).
11
Ky., 798 S.W.2d 459, 461-62 (1990) (some citations omitted).
9
indefinitely
when
the
confirmation
from
a
similarly clear.
snow
or
third
ice
party
disperses
that
the
until
receiving
weather
ahead
is
There was sufficient evidence for the jury to
agree with Hubbs, who stated, “just cause [sic] it snowed for a
mile don’t [sic] mean you’ve got to stay slow for 500” miles.
Therefore,
we
affirm
the
circuit
court’s
denial
of
Jurek’s
motion for a directed verdict.
ADMISSIBILITY OF POST-ACCIDENT SPEEDING TICKET
Jurek also asserts that the circuit court erred in
barring
inquiry
into
a
speeding
ticket
which
Hubbs
received
approximately one month after the accident for driving 73 mph in
the same tractor-trailer.
Jurek sought to use this evidence to
impeach Hubbs regarding a statement made during his discovery
deposition that he knew that he was going 64 mph prior to the
accident because that was as fast as his truck would go due to
its
governor.
prevent
this
evidence
of
In
line
the
response
of
to
inquiry,
speeding
Hubbs’s
the
ticket
motion
circuit
would
not
in
limine
court
ruled
be
relevant
to
that
or
admissible unless Hubbs testified at trial about the governor.
At trial, when called as a witness by Jurek, Hubbs testified
that he knew his speed was 64 mph before the accident by his
speedometer.
When asked if the speedometer was the only way
that he knew his speed, Hubbs responded that that was the only
10
way he could be sure.
When Hubbs later testified on his own
behalf, he again stated that he knew he was going 64 mph by his
speedometer.
“that’s
all
agreed
When asked if he had stated in his deposition that
my
that
truck
the
will
statement
run,”
referring
sounded
to
64
accurate.
mph,
In
Hubbs
a
bench
conference, Jurek then moved to introduce the speeding ticket
but was overruled.
Jurek properly preserved the issue through
avowal testimony.
On avowal, Hubbs agreed that he said in his
deposition that his truck would not go faster than 64 mph.
also
admitted
73 mph
in
a
that
55
he
mph
received
zone,
a
speeding
approximately
accident while driving the same truck.
disputed the ticket, however.
ticket
one
for
month
He
going
after
the
Hubbs stated that he
He conceded that he was going
faster than the 55 mph speed limit but disputed that he was
driving 73 mph.
The
relevance.
tendency
circuit
court
based
its
decision
on
lack
of
Relevant evidence is defined as “evidence having any
to
make
the
existence
of
any
fact
that
is
of
consequence to the determination of that action more probable or
less
probable
Relevance
12
is
than
a
it
would
determination
be
resting
Kentucky Rules of Evidence (KRE) 401.
11
without
the
largely
evidence.”12
within
the
discretion of the trial court.13
This Court will not disturb a
lower court’s discretionary ruling on appeal, absent an abuse of
discretion.14
Given Hubbs’s uncontroverted testimony that he
had already slowed from 64 mph to 50 mph and again to 30 mph
when Bishop’s Lumina slid directly in front of his truck, the
issue of exactly how he knew his earlier speed of 64 mph seems
collateral.
seemed
to
This
have
is
especially
adopted
Hubbs’s
64 mph as fact at trial.
true
since
assessment
Jurek’s
that
he
counsel
was
going
Jurek’s counsel told the jury in
opening statements that the evidence would show that Hubbs was
traveling 64 mph prior to the accident.
And again, in his
closing arguments, he stated that shortly before the accident
Hubbs was driving “64 mph, as fast as [his] truck could go.”15
Under these circumstances, we cannot say that it was an abuse of
discretion for the circuit court to have excluded any questions
concerning the post-accident speeding ticket.
Even if it were
an error, we note that it would be harmless error under the
standard noted below.
Therefore, we affirm the circuit court’s
ruling on this issue.
13
Glens Falls Ins. Co. v. Ogden, Ky., 310 S.W.2d 547, 549 (1958).
14
See Tumey v. Richardson, Ky., 437 S.W.2d 201, 205 (1969).
15
Punctuation added.
12
ADMISSIBILITY OF ACCIDENT-FREE DRIVING HISTORY
Jurek also asserts that the circuit court erred by
permitting Hubbs to testify about his unblemished truck-driving
record.
Hubbs
testified
on
direct
that
he
had
driven
approximately 900,000 miles for Emerson Electric and had never
had an accident.
