CHARLOTTE REGENSTREIF, and CARA REGENSTREIF V. LINDA O . PHELPS
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MODIFIED : SEPTEMBER 17, 2004
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,SixpremE (,gourf of
2001-SC-0987-DG
CHARLOTTE REGENSTREIF, and
CARA REGENSTREIF
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-1538-MR
FAYETTE CIRCUIT COURT NO . 98-CI-2335
V.
LINDA O. PHELPS
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I . ISSUE
A vehicle driven by Appellee, Linda Phelps ("Phelps"), crossed the center line
and struck head-on a vehicle driven by Appellant, Charlotte Regenstreif ("Regenstreif') .
Because of evidence that "black ice" caused the accident, the trial court's instructions
qualified Phelps's duties with a sudden emergency instruction . The jury found that
Phelps did not violate her duties and returned a verdict in her favor. Was it error to
qualify Phelps's duties with a sudden emergency instruction? Because we hold that the
adoption of comparative negligence did not abolish the sudden emergency doctrine, we
overrule Bass v. Williams ' to the extent that it does so, and accordingly, we hold that
1 Ky. App ., 839 S.W .2d 559 (1992) .
the trial court did not err in qualifying Phelps's duties with a sudden emergency
instruction .
II. BACKGROUND
On the morning of February 7, 1996, Phelps was making a routine journey from
Versailles to Lexington, to the home of Dr . & Mrs . Piercy, in the Castlegate subdivision,
where she provided childcare services for the Piercy's children. As Phelps was turning
into the subdivision, Regenstreif was preparing to drive her daughter, Cara, to school .
Regenstreif had already backed out of her driveway and was beginning to proceed up a
small, curved hill by her house, when Phelps lost control of her car, crossed into the
oncoming lane and struck Regenstreif's vehicle head on .
Regenstreif and her daughter (collectively "Regenstreifs") filed a negligence
action against Phelps in the Fayette Circuit Court seeking damages from Phelps for
their personal injuries and for damage to Regenstreif's automobile . At trial, Phelps
testified that the road was clear from Versailles to Lexington, but that she lost control of
her vehicle in the subdivision because of a patch of ice on the road in the curve . She
testified that the ice was not visible from her vehicle and only observed the ice after
leaving her vehicle after the accident . Mrs. Piercy testified that the roads in the
subdivision were slick that morning . The officer who was called to the scene testified
that ice was present on the roads in the subdivision and that her cruiser skidded on the
ice past the scene of the collision when she arrived at the accident site . Based on the
foregoing, the trial court instructions qualified Phelps's duties with a sudden emergency
instruction ,2 over the objection of the Regenstreifs' attorney, who, relying on Bass,
2 Although mentioned at oral argument, we do not address whether only certain
of Phelps's specific duties, as opposed to all of her duties, set forth in the instruction
should be qualified by a sudden emergency instruction.
asserted that "with the adoption of comparative negligence, it is error to instruct the jury
on a sudden emergency theory . "3
Although one of the specific duties that the jury instructions imposed on Phelps
was a duty "[t]o drive and keep her automobile on the right hand side of the roadway[,]"
and although it was undisputed that Phelps' vehicle crossed the center line and struck
Regenstreif's vehicle, the jury found that Phelps was not at fault and returned a verdict
in her favor. In accordance with the verdict, the trial court entered a judgment
dismissing the Regenstreifs' complaint .
The Regenstreifs appeal the judgment, and the Court of Appeals, after noting
that "[i]t is difficult to view the trial court's disregard of Bass as anything but error," held
that the error was harmless . We granted discretionary review, and although we affirm
the Court of Appeals, we overrule Bass to the extent that it abolished the sudden
emergency doctrine . Accordingly, we hold that the trial court did not commit error by
qualifying Phelps's duties with a sudden emergency instruction .
III . ANALYSIS
The Regenstreifs, understandably, rely exclusively on Bass in seeking a reversal
of the Court of Appeals's decision . In Bass , the Court of Appeals found that the sudden
emergency instruction "is in violation of the 'direct proportion to fault' concept" 4 adopted
by this Court in Hilen v. Hays 5 and concluded "that, with the adoption of comparative
negligence, it is error to instruct the jury on a sudden emergency theory .
