Define That Term #91
Comedic Break

It's a Bird, It's a Plane...

In Kizis v. Nehring, 2006 NY Slip Op 01952, the Fourth Department considered whether the emergency doctrine has been correctly applied by the trial court.  In this case, the infant plaintiff was injured when the car driven by her mother was struck head on by the defendants' vehicle , which had crossed a double yellow line and entered into oncoming traffic.  At trial, the defendant who had been driving testified that she had crossed into oncoming traffic in order to avoid an animal that she thought was a large brown bird that was either running or flying toward her car.

The Fourth Department concluded that the trial court erred by charging the emergency doctrine since:

(I)n view of the vagueness and equivocation in the explanations of Nehring concerning the circumstances that allegedly caused her to cross into the opposing lane of travel, we conclude that there is no reasonable view of the evidence that Nehring was confronted by a qualifying emergency, i.e., a sudden and unforeseeable occurrence that would have made it reasonable and prudent for Nehring to react by swerving into the opposing lane of travel and colliding head-on with an oncoming vehicle.  (Internal citations and quotations omitted.)

The Court also concluded that the verdict in favor of the defendants should have been set aside:

Indeed, [a] driver confronted with an emergency situation may still be found to be at fault for the resulting accident where his or her reaction is found to be unreasonable or where the prior tortious conduct of the driver contributed to bringing about the emergency...We conclude that Nehring's self-described emergency, i.e., the presence of what appeared to be a bird "flying or running" toward Nehring's vehicle, would not justify or excuse such an unreasonable and imprudent reaction on the part of Nehring. (Internal citations and quotations omitted.)

There was a strong dissent by Justice's Martoche and Pine, who contended that the emergency doctrine was properly charged and that the jury's verdict was not against the weight of the evidence.

I agree with the majority in regard to the inapplicability of the emergency doctrine, but am inclined to agree with the dissent regarding the issue of setting aside the jury's verdict.  The jurors were, in my opinion, in the best position to assess the facts and the credibility of the witnesses.

UPDATED:    Slickdpdx's comment regarding this post quite politely points out that my logic at the end of this post makes no sense.  And, he's quite right.  If the emergency doctrine is out, then any verdict in favor of the defense would most definitely be against the weight of the evidence.  I humbly apologize for posting without thinking!

Apparently, I'm able to leap over logical flaws in a single bound (hint:  if you aren't following the reference--check the title of this post).


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I'm missing something in the dissent. How can you take out the emergency charge and let the verdict stand? Sure, you might be able to reach the same conclusion in a permissible way, but how can you know that the jury did not reach the verdict based on the emergency charge.

Addtl thoughts: Defendant's lawyers must have been fantastic and/or jury full of non-drivers and/or plaintiff's lawyers stunk and/or defendant was really sympathetic.

If some dumbass hit me head-on because of a bird I'd be pissed!


It's not the dissent thgat you're having a problem with, Slick--it's my faulty rationale. The dissent thought that the emergency doct. was properly charged and that the verdict therefore properly followed.

I, on the other hand, think that the emergency doctrine is out. If that's the case, then I suppose that if the jury came back with a verdict in favor of the defense, then it would absolutely NOT make sense.

Apparently, I dashed off this post a bit too quickly. I hereby withdraw my faulty reasoning;)


I may not know all the vocabulary words, but I do pay attention!

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