Hubbs’s counsel referred to this testimony
twice during closing.
He called 900,000 accident-free miles
“pretty good evidence” that Hubbs knew his job and knew what he
was doing.
Then later, just a minute or so before going over
instructions on how to fill out the verdict forms, he declared
that “Mr. Hubbs is a responsible driver, an accident-free driver
for 900,000 miles.
That’s pretty close to a million ....”16
He
went on to urge that this record was one reason why it would be
wrong to hold Hubbs liable for Jurek’s injuries.
KRE 404(a) sets forth a general prohibition against
the use of character evidence to show propensity, stating in
relevant part: “Evidence of a person’s character or a trait of
character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion ....”
KRE 404(a)
is subject to several exceptions; however, none applies to the
present civil litigation.
There is
evidence
16
no explicit mention of character
for
civil
cases
in
KRE
404,
Punctuation added.
13
although the text of the provision plainly
requires exclusion of such evidence.
The
provision begins with a general rule against
the
use
of
character
evidence
for
substantive purposes, adopts two exceptions
for criminal cases, and says nothing about
exceptions for civil cases.17
Regarding
the
litigation
therewith
admissibility
for
on
a
the
purpose
particular
of
of
character
showing
occasion,
evidence
action
the
in
in
drafters
civil
conformity
of
KRE
404
unequivocally stated, Rule 404 “eliminates the possibility of
using such evidence in civil litigation, except to reflect on
the credibility of the witnesses.”18
Hubbs’s
testimony
about
his
record is evidence of his carefulness.
for
carefulness
or
carelessness
for
accident-free
driving
Evidence of a character
the
purpose
of
showing
actions in conformity with that character is inadmissible.19
The
only purpose for which this evidence was offered was to prove
that
Hubbs
acted
in
conformity
with
his
character
for
carefulness on March 11, 1998, as shown when his attorney cited
17
Robert G.
(4th ed. 2003).
Lawson,
The
Kentucky
Evidence
Handbook
§
2.15[5]
18
Evidence Rules Study Committee, Kentucky Rules of Evidence—Final
Draft 24 (Nov. 1989).
19
See also Lawson, § 2.15[5], noting that despite the fact that
there are no Kentucky cases predating the adoption of KRE regarding
the admissibility of carefulness or carelessness, “such evidence was
covered by the general rule of exclusion and was widely if not
universally regarded as inadmissible.”
14
it as pretty good evidence of Hubbs’s competence at his job and
a
reason
why
accident.
it
As
would
character
be
wrong
evidence
to
hold
intended
him
to
liable
show
for
the
action
in
conformity on a particular occasion, the testimony about Hubbs’s
driving record should not have been admitted at trial, pursuant
to KRE 404.
Having
concluded
that
the
circuit
court
committed
error, we must determine whether this error was harmless.
The
standard for harmless error is as follows:
C.R. [sic] 61.01 provides that the court at
every stage of the proceeding must disregard
any
error
which
does
not
affect
the
substantial rights of the parties.
While
this rule is primarily for the guidance of
trial courts, this court, since the adoption
of the new rules and before, ... has
accepted it as a rule for guidance and will
not reverse or modify a judgment except for
error
which
prejudices
the
substantial
rights of the complaining party.20
In determining whether reversal is warranted, this Court must
judge each case on its unique facts.21
An isolated instance of
improper argument, for example, is seldom deemed prejudicial.22
But, “when it is repeated and reiterated in colorful variety by
20
Davidson v. Moore, Ky., 340 S.W.2d 227, 229 (1960).
21
Stanley v. Ellegood, Ky., 382 S.W.2d 572, 575 (1964).
22
Id.
(1946).
See also Murphy v. Cordle, 303 Ky. 229, 197 S.W.2d 242, 244
15
an accomplished orator its deadly effect cannot be ignored.”23
Such is the case here.
The improperly admitted evidence went toward Hubbs’s
carefulness,
a
central
issue
in
the
negligence
claim.
Nevertheless, Hubbs’s testimony about his driving record alone
might have been considered harmless error.
attorney
twice
stressed
this
improperly
However, Hubbs’s
admitted
evidence
in
closing argument, even calling it a reason why the jury should
not hold Hubbs liable.
Notably, this was almost the last thing
counsel said during his closing argument before turning to the
minutiae of how to fill out the verdict forms.
The timing of
this statement increased its possible prejudicial effect.
these
facts,
we
cannot
testimony
about
his
counsel’s
subsequent
describe
the
accident-free
references
to
admission
driving
it
as
of
Given
Hubbs’s
record
and
harmless
his
error.
