                                                     RENDERED : AUGUST 26, 2010
                                                               TO BE PUBLISHED

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                       2007-SC-000795-DG     wu v
                       2008-SC-000204-DG
                                         13AT
ELAINE T. HENSON AND ST. PAUL     APPELLANTS/ CROSS-APPELLEES
FIRE AND MARINE INSURANCE COMPANY



                    ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO . 2006-CA-001692-MR
                 JEFFERSON CIRCUIT COURT NO . 03-CI-007021



DAVID KLEIN                                          APPELLEE/ CROSS-APPELLANT



                OPINION OF THE COURT BY JUSTICE VENTERS

                                     AFFIRMING

      This case arises from the collision of two personal watercrafts on Lake

Cumberland, one operated by Appellant, Elaine Henson, and the other

operated by Appellee, David Klein . A judgment based on a jury verdict was

entered in the trial court in Klein's favor . The Court of Appeals affirmed the

judgment . We granted discretionary review to consider Henson's argument

that the jury was incorrectly instructed on the sudden emergency doctrine, and

to re-examine our holding in Regenstreif v. Phelps, 142 S .W.3d 1 (Ky. 2004) . 1


1 Regenstreif overruled Bass v. Williams, 839 S .W .2d 559 (Ky. App . 1992), and held
   that the sudden emergency doctrine is unaffected by the adoption of comparative
   fault.
We conclude that the sudden emergency jury instruction is essential to a

proper determination of liability in emergency situations. Accordingly, we

reaffirm Regenstreif, and affirm the decision of the Court of Appeals.

                 I . FACTUAL AND PROCEDURAL BACKGROUND

       As a result of the collision, Henson sued Klein, alleging that his

negligence caused her injuries . St. Paul Fire and Marine Insurance Company

paid workers' compensation benefits to Henson, and intervened in the action to

assert its right of subrogation against Klein. By agreement prior to trial, St.

Paul allowed its interest in the matter to rise or fall with Henson's claim and

did not participate in the trial. Although both Henson and St . Paul have

appealed, for the reader's convenience, we refer throughout this opinion to both

Appellants collectively as "Henson ."

      Evidence at trial established the following facts. Henson, director of

business development for a construction company, assisted her employer in

entertaining several business guests for a weekend on a houseboat on Lake

Cumberland . Henson's friend, Klein, accompanied her to assist as needed .

The houseboat was equipped with two personal watercrafts which were

available for use by the hosts and their guests .

      "Personal watercraft" is defined by KRS 235 .010(4) as a vessel which

uses an internal combustion engine to power a jet pump for its primary source

of propulsion, and is operated by a person sitting, standing, or kneeling on the

vessel, as opposed to a conventional boat, within which passengers and

operators ride . Personal watercrafts are more commonly known by their brand
 names, such as Jet Ski, WaveRunn.er, or Sea-Doo. The two involved here were

 Sea-Doos, and we will refer to them throughout this opinion by that name.

       Like most boats, a Sea-Doo has no mechanical brake. Stopping is

 normally achieved by releasing the throttle to stop the forward propulsion .

With no rudder, steering is achieved by turning a handlebar that changes the

direction of the jet thrust. As a result, steering efficacy is significantly reduced

when the throttle is released. Because they operate under different mechanical

systems and in an entirely different environment, the driving characteristics of

personal watercrafts are very different from automobiles, motorcycles, or other

vehicles that operate on land.

      During the weekend outing, Henson decided to take a ride on one of the

Sea-Doos . Her employer asked Klein to follow her on the other Sea-Doo . He

complied . After about an hour, they decided to return to the houseboat.

Henson led the way, with Klein trailing behind her and off to the left, in what

may be described as the "wingman formation ." The testimony placed Klein

thirty to forty-five feet behind Henson and ten to twenty feet to her left. Elmer

Knable, one of the business guests on the houseboat, witnessed the impending

collision between Henson and Klein .

      Knable testified that as the two Sea-Doos drew near the houseboat,

Henson looked back over her left shoulder and shouted something to Klein . As

she did so, she suddenly turned her Sea-Doo sharply to the left and abruptly

decelerated to a stop directly in Klein's path. Klein reacted by leaning his body

to the left and steering toward the left in an apparent effort to avoid Henson,
 but within seconds his Sea-Doo struck the forward left side of Henson's craft.

 The collision left Henson with serious injuries . Knable testified that if Henson

 had not abruptly turned to the left and stopped, Klein would not have hit her.

