Appellate Division Expands Scope of the “Emergency Doctrine”
Although the fact pattern of Pelletier v. Lahm, 2013 WL 6084204, 2d Dept., 2013 seems like it was cast from the characters in a lurid reality television show, the case appears to expand the use and scope of the emergency doctrine which in skilled hands can lead to the successful defense of an auto case even where the defendant admits to statutory negligence. Whereas the typical emergency doctrine case involves a driver attempting a defensive maneuver as a result of a car crossing into the defendant’s lane from the opposite direction, Pelletier potentially expands the doctrine to situations involving surprise and/or embarrassment relating to the antics of children and childlike adults.
In Pelletier, defendant Brittany, a bikini clad 19 year old was driving a girl friend and two boys home from a weekend at the Jersey Shore. One of those boys, Brandon, was by all accounts, a drunk and obnoxious 19 year old who had been celebrating his birthday earlier in the day. While Brittany was driving on the New York Thruway at 65 miles per hour, Brandon was engaging in various obnoxious and distracting conduct from the backseat, where the plaintiff sat, including spitting chewing tobacco out the window and then leaning out of the window with an umbrella to clean the spit off the side of the car. Brittany yelled at Brandon to get back inside the vehicle and used her controls to roll up the window and told him to stop acting like an “idiot”. Brandon, who apparently did not think Brittany sufficiently appreciated his brand of humor, stuck his feet in Brittany’s face. Although she again yelled at him and told him to stop sticking his feet in her face, Brittany did not attempt to pull the vehicle over, or slow it down.
Brandon then pulled the bikini string tied around Brittany’s neck. This caused Brittany to release the steering wheel with her right hand in order to hold her top up. Holding onto the steering wheel with her left hand and her bikini top with her right hand, Brittany leaned forward so the front-seat passenger could re-tie the string. As Brittany leaned forward, Brandon pulled the second bikini string on her back. It was at that moment Brittany took both hands off the steering wheel for “a split second” to grab her bikini top and cover her breasts. She lost control of the vehicle which struck the guardrail, flipped multiple times in the air, crossed over into the southbound lanes, and came to rest on it’s roof in the middle of the southbound lanes. As a result of the tragic accident, Brandon died, and the plaintiff was seriously injured in the back seat.
At the trial, the judge instructed the jury on the “emergency doctrine” which allows a jury to exonerate a driver who can establish the accident was caused by a sudden and unforeseen emergency not of her own making as long as her response to the situation was that of a reasonably prudent person (see Caristo v. Sanzone, 96 N.Y.2d at 174–175, 726 N.Y.S.2d 334, 750 N.E.2d 36). The jury returned with a unanimous defense verdict rejecting the plaintiff’s arguments that a woman’s mere embarrassment at the sudden and unwanted exposure of her breasts to her male passengers does not rise to the level of “danger” so as to constitute an “emergency”. The case went up on appeal.
The Appellate Court had to decide whether the jury charge was appropriate and whether the finding of the jury was against the weight of the evidence. The main issue was whether Brandon’s pulling on her bikini strings was a sudden and unforeseen emergency.
The dissent believed that it was an error to give the emergency charge because Brittany had an opportunity to weigh alternative courses of conduct. It noted her various attempts to get Brandon under control. The dissent also noted that the emergency doctrine requires the absence of available alternatives. Further the dissent believed Brandon’s pulling of the bikini strings was neither sudden nor unexpected and could have been reasonably anticipated. Finally, the dissent noted “it cannot be said that Brittany did not have time for “thought, deliberation or consideration,” in the face of Brandon’s behavior which occurred over a span of approximately 15–20 minutes.
A majority of the judges on the Appellate Division disagreed. Instead of focusing on the horseplay preceding the accident, the Court focused on Brandon’s final act of untying the second string, noting that the jury could have decided that Brittany did not anticipate her breasts being exposed. The Court concluded it was reasonable to view accident as being a “product of a “ ‘sudden and unexpected circumstance’.
Whether the Pelletier case will ultimately lead to more defense verdicts in auto cases, what seems certain is that the emergency doctrine will become a much more common charge to the jury. Before the charge is given, the court is required “to make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a ‘qualifying emergency’. While certain situations will continue not to qualify as emergencies, such as sun glare at sunset or deteriorating weather conditions resulting in icy roadway, it will be hard for a judge in the face of Pelletier to exclude the charge where accidents have been precipitated by coffee spills, spitballs, bursting balloons and other bad behavior and decorum within the vehicle.
PS: The current jury charge in New York includes the requirement of “danger” an element that clearly did not exist in this case and which it seems is no longer required. It should be interesting to see if the 2014 Pattern Jury Instructions will contain the word “danger.” Until then, and perhaps afterwards, expect fights at trial over whether the word “danger” should still be part of the charge.