3 Bass , 839 S .W.2d at 563 .
4 Id .
5 Ky., 673 S .W.2d 713 (1984) .
6 Bass, 839 S .W .2d at 563.
,6
The Bass
Court's holding has been the law in this jurisdiction since 1992,' and we agree with the
Regenstreifs, that, if Bass remains the law, they are entitled to a reversal of the Court of
Appeals's decision and a new trial . However, after reviewing the principles of
comparative negligence and the purposes served by a sudden emergency qualification,
we find no conflict between comparative negligence and the sudden emergency
qualification, and accordingly, we hold that it is not error to instruct on a sudden
emergency when warranted by the evidence . Bass is overruled to the extent it
abolished the sudden emergency doctrine in Kentucky.
A. Purpose of Comparative Negligence
Comparative negligence "calls for liability for any particular injury in direct
proportion to fault. ,,8 As opposed to contributory negligence, where the plaintiffs
negligence can be a complete defense, comparative negligence "shift[s] the focus of
attention from liability to damages, and . . . divide[s] the damages between the parties
who are at fault." 9 A finding of fault involves an examination of the duties of each party
and a determination of whether those duties were breached .' °
In 1984, this Court concluded that contributory negligence should be supplanted
by comparative negligence and explained its reason for doing so:
Comparative negligence is not "no-fault," but the direct
opposite . It calls for liability for any particular injury in direct
proportion to fault . It eliminates a windfall for either claimant
or defendant as presently exists in our all-or-nothing
situation where sometimes claims are barred by contributory
negligence and sometimes claims are paid in full regardless
SCR 1 .040(5) .
8 Hilen v. Hays , Ky., 673 S.W.2d 713, 718 (1984) . Accord KRS 411 .182 .
9 WILLIAM L. PROSSER Sc W . PAGE KEETON, PROSSER 8c KEETON ON TORTS 470 (5 TH
ed ., Hornbook Series, 1984) .
'° Harris v. Thompson , Ky., 497 S .W .2d 422 (1973); Bass v. Williams , Ky. App .,
839 S .W .2d 559, 563 (1992) .
of contributory negligence such as in cases involving last
clear chance or defendant's willful or wanton negligence ."
In 1988, the Kentucky legislature codified comparative fault. 12
B . Purpose of Sudden Emergency Qualification
The common-law doctrine of "sudden emergency" attempts to explain to a jury
how to judge the allegedly negligent conduct of a person, plaintiff or defendant, who is
suddenly confronted with an emergency situation that allows no time for deliberation . 13
The sudden emergency doctrine does not excuse fault; it defines the conduct to be
14
expected of a prudent pers on in an emergency situation . In Harris v. Thompson , 15 our
predecessor court noted the purpose for including the sudden emergency qualification
in instructions :
[W]hen a defendant is confronted with a condition he
has had no reason to anticipate and has not brought on by
his own fault, but which alters the duties he would otherwise
have been bound to observe, then the effect of that
circumstance upon these duties must be covered by the
instructions .
In Kentucky, sudden emergency qualifications have been approved in
automobile collision cases in which the defendant driver has encountered a patch of ice
on the roadway or children or animals darting into the roadway . 17 Kentucky also
11 Hilen v. Hays, Ky., 673 S.W.2d at 718 (citations omitted) .
12
13
1988 Ky. Acts ch . 224 ; KRS 411 .182.
Jeffrey F. Ghent, J .D ., Annotation, Modern Status of Sudden Emergency
Doctrine , 10 A .L .R . 5 th 680 (1993).
14 Compton v Pletch , 580 N .E.2d 664 (Ind . 1991) ; Brooks v. Friedman , 769
N .E .2d 696 (Ind . Ct. App. 2002).
15 Ky .,
497 S .W .2d 422 (1973).
16 Id . at 428 (emphasis added) .
17 Harris v. Thompson , Ky., 497 S .W .2d 422 (1973) (where defendant driver
encountered ice) ; Brown v. Todd , Ky., 425 S .W .2d 737 (1968) (where the defendant
-5-
recognizes that other situations such as other vehicles, swooping airplanes or falling
boulders, could conceivably create an emergency for a driver that would justify a
sudden emergency qualification . '8 In explaining why the qualification need be given in
cases where a driver encounters an ice patch, our predecessor court stated :
While the driver must take into consideration the slippery
condition of the highway. . . . if the evidence shows that the
accident resulted from a condition of the road and not from
any negligence of the driver, no liability results, since it is
common knowledge that an automobile may skid on a
slippery highway without any negligence on the part of the
operator .'