Therefore, we reverse the circuit court’s ruling on this matter.
ADMISSIBILITY OF OTHER MOTOR VEHICLE ACCIDENTS
Jurek also asserts that the circuit court erred in
admitting
testimony
concerning
other
motor
vehicle
accidents
that occurred at approximately the same time and place.
filed a motion in limine to exclude this evidence.
Jurek
The circuit
court ruled that evidence of other accidents at approximately
23
Stanley, 382 S.W.2d at 575.
16
the
same
time
and
location
condition of the road.24
was
admissible
to
show
the
icy
Hubbs’s counsel first set the stage
for this testimony, stating in his opening statement that there
were
a
dozen
or
more
vehicles
involved
in
accidents
at
approximately the same time and place as the accident at issue.
Every
fact
witness25
was
asked
about
other
accidents
which
occurred in the minutes after the accident at issue on the same
stretch of northbound I-65.
Jurek’s counsel promptly objected
to the first few references to other accidents but was overruled
on each occasion.
Each of these witnesses recalled seeing at
least one or more vehicles involved in an accident, including
vehicles which slid or veered off the road without colliding
with another vehicle.
Two witnesses recalled that one of the
accidents even involved an ambulance.
Captain Hardin of the
Kentucky State Police, who handled the accident involving Hubbs
and Jurek, initially stated that he could not really speak about
the
other
accidents
since
other
agencies
handled
indirectly acknowledging these accidents’ existence.
estimate,
however,
that
there
were
probably
them,
Hardin did
more
than
ten
vehicles involved in one type of accident or another at this
24
The circuit court did, however, restrict such
accidents which occurred in the northbound lanes of I-65.
25
evidence
to
The witnesses asked about other accidents were Bishop, Burdine,
Grubbs, Hubbs, and Captain Hardin, infra. Jurek has little memory of
the relevant time period due to her injuries.
17
scene.
In closing arguments, Hubbs’s counsel repeated Hardin’s
estimate of the number of other accidents on the same stretch of
interstate around the same time of the collision involving Jurek
and Hubbs.
Both Jurek and Hubbs agree that the controlling case
regarding
the
propriety
of
introducing
other
accidents
which
occurred proximately in time and place to an accident at issue
is Harris v. Thompson.26
The circuit court also based its ruling
permitting the introduction of the other accidents into evidence
on
Harris.
We
agree
that
Harris
is
the
controlling
case.
However, under the law as established in that case, we hold that
the testimony concerning other accidents was inadmissible.
The
Harris case concerned an automobile which slid out of control on
an isolated patch of ice on an otherwise dry road, striking two
pedestrians.27
three
other
location
The driver of the vehicle introduced evidence of
automobile
within
two
accidents
hours
of
the
that
occurred
accident
at
in
the
issue.28
same
The
appellants objected on the grounds that the other accidents were
not shown to have occurred under similar conditions, such as
speed, as the accident at issue.29
26
Ky., 497 S.W.2d 422 (1973).
27
Id. at 424.
28
Id. at 428-29.
29
Id. at 429.
18
Kentucky’s highest court
described the general rule on the admissibility of such evidence
as follows:
Evidence of the occurrence or nonoccurrence
of
other
accidents
or
injuries
under
substantially
similar
circumstances
is
admissible when relevant to certain limited
issues, such as the existence or causative
role of a dangerous condition, or a party’s
notice of such a condition.30
Based on the facts of the Harris case, Kentucky’s highest court
ruled
that
the
evidence
of
other
accidents
was
inadmissible
“because there was no real issue as to whether the patch of ice
on an otherwise dry highway constituted a dangerous condition or
whether that condition was a causative factor in the accident.”31
The Harris court also stated that there was no contention that
the accidents were relevant to the issue of notice.
The court
concluded that the only purpose of the evidence must have been
to
show
whether
the
driver
of
the
vehicle
that
struck
the
pedestrians was negligent by comparison to other drivers under
similar
circumstances.32
The
court
explained
the
admitting evidence for this purpose:
[I]n a negligence case the comparison to be
made is between the party alleged to have
been negligent and that imaginary ideal, the
ordinarily
prudent
person
acting
under
similar circumstances.
Without any way to
30
Id.
31
Id.
32
Id.
