Wiles v. Webb

Arvie WILES, Individually and as
Administrator of the Estates of B.L. Wiles
and Juanita Wiles, Deceased, and Allen Wiles,
Individually and as Father and Next Friend of
Kayla Joy Wiles, a Minor, and William Wiles
v. Eddie Earl WEBB

96-864                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 16, 1997


1.   Negligence -- sudden-emergency instruction abolished. -- The supreme
     court held that AMI Civ. 3d 614, the sudden-emergency
     instruction, was inherently confusing and for that reason
     abolished its use in all future cases.

2.   Negligence -- sudden-emergency instruction -- requirements and limitations
     before abolition. -- Before the abolition of the sudden-emergency
     instruction, in order to justify its use, it was required that
     the evidence show that the driver was in a stressful situation
     that required a quick decision on the possible courses of
     conduct; that person must have been aware of the danger,
     perceived the emergency, and acted in accordance with the
     stress caused by the danger; when there was any evidence of
     negligence on the part of the party seeking to invoke the
     sudden-emergency instruction, AMI Civ. 3d 614 was
     inapplicable; when an emergency arose wholly or partially from
     the negligence of the person who sought to invoke the sudden-
     emergency doctrine, AMI Civ. 3d 614 had no application and
     should not have been delivered to the jury.

3.   Negligence -- sudden-emergency instruction -- necessary findings by trial
     court. -- For the sudden-emergency instruction to have been
     given, the trial court must first have found: (1) that a
     sudden emergency was created, and (2) that the defendant had
     no part in its creation; by giving the instruction, the trial
     court informed the jury that due to an emergent circumstance,
     the defendant was not as responsible for what occurred as he
     might otherwise have been. 

4.   Negligence -- sudden-emergency instruction -- tantamount to instructing
     jury that appellee's responsibility was all but nullified. -- The
     supreme court believed that in a comparative-fault case like
     the one at hand, the sudden-emergency instruction was
     tantamount to instructing the jury that appellee's
     responsibility for what occurred was all but nullified by the
     trial court's finding that a sudden emergency was caused
     solely by the negligence of the deceased driver of the other
     vehicle; at worst, what occurred was that the trial court all
     but decided the ultimate issue by instructing the jury on
     sudden emergency; at best, the instruction confused matters
     and skewed the analysis in favor of the defendant; the result
     was that a defendant who did not in any way create the initial
     emergency circumstance but who was woefully negligent in other
     respects fell heir to a reduced standard of care.

5.   Negligence -- sudden-emergency instruction -- trial court erred in giving -
     - matter reversed and remanded. -- The supreme court, concluding
     that the physical evidence presented some evidence of
     negligence on appellee's part, held that it was error to give
     the sudden-emergency instruction and reversed and remanded the
     matter; the risk of prejudice in instructing the jury on the
     sudden-emergency instruction far exceeds the possibility of
     error in not doing so.


     Appeal from Garland Circuit Court; Walter G. Wright, Judge;
reversed and remanded.
     Gary Eubanks and Associates, by: James Gerard Schulze and
William Gary Holt, for appellants.
     Wright, Lindsey & Jennings, by:  Troy A. Price, for appellee.