 No evidence was offered to suggest that Henson was confronted with an object

 or obstacle that she sought to avoid by stopping or turning to the left.

       Henson brought suit against Klein in the Jefferson Circuit Court. 2 In

due course, the case was tried before a jury. With respect to Klein's duties, the

trial court instructed the jury as follows :

       It was the duty of [Klein] . . . to exercise ordinary care for the safety
       of other persons using the waterway, including [Henson], and this
       general duty included the following specific duties :

       (a) To operate his personal watercraft in a reasonable and prudent
       manner in accordance with the "Rules of the Road" so as not to
       endanger human life, human physical safety or property; [3]

       All of the above duties being subject, however, to this qualification :
       that if immediately before the accident [Klein] was suddenly and
       unexpectedly confronted with an emergency by [Henson] turning
       her personal watercraft into the path of [Klein's] approaching
       watercraft, and if such emergency was not brought about by any
       failure on his part to perform the duties above set forth, he was not
       thereafter required to adopt the best course possible in order to
       avoid the impending danger but was required to exercise only such
       care as the jury would expect an ordinarily prudent person to
       exercise under the same conditions and circumstances.

       If you are satisfied from the evidence that [Klein], failed to comply
       with one or more of his duties and that such failure on his part
       was a substantial factor in causing the accident, you will find
       [Klein] at fault.




2 Klein resided in Jefferson County .
s This specific duty is imposed by KRS 235 .285(4) .
 With respect to Henson, the trial. gave this instruction :

        It was the duty of [Henson] . . . to exercise ordinary care for the
        safety of other persons using the waterway, including [Klein], and
        this general duty included the following specific duties :

        (a) To operate her personal watercraft in a reasonable and prudent
        manner in accordance with the "Rules of the Road" so as not to
        endanger human life, human physical safety or property; [4] and

       (b) Not to change the course of her personal watercraft without first
       determining that a course change could be made without risk of
       collision. [5]

       If you are satisfied from the evidence that [Henson] failed to comply
       with one or more of her duties, and that such failure was a
       substantial factor in causing the accident, you will find [Henson] at
       fault for the accident.


       These instructions were followed by a proper apportionment of fault

instruction. The interrogatory in the first verdict form asked the jury, "Did

defendant, David Klein, fail to comply with one or more of the duties set forth

in Instruction No. l, and, if so was that failure a substantial factor in causing

the collision?" The jury answered "no," and as instructed, completed no other

verdict forms, and then returned its verdict to the courtroom . Judgment was

entered accordingly .

       Henson appealed and argued to the Court of Appeals that the trial court

erred by instructing the jury that Klein's duties were subject to the sudden

emergency doctrine and by failing to instruct the jury that Henson had the

right-of-way over Klein . Klein filed a protective cross-appeal to preserve his


4 This specific duty is imposed by KRS 235 .285(4) .
5 This specific duty is imposed by 301 KAR 6:030 ; Section 6(fl .
 claim that the trial court erred by refusing to allow opinion testimony from an

 officer who had investigated the accident. The Court of Appeals affirmed the

 judgment on appeal without reaching the merits of the cross-appeal .

       On discretionary review, Henson reiterates her arguments regarding the

jury instructions . We invited the parties to submit additional oral and written

 arguments relating to the viability of the sudden emergency doctrine . Henson

 argues that because tort damages are now allocated in accordance with

comparative fault principles, the sudden emergency doctrine and the jury

instruction that implements it no longer serve a useful purpose and cause

confusion for juries .

  II . THE SUDDEN EMERGENCY DOCTRINE RETAINS A VALID AND USEFUL
                  PLACE IN KENTUCKY JURISPRUDENCE

     A. The Current Status of the Sudden Emergency Doctrine in Kentucky

       In Bass v. Williams, 839 S .W .2d 559, 563 (Ky . App. 1992), the Court of

Appeals concluded that the shift from contributory negligence to comparative

negligence eliminated the need for a sudden emergency instruction. The Bass

court reasoned that the sudden emergency doctrine "has a quality to it that

diminishes the duties of the defendant-driver . . . and is in violation of the

`direct proportion to fault' concept in Hilen[ 6 ]," and further, that it violates the

concept that "[a party] is liable for an amount equal to his degree of fault, no




6 Hilen v. Hays, 673 S .W.2d 713 (Ky. 1984)(adopting the principles of comparative
   negligence apportioning damages among the parties according to each party's share
   of fault and abolishing contributory negligence as a complete bar to recovery.)
 more and no less ." Bass, 839 S .W.2d at 563 ; see also Stratton v. Parker, 793

 S .W.2d 817, 820 (Ky. 1990) .