19
error
in
prove or to judge whether another person who
did or did not have an accident at the same
place and under the same circumstances was
himself an ordinarily prudent person, or was
above or below average in that respect, we
are forced to the conclusion that such
evidence cannot be competent on the narrow
issue of negligence.33
Notwithstanding
this
holding,
the
Harris
court
ultimately
determined that the evidence of other accidents was admissible
as
a
curative
measure
because
the
trial
court
had
admitted
testimony, over objection, of other witnesses who drove across
the same stretch of road close to the time of the accident at
issue.34
Each of these witnesses testified that he or she had
seen the ice soon enough to slow down and had crossed it without
incident.35
The court deemed that the admission of testimony to
the effect that several people safely traversed this section of
road opened the door to rebuttal evidence concerning testimony
by those drivers who were not so fortunate.36
In the instant case, there was no evidence presented
to show whether the other accidents which occurred at generally
the same time and place as the collision involving Hubbs and
Jurek
occurred
under
33
Id. at 429-30.
35
Id.
36
conditions,
Id.
34
similar
Id. at 430.
20
such
as
speed,
nor
whether
the
reasonably
other
drivers
prudent
were
persons.
No
conducting
one
themselves
testified
with
as
any
specificity about these accidents, and no one involved in them
testified or was even identified.
Nevertheless, the circuit
court admitted evidence of the other accidents in order to show
the icy conditions of the road.
As in the Harris case, there
was no real issue that there was an isolated section of ice on
an
otherwise
dry
road,
that
this
ice
posed
a
hazardous
condition,37 and that it was a factor in the accidents.38
Hubbs
attempts to distinguish this case by pointing out that during
the trial, Jurek raised the issue of numerous other possible
factors in the accident, such as excessive speed, tiredness, or
hunger on his part.
Just because Jurek attempted to show that
Hubbs was negligent, does not mean that the presence and role of
the ice was in dispute.
No one disputed the presence of the ice
or the danger it posed to drivers.
There is no claim that the
other accidents were relevant to the issue of notice.
Also,
unlike in the Harris case, there was no need to introduce the
evidence of other accidents as rebuttal.
37
No one testified about
Debbie Bishop testified that when she exited the Lumina after the
accident, the ice was so slick that she had to hold onto the car to
keep from falling. Similarly, Captain Hardin testified that the road
was so slick and icy that he actually fell when exiting his vehicle.
Notably, Jurek’s counsel concedes that Bishop’s and Hardin’s testimony
on this matter was properly admitted into evidence.
38
See Id. at 429.
21
safely traversing the icy interstate between mile markers 67 and
68.
The only purpose for this evidence was to show that Hubbs
was not negligent by comparison to other people who also had
accidents
on
the
same
stretch
of
interstate.
However,
the
standard for comparison in a negligence case is to an ordinarily
prudent person in similar circumstances.39
This evidence, which
only serves to compare Hubbs’s negligence to that of strangers
of unknown prudence in unknown circumstances, is not competent
on the narrow issue of negligence.
The
question
then
arises
whether
harmless under the previously-cited standard.
other
accidents
was
a
theme
carried
this
is
The existence of
throughout
Hubbs’s counsel from opening to closing.
error
the
trial
by
Every fact witness who
was competent to testify about the issue testified to seeing at
least one or more other vehicles collide or leave the roadway,
with Captain Hardin estimating that more than ten vehicles were
involved in accidents at that scene.
which
there
was
only
one
brief
This is not a case in
mention
of
the
improper
testimony; it was a pervasive theme throughout the trial.
Under
these circumstances, we cannot say that this error was harmless.
Therefore,
39
we
must
reverse
the
Id.
22
trial
court’s
finding
with
respect
to
the
admission
of
evidence
of
other
accidents
at
approximately the same time and place.
CONCLUSION
We
reverse
with
respect
to
the
circuit
court’s
evidentiary rulings permitting Hubbs to introduce testimony that
he had driven 900,00 miles as a truck driver without an accident
and
to
shortly
introduce
before
or
evidence
after
section of I-65 North.
of
the
other
accidents
accident
at
which
issue
in
ALL CONCUR.
Charles W. Gorham
Lexington, Kentucky
the
same
We remand this case to the Hart Circuit
Court for another trial consistent with this opinion.
BRIEF AND ORAL ARGUMENT
FOR
APPELLANT
JEANNE JUREK:
occurred
BRIEF AND ORAL ARGUMENT FOR APPELLEES:
John L. Tate
Jamie K. Neal
STITES & HARBISON PLLC
Louisville, Kentucky
23
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