     Robert L. Brown, Justice.
     This case involves litigation for wrongful death and personal
injury arising out of a vehicular accident.  Verdict was rendered
in favor of the appellee, Eddie Earl Webb.  The appellants raise
three points for reversal: (1) the trial court erred in refusing to
allow evidence of Webb's liability coverage; (2) the trial court
erred in denying a motion to declare a mistrial following violation
of two orders in limine; and (3) the trial court erred in giving
the Sudden Emergency instruction to the jury.  We agree with the
appellants on the third point, and reverse and remand to the trial
court for further proceedings.  We further take this opportunity to
hold that AMI 614 -- the Sudden Emergency instruction -- is
inherently confusing, and for that reason we abolish its usage in
all future cases.
     Appellant Arvie Wiles is the administrator of the estates of
his deceased parents, B.L. Wiles and Juanita Wiles, who suffered
fatal injuries when the 1983 Chevrolet Caprice station wagon driven
by B.L. Wiles was struck by a 1982 International logging truck
driven by appellee Eddie Earl Webb on State Highway 298 in Garland
County.  Appellant Allen Wiles is the son of B.L. and Juanita Wiles
and the father of Kayla Joy Wiles, a minor who was a passenger in
the station wagon and who suffered serious injury.  Appellant
William Wiles, the son of B.L. and Juanita Wiles, was also a
passenger in the station wagon who suffered physical injury.  The
appellants will be collectively referred to in this opinion as the
"Wileses."
     The accident occurred on May 18, 1994.  Following the
accident, the Wileses filed their complaint against Webb and
alleged that B.L. Wiles attempted to make a left-hand turn from
Tabor Mountain Cutoff Road onto State Highway 298 in order to
proceed in an easterly direction.  They alleged that Webb, who was
proceeding westbound on State Highway 298, crossed the center line
and struck B.L. Wiles's station wagon broadside while it was in the
eastbound lane of traffic.  The Wileses further claimed that Webb's
conduct was negligent for the following reasons: (1) Webb failed to
keep a proper lookout; (2) he failed to keep his vehicle under
proper control; (3) he drove at a speed greater than was reasonable
and prudent under the circumstances; (4) he crossed the center line
and otherwise violated the laws of the State of Arkansas; and (5)
he otherwise failed to exercise ordinary care under the
circumstances.
     Webb answered and counterclaimed, asserting the negligence of
B.L. Wiles and theories of apportionment and contribution.  The
counterclaim was later dismissed.
     At trial, the Wileses relied exclusively on physical evidence
to make their case.  B.L. and Juanita Wiles, who died in the
accident, were ages 74 and 64, respectively, at the time of the
accident.  Kayla Joy Wiles, age 2 at the time of the accident, had
no memory of the event.  William Wiles, who was 37 years-old at the
time of the collision, is mentally retarded and has had only a
first-grade education.  He also had no recollection of how the
accident occurred.
     A pivotal witness at the trial was Arkansas State Trooper B.R.
Skipper, who testified by way of videotape deposition.  He
testified that the Wiles/Webb accident occurred at approximately
10:45 a.m. and that there were no adverse weather conditions; the
pavement was dry; and there was nothing to obscure Webb's vision. 
He testified that the initial impact of the vehicles occurred
between the center of the truck's front bumper and an area at or
near the left front wheel of the station wagon.  As a result of the
impact, the station wagon was spun in a clockwise direction and
travelled approximately 70 feet west, where it came to rest in a
ditch south of the highway.  The force of the collision caused
Webb's logging truck to spin one-quarter turn counter-clockwise and
travel approximately 25 feet west of the point of impact.
     On cross-examination by Webb's counsel, Trooper Skipper
testified that the intersection in question had a stop sign on
Tabor Mountain Cutoff Road.  He opined that Wiles's vehicle had
entered the intersection to make a left-hand turn onto Highway 298,
heading east.  Looking at photographs of the accident site, Trooper
Skipper referred to the presence of skid marks left by Webb's
logging truck in the westbound lane that proceeded into the
eastbound lane.  He testified that the skid marks made by Webb's
truck reflected signs of discontinuity or interruption, when the
truck changed direction.  He stated that the change of direction
occurred at the point of initial impact between the two vehicles.
      Trooper Skipper further testified that the accident involved
was an "angular" collision, which was not quite 90 degrees.  He
reached this conclusion based on the points of impact on the two
vehicles and the belief that B.L. Wiles was turning to his left to
head east on State Highway 298.  Trooper Skipper also added that
Wiles's vehicle was approximately 18 feet in length.  He stated
that the speed limit at the place of the accident was 55 miles per
hour and that the average reaction time for a driver was 1.5
seconds.  He defined "reaction time" as "the time it takes for a
person to see an object and then make an evasive move away from
that object."  He testified that, based on the physical evidence,
he did not find any indication that Webb was driving at a speed in
excess of 55 miles per hour.  He also testified that Webb left 85
feet of skid marks and opined that, if Webb was travelling at a
speed of 45 miles per hour, then his vehicle left skid marks for
slightly less than 1.3 seconds before impact with Wiles's station
wagon.
     On re-direct examination, Trooper Skipper agreed that B.L.
Wiles had a substantial portion of the station wagon in the
eastbound lane at the time of the collision.  On re-cross
examination, he testified that with the length of the station wagon
