TAMARA L. WRIGHT v. JAMES V. MAHLMANN, EXECUTOR OF ESTATE OF JOHN J. MAHLMANN
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000137-MR
TAMARA L. WRIGHT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARTIN F. MCDONALD, JUDGE
ACTION NO. 02-CI-006677
JAMES V. MAHLMANN, EXECUTOR OF
ESTATE OF JOHN J. MAHLMANN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant, Tamara L. Wright, was the driver of
the third car in a six car chain reaction rear-end collision, in
which she sustained bodily injury.
Wright made claims against
all of the motor vehicle operators involved in the collision,
the majority of which were settled prior to trial.
This appeal
arises out of Wright’s negligence action against the driver of
the first car, John J. Mahlmann. 1
A jury trial was held September 21-24, 2004.
The
drivers of the first three vehicles, Mahlmann, Teresa Raines
(the driver of the second vehicle), and Wright, testified at
trial.
All three gave differing versions of events.
The collision occurred at approximately 4:00 p.m.,
June 28, 2001, on Hurstbourne Lane at a traffic light at the
intersection of Hurstbourne Lane and Taylorsville Road, in
Jefferson County, Kentucky.
first car.
John J. Mahlmann was driving the
Mahlmann testified that the traffic light at the
intersection was yellow, so he stopped.
Mahlmann testified that
he stopped in the proper place for the light, and that the party
behind him (Raines) stopped.
The third party (Wright) then hit
the party behind him (Raines), causing that party (Raines) to
hit the rear of his (Mahlmann’s) car, which impact pushed his
car into the middle of the intersection.
Mahlmann denied having
suddenly stopped in the intersection as alleged.
Mahlmann was
not injured.
Appellant, Tamara Wright, testified to a different
version of events, as follows.
Wright testified that the light
was red as she approached the intersection, coasting slowly.
1
By order entered January 11, 2005, James V. Mahlmann, executor of the
estate of John J. Mahlmann, was substituted as a party Defendant for John J.
Mahlmann, deceased September 27, 2004.
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Mahlmann’s car was stopped at the red light (the first car at
the light) and Raines’s pick-up truck was at a complete stop
behind Mahlmann’s car.
As she (Wright) approached, when at a
distance of about three car lengths from Raines’s truck, the
traffic light changed to green, so she continued coasting, and
did not brake.
Seeing Mahlmann’s car and Raines’s truck “take
off”, she (Wright) started to accelerate.
According to Wright,
as soon as she hit the accelerator, Mahlmann, who had traveled
about a car length, and was now in the intersection, slammed on
his brakes.
Wright hit her brakes, and thought she stopped
without hitting Raines’s truck (which Wright recalled as having
moved about a car length, to about where Mahlmann’s car had
been), but was unsure because everything happened so fast.
She
(Wright) was then rear-ended by the fourth car, and received two
additional impacts from the fourth car due to the collisions of
the fifth and sixth cars.
These impacts caused Wright to hit
Raines’s truck three times.
The driver of the second vehicle, Teresa Raines,
testified to a version which differed from both Mahlmann’s and
Wright’s.
Raines testified that as she approached the
intersection, she saw Mahlmann’s car stopped at a green light.
She began to gear down, but did not stop, and then Mahlmann’s
car began moving, so she pressed the gas.
According to Raines,
Mahlmann’s car crossed two lanes of the intersection and then
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suddenly stopped.
Raines braked, stopping in the first lane of
the intersection, about six or seven feet from Mahlmann’s
bumper.
Raines testified that the car behind her (Wright)
stopped without hitting her at first.
hits on the rear of her truck.
Raines then felt three
Raines did not recall hitting
Mahlmann’s car, but did see him looking at the back of his car
after the accident.
The jury found that Wright had sustained permanent
injury or incurred medical expenses directly related to injuries
sustained in the accident in excess of $1,000, but that Mahlmann
was not at fault.
Wright’s motions for a new trial and judgment
not withstanding the verdict were denied.
This appeal followed.
On appeal, Wright first argues that the trial court
erroneously failed to give a “sudden stopping” instruction.
Both parties tendered instructions to the trial court.
proposed instructions provided, in pertinent part:
1. It was the duty of the Defendant,
John Mahlmann, in driving his automobile, to
exercise ordinary care for his own safety
and for the safety of other persons using
the highway and this general duty included
the following specific duties:
a. To have his automobile under
reasonable control;
b. To exercise ordinary care to avoid
collision with other persons or vehicles on
the highway;
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Wright’s
c. Not to stop his vehicle, except
when necessary to avoid conflict with other
traffic, within an intersection.
d. Not to suddenly stop his vehicle in
the roadway, except for a roadway hazard
confronting him with an emergency.
If you are satisfied from the evidence
that Defendant, John Mahlmann, failed to
comply with one or more of these duties and
that such failure was a substantial factor
in causing the collisions, you will find for
the Plaintiff, Tamara Wright; and proceed to
Instruction No. 2; otherwise, you will find
for the Defendant, John Mahlmann.
The trial court rejected the aforementioned proposed
instruction, and, as to the duties of Mahlmann, instructed the
jury as follows:
INSTRUCTION NO. 4
It was the duty of John J. Mahlmann in
driving his automobile to exercise ordinary
care for the safety of other persons using
the road, which general duty included the
following specific duties:
(a)
To keep a lookout ahead for
other persons and vehicles
near his intended line of
travel as to be in danger
of collision;
(b)
To have his 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
condition and use of the
highway;
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(d)
To exercise ordinary care
generally to avoid collision
with other persons and vehicles
used in the street;
(e)
Not to follow another vehicle
more closely that [sic] was
reasonable and prudent,
having regard for the speed
of the respective vehicles
and for the traffic upon and
condition of the roadway; and
(f)
It was the further duty of
each of the parties,
including John J. Mahlmann,
upon entering the
intersection, to exercise
ordinary care to observe the
presence and avoid collision
with any other conflicting
traffic which may have already
entered the intersection but
had not yet cleared through it.