       The demise of the sudden emergency doctrine in Kentucky was short-

 lived. Twelve years later, in Regenstreif v. Phelps, 142 S.W .3d 1 (Ky. 2004), this

 Court overruled Bass. Regenstreif rejected the notion that the sudden

 emergency doctrine was incompatible with comparative negligence, finding

instead that it "necessarily complements" comparative negligence "in those

particular cases where additional circumstances alter the way in which one's

degree of fault should be determined ." Id. at 6.

       Despite Regenstreif, the question of the sudden emergency doctrine's

viability lingered. Now, we reaffirm its place as a necessary component of the

process by which juries must determine the fault of parties who, finding

themselves suddenly and unexpectedly in a position of imminent peril, respond

in a way that might otherwise breach a specific duty of due care .

                   B . The Sudden Emergencv Doctrine Defined

      The sudden emergency doctrine is generally defined at 57A Am.Jur.2d,

Negligence § 198 (2004) :

      [W]hen an actor is faced with a sudden and unexpected
      circumstance which leaves little or no time for thought,
      deliberation, or consideration, or causes the actor to be reasonably
      so disturbed that the actor must make a speedy decision without
      weighing alternative courses of conduct, the actor is not negligent
      if the actions taken are reasonable and prudent in the emergency
      context, provided the actor has not created the emergency.

The Restatement (Second) of Torts § 296 (1965) describes it as follows :
           (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 .

           (2) The fact that the actor is not negligent after the emergency has
           arisen does not preclude his liability for his tortious conduct which
           has produced the emergency.

       The rationale for the rule arises from the perception of human nature

 that "a prudent person, when brought face to face with an unexpected danger,

may fail to use the best judgment, may omit some precaution that otherwise

might have been taken, and may not choose the best available method of

meeting the dangers of the situation ." 57A Am .Jur.2d, Negligence § 200

(2004) . "The principle embodied in [the sudden emergency] rule enjoys almost

universal acceptance in the courts of the nation, founded as it is upon common

sense and a proper recognition of prudent standards in human conduct."

Breaux v. Roy Young, Inc., 397 So . 2d 1384, 1388 (La. App . 1981) .

       An important aspect in understanding how to transfer the doctrine from

its abstract theoretical definition to a real-world practical context is

emphasized in the following articulation of the concept, from Regenstreif, 142

S.W.3d at 4, (quoting Harris v. Thompson, 497 S.W.2d 422, 428 (Ky. App.

1973)) :

      [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 .

(emphasis added) .
 As explained below in Section C, without the specific sudden emergency

 instruction, the duties set out in standard comparative negligence instructions

 would be immutable . They would not permit the jury to base its finding of fault

 on whether it believed a party's conduct was a reasonable response to an

 emergency situation because the jury would not know that a qualifying

 emergency event "alters the duties" required of the affected party.

                         ment of Sudden Emer
                                  Jurisprudence

       In City of Louisville v. Maresz, 835 S .W.2d 889, 892 (Ky. App . 1992), the

Court of Appeals briefly recited the historic underpinning of the sudden

emergency doctrine, including its introduction into American law by the United

States Supreme Court in Stokes v. Saltonstall, 38 U.S. (1 Pet.) 181, 193, (1839)

(citing as authority the English case of Jones v. Boyce, 1 Starkie's Rep. 393,

 171 Eng. Rep . 540 (N.P. 1816)) and its introduction into Kentucky

jurisprudence in South Covington & Cincinnati Street Ry. Co. v. Ware, 84 Ky.

267, 1 S.W. 493 (1886) (citing Stokes, and noting that "[t]his rule is sustained

by both reason and precedent.")

      The rule of law is that when a person is placed in a position of peril
      by the negligence of another, and is compelled to choose instantly
      what to do to save himself, if he chooses as a person of ordinary
      prudence would have in such a position and is injured, he has a
      right to recover, notwithstanding the fact that, if he had made a
      different choice, he would not have been injured.

Illinois Central R. Co. v. Wilkins, 149 Ky. 35, 147 S .W. 759, 760 (1912) .