C. Was Sudden Emergency Doctrine
Subsumed by Comparative Negligence?
The sudden emergency qualification was not subsumed by the comparative
negligence doctrine .2° In comparative negligence, the plaintiff's damages are reduced
in proportion to his or her fault .21 A party's fault is determined by evaluating his or her
conduct in consideration of the duties he or she is bound to observe.22 "Mhe sudden
emergency doctrine is merely an expression of the reasonably prudent person standard
of care. It expresses the notion that the law requires no more from an actor than is
reasonable to expect in the event of an emergency . ,23 In other words, in the
comparative negligence case, "[t]he sudden emergency instruction informs the jury . . .
driver encountered a "good-sized dog"); Atlantic Greyhound Corp. v. Franklin , Ky., 192
S.W .2d 753 (1946) (where the defendant driver encountered ice) .
18
Brown v. Todd , 425 S .W .2d at 739.
' 9 Atlantic Greyhound Corp . v. Franklin , 192 S .W .2d at 755 (citation omitted) .
2°
Mosell v Estate of Marks, 526 N .W .2d 179 (Iowa Ct. App . 1994) .
21
WILLIAM L. PROSSER & W . PAGE KEETON, PROSSER & KEETON ON TORTS 472 (5 TH
ed ., Hornbook Series, 1984).
22
Harris v . Thompson , Ky., 497 S.W .2d 422 (1973); Bass v. Williams , Ky. App.,
839 S .W .2d 559, 563 (1992) .
23
W eiss v . Bal , 501 N .W .2d 478, 481 (Iowa 1993) .
how it is to allocate fault and apportion damages when the conduct of the person in
question is that of an 'ordinarily prudent person' when faced with an emergency
situation
.,,24 "Significantly,
the doctrine explains to the jury the standard of conduct
expected of defendants and plaintiffs who act under the stress of an emergency
situation .,,25
With the adoption of comparative negligence, the sudden emergency doctrine is
now only a factor in the total fault analysis . 26 In cases like this one, where the
defendant encountered a patch of ice, the defendant's failure to adhere to the duties
enumerated by statute (e.g ., to keep her automobile on the right hand side of the road),
without a sudden emergency qualification, will result in liability even if the defendant
was not at fault.
The core principle of comparative negligence is that "[o]ne is liable for an amount
equal to his degree of fault, no more and no less .,,27 The sudden emergency doctrine
necessarily complements this principle in those particular cases where additional
circumstances alter the way in which one's degree of fault should be determined . We
find no friction between comparative negligence and the sudden emergency doctrine,
and therefore, we conclude that the Bass Court erred in abolishing the doctrine on this
ground .
24
25
26
Compton v. Pletch , 561 N .E.2d 803, 807 (Ind . Ct. App. 1990) .
Young v. Clark, 814 P .2d 364, 368 (Colo . 1991) .
Ross v. Vanderbilt University Medical Center, 27 S .W .3d 523 (Tenn. Ct. App.
2000) . Accord RESTATEMENT (SECOND) OF TORTS § 296 (1) ("In determining whether
conduct is negligent toward another, the fact that the actor is confronted with a sudden
emergency which requires rapid decision is a factor in determining the reasonable
character of his choice of action .") .
27
Stratton v. Parker, Ky., 793 S .W .2d 817, 820 (1990).
IV. CONCLUSION
We affirm the Court of Appeals and overrule Bass v. Williams to the extent that it
rejects the sudden emergency doctrine .
Cooper, Johnstone and Wintersheimer, JJ., concur. Lambert, C .J., dissents by
separate opinion in which Graves and Stumbo, JJ ., join .
