Tuesday, February 9, 2021

ARTICLE: The Defense of the Sudden Emergency Doctrine in Pa.

This article of mine was published on February 4, 2021 by the Pennsylvania Law Weekly and is republished here with permission.

The Defense of the Sudden Emergency Doctrine in Pa.

By Daniel E. Cummins | February 04, 2021

Daniel E. Cummins of Cummins Law.

In its recent decision in the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court provided guidance for when a jury should be instructed on the still viable sudden emergency doctrine in a motor vehicle accident case.

While some commentators darted out in front of the decision to sound the death knell for the doctrine in Pennsylvania, a fair reading of the Graham decision shows otherwise.

Validity of the Doctrine Reaffirmed

In his majority opinion in Graham v. Check, Justice David Wecht upheld the continuing validity of the sudden emergency doctrine by reaffirming that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.”

Wecht confirmed that when the evidence in a case suggests that a motorist was faced with a sudden emergency, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.”

While further reviewing the continuing validity of the doctrine over multiple pages of commentary in his majority opinion, Wecht also reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care by the motorist, then the doctrine should not be applied and instructed to the jury.

The sudden emergency doctrine has been on the books in Pennsylvania and applied in a wide variety of negligence cases over at least the past 137 years. See Brown v. French, 104 Pa. 604, 604 (1884) (Sudden emergency doctrine applied to the case of a captain of a steamer on the Ohio river suddenly faced with a person attempting to cross the river on a skiff immediately before the fatal impact). Now, in its decision handed down at the end of 2020, the majority in the Graham v. Check decision leaves no question that the sudden emergency doctrine remains valid law in Pennsylvania to be applied and argued in future cases where supported by the facts presented.

Court Limits Application of Doctrine in Crosswalk Cases

Although the court reaffirmed the sudden emergency doctrine as a valid topic of jury instruction in motor vehicle accident cases where a driver is faced with a sudden and unexpected emergency immediately prior to an accident, in Graham, the application of the doctrine was limited under the very specific circumstances at issue in that case, that being where a pedestrian plaintiff, wearing dark clothing under dark conditions, suddenly darts out in front of a motorist while the plaintiff is within a crosswalk.

In this regard, Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” In his opinion, Wecht reiterated that, under the specific facts at issue in this case, the application of the sudden emergency doctrine is “counterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections.

In this pedestrian versus motor vehicle accident case of Graham v. Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view for the motorist, and a lack of evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact all still did not serve to lay a proper foundation for the provision of that instruction to the jury due to the fact that a motorist has a heightened duty under Pennsylvania law to be on the lookout for pedestrians whenever approaching a crosswalk at an intersection.
It’s a Doctrine Not a Defense

As noted, some commentators, and even two dissenting justices in the Graham v. Check decision have attempted to portray the majority decision in Graham as holding that the sudden emergency doctrine is no longer a viable defense in Pennsylvania. A fair and proper reading of the majority’s opinion does not support this forced portrayal.

Granted, Wecht noted in his majority opinion in Graham that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and the majority finds it ill-advised to use the word ‘defense’ in sudden emergency jury instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.”

Wecht went on to explain that “properly understood, the doctrine of sudden emergency does not offer a defense,” but rather should be viewed as “one among the panoply of surrounding circumstances that a jury must take into account in assessing the reasonableness of each party’s actions or omissions” in a given accident. In other words, in terms of simple semantics and correct terminology, the Pennsylvania Supreme Court has held that the sudden emergency doctrine should not be called a “defense,” but still remains a valid doctrine that a trial judge can instruct a jury upon in a negligence case where the facts lay a foundation for the provision of the instruction.

As such, after Graham, the courts below and the litigating attorneys should consider the application of the sudden emergency doctrine to be more narrow in the context of a case of a pedestrian struck while in a crosswalk given the motorist’s heightened duty of care in such situations. Otherwise, judges and attorneys remain free, as they have for nearly the past 140 years in Pennsylvania, to continue to apply, instruct upon and/or argue the law of sudden emergency doctrine in terms of a defense against a negligence action—just don’t call it a “defense” anymore.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

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