      Although the sudden emergency doctrine initially appeared in cases,

such as Illinois Central R.R. Co., absolving the plaintiff from the fatal effect of
 contributory negligence, the rationale behind the rule applied with equal force

 to those defending themselves against charges of negligence . By the early

 twentieth century, a review of reported cases shows that the rule was more

 often invoked by defendants, often transportation companies, as evidenced by

its application in Kentucky Traction 8a Terminal Co. v. Roschi's Adm'r, 186 Ky.

371, 216 S .W. 579 (1919) and Consolidated Coach Corp. v. Hopkins' Adm'r, 238

Ky. 136, 37 S .W.2d 1 (1931) ("[I]f the driver of the bus had turned to the right

instead of turning to the left, he would have passed behind the Ford, and no

one would have been injured, but, with only two-thirds of a second in which to

act, the bus company is not responsible if he chose not the wisest course- 11) 7

       We are aware of no boating accident cases in Kentucky that involve the

sudden emergency doctrine, but we note that the concept has long been

accepted in maritime litigation . See The Elizabeth Jones, 112 U .S . 514, 526

(1884) (quoting The Bywell Castle, L. R. 4 Prob. Div. 219) ("where one ship has,

by wrong maneuvers, placed another ship in a position of extreme danger, that

other ship will not be held to blame if she has done something wrong, and has

not been maneuvered with perfect skill and presence of mind.") . In Sekerek v.

Jutte, 25 A . 994, 995 (Pa. 1893), the court noted :

      [T]he change in the movement of the [decedent's] boat which
      brought a portion of it in front of [appellants' steamboat] was
      sudden, unexpected, and disconcerting .      The action of the


7 Although the rationale for the doctrine is applicable to any field of human endeavor,
   it is interesting to note that its use in litigation has been almost entirely in the
   context of transportation cases, perhaps because that activity very frequently
   combines the risks of exposure to injury with a need to respond quickly to changing
   conditions.


                                          10
       appellants' servants must therefore be considered in the light of
       the situation which suddenly confronted them . They were in the
       presence of an emergency which imperiled the lives of the men in
       the boat, and . . . had but a moment of time in which to think and
       act.

 The doctrine has also been recognized in modern recreational boating

 accidents. See Reed v. Reed, 153 N.W .2d 356 (Neb . 1967) (whether defendant's

 conduct in motorboat collision was excusable under sudden emergency

 doctrine was question for jury) ; Del Vecchio v. Lund, 293 N.W .2d 474 (S .D .

 1980) (operator of motorboat that struck water skier held entitled to a sudden

emergency instruction) .

       We turn next to an examination of the practical application of the

doctrine before and after the shift to comparative negligence .

 D. The Purpose Of The Sudden Emergency Instruction Is To Explain To A Jury
         That In An Emergency, Specific Duties Are Subject To Change

       In his analysis of the doctrine in Harris, Chief Justice Palmore wrote :

      [W]hether the instruction on a motorist's duties should be qualified
      by a proviso such as the sudden emergency theory does not
      depend upon whether the particular circumstance might be
      characterized in common parlance as a `sudden emergency,' but
      whether it changes or modifies the duties that would have been
      incumbent upon him in the absence of that circumstance.

497 S .W .2d at 428 (emphasis added .)

      Henson, adopting the views expressed in Bass and the Regenstreif

dissent, argues that a sudden emergency instruction is not needed under a

comparative negligence system because "at the end of the [sudden emergency]

analysis, the jury is back to the exact language of ordinary care ." The following

statement reveals the flaw of that view:
       It is our belief that the sudden emergency instruction so qualifies
       [Defendant's] duties to such an extent that they are lessened .
       Fault is determined by breach of duties and that is the sole factor
       upon which liability is fixed . . . . It is conclusively clear that such
       an instruction is not necessary because everything under the
       sudden emergency was already said in the instructions on general
       and specific duties of the driver.

 Bass, 839 S .W.2d at 563 .

       Far from being a defect of the sudden emergency instruction, the

 "lessen[ing]" of the duties applicable to individuals confronted with a sudden

emergency is exactly what the doctrine requires. It is the essence of the

doctrine as it developed in American law over the past 170 years . The sudden

emergency instruction tells the jury that, if it believes an emergency existed,

the relevant duties change.