being 18 feet and the total width of the road being 20 feet, he
opined that the station wagon partially blocked both lanes of
traffic at the time of initial contact.
     On re-direct examination, Trooper Skipper then testified that
the condition of both vehicles upon collision, especially the
damage to the station wagon, would damage the surface of the
pavement.  However, he admitted that the markings indicating damage
to the highway's surface were found in the eastbound lane.  On re-
cross examination, Trooper Skipper testified that such markings
might not necessarily appear in the westbound lane (Webb's lane)
because on maximum impact, the striking of the station wagon by
Webb's logging truck could cause a downward force that would cause
the back end of the truck to rise.
     The Wileses also introduced the testimony of three witnesses
(Norman Wiles, Chester Wiles, and Arvie Wiles) that skid marks
apparently created by Webb's logging truck began in the westbound
lane and proceeded into the eastbound lane.
     Webb testified in his own defense.  He stated that as he
reached the peak of a grade in State Highway 298, he could see the
station wagon approaching the stop sign on Tabor Mountain Cutoff
Road.  He testified that he released the accelerator and stayed in
the westbound lane until the station wagon pulled out in front of
him.  He added that he was not certain whether the station wagon
ever came to a complete stop at the stop sign, but he was certain
that the station wagon pulled out in front of him.  Once the
station wagon pulled out into the westbound lane, Webb testified
that he applied his brakes as soon as he could and veered to the
left in an attempt to steer clear of the vehicle.  He testified
that his truck skidded and that he struck the station wagon in the
middle of the highway.  He explained that he did not have time to
consider whether to veer left or right and stated that he was not
certain what the driver of the station wagon was going to do once
he pulled out into his lane.  He testified that at the time he came
over the grade in the highway, he was travelling at 40 or 45 miles
per hour.  He testified that, following the accident, he received
a phone call from appellant Arvie Wiles, who purportedly told him:
"Don't be hard on yourself.  There wasn't anything you could do and
the family doesn't blame you."
     On cross-examination, appellants' counsel asked Webb whether
he knew if Arvie Wiles had any knowledge of the physical evidence
at the scene when the statement was made, to which Webb responded
that he did not.  Webb testified that at the time he veered to the
left, the station wagon had been proceeding across his lane at a
constant speed.
     The defense also presented evidence that B.L. Wiles was
driving without required corrective eyeglasses.  There was also the
testimony of Ruth Meredith, a purported eyewitness, that Wiles's
station wagon was stopped in Webb's lane.  On cross-examination,
her testimony was shown to be at odds with her deposition testimony
on several critical points.
     The jury answered interrogatories to the effect that Webb was
not guilty of negligence and that the negligence of B.L. Wiles was
the proximate cause of the accident.  Judgment in favor of Webb was
entered later.  A motion for a new trial was made, raising the same
three points raised in this appeal.  It was denied.
     The Wileses contend that the trial court erred in giving the
Sudden Emergency instruction -- AMI 614 -- under the facts of this
case.  We agree.  AMI 614 reads:
          A person who is suddenly and unexpectedly confronted
     with danger to himself or others not caused by his own
     negligence is not required to use the same judgment that
     is required of him in calmer and more deliberate moments. 
     He is required to use only the care that a reasonably
     careful person would use in the same situation.
AMI Civ. 3rd 614.  At trial, the Wileses objected to this
instruction on the ground that there was evidence of negligence on
the part of Webb.
     Our most recent case discussing AMI 614 is Frisby v. Agerton
Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996).  In Frisby,
this court found error in using AMI 614 to instruct the jury in
connection with a collision between the appellant's Toyota
automobile and the appellee's logging truck.  Each party claimed
that the other was negligent.  The jury returned verdicts in favor
of the appellee both on the appellant's claim for damages and on
the appellee's claim for damages.  This court determined that error
occurred because the appellant had testified that the appellee's
logging truck was driving in his lane at the time of the collision
and that this constituted negligence on the part of the appellee. 
We then stated:
          In order to justify the use of the sudden-emergency
     instruction, the evidence must show that the driver was
     in a stressful situation which required a quick decision
     on the possible courses of conduct.  That person must
     have been aware of the danger, perceived the emergency,
     and acted in accordance with the stress caused by the
     danger.  Diemer v. Dischler, 313 Ark. 154, 158-59, 852 S.W.2d 793, 795-796 (1993).  When there is any evidence
     of negligence on the part of the party seeking to invoke
     the instruction, AMI 614 is inapplicable.  Druckenmiller
     v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).  Stated
     another way, when an emergency arises wholly or partially
     from the negligence of the person who seeks to invoke the
     sudden-emergency doctrine, AMI 614 has no application and
     should not be delivered to the jury.  Id.; Thomson v.
     Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)
     (instruction proper where third-party driver encountered
     collision caused by others and did not in any way create
     the emergency himself).