COUNSEL FOR APPELLANTS :
David A. Weinberg
Weinberg & Capello
301 East Main Street - Suite 110
Lexington, Kentucky 40507
COUNSEL FOR APPELLEE:
Perry M . Bentley
Stoll, Keenon & Park
300 West Vine Street
Suite 2100
Lexington, Kentucky 40507
Todd S. Page
Stoll, Keenon & Park
300 West Vine Street
Suite 2100
Lexington, Kentucky 40507
RENDERED : AUGUST 26, 2004
TO BE PUBLISHED
,$ixprgme (fourf n£ ~snfuckg
2001-SC-0987-DG
CHARLOTTE REGENSTREIF and
CARA REGENSTREIF
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
2000-CA-1538-MR
FAYETTE CIRCUIT COURT NO . 98-CI-2335
V
LINDA O. PHELPS
APPELLEE
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
Respectfully, I dissent from the majority opinion and would both reaffirm
Bass v. Williams ' and affirm the decision of the Court of Appeals .
With the adoption of comparative negligence this state abandoned a legal
relic, the sudden emergency doctrine . Sudden emergency instructions serve only to
confuse the jury and are incompatible with comparative negligence . As the Court of
Appeals well reasoned, "The instruction has a quality to it that diminishes the duties of
the defendant-driver . . . and is in violation of the 'direct proportion to fault' concept . . . "2
When a sudden emergency instruction is given, a lower standard of care is granted to
the defendant, and his failure to exercise care appropriate to the circumstances is
' Bass v. Williams , Ky. App ., 839 S .W .2d 559 (1992) .
2
Id . a t 562-63 .
excused . Under comparative negligence, "[f]ault is determined by breach of duties and
that is the sole factor upon which liability is fixed."3 Every driver has a general duty to
exercise ordinary care . 4 "[T]he instruction on sudden emergency is unnecessary and
potentially confusing and serves to overemphasize one portion of the case .,,5
In my view, the majority opinion is a retreat from a modern and
enlightened statement of law. While other states are moving away from the sudden
emergency doctrine, we have done an about face without any indication of a
demonstrable need for such action . Stare decisis is a legal principle that directs us to
uphold our previous decisions, unless there is a sound legal and logical reason to do
otherwise .6 Bass represents a sound judicial decision that has served this Court and
this state well for twelve years.
The reasons supporting abandonment of the sudden emergency doctrine
were well stated by the Supreme Court of Mississippi as follows :
The hazard of relying on the doctrine of "sudden emergency"
is the tendency to evaluate its principles above what is
required to be proven in a negligence action. Even the
wording of a well-drawn instruction intimates that ordinary
rules of negligence do not apply to the circumstances
constituting the claimed "sudden emergency ." Also it tends
to confuse the principle of comparative negligence that is
well ingrained in the jurisprudence of this State. The fallacy
is pointed out in the instruction itself when after seemingly
commenting on the evidence, the court instructs that the
defendant should have "used the same degree of care that a
reasonably prudent automobile driver would have used
under the same or similar unusual circumstances ." In this
Court's opinion, the same rules of negligence should apply
to all circumstances in a negligence action and these rules
_Id . at 563 .
4 Wernyss v. Coleman , Ky., 729 S .W.2d 174, 180 (1987) .
-` Gunleavy v. Miller, 862 r .2d 1212, 1218 (N .M . 1993).
Hilen v. Hays, Ky., 673 S .W .2d 713 (1984) .
2
G
of procedure adequately provide for instructions on
negligence .'
We conclude, therefore, that the orderly disposal of
negligence cases would be best served by applying uniform
principles of negligence under all circumstances . 8
This view has been followed by a number of other jurisdictions . 9 Until
now, Kentucky has been in harmony with this modern view.
A simple jury instruction apportioning fault eliminates any need for the
sudden emergency instruction. In negligence cases, instructions are designed to
apportion between or among the parties . Such apportionment obviously permits a
determination that a party had no fault whatsoever. The sudden emergency doctrine is
simply unnecessary and will disserve the fact-finding process .
For the reasons stated herein, I dissent.
Graves and Stumbo, JJ ., join this dissenting opinion .
' Knapp v. Stanford , 392 So . 2d 196, 198 (Miss . 1980) .
_Id . at 199.
`' See Wiles v . Webb, 329 Ark. 108, 946 S .W .2d 685 (1997) ; Qunleavy v. Miller, 862
P 2a 1212 ; McCiymont v. fwrorqan , 238 web. 390, 410 iii . tiv.2u 768 (1991 ;; Si;nonson v
White , 220 Mont. 14, 713 P .2d 983 (1986) .
3
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