Kevin G. Faley and Andrea M. Alonso
*Originally published in the
New York Law Journal
May 20, 2014
In motor vehicle cases, the emergency doctrine continues to evolve. In 2011, in Lifson v. City of Syracuse,1 the Court of Appeals found that a driver who hit and killed a pedestrian while being distracted by "sun glare" could not invoke the emergency doctrine. Lifson provides clarification for the circumstances in which the emergency doctrine can be invoked.
Development of Doctrine
The emergency doctrine holds that when an actor is faced with a sudden and unexpected circumstance not of his or her own making, which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be held negligent if the actions taken are reasonable and prudent in context.2 The doctrine recognizes that, faced with an emergency, even a reasonable person might choose a course of action which, in hindsight, proves to have been mistaken. As such, an actor's conduct must be reasonable under the circumstances.3
The words "under the circumstances" have been the focus surrounding the emergency doctrine. The existence of an emergency and a person's reasonableness is often an issue for the jury to decide; however, in some circumstances, a court will grant a party summary judgment based on an emergency situation. Situations in which the courts have granted summary judgment to a party who faced an emergency situation include a bus stopping suddenly after passengers told the driver that there was a bomb on the bus,4 a bus changing lanes abruptly in order to avoid another vehicle entering into its lane without signaling,5 and a vehicle crossing over into the opposite lanes of traffic impacting an oncoming vehicle.6
If the emergency doctrine is not a basis for summary judgment, an emergency charge may be given at the time of trial. The emergency charge states as follows:
A person faced with an emergency and who acts without opportunity to consider the alternatives is not negligent if [he, she] acts as a reasonably prudent person would act in the same emergency, even if it later appears that [he, she] did not make the safest choice or exercise the best judgment. A mistake in judgment or wrong choice of action is not negligence if the person is required to act quickly because of danger. This rule applies where a person is faced with a sudden condition, which could not have been reasonably anticipated, provided that the person did not cause or contribute to the emergency by [his/her] own negligence.7
The courts have been careful in extending the emergency doctrine, whether in motion practice or at trial, in cases involving bad weather or roadway conditions. For instance, in Caristo v. Sanzone,8 the defendant was driving in icy conditions when his car slid and went through a stop sign striking the plaintiff's vehicle. The Court of Appeals, reversing the trial court's emergency instruction, found that this did not qualify as an emergency since the defendant was aware of the poor weather conditions for two hours before the accident. The conditions of the roads could not be considered sudden and unexpected.
The 2001 decision in Caristo set the standard for weather conditions and the emergency doctrine.9 Caristo provides the backdrop for Chief Judge Jonathan Lippman's decision in Lifson v. City of Syracuse.
Doctrine Prior to 'Lifson'
Prior to Lifson, there were numerous cases involving sun glare and the emergency doctrine. Many of the cases surrounded rear-end impacts. Sun glare was generally not considered an emergency. In Arieta v. MTA Bus Company,10 the Supreme Court, Nassau County, found that the bus operator's testimony that he experienced sun glare which "kind of blinded him" was insufficient to defeat plaintiff's motion in a rear-end impact case. A similar result occurred in Agramonte v. City of New York,11 where the First Department found that the defendant's testimony that he was blinded by the sun was insufficient to defeat plaintiff's motion. In Johnson v. Phillips,12 the plaintiff's vehicle was at a complete stop for several seconds before it was rear-ended by defendant's car. The First Department found that the defendant's emergency claim of sun glare typically is inapplicable to routine rear-end traffic accidents. A similar result was reached in Connis v. Menichetti,13 where the Supreme Court, Broome County, found that the sun glare did not trigger the emergency doctrine as the defendant was traveling too closely to the plaintiff's vehicle.
The Third Department decided two sun glare cases in the context of administrative hearings. In the Matter of Vickie L. Black v. New York State Department of Motor Vehicles,14 the Third Department affirmed the administrative determination against the petitioner and found that despite the "extreme amount of [sun] glare," the petitioner had sufficient time to reduce her speed but failed to do so.
A contrary decision was found in the Matter of Edward M. Russell v. Department of Motor Vehicles of the State of New York.15 In Russell, the Third Department annulled the proceedings against the petitioner for a fatal pedestrian knockdown. In the underlying proceeding, the Administrative Law Judge concluded that petitioner had violated Vehicle and Traffic Law §1180(e) by failing to reduce his speed when he entered an area of sun-impaired vision. The Third Department reversed the decision and found that the infant pedestrian entered the roadway from the same direction the sun was shining. It would not have been prudent for the petitioner to be "staring into the sun while attempting to operate his vehicle."