Frisby v. Agerton Logging, Inc., 323 Ark. at 513, 915 S.W.2d  at 721
(emphasis added).
     Thus, the law on this point is clear: the trial court erred in
giving the Sudden Emergency instruction only if Webb's conduct was
in any wise responsible for creating the emergency situation.  Webb
contends that the emergency situation was created when the station
wagon pulled out from the stop sign on Tabor Mountain Cutoff Road
and that his veering to the left was an instant response to the
stress of the emergency.  The Wileses' case, on the other hand, was
based on physical evidence, since the two survivors of the crash
could not remember what happened, and both suffered from
disabilities due to age and mental retardation.  The essence of the
Wileses' case was that Webb was inadvertent in his driving, and
upon recognizing B.L. Wiles's station wagon crossing the highway,
Webb hit his brakes and either veered to the left into Wiles's lane
or lost control of the logging truck.  Had Webb had the truck under
control, say the Wileses, he could have veered to the right where
there was ample space at the Tabor Mountain Cutoff Road
intersection to avoid the station wagon and, thus, the accident.
     The physical evidence appears reasonably clear.  Webb's truck
crossed the center line, and the point of impact occurred in
Wiles's eastbound lane.  Testimony by Webb estimated the point of
impact as being potentially as far over as five feet into the
eastbound lane.  The logging truck's skid marks were 85 feet.
     The issue from the Wileses' perspective boils down to whether
Webb was inadvertent or, in legal parlance, failed to keep a proper
lookout and, as a result, lost control of his vehicle.  The
physical evidence suggests this might have happened, though Webb's
own testimony belies this.  This, however, was the issue for the
jury to decide, and the issue necessarily embraces an analysis of
comparative fault.  Indeed, the jury was instructed on ordinary
care:
          A failure to exercise ordinary care is negligence. 
     When I use the words "ordinary care," I mean the care a
     reasonably careful person would use under circumstances
     similar to those shown by the evidence in this case.  It
     is for you to decide how a reasonably careful person
     would act under those circumstances.
AMI Civ. 3rd 303.
     In order for the Sudden Emergency instruction to be given, the
trial court must first find: (1) that a sudden emergency was
created, and (2) that the defendant had no part in its creation. 
Then by giving the instruction, the trial court informs the jury
that due to an emergent circumstance, the defendant is not as
responsible for what occurred as he might otherwise have been.  In
a comparative-fault case like the one at hand, we believe that the
instruction is tantamount to instructing the jury that Webb's
responsibility for what occurred is all but nullified by the trial
court's finding that a sudden emergency was caused solely by the
negligence of Wiles.  At worst, what occurs is that the trial court
all but decides the ultimate issue by instructing the jury on
sudden emergency.  At best, the instruction confuses matters and
skews the analysis in favor of the defendant.  The result is that
a defendant who did not in any way create the initial emergency
circumstance but who is woefully negligent in other respects falls
heir to a reduced standard of care.
     We conclude that the physical evidence presents some evidence
of negligence on Webb's part, and we hold that it was error to give
the Sudden Emergency instruction in the present case.  In doing so,
we adopt the position of the concurring opinions in Frisby v.
Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996) (Glaze,
J., concurring) and Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994) (Glaze, J., concurring).  On the issue of
confusion generated by AMI 614, Prosser and Keeton on the Law of
Torts has this to say:
          Despite the basic logic and simplicity of the sudden
     emergency doctrine, it is all too frequently misapplied
     on the facts or misstated in jury instructions.  As a
     result, the model jury instructions in at least Illinois,
     Florida, Kansas and Missouri recommend that no such
     instruction be given, and Mississippi abolished the
     doctrine altogether in 1980.
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts 
33, at 197 (5th ed. 1984) (citations omitted).  Moreover, we are
now of the opinion that the Supreme Court of Hawaii was correct
when it stated that the risk of prejudice in instructing the jury
on the Sudden Emergency instruction far exceeds the possibility of
error in not doing so.  See DiCenzo v. Izana, 723 P.2d 171 (Hawaii
1986).
     We are mindful of the fact that other jurisdictions are
divided on this issue.  Some jurisdictions have abolished the
instruction or severely limited it.  See, e.g., DiCenzo v. Izana,
supra; Bass v. Williams, 839 S.W.2d 559 (Ky. App. 1992); Knapp v.
Stanford, 392 So. 2d 196 (Miss. 1980); Cowell v. Thompson, 713 S.W.2d 52 (Mo. App. 1986); Simonson v. White, 713 P.2d 983 (Mont.
1986); Kozeny v. Miller, 499 N.W.2d 75 (Neb. 1993); Paiva v.
Pfeiffer, 551 A.2d 201 (N.J. Super. A.D. 1988).  Others have
decided to retain it.  See, e.g.,  Young v. Clark, 814 P.2d 364
(Colo. 1991); Weiss v. Bal, 501 N.W.2d 478 (Iowa 1993); Ebach v.
Ralston, 510 N.W.2d 604 (N.D. 1994); Lockhart v. List, 665 A.2d 1176 (Pa. 1995); Thomas v. Oldham, 895 S.W.2d 352 (Tex. 1995).
     Nevertheless, we are convinced that the better course is to
abolish the Sudden Emergency instruction for all future use, and we
overrule prior authority to the contrary.  Because we do not
believe that the issues relating to liability coverage and the
orders in limine will reoccur in a new trial, we need not address
them.
     Reversed and remanded.
     Arnold, C.J., Newbern and Corbin, JJ., dissent.
     Glaze, J., concurs.