       When the substantive law of the case admits to no specific duties, a

sudden emergency instruction may be unnecessary . The general duty to

exercise ordinary care for one's own safety and the safety of others is

universally present and never changes, although the conduct that constitutes a

violation of the general duty may depend on the circumstances . But in the

modern world of litigation, most aspects of human conduct and interaction are

governed by statutes and regulations that prescribe specific duties . A

negligence claim resting exclusively on the general duty of ordinary care is rare

indeed. When a statutory duty is supported by evidence, it must be

incorporated into a jury instruction as a "specific duty." Humana ofKentucky,

Inc. v. McKee, 834 S .W .2d 711, 722 (Ky. App . 1992) ("[T]he court obviously is

required to instruct the jury regarding that [statutory] duty because the


                                        12
violation of such a duty, standing alone, may be sufficient to support a claim of

negligence .") .

       Moreover, when a statutory duty is applicable, the jury instructions

should, after explaining the general duty, specify that it "includes" certain

enumerated specific duties because the breach of a duty imposed by statute or

ordinance is negligence per se if the harm which occurred incident to violation

of the statute is that type of harm which the statute was intended to prevent.

See Wemyss v. Coleman, 729 S.W.2d 174, 180 (Ky. 1987) . Where one's ability

to conform to a specific duty is arguably affected by the presence of a sudden

and unexpected peril, the jury is not adequately or fairly informed of what the

substantive law requires unless the specific duty is qualified with a sudden

emergency instruction.

       Harris illustrates the point. There, a motorist crossed the centerline of a

highway in apparent violation of his specific duties to keep his vehicle under

reasonable control and on the right side of the road . As a result, he struck and

killed two pedestrians. Harris pinpoints the reason why the sudden emergency

instruction is necessary:

     In this case the [sudden emergency instruction] was made
     necessary because by not remaining on the right side of the road
     [the motorist] violated a specific duty unless the exceptional
     circumstance of the ice on the road had the effect of relieving him
     from it. Had the accident taken place in his own lane of travel, or
     on the right side of the highway, it would not have been necessary,
     because then the unexpected presence of the ice would have
     amounted to no more than a condition bearing upon the question
     of whether the accident resulted from a failure on his part to
     comply with the more generalized duties of ordinary care. The
     proper criterion is whether any of the specific duties set forth in the


                                        13
       instruction would be subject to exception by reason of the claimed
       emergency.

 Harris, 497 S.W.2d at 428 (emphasis added.)

       The point bears repetition : had the accident occurred under

 circumstances that implicated only the generalized duty of ordinary care, no

 sudden emergency instruction was required . But, the specific duties

implicated by the conduct in question would be subject to exception by reason

of the claimed emergency. The presence of the emergency does not excuse the

breach of a specific duty; under appropriate circumstances, it can eliminate the

duty so that the conduct (crossing to the wrong side of the road) is not'a breach

at all. Harris accurately explained the consequences of failing to give the

sudden emergency instruction when it is due :

      The next following duty, which was to operate his automobile on
      the right-hand side of the highway `and not to pass over the center
      medium (sic) at the point where the accident herein occurred,' was
      not modified so as to allow for an unanticipated emergency which,
      without fault on his part, may have prevented his so doing. As
      given in this instruction the duty was absolute, hence in the
      absence of some qualifying language appearing elsewhere in the
      instructions it would have amounted to a directed verdict against
      [the motorist), because obviously he did cross over the center line
      of the highway on the way toward striking the two pedestrians .

Id. at 427.

      Without the "qualifying language" provided by a sudden emergency

instruction, the jury would have no choice but to find the motorist at fault

based on the obvious breach of specific duties, despite the law's recognition

that in an emergency, with little time for deliberation, the obligation to obey a
 specific duty may yield . A simple ordinary care instruction under comparative

 negligence does not do that .

    E . The Advent Of Comparative Negligence Did Not Eliminate The Need To
                     Instruct Juries_ On Sudden Emergency

       Although the sudden emergency doctrine developed when contributory

 negligence denied damages to injured plaintiffs whose own breach of care

 contributed to their injuries, it is not in principle uniquely or exclusively

applicable to contributory negligence . Moreover, nothing in the substance of

the doctrine is incompatible with the more equitable principles of comparative

negligence. Before the adoption of comparative negligence, juries routinely

determined whether either party, or both parties, had breached general or

specific duties of care . The sudden emergency qualification of those duties

applies equally to both plaintiffs and defendants . Brown v. Todd, 425 S .W.2d

737, 739 (Ky. 1968) ("the [sudden emergency] instruction qualifies the duties

imposed on any party charged with negligence . In this case one of defendant's

defenses was that the plaintiff driver was contributorily negligent . If the latter

had a right to defend the charge of contributory negligence on the ground of

sudden emergency, he would be entitled to the instruction the same as if he

had been a defendant charged with original negligence .") .

