                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


William Gillman and Boxley Aggregates
of West Virginia, LLC d/b/a Boxley Materials,
                                    FILED
Defendants Below, Petitioners                                                 January 5, 2018

                                                                             EDYTHE NASH GAISER, CLERK
vs) No. 17-0237 (Raleigh County 13-C-375-K)                                  SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA


Jessica Morton,

Plaintiff Below, Respondent



                              MEMORANDUM DECISION
       Petitioners William Gillman and Boxley Aggregates of West Virginia, LLC d/b/a Boxley
Materials, by counsel Christopher J. Sears, appeal the Circuit Court of Raleigh County’s
February 10, 2017, order following a non-jury trial finding in favor of respondent related to an
automobile accident. Respondent Jessica Morton, by counsel Benny G. Jones, filed a response in
support of the circuit court’s order. Petitioners also submitted a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On October 14, 2011, Respondent Jessica Morton was driving a pick-up truck in Beckley,
West Virginia, and Petitioner William Gillman, an employee of Boxley Materials, was operating
a water tanker truck as part of his job duties. While traveling from Boxley Materials’ quarry
toward Beckley, Mr. Gillman pulled the truck off the road into the Bradley PSD entrance to turn
around. After turning the truck on the PSD premises, Mr. Gillman was pulling onto a roadway to
return to the Boxley Materials facility. Meanwhile, respondent rounded a curve, and the two
were involved in a vehicle accident. Respondent alleged below that she suffered serious and
permanent injuries to her right knee, head, and back and incurred medical bills in the amount of
$55,309.53. Respondent filed her complaint on May 9, 2013, alleging negligence against
petitioners.

        The parties agreed to conduct a bench trial, which trial took place on October 31, 2016.
Following the bench trial, the circuit court entered is February 10, 2017, “Order Following Non-
Jury Trial.” The circuit court found that the tanker truck driven by Mr. Gillman was unlicensed
and unregistered but was equipped with emergency flashing lights at the time of the incident. It
further found that Mr. Gillman did not have the correct driver’s license or proper endorsements
to operate the water tanker truck on the highway. The circuit court determined that while Mr.

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Gillman did not see any vehicles approaching when he

       commenced to drive the water tanker truck onto the highway . . . after reaching
       the highway, he observed [respondent’s] pick-up truck approaching. [Mr.]
       Gillman did not know how far his water tanker truck had proceeded onto the
       highway before he first spotted [respondent’s] vehicle coming toward him. . . .
       When [he] first observed [respondent’s] pickup-truck, he was only partially
       blocking the roadway, but decided to continue to drive across the roadway,
       thereby blocking any possible avenues of escape for [respondent].

Respondent’s vehicle struck the water tanker truck at a right angle on the front left corner of the
tanker truck.

        In its order, the circuit court noted that Mr. Gillman and respondent were the only
witnesses to the accident. Respondent testified that she came around the curve traveling at
twenty-eight to thirty miles per hour (in a forty mile per hour zone) and noticed petitioners’ truck
pulling out in front of her. She tried to brake, blew her horn, and swerved to the right to avoid
hitting it. However, she could not avoid the collision. The circuit court found that, unlike
respondent’s testimony, Mr. Gillman’s testimony was not straight forward, noting that he could
not recall pertinent aspects of the incident; he was also unable to provide some basic information
about the tanker truck and the accident itself. Mr. Gillman responded on numerous occasions that
he did not know, could not say, or could not remember. Therefore, the circuit court found
respondent’s testimony to be more credible than Mr. Gillman’s and accorded Mr. Gillman’s
testimony “no significant weight.”

        The circuit court concluded that while both Mr. Gillman and respondent were negligent,
Mr. Gillman was at fault for the subject accident, stating that had he promptly stopped his
vehicle after seeing respondent he would have left an escape route open for her to take to avoid
impact. Instead, he continued pulling onto the roadway, negligently blocking both lanes of the
road. It noted that the parties had agreed that respondent’s injuries were proximately caused by
this accident and that the total medical bills of $55,309.53 were necessary and reasonable. The
parties also agreed that respondent would not present a claim at trial for future medical bills. The
circuit court awarded respondent $165,000 in damages but attributed 20% of the negligence to
her, so it reduced that award to $132,000, plus post-judgment interest and costs.1 The circuit
court also awarded respondent pre-judgment interest on her medical bills but also reduced that by
20%. In that order, the circuit court also denied petitioners’ motion for judgment as a matter of
law. Petitioners appeal from that order.