                 TOM GLAZE, Justice, concurring.

     I concur to say the majority opinion is exactly correct in
abolishing the AMI 614 Sudden Emergency instruction.  The trial
judge in the present case said it best as follows:
          The 614 problem is going to give the courts in this
     state a problem until someone of higher power makes up
     its mind that it is going to get rid of the instruction. 
     Otherwise, the trial courts are in a dilemma.
     That so-called "higher power" is this court, since it is this
court that adopted AMI 614.  Only recently our court recognized
again the confusion AMI 614 had caused in Frisby v. Agerton
Logging, Inc., 323 Ark. 508, 915 S.W.2d 718 (1996), where we
stated, "Hence, the instruction (AMI 614) should not have been
given.  It added nothing to the comparative fault analysis and only
injected confusion into complex proceedings."
     Such confusion over AMI 614 has flourished, rendering at least
eight cases (including the present one) before this court in the
'90s alone.  Frisby v. Agerton Logging, Inc., 323 Ark. 508, 915 S.W.2d 708 (1996); Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995); Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526
(1994); Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993);
Smith v. Stevens, 313 Ark. 534, 855 S.W.2d 323 (1993); Berry v.
Chapple, 309 Ark. 612, 832 S.W.2d 256 (1992); Scoggins v. Southern
Farmers' Ass'n, 304 Ark. 426, 803 S.W.2d 515 (1991).  Courts and
attorneys alike have been befuddled on its usage (or nonusage), and
jurors can only be elated to be rid of such prattle being
introduced into a serious negligence case.  Other negligence and
comparative-fault instructions left after 614's removal will be
more than adequate to guide jurors through their deliberations.


