Fall 2018

To Stop or Not to Stop? West Virginia’s Law Concerning the Duties for Motorists to Yield the Right of Way to Emergency Vehicles

From the time we started driving, we were always taught and instructed to pull over for emergency vehicles no matter the circumstances. However, rarely are we informed of what happens if we fail to move over for an emergency vehicle or if we simply did not notice that there was an emergency vehicle coming from behind. Recently, these questions, along with others, were answered by the Supreme Court of Appeals of West Virginia in Miller v. Allman, 240 W. Va. 438, 813 S.E.2d 91 (2018).

Miller was an appeal concerning, among other issues, whether the circuit court properly instructed the jury on the duty to yield to an emergency vehicle and the standard of care a police officer must use in operating an emergency vehicle. The facts of Miller stemmed from a motor vehicle accident that occurred when a police officer was responding to an apparent distress communication of another officer. Specifically, the police officer was traveling at a very high rate of speed with his siren and lights activated when he approached an intersection, at which time the plaintiff turned onto the same street and directly into the path of the police officer. The police officer attempted to stop by slamming on his brakes, but he was unable to avoid rear-ending the plaintiff’s vehicle.

First, the Court analyzed West Virginia Code § 17C-9-5 (1971) and held that the requirement that a motorist “yield the right-of-way to an emergency vehicle is contingent upon the motorist having a reasonably opportunity to hear the emergency vehicle’s siren or see its flashing light to allow the motorist sufficient time to yield the right-of-way.” Id. By holding such, the Court found that the evidence supported the given jury instruction because there was sufficient testimony that the plaintiff did not have time to hear the police officer’s siren or to see the flashing lights of the police officer’s vehicle.

The Court then analyzed the issue raised by the police officer concerning a jury instruction on his standard of care in operating an emergency vehicle. Again, the Court looked to § 17C-9-5 and ultimately held that it was proper for the trial court to instruct the jury that the police officer had a higher standard and duty of care than that of a civilian operating a vehicle. The Court reasoned that it was appropriate to use the phrase “higher standard” because of a prior holding by the Court that stated “it may be assumed that an emergency vehicle driver will have some specialized training in the operations of his [or her] vehicle.” Id., at 101-02 (quoting Peak v. Ratliff, 185 W. Va. 548, 553, 408 S.E.2d 300, 305 (1991)).

In conclusion, it appears that the Supreme Court of Appeals of West Virginia has loosened the reigns a bit when it comes to the obligations of motorists to yield the right-of-way to emergency vehicles. In essence, the Court has confirmed that West Virginia Code § 17C-9-5 allows for a motorist’s subjective sensory perception of an emergency vehicle’s lights and siren to be used to show compliance with the statute even though the motorist did not yield the right-of-way. This is a deviation from the petitioner’s argument in Miller which sought an objective standard. Moving forward, it is expected that the issue of whether a motorist properly yielded the right-of-way to an emergency vehicle will always be a jury question because of the subjective perception that the motorist will most likely have said that he or she did not hear or see the emergency vehicle.

For more information about this article, please contact Landon S. Moyer at 304.596.2277 or