Defenses: Sudden Emergency (Instruction)

From  McAlpin v. Davis Construction Inc., COA, Published, 2/11/2011

The sudden emergency doctrine is generally defined as follows:

[W]hen an actor is faced with a sudden and unexpected circumstance 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 is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.
Henson v. Klein, 319 S.W.3d 413, 418 (Ky. 2010) (citing 57A Am. Jur. 2d Negligence § 198 (2004)). Such an instruction is warranted when an actor is under specific duties prescribed by statute, and the ability to conform to those duties is affected by “the presence of a sudden and unexpected peril.” Henson, 319 S.W.3d at 421. The sudden emergency qualification has been approved in Kentucky for use in automobile collision cases. Regenstreif v. Phelps, 142 S.W.3d 1, 4-5 (Ky. 2004) (citation omitted).

The rule is well settled that “[e]ach party to an action is entitled to an instruction upon his theory of the case if there is evidence to sustain it.” Farrington Motors, Inc. v. Fidelity & Cas. Co. of N.Y., 303 S.W.2d 319, 321 (Ky. 1957) (citations omitted). Whether Hurley was confronted with a sudden emergency is a question of fact for the jury, and if the evidence supports such a finding, the jury will be given a sudden emergency instruction. Brown v. Todd, 425 S.W.2d 737, 739-40 (Ky. 1968).

From Maggard v. Portwood, COA, Not Published, 5/28/2012

A sudden emergency can be defined as “when an actor is faced with a sudden and unexpected circumstance 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 is not negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency.”
Henson v. Klein, 319 S.W.3d 413, 418 (Ky.2010) (quoting 57 Am. Jur. 2d Negligence §198 (2004)).

A sudden emergency instruction is proper where a party had no reason to anticipate a particular condition, did not cause or bring about the condition, took some sort of action in response to the condition, and the condition “alter[ed] the duties [the party] would otherwise have been bound to observe.” Id. at 419 (citing Regenstreif v. Phelps, 142 S.W.3d 1, 4 (Ky.2004) (italics omitted)); Robinson v. Lansford, 222 S.W.3d 242, 245-47 (Ky.App.2006).

Thus, the dispositive question when determining whether a sudden emergency instruction is warranted is not whether the circumstance constituted a sudden occurrence or a sudden emergency, but rather “‘whether [the circumstance] changes or modifies the duties that would have been incumbent upon him in the absence of that circumstance.’” Henson, 319 S.W.3d at 420 (quoting Harris v. Thompson, 497 S.W.2d 422, 428 (Ky.1973)). Furthermore, “[t]he presence of the emergency does not excuse the breach of a specific duty; under appropriate circumstances, it can eliminate the duty so that the conduct (crossing to the wrong side of the road) is not a breach at all.” Id. at 421. Thus, it becomes necessary to instruct the jury that the party’s duty has been modified. Id.

Under the facts outlined above, the trial court did not commit manifest error by concluding that a sudden emergency instruction was warranted. There was sufficient evidence presented that Portwood was forced to respond quickly to another vehicle entering into his lane. Thus, the sudden emergency instruction was necessary to inform the jury that Portwood’s duties were modified if they found his account of the facts to be credible. Once the instruction was given, it was up to the jury to make credibility determinations with respect to each party’s and witness’s testimony and to determine whether Portwood was in fact confronted with a sudden emergency. McAlpin v. Davis Construction, Inc., 332 S.W.3d 741, 743-44 (Ky.App.2011). There is no reason for us to disturb the jury’s determination regarding the facts of this matter.

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