1 No. 17-0080 – Miller v. Allman WALKER, J., dissenting: The majority opinion, among other thi ngs, endorses a jury instruction that creates a new exception to the clear statutory dut y of a citizen to yield the right of way to an approaching emergency vehicle. The ne w syllabus point adopted by this Court is contrary to the clear language of West Virgin ia Code §17C-9-5 (Rep l. Vol. 2017) and is nothing short of legislating from the bench.

Under the guise of a plain meaning analysis, the majo rity effectively modifies West Virginia Code §17C-9-5 to lim it 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 le ast 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 fe et 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 othe r vehicle shall yield the right-of-way and shall immediatel y 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 pos ition until the authorized emergency vehicle 

### FILED April 6, 2018

released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 has passed, except when otherwis e directed by a police officer.

. . . [1] I agree with the majority that this statute is clear and una mbiguous; however, I find that the statute imposes merely an objective per ception requirement rath er 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 th e vehicle. Therefore, the trial court’s instruction, whic h 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 yiel d 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 st op and remain in such position until the authorized emergenc y 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 a nd pull over in re sponse to the approach of an emergency vehicl e if that driver does not see or hear the emergency vehicle w ithin 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).3 mislead the jury as to th e correct legal principle. 3

The majority also misapplie s 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 statute 5 from observing a stop sign. The plaintiff in that case, who was

3 State v. Miller , 197 W. Va. 588, 607, 47 6 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 C ode § 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 fi re alarm, may exercise the privileges set forth in this secti on, 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 st op 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 th e driver of any said vehicle4 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 sire n were activated. We stated, “it must be shown by a clear preponderance of the evidence that he [ope rator of the emergency vehicle], immediately prior to and at the time of th e collision, was sounding an audi ble signal. Also, the evidence must reveal that the vehicle was equipped w ith and displayed a re d 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 issu e that once the lights and siren were activated, the emergency vehicle operator [H]ad a right to believe that ot her drivers in the area would observe the provisions of Code, 1931, 17C-9-5, as amended. That statute provides, in e ffect, that upon the immediate approach of an authorized emergency vehicle properly equipped and operated with th e required audible signal and lights, the driver of every other vehicle shall yield the right of

while in motion sounds audible si gnal by bell, siren, or exhaust whistle as may be reasonably ne cessary, 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 emergenc y 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 co nsequences of his reckless disregard for the safety of others.

6 Id. at 544, 164 S.E.2d at 902.5 way and stop until such emergency vehicle has passed. This the plaintiff failed to do, ev en 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 negate s the majority’s conclusion re garding 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 prej udicial to Officer Miller as it prevented the jury from determining whether Mr. Allman s hould have observed the emergency vehicle’s lights and siren with sufficient time to reac t and whether Mr. Allman should have yielded to the emergency vehicle. Additionally, it re ndered meaningless the testimony of several eyewitnesses who testified that they saw and heard the emergency vehicle.

Accordingly, I would reverse and rema nd for a new trial with direction to correct the instruction.

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