             In reviewing challenges to the findings and conclusions of the circuit court
       made after a bench trial, a two-pronged deferential standard of review is applied.

       1
         The circuit court’s February 10, 2017, order does not set forth the basis for the amount
of the judgment. However, in addition to the $55,309.53 in medical bills, respondent requested
damages for pain and suffering, mental anguish, and annoyance and inconvenience. Further,
petitioner did not assign error to the amount of the award to respondent.


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       The final order and the ultimate disposition are reviewed under an abuse of
       discretion standard, and the circuit court’s underlying factual findings are
       reviewed under a clearly erroneous standard. Questions of law are subject to a de
       novo review.

Syl. Pt. 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996).

        Petitioners’ single assignment of error is essentially that the circuit court erred by failing
to employ the sudden emergency doctrine in analyzing the facts and circumstances of the
accident. In support of this assertion, petitioners argue that Mr. Gillman was confronted with a
sudden emergency because respondent came into view after Mr. Gillman had already begun
pulling onto the roadway.

       In order to determine whether the sudden emergency doctrine is applicable, a court must
determine the following:

       (1) Whether the defendant was confronted with a sudden emergency; (2) if so,
       whether the emergency was created by the defendant; and (3) if the defendant was
       confronted with a sudden emergency not created in whole or in part by his own
       negligence, whether in the circumstances of such emergency he acted as a
       reasonably prudent person would have acted in like circumstances.

Reilley v. Byard, 146 W. Va. 292, 299-300, 119 S.E.2d 650, 654-55 (1961). However, we have
also held as follows:

       The sudden emergency doctrine is not applicable when a motorist is faced with
       nothing more than “an everyday traffic problem for which he should have been
       prepared.” Finley [v. Wiley], 246 A.2d [715] at 719 [(1968)].

               [S]ome “emergencies” must be anticipated, and the actor must be
               prepared to meet them when he engages in an activity in which
               they are likely to arise. Thus, under present day traffic conditions,
               any driver of an automobile must be prepared for the sudden
               appearance of obstacles and persons in the highway, and of other
               vehicles at intersections, just as one who sees a child on the curb
               may be required to anticipate its sudden dash into the street, and
               his failure to act properly when they appear may be found to
               amount to negligence. (Footnotes omitted).

       In such situations when the “emergency” should have been anticipated, the
       ordinary rules of negligence are applicable and provide an adequate gauge by
       which to appraise a party’s conduct. See Finley, supra.

Moran v. Atha Trucking, Inc., 208 W. Va. 379, 389, 540 S.E.2d 903, 913 (1997).



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         Despite petitioner’s representations in his briefs before this Court, during trial petitioner
testified as follows:

       Q: And how far was the front of your truck out in the road [when you saw the
       white truck driven by respondent coming from your left]?
       A: I do not know.
       Q: How far was the white truck away from you when you first saw the white
       truck?
       A: I do not know that.
       Q: How fast was the white truck going towards – coming towards you when you
       first saw it?
       A: I could not say.
       Q: How fast were you going when you first saw the white truck?
       A: I could not say. Approximately two – one mile an hour, two mile an hour. It’s
       [sic] very slow.
       Q: And how far had you entered out in the highway when you first saw it?
       A: I do not know.
       Q: Well, you told us four feet before. Is that not accurate?
       A: I do not know.

                                                ***

       Q: . . . So did you think [respondent] was speeding?
       A: I could not say at that time.

As we stated in Moran, “[a] sudden emergency instruction is to be given rarely, in instances of
truly unanticipated emergencies which leave a party little or no time for reflection and
deliberation, and not in cases involving everyday traffic accidents arising from sudden situations
which, nevertheless, reasonably prudent motorists should expect.” Syl. Pt. 5, id. (emphasis in
original). Based on petitioner’s own testimony, we find that the circuit court did not err in failing
to employ the sudden emergency doctrine, particularly in light of the fact that it found negligence
on the part of respondent and reduced her award accordingly.

                                                                                           Affirmed.

ISSUED: January 5, 2018

CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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