      Under both comparative negligence and contributory negligence

principles, a judgment of liability is based on the answers to two questions .

First, who was at fault? Second, upon what basis will the damages be

allocated among those parties found to be at fault?
       Under comparative negligence, the determination of who was at fault

 follows exactly the same path as it did under contributory negligence. The

 question of fault has always been answered by determining whether the party

 breached an applicable duty and whether the breach was a substantial factor

in causing the injury claimed.

      What comparative negligence changed was the way we allocate, or

apportion, fault. Under contributory negligence, if the plaintiff was to any

degree at fault for his injury, all the damage was allocated to him, and he could

recover nothing from the defendant, regardless of the defendant's degree of

culpability. Under comparative negligence, the finder of fact allocates to each

party a percentage of the total fault, and hence a percentage of the damages,

based upon that party's conduct and the relationship of that conduct to the

injury. Because the sudden emergency doctrine relates only to the question of

whether a duty was breached, and has no affect on the means by which

damages are allocated, the shift to comparative negligence should not in any

way alter our view about the necessity of a sudden emergency instruction .

Whether we allocate damages under comparative negligence or contributory

negligence, without a sudden emergency instruction, the jury has no way to

know that one's obligation to conform to specific duties may be affected by the

sudden presence of imminent peril. Eliminating the sudden emergency

instruction effectively eliminates the sudden emergency doctrine . We decline to

do so now, and thus we reaffirm the conclusions reached in Regenstreif.
    F. The Sudden Emergency Doctrine Should Not Be Modified To Apply Only
           When The Party Invoking It Is Entitled To A Directed Verdict

       Citing Brown v. Wilson, 401 S .W .2d 77 (Ky. 1966), Henson correctly

 notes that an emergency will not pardon the breach of a specific duty when the

 party invoking the doctrine caused the emergency. She contends, however,

 that the sudden emergency instruction given by the trial court created a

presumption that Klein was acting within his standard of care, essentially

granting Klein a directed verdict. We do not agree . The jury instruction given

by the trial court properly and clearly informed the jury that Klein's reaction to

the sudden emergency could be considered only "if such emergency was not

brought about by any failure on [Klein's] part to perform the duties above set

forth." Whether Klein was negligent, and whether his own negligence was a

factor in creating the emergency were issues of fact to be resolved by a well

informed and properly instructed jury. Pathways, Inc. v. Hammons, 113

S.W.3d 85, 89 (Ky. 2003) ("Breach and injury, are questions of fact for the jury

to decide.") . The instruction given did not impede the jury's ability to perform

its role as the arbiter of the facts .

      Henson also argues that the sudden emergency instruction given by the

trial court was too confusing and too difficult for a jury to follow. She suggests

that, if we decline to abolish the doctrine, we should establish a bright line rule

limiting the sudden emergency instruction to cases in which the party seeking

its protection would, but for the emergency, be entitled to a directed verdict.

      The bright line rule urged by Henson would result in an unjust and

uneven application of the sudden emergency doctrine . Under Henson's bright

                                         17
 line rule, the instruction would be denied to those against whom there existed

 some evidence of negligence before the onset of the emergency even though

 they may ultimately be found faultless if their negligence did not contribute to

 the emergency and their response to the emergency was reasonable under the

 cirumstances . We see no indication that Kentucky trial courts and juries, in

 more than a century of experience with the sudden emergency doctrine, have

experienced any difficulty in understanding or applying it. Therefore, we see no

reason to modify the rule .

      III . THE TRIAL COURT PROPERLY INSTRUCTED THE JURY ON THE
                            APPLICABLE DUTIES

       Having reaffirmed the place of the sudden emergency doctrine in

Kentucky jurisprudence, we now turn to Henson's more specific question :

whether the doctrine was properly applied, given the evidence before the trial

court . Henson argues that the sudden emergency instruction should not have

been given in this matter because the circumstances present here amounted to

no more than a sudden "occurrence," rather than a sudden emergency, and

because Klein's negligence precipitated the emergency. Finally, Henson asserts

that the trial court erred by failing to instruct the jury that as the lead vehicle

she had the right-of-way. We conclude that the trial court properly instructed

the jury.

      Relying primarily on Robinson v. Lansford, 222 S .W.3d 242 (Ky. App.

