                                                                                 FILED
                                                                               April 6, 2018
                                                                                 released at 3:00 p.m.
No. 17-0080 – Miller v. Allman                                               EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
WALKER, J., dissenting:                                                           OF WEST VIRGINIA



                 The majority opinion, among other things, endorses a jury instruction that

creates a new exception to the clear statutory duty of a citizen to yield the right of way to

an approaching emergency vehicle. The new syllabus point adopted by this Court is

contrary to the clear language of West Virginia Code §17C-9-5 (Repl. Vol. 2017) and is

nothing short of legislating from the bench.



                 Under the guise of a plain meaning analysis, the majority effectively

modifies West Virginia Code §17C-9-5 to limit the duty to yield to a driver’s subjective

perception of an approaching emergency vehicle. The governing statute provides in

relevant part:



                 Upon the immediate approach of an authorized emergency
                 vehicle equipped with at least one flashing lighted lamp of a
                 color authorized by section twenty-six, article fifteen of this
                 chapter, which is visible under normal atmospheric conditions
                 form a distance of five hundred feet to the front of such vehicle
                 other than a police vehicle when operated as an authorized
                 emergency vehicle, and when the driver is giving audible
                 signals by siren, exhaust, whistle, or bell:

                        (1) The driver of every other vehicle shall yield the
                 right-of-way and shall immediately drive to a position parallel
                 to, and as close as possible to, the right-hand edge or curb of
                 the roadway clear of any intersection and shall stop and
                 remain in such position until the authorized emergency vehicle




                                                    1
                has passed, except when otherwise directed by a police officer.
                . . . [1]

I agree with the majority that this statute is clear and unambiguous; however, I find that

the statute imposes merely an objective perception requirement rather than a subjective

one. That is, once an approaching emergency vehicle has activated its lights and siren,

surrounding drivers are deemed to have constructive notice of the vehicle. Therefore, the

trial court’s instruction, which limited the duty to yield to a driver’s subjective perception,2

is clear error as it does not accurately reflect the law and has the reasonable potential to



       1
           W. Va. Code §17C-9-5(a)(1) (Emphasis added).
       2
           The instruction given by the trial court stated:

                Upon the immediate approach of an authorized emergency
                vehicle, such as a police car, operating emergency lights and
                siren, West Virginia Code §17C-9-5 requires that the driver of
                every other vehicle shall yield the right-of-way, and shall
                immediately drive to a position parallel to, and as close as
                possible to, the right-hand edge or curb of the roadway clear of
                any intersection, and shall stop and remain in such position
                until the authorized emergency vehicle has passed, except
                when otherwise directed by a police officer.

                The required compliance with that code section is contingent
                upon the other vehicle driver having the opportunity to
                perceive, see or hear, the approaching police car. That other
                driver is not expected to yield and pull over in response to the
                approach of an emergency vehicle if that driver does not see
                or hear the emergency vehicle within sufficient time to react as
                required by law. Also, the emergency vehicle law does not
                operate to the driver of a police car, regardless of his lights and
                siren, from the duty to drive with due regard for the safety of
                all person using the highway.

(Emphasis added).

                                                    2
mislead the jury as to the correct legal principle.3



                The majority also misapplies our prior decision in Davis v. Cross.4 The issue

in Davis, which involved a collision between an emergency vehicle and a motorcycle, was

whether the operator of the emergency vehicle had activated the siren and lights, thereby

excusing him by statute5 from observing a stop sign. The plaintiff in that case, who was



       3
           State v. Miller, 197 W. Va. 588, 607, 476 S.E.2d 535, 554 (1996).
       4
           Davis v. Cross, 152 W. Va. 540, 164 S.E.2d 899 (1968).
       5
        The statute primarily at issue in Davis was West Virginia Code § 17C-2-5 (1951),
which stated as follows:

                (a) The driver of an authorized emergency vehicle, when
                responding to an emergency call or when in the pursuit of an
                actual or suspected violator of the law or when responding to
                but not upon returning from a fire alarm, may exercise the
                privileges set forth in this section, but subject to the conditions
                herein stated.

                (b) The driver of an authorized emergency vehicle may:

                      (1) Park or stand, irrespective of the provisions of this
                chapter;

                       (2) Proceed past a red or stop signal or stop sign, but
                only after slowing down as may be necessary for safe
                operation;

                      (3) Exceed the speed limits so long as he does not
                endanger life or property;

                     (4) Disregard regulations governing direction of
                movement of turning in specified directions.

                (c) The exemptions herein granted to an authorized emergency
                vehicle shall apply only when the driver of any said vehicle
                                                    3
driving the motorcycle, and one other witness testified that they did not hear the siren or

see the lights. Several other witnesses — including the emergency vehicle operator —

testified that the lights and siren were activated. We stated, “it must be shown by a clear

preponderance of the evidence that he [operator of the emergency vehicle], immediately

prior to and at the time of the collision, was sounding an audible signal. Also, the evidence

must reveal that the vehicle was equipped with and displayed a red light visible from a

distance of five hundred feet to the front of such vehicle.”6 We further observed in

language directly on point to the current issue that once the lights and siren were activated,

the emergency vehicle operator

                [H]ad a right to believe that other drivers in the area would
                observe the provisions of Code, 1931, 17C-9-5, as amended.
                That statute provides, in effect, that upon the immediate
                approach of an authorized emergency vehicle properly
                equipped and operated with the required audible signal and
                lights, the driver of every other vehicle shall yield the right of


                while in motion sounds audible signal by bell, siren, or exhaust
                whistle as may be reasonably necessary, and when the vehicle
                is equipped with at least one lighted flashing lamp as
                authorized by section twenty-six, article fifteen of this chapter
                which is visible under normal atmospheric conditions from a
                distance of five hundred feet to the front of such vehicle, except
                that an authorized emergency vehicle operated as a police
                vehicle need not be equipped with or display a warning light
                visible from in front of the vehicle.

                (d) The foregoing provisions shall not relieve the driver of an
                authorized emergency vehicle from the duty to drive with due
                regard for the safety of all persons, nor shall such provisions
                protect the driver from the consequences of his reckless
                disregard for the safety of others.
       6
           Id. at 544, 164 S.E.2d at 902.

                                                   4
                way and stop until such emergency vehicle has passed. This
                the plaintiff failed to do, even though all of the positive
                evidence in the record showed unequivocally that the vehicle
                driven by the defendant sounded an audible signal and
                exhibited the necessary red lights.[7]

This observation directly negates the majority’s conclusion regarding the jury instruction

in this case and its new point of law. Not only did the jury instruction misstate the

appropriate legal standard, but also it was prejudicial to Officer Miller as it prevented the

jury from determining whether Mr. Allman should have observed the emergency vehicle’s

lights and siren with sufficient time to react and whether Mr. Allman should have yielded

to the emergency vehicle. Additionally, it rendered meaningless the testimony of several

eyewitnesses who testified that they saw and heard the emergency vehicle.



                Accordingly, I would reverse and remand for a new trial with direction to

correct the instruction.




       7
           Id. at 546-47, 164 S.E.2d at 903.

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