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Define That Term #26

Emergency Doctrine Held Inapplicable

In Deitz v. Huibregtse, the Second Department considered the issue of whether the lower court properly included the "Emergency Doctrine" in the jury charge.  In Deitz, the injured plaintiffs attempted to cross a two-lane highway when they were struck by the defendant's car. 

The Court described the roadway as follows:

On the date in question the weather was clear. Route 22 at the accident location is a straight two-lane road one lane for northbound traffic and the other for southbound traffic. Each lane has a shoulder and no sidewalks. The accident occurred some distance south of the commercial area of Amenia. There is no dispute that the posted speed limit in that area is 35 miles per hour.

Route 22 just north of the accident site has a posted yellow sign advising drivers to exercise caution for pedestrians. Immediately south of that sign there is a rise or hill.

The Court set forth the relevant law as follows: 1) V & T s. 1146 requires that motorists to exercise due care to avoid hitting pedestrians 2) the Pattern Jury Instructions provides that a motorist is obligated to be on the lookout for pedestrians, to see what should have been seen and to exercise reasonable care to avoid hitting a pedestrian 3) that it is not negligence per se simply because a pedestrian chooses to cross a road at a site other than a cross road, nor is a pedestrian prohibited from doing so and 4) a pedestrian only cedes the right of way to a motorist when entering a roadway with the knowledge that a vehicle is in sight.

Finally, the Court concluded that:

An emergency charge is only proper when, viewing the evidence in the light most favorable to the party requesting it, there is a reasonable view of the evidence that the defendant's conduct was the product of a sudden, unforeseeable occurrence not of the defendant's own making (see Caristo v Sanzone, 96 NY2d 172). Where, as here, there is a sign warning of pedestrians in the area and the elevation of the roadway obscures the driver's view of what lies ahead, a greater degree of caution was required. Moreover, under the facts of this case, it was not unforeseeable that pedestrians would attempt to cross the roadway.

I'm in complete agreement with the Second Department.  Given the facts of this case, I'm having a hard time envisioning the lower court's rationale for including the "Emergency Doctrine" in the jury charge.  Although the appearance of the plaintiffs in the roadway was most likely "sudden", as the Second Department concluded, it was by no means unforeseeable, especially in light of the signs posted warning motorists of the possibility of pedestrians.

Something else puzzled me about this case as well. If you read the opinion, you'll notice that at trial, the distance between the crest of the hill and the site of the accident was never clearly established.  The Defendant estimated it was approximately 50 feet, whereas the plaintiffs estimated it was nearly 300 feet.  That's a big difference, and as I read this opinion, I wondered why neither party provided more conclusive proof of that distance.  In my mind, it's a pivotal issue and one worthy of the extra effort required to establish it more definitively.


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