Torts – Sudden emergency, hearsay expert testimony: Bailey v. MCM Business Services, Inc. (COA 6/5/2009)

Bailey v. MCM Business Services, Inc.
2007-CA-001619 06/05/2009 2009 WL 1562848 Rehearing Pending

Opinion by Judge Lambert; Judge Taylor and Senior Judge Graves concurred. The Court affirmed a judgment of the circuit court entered pursuant to a jury verdict in favor of appellees on appellant’s claims related to an automobile accident. The Court first held that the issue of whether it was error to instruct the jury on the doctrine of sudden emergency was properly preserved by the trial court’s renewal of appellant’s motion for directed verdict at the close of all the evidence and by appellant’s motion for JNOV following the jury verdict. The Court then followed the holding in Regenstrief v. Phelps, 142 S.W.3d 1 (Ky. 2004), and held that the trial court did not err in instructing the jury on the sudden emergency doctrine based on testimony that the driver tried to brake but could not, that there were no skid marks indicating the brakes activated, and that the driver swerved into another lane, which was indicative of encountering a sudden emergency. The Court finally held that the trial court did not err in excluding the report of a doctor who examined appellant and died several days later as there was no hearsay exception applicable to the report.

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