2006) and adopting the terminology used therein, Henson contends that Klein

was not confronted with a "sudden emergency" but instead faced only a

"sudden occurrence ." She defines "sudden occurrence" as "a reasonably

                                         18
 anticipated action," whereas a sudden emergency is an "unforeseeable and

unexpected event." She argues that in the exercise of ordinary care, Klein

 should have anticipated that Henson would turn her Sea-Doo and yell to him,

and thus the sudden emergency instruction was improper . We do not find that

categorizing an event as either an "occurrence" or an "emergency" is a

particularly helpful tool in determining when the sudden emergency doctrine

applies. Those categories are not the basis upon which Robinson was decided.

      Robinson arose from a chain reaction, rear-end automobile collision .

Robinson, in the lead vehicle, struck a vehicle in the road ahead of her and

thus came to an abrupt stop. Lansford, following immediately behind

Robinson, failed to stop and crashed into her. Lansford claimed Robinson's

sudden stop confronted him with a sudden emergency . The Court of Appeals,

citing Harris, correctly concluded that the sudden emergency instruction

should not have been given, stating "[t]he doctrine should be applied [only] if it

changes or modifies a duty that would have been incumbent upon a plaintiff or

defendant in the absence of the emergency." Robinson, 222 S .W.3d at 245.

      Lansford could not claim his response to Robinson's abrupt stop must be

viewed in light of how the emergency may have altered his specific duties

because there was no evidence that he responded or took any action at all as a

result of the emergency. He simply continued ahead until he crashed. His lack

of any action in response to the perceived emergency precludes him from a

sudden emergency instruction because no duty, "incumbent upon a plaintiff or

defendant in the absence of the emergency" could have been affected . Id. For


                                        19
   that reason,   Robinson   referred to the matter as a "sudden occurrence" rather

   than a "sudden emergency ."8

           Here, the evidence sufficiently supported Klein's claim that when Henson

   suddenly changed course and turned in front of him, he responded by trying to

   retain control of his vessel while veering to the left away from her . He had

   other options. He could have released the throttle and tried to stop . He could

   have veered to the right. The sudden emergency instruction was properly given

   to inform the jury how Klein's duty to operate his Sea-Doo in accordance with

   the "Rules of the Road" may have been affected by the facts as the jury found

   them.

           Henson argues that the trial court and the Court of Appeals

   misconstrued the nature of the specific duties applicable to each of the parties.

   She asserts that by giving the sudden emergency instruction, the trial court

   adopted the theory that boats in the water should travel in "lanes" analogous to

  automobiles on a highway. This argument highlights the essential difference in

  the way the two parties view the accident . Henson sees the case as analogous

  to Robinson and Maresz; a rear-end collision that happened because two

  vehicles were travelling in the same lane, and the first one suddenly stopped,

  allowing the second vehicle to crash into it. Klein views the case, not as a rear-




s The same reason was applied by the Court of Appeals in Maresz, 835 S .W .2d at 893,
   stating, "However, there is no evidence whatsoever that appellee Maresz, when
   presented with this sudden occurrence, chose a course of conduct which appeared at
   the time to have been the safest course, which now appears not to have been the best
   or wisest choice . . . ."


                                            20
 end collision case, but as a case in which Hen son changed her path of travel in

 such a way that she entered Klein's intended path .

       "Each party to an action is entitled to an instruction upon his theory of

 the case if there is evidence to sustain it." Reece v. Dixie Warehouse and.

 Cartage Co., 1.88 S .W.3d 440, 449 (Ky. App. 2006) (quoting Farrington Motors v.

 Fidelity & Cas. Co. of N.Y., 303 S .W .2d 319, 321 (Ky. 1957)) . The problem with

Henson's argument is that no evidence supports it. The evidence shows

without contradiction that her Sea-Doo was not struck from behind because of

a sudden stop . It was struck on the left side when she suddenly and sharply

turned away from her line of travel . In more nautical terms, she changed her

course, and entered Klein's anticipated line of travel.

       Whether the two Sea-Door, travelling together in a wingman formation,

are considered to be travelling within a single lane or traveling in separate

parallel lanes is immaterial to our resolution of the matter . Henson did not ask

for an instruction that reflected either view. Her complaint is the sudden

emergency instruction tacitly established a "lane theory" with attendant duties

not recognized by the law. We neither endorse nor condemn what Henson

refers to as a "lane theory ." The evidence simply did not support her theory

that this was a rear-end collision .

