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No. 17-0080 – Miller v. Allman 

WALKER, J., dissenting: 

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 

FILED 

April 6, 2018 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
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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). 

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

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

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 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). 

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 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 
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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. 
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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.