               David Newbern, Justice, dissenting.

     As the majority opinion demonstrates, some state courts have,
in the last decade, considered whether the sudden emergency
doctrine remains useful and appropriate in the context of
comparative negligence.  Some have said it does, and some have said
it does not.  
     The argument against the doctrine, and thus against AMI 614
which embodies it, is that it either conflicts with or is made
unnecessary by the theory of comparative negligence.  
     There is no conflict.  Both the standard negligence
instruction, AMI 301, and AMI 614 focus on requiring conduct such
as that which would be exercised by a reasonably prudent person
under the same circumstances or situation.  The question becomes,
then, whether AMI 614 is mere surplusage.  It is not, and the case
now before us demonstrates the reason for that conclusion.
     For the sudden emergency instruction to have had any effect in
this case, the jury must first have decided that Mr. Webb was 
"suddenly and unexpectedly confronted with danger to himself or
others not caused by his own negligence."  A major flaw in the
majority opinion is found in the remark that "...we believe that
the instruction is tantamount to instructing the jury that Webb's
responsibility for what occurred is all but nullified by the trial
court's finding that a sudden emergency was caused solely by the
negligence of Wiles."  The first question presented by the
instruction is whether Mr. Webb created the emergency to any
degree.  It has nothing to do with deciding negligence on the part
of Mr. Wiles--a matter not at issue.
     Assuming the jury decided that Mr. Webb was not at fault in
creating the emergency situation, its next task was to decide
whether he used the same "care that a reasonably careful person
would use in the same situation."  The majority opinion states that
the instruction "skews the analysis in favor of the defendant." 
That cannot be so, for virtually the same language as appears in
AMI 301 governs the determination whether the defendant acted
reasonably when confronted with the sudden emergency.  Nor does the
instruction excuse a defendant who has not created the emergency
but who, in the words of the majority opinion, is "woefully
negligent in other respects."  To suggest that the instruction
prompts condonation of such conduct underestimates jurors'
intelligence.  
     The leading case among those decided by the jurisdictions
which have considered and rejected the idea that the sudden
emergency doctrine should be done away with is Young v. Clark, 814 P.2d 364 (Colo. 1991).  Quoting an earlier Colorado case, the
Colorado Supreme Court viewed the doctrine as an "evidentiary
guideline by which a trier of fact may properly apply the prudent
[person] rule in evaluating the evidence of negligence being
considered."  Responding to criticisms such as those leveled by the
majority in the case now before us, the Colorado Court said:

          Such reasoning, in our view, is based on unfounded
     assumptions about how jurors perceive an instruction
     explaining the relatively simplistic sudden emergency
     doctrine.  The pattern instruction used by Colorado courts ...
     is a clear statement of the doctrine and obligates the finder
     of fact to do nothing more than apply the objective
     "reasonable person" standard to an actor in the specific
     context of an emergency situation.  It thus does not operate
     to excuse fault but merely serves as an explanatory
     instruction, offered for purposes of clarification for the
     jury's benefit.  [Footnote omitted.]

This is a case in which the defendant was shown to have driven into
an oncoming lane of traffic, an action which would ordinarily be
condemned as demonstrative of negligence at least.  The sudden
emergency instruction does no more than refine the factual issue. 
     If the jury in this case found that Mr. Webb was confronted by
a sudden emergency, there is not one whit of evidence, physical or
otherwise, that he did anything to cause that emergency,
allegations of inattentive driving notwithstanding.  The question
became whether his reaction to it, as demonstrated by the skid
marks and explained by his own testimony, was reasonable under the
circumstances, i.e., whether it was unreasonable for him in that
split-second situation to have veered into the oncoming lane of
traffic.  The jury answered that question affirmatively in response
to a specific interrogatory.  The judgment should be affirmed.
     I respectfully dissent.
     Arnold, C.J., and Corbin, J., join in this dissent.