There are also cases regarding sun glare in a non-automobile context. In Juoniene v. HRH Construction,16 the First Department reversed the lower court's decision granting the defendant's motion in a premises liability case. The defendant argued that the pipe upon which the plaintiff struck her forehead was "open and obvious"; however the court found that although the pipe was visible, the plaintiff could not observe the pipe due to sun glare.
In the Matter of the Complaint of Delmarine,17 a Southern District of New York judge found a defendant boat driver 85 percent liable for the boating accident even though the defendant maintained that the accident could have been caused by sun glare.
The Decision in 'Lifson'
In, Lifson, defendant Derek Klink was the driver of a vehicle that struck and killed the plaintiff while she was crossing the street. Both Klink and the plaintiff worked at MONY Plaza, a large office complex in Syracuse. The Harrison Street Garage, which was located directly across the street from MONY Plaza, was used for employee parking. There was a large amount of pedestrian traffic in that area, particularly during rush hours.
On Feb. 29, 2000, Klink stated that as he attempted to make a left turn onto Harrison Street, he first stopped at a stop sign. He looked right (toward oncoming traffic) and then looked left. When he looked left during the middle of his turn, he was blinded by the sun "all of a sudden." As a result, he looked down and to his right. When he looked up, he saw the plaintiff. Although he applied the brake, he could not avoid hitting her. The plaintiff Lifson's estate filed suit against Klink and the City of Syracuse for negligence and failure to study and plan for pedestrian traffic.
The trial court, at defendant Klink's request, charged the jury with emergency doctrine. The jury had to decide whether Klink was confronted with an emergency situation and whether he acted reasonably in response. The jury returned a verdict apportioning fault at 15 percent on the City of Syracuse and 85 percent on the plaintiff. The jury found defendant Klink not negligent. The Fourth Department affirmed and found that the emergency instruction was properly given as the sun glare was a sudden and unforeseeable event.18
The Court of Appeals, in reversing the decision of the Fourth Department, found that sun glare is equivalent to the icy roads situation in Caristo. Although defendant Klink did not drive the route often, he was familiar with the area. He was also about to turn west at the time of day that the sun would be setting. The Court of Appeals found that it is well known that the sun can interfere with a person's vision as it nears the horizon at sunset, particularly when heading west. The sun glare could not be considered sudden and unexpected.
Significantly, the court noted: "This is not to say that sun glare can never generate an emergency situation, but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency."
In a dissent by Judge Robert Smith, the court noted that the issue surrounding the emergency doctrine is not whether the emergency was foreseeable, but whether the emergency was sudden and unexpected.19 As such, the dissent found that Caristo did not apply to Lifson and that the emergency instruction was properly given.
Future of Emergency Doctrine
Based on the decision in Lifson, it appears that sun glare falls into the same category as other weather conditions and cannot be considered an emergency. For instance, Johnson v. Freund,20 a Suffolk County Supreme Court decision after Lifson, found that it is well known, and not sudden or unexpected, that the sun can interfere with one's vision as it nears the horizon at sunset, particularly when heading west.
However, based on Lifson, the Court of Appeals did leave open a possible application stating that there may be situations in which sun glare can qualify as an emergency. Even in the non-sun glare context, the courts are still applying the emergency charge in new and often unique situations.
Just recently, in Pelletier v. Lahm,21 the Second Department denied the plaintiff's motion to set aside the verdict. In Pelletier, a passenger unlaced the defendant driver's bikini top while she was driving, causing her top to fall. As the defendant driver attempted to cover herself, she lost control of her vehicle. The Second Department found that the trial court properly applied the emergency charge. A reasonable view of the evidence showed that the defendant driver's conduct was the product of a "sudden and unexpected circumstance." The defendant driver's general awareness that her passenger, who had engaged in distracting conduct while in the car, did not preclude a jury from deciding that the defendant driver could not have anticipated that her passenger would pull the strings on her bikini top.
In a dissent, the court noted that the emergency doctrine does not apply in cases where the party had reason to anticipate certain conditions. After citing Lifson, the court found that the defendant driver had reason to anticipate her passenger's unruly conduct and that the emergency doctrine should not apply.