If you are satisfied from the evidence
that John J. Mahlmann failed to comply with
one or more of these duties and that such
failure on his part was a substantial factor
in causing the accident, you will find
against John J. Mahlmann.
“The instructions given by the trial court should be
confined to the issues raised by the pleadings of the case . . .
and by the facts developed by the evidence[.]”
Farrington
Motors, Inc. v. Fidelity & Casualty Co. of New York, 303 S.W.2d
319, 321 (Ky. 1957).
A party to civil litigation is entitled to
have his or her theory of the case submitted to the jury if
there is any evidence to sustain it.
S.W.2d 945, 947 (Ky. 1991).
Risen v. Pierce, 807
A trial court must instruct the
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jury in a civil case on each party’s common law and statutory
duties.
Clark v. Hauck Manufacturing Co., 910 S.W.2d 247, 251
(Ky. 1995).
Wright contends that Mahlmann had a statutory duty not
to stop in an intersection (KRS 189.450(5)(d)) and not to stop
upon any portion of the roadway (KRS 189.450(1)).
Wright
further cites to Woosley v. Smith, 471 S.W.2d 737 (Ky. 1971) and
Ferguson v. Stevenson, 427 S.W.2d 822 (Ky. 1968), for the
proposition that a driver who stops on the roadway is negligent
as a matter of law.
Wright contends, therefore, that the trial
court committed reversible error in failing to instruct the jury
as to Mahlmann’s duty not to stop suddenly in an intersection or
roadway.
A trial court should give only “bare bones”
instructions, which can be subsequently fleshed out by counsel
in closing argument.
First and Farmers Bank of Somerset, Inc.
v. Henderson, 763 S.W.2d 137, 142 (Ky.App. 1988) (citing Cox v.
Cooper, 510 S.W.2d 530 (Ky. 1974)).
If “[t]he instructions as a
whole fairly state the law of the case embodying the respective
theories of the parties” and any “objectionable features of the
instructions are not considered prejudicial”, the instructions
do not constitute reversible error.
S.W.2d at 321.
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Farrington Motors, 303
Under the facts of this case, we disagree with Wright
that the trial court was required to give a “sudden stopping”
instruction.
The present case is readily distinguishable from
Ferguson (negligence as a matter of law where it was undisputed
that motorist stopped and backed up on a highway) and Woosley
(negligence as a matter of law where motorist stopped on main
traveled portion of highway for purpose of backing up to pick up
a friend). 2
The statutory duties enumerated in KRS 189.450(1)
(no stopping upon a roadway) and KRS 189.450(5)(d) (no stopping
within an intersection) are codifications of ordinary care, see
generally Lucas v. Davis, 409 S.W.2d 297, 300 (Ky. 1966), and
the general instruction given by the trial court would have
allowed the jury to find Mahlmann negligent under Wright’s
theory of the case.
Risen, 807 S.W.2d at 947; Farrington
Motors, 303 S.W.2d at 321.
Further, Wright’s counsel had the
full opportunity to “flesh out” the instruction in his closing,
and did so, submitting to the jury that Mahlmann caused the
accident by stopping suddenly in the middle of an intersection,
and informing the jury that this situation is covered by the
ordinary care instruction.
First and Farmers Bank, 763 S.W.2d
at 142; Farrington Motors, 303 S.W.2d at 321.
Accordingly, we
conclude the trial court did not err in refusing to give a
“sudden stopping” instruction.
2
We further note that instructions were not at issue in Woosley or Ferguson.
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We next address Wright’s argument that the trial court
should have granted a directed verdict on the issue of
Mahlmann’s liability.
Wright contends that all of the evidence
indicated that Mahlmann stopped suddenly in the roadway, with
the only dispute being as to whether it was in the intersection
or not.
Wright further contends that there is no obligation or
right to stop on a yellow light of a traffic control device
which is changing, and hence, Mahlmann “had no right to stop his
vehicle in the middle of the roadway at the yellow light.”
Therefore, Wright argues that Mahlmann was negligent per se, and
a directed verdict should have been entered.
We disagree.
The evidence in the case was conflicting
as to the facts surrounding the collision.
Contrary to Wright’s
assertion, all of the evidence was not that Mahlmann suddenly
stopped in the roadway.
Mahlmann’s testimony was simply that he
stopped for a yellow light in the “proper place”.
not testify that he stopped suddenly.
Mahlmann did
Further, Wright’s
argument that Mahlmann had no right to stop for a yellow light
is completely without merit.
KRS 189.338(2) provides that a
steady yellow signal warns vehicular traffic that “green
movement is being terminated or that a red indication will be
exhibited immediately thereafter when vehicular traffic shall
not enter the intersection.”
It goes without the need for
further citation that an individual not only may, but should
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stop at a yellow light under penalty of receiving a citation for
running a red light if the light in fact turns red before the
individual clears the intersection.
Viewing the evidence in the
light most favorable to Mahlmann, the trial court did not err in
submitting the negligence issue to the jury.
Buchholtz v.
Dugan, 977 S.W.2d 24, 26 (Ky.App. 1998); Lovins v. Napier, 814
S.W.2d 921, 922 (Ky. 1991).
In light of our conclusions above, the remainder of
Wright’s arguments are rendered moot.
For the aforementioned
reasons, the judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael T. Connelly
Louisville, Kentucky
Andrew N. Clooney
Louisville, Kentucky
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