      Henson further contends that the trial court improperly declined to

instruct the jury on a second theory of the case - that Klein failed to yield the

right-of-way to Henson . 301 KAR 6 :030; § 6(b)(2) provides, among other

things, that the operator of a vessel (including personal watercraft) overtaking


                                        21
another vessel "shall yield the right of way to the vessel being overtaken ." We

agree with the trial court and the Court of Appeals that the evidence does not

support such an instruction . There was no evidence that Klein was overtaking

Henson or that the collision occurred because he failed to yield the right-of-

way. Therefore an instruction reflecting that theory of the case was not proper .

       We conclude that the trial court correctly instructed the jury on the

duties applicable to each party, and properly qualified Klein's specific duty with

the sudden emergency instruction.

                  IV. KRS 235.28514) : "THE RULES OF THE ROAD"

      As noted previously, the jury was instructed on the general duty of

ordinary care and the specific duty imposed by KRS 235 .285(4) to operate a

motorboat or personal watercraft on public waters "according to the `Rules of

the Road' and in a reasonable and prudent manner so as not to endanger

human life, human physical safety, or property." No objection was made to

this instruction . In doing so, the trial court complied with its obligation to

instruct in accordance with the applicable duties, as described in Wemyss, 729

S .W.2d at 180:

      The "general duty," breach of which gives rise to liability, is the
      duty to exercise ordinary care, and properly drafted instructions
      utilize "specific duties" as imposed by statutes only as
      amplification of the "general duty," and not as the source of such
      duty. Where there is a statutory duty, the usual instruction, after
      explaining the general duty, will then specify that such general
      duty "includes" certain enumerated specific duties . See illustrative
      instructions in Palmore, Kentucky Instructions to Juries, Vol . 2,
      Chapter 16, Automobiles .
       However, we cannot allow the uncertainty in the specific duty created by

 KRS 235 .285(4) to pass without comment. Nothing in the statute explains

what compliance with those "Rules" requires or what the legislature meant by

"the Rules of the Road." The statute is vague in that regard . It was suggested

at the trial and presented as evidence that "Rules of the Road" referred to

duties imposed by law on motorists, and meant that boat operators in traffic

with other boats should, in analogous situations, observe the same rules that

govern automobile traffic. That is not a useful analogy, considering that boats

and automobiles have very different operating characteristics and mechanical

systems, and they operate in very different environments . Applying rules made

for vehicles travelling on well-defined roads to boats on a large lake or river is

difficult and uncertain . We think it is more likely that the phrase, "Rules of the

Road," was intended as a reference to the Inland Navigation Rules, 33 U .S .C.A.

§ 2001, et. seq., which govern traffic on the inland waterways of the United

States, and which are commonly referred to as "The Rules of the Road ." See

Matheny v. Tennessee Valley Authority, 557 F.3d 311, 317 (6th Cir. 2009)

("These Inland Rules of Navigation supply the `Rules of the Road' governing

navigation on inland waters.") ; Turecamo Maritime, Inc. v. Weeks Dredge No.

516, 872 F .Supp. 1215, 1229 (S .D .N .Y. 1994) ("The Inland Navigation Rules

encompass long-standing steering and sailing rules and principles, otherwise

known as `Rules of the Road', which govern navigation on inland waters .") .
       We highlight this ambiguity in the statute with the respectful suggestion

 that the General Assembly provide clarification to better inform the boating

 public and the courts of the specific duties the legislature intended to impose .

                           V. KLEIN'S CROSS-APPEAL

       Klein filed a cross-appeal in this matter to preserve his argument that

the trial court improperly limited the testimony of one of his witnesses, an

officer who investigated the accident. However, due to the disposition of this

case in his favor, we decline to review the merits of that argument.

                                 VI . CONCLUSION

       For the reasons set forth above, we affirm the opinion of the Court of

Appeals affirming the judgment of the Jefferson Circuit Court in this matter.

      All sitting. All concur.

COUNSEL FOR APPELLANTS/ CROSS-APPELANES:

Brian Edward Clare
600 West Main Street, Suite 300
Louisville, Kentucky 40202

Judson Fuller Devlin
Fulton 8v Devlin
Browenton Place, Suite 165
2000 Warrington Way
Louisville, Kentucky 40222


COUNSEL FOR APPELLEE/CROSS-APPELLANT :

Catherine Marie Cundiff Sewell
Peter J . Sewell
Derek Patrick O'Bryan
Sewell, O'Brien 8, Neal, PLLC
One Riverfront Plaza, Suite 1800
401 West Main Street
Louisville, Kentucky 40202

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