As such, the emergency doctrine remains open and can vary based on the facts of a particular case.
Kevin G. Faley and Andrea M. Alonso are partners of Morris Duffy Alonso & Faley. Elizabeth A. Filardi , an associate, assisted in the preparation of this article.
Endnotes:
1. Lifson v. City of Syracuse, 17 N.Y.3d 492, 958 N.E.2d 72, 934 N.Y.S.2d 38 (2011).
2. See Caristo v. Sanzone, 96 N.Y.2d 172; 750 N.E.2d 36; 726 N.Y.S.2d 334 (2001); Rivera v. New York City Transit Authority, 77 N.Y.2d 322; 569 N.E.2d 432; 567 N.Y.S.2d 629 (2001); Tarnavska v. Manhattan & Bronx Surface Tr. Operating Auth., 106 A.D.3d 1079; 966 N.Y.S.2d 171 (2d Dept. 2013); Williams v. City of New York, 88 A.D.3d 989; 931 N.Y.S.2d 656 (2d. Dept. 2011); Parastatidis v. Holbrook Rental Ctr., 95 A.D.3d 975; 943 N.Y.S.2d 625 (2d Dept. 2012);Mendez v. City of New York, 2013 N.Y. App. Div. LEXIS 6266; 2013 NY Slip Op 6305 (1st Dept. 2013).
3. See Bello v. New York City Transit Authority, 12 A.D.3d 58; 783 N.Y.S.2d 648 (2d Dept. 2004)
4. See Bello v. New York City Transit Authority, 12 A.D.3d 58; 783 N.Y.S.2d 648 (2d Dept. 2004).
5. See Tarnavska v. Manhattan & Bronx Surface Tr. Operating Auth., 106 A.D.3d 1079; 966 N.Y.S.2d 171 (2d Dept. 2013).
6. Huggins v. Figueroa, 305 A.D.2d 460, 762 N.Y.S.2d 404 (2d Dept. 2003).
7. Pattern Jury Instruction 2:14 (3d Ed. 2005).
8. 96 N.Y.2d 172; 750 N.E.2d 36; 726 N.Y.S.2d 334 (2001).
9. See Renteria v. Simakov, 2013 N.Y. App. Div. LEXIS 6028 (1st Dept. 2013); see also Mughal v. Rajput, 106 A.D.3d 886; 965 N.Y.S.2d 106 (2d Dept. 2013); see also Marsicano v. Dealer Storage Corp., 8 A.D.3d 451; 779 N.Y.S.2d 102 (2d Dept. 2004).
10. 2011 NY Slip Op 30168(U)(Supreme Court, Nassau County 2011).
11. 288 A.D.2d 75, 732 N.Y.S.2d 414 (2d Dept. 2001).
12. 261 A.D.2d 269, 690 N.Y.S.2d 545 (1st Dept. 1999).
13. 2010 N.Y. Misc. LEXIS 6447; 2010 NY Slip Op 33644(U) (Supreme Court, Broome County 2010).
14. 290 A.D.2d 635, 736 N.Y.S.2d 149 (3d Dept. 2002).
15. 140 A.D.2d 844, 528 N.Y.S.2d 232 (2d Dept. 1988).
16. 6 A.D.3d 199, 774 N.Y.S.2d 525 (1st Dept. 2004).
17. 520 F.Supp.2d 422 (SDNY 2007).
18. See Lifson v. City of Syracuse, 41 A.D.3d 1292; 838 N.Y.S.2d 323 (4th Dept. 2007).
19. Id. at 499 (citing Ferrer v. Harris, 55 N.Y.2d 285; 434 N.E.2d 231 (1982); Amaro v. New York, 40 N.Y.2d 30; 351 N.E.2d 665; 386 N.Y.S.2d 19 (1976); Kuci v. Manhattan & Bronx Surface Transit Operating Auth., 88 N.Y.2d 923; 669 N.E.2d 1110; 646 N.Y.S.2d 788 (1996).
20. 2013 N.Y. Misc. LEXIS 1224 (Supreme Court, Suffolk County 2013).
21. Pelletier v. Lahm, 2013 N.Y. App. Div. LEXIS 7663, 2013 N.Y. Slip Op 7718 (2d Dept. No