*2 MONTEMURO, Before TAMILIA MONTGOMERY, JJ.
MONTEMURO, Judgе: Chevrolet, Inc., appeal. This is a consolidated 24, 1988, from Order of the Court of appeals the June Philadelphia County, wherein the court Common Pleas motion for a new trial. Slap’s denied Matt 13, 1988, from the October Order Sophie appeal Kukowski request court denied their for the entry wherein careful against Slap. Following us, light applicable record before review the law, the latter we are constrained reverse order. undisput- facts this matter are underlying essentially On Chester and ed. November *3 Matt Slap repair had taken a car to Chevrolet work. to completed, couple repairs procеeded When were driving dealership, with Chester Kukowski leave car in the seat. Ku- Sophie passenger and Kukowski driving as he towards the exit kowski testified that I “the out of And looked around. gate, car went control.
There R.R. at 13a. The Kukowski’s potholes.” was some accident, result of gate. collided an exit As a car hosрital- and Sophie injured subsequently Kukowski was injuries also sustained for which ized. Chester Kukowski received treatment. he medical commenced a
Sophie and Chester Kukowski Kukowski a “provide for failure to negligence against Slap action Matt ingress egress and to and from safe means of [their] lot____” set forth complаint R.R. at 3a. The also parking by against operation a claim Chester for Sophie vehicle, motor as a loss of consortium claim as well trial, At the against Slap. close of Chester Kukowski a rendered a verdict favor The $80,000.00. apportioned negligence amount (60%) forty percent against sixty follows: (40%) Kukow- percent against Chester Kukowski. Chester $20,000.00 ski’s consortium were set at jury. first Slap’s will address Matt claim that the trial court failing
erred in to grant new trial. Matt contends following jury instructions were erroneous and prejudicial, grant necessitating of new trial: Kukowski,
Now the other defendant is Chester driver of car in his a passenger. which wife was And govеrning there is body operators law of automo- biles. quite simple. It’s of a motor operator vehicle must at all times circumstances,
exercise reasonable care under the must have ear under such control that can it be stopped person doing injury thing, before to or any any reasonably apt situation arise circumstances. Now also what has have been called the assured principle. cleared distance That if is there is an object reasonably that is dangerous, understood be it vehicle, could be another or it be is one that dangerous, pedestrian; could be it could a deep be hole. That the driver the automobile must able to an stop coming within assured clear distance before into person contact with that or that object.
[******] ... even though operating Now Chester Kukowski was had duty exercising care, reasonable [sic] he is not ordinarily anticipate negligence bound others. But where negligence such evident he must act *4 as a seeking reasonable man in to avoid harm others. determine, And must you based on upon testimony fault, the size this whether Mr. Kukowski did or did not have sufficient time to avoid the accident.
[******] negligence implied Now should not be because perform duty, failure to suddenly came about so there unexpectedly that was no to com- opportunity prehend situation, and according to act emer- gency. evidence, You have to decide a review of the emergen- faced such an
whether Mr. Kukowski was with if faced cy situation. And he would liable with be situation, long as he as a reasonable such a acted person would under those situations. 101a-102a, 108a, at 122a.
R.R. appellate law that an court
It is well established whole, against as a its evidentia jury charge must review background. error will be found where ry Reversible shown to have been harmful jury instruction has been errone complaining party, to the as well as prejudicial 789, 87, 92, 417 Pa. 208 A.2d Hughes, ous. v. Anderson (1965); 485 A.2d Ayers, Pa.Super. Mickеy 1199, (citations omitted). Although find we error the content of the court’s instructions case, find accompanying prejudice no complaining party, Slap. concerning the “assured charged
The trial court rule, from the Penn- clear distance ahead” derived sylvania Code: Vehicle at Driving speed vehicle
§
safe
a speed greater
shall
a vehicle at
person
No
drive
the conditions
prudent
than is reasonable and
under
potential
the actual and
hazards
having regard to
greater than will
existing,
speed
permit
then
nor at a
stop
to a
within
bring
the driver
vehicle
rule____
clear distance ahead
assured
that a
3361. “If a fаct finder determines
75 Pa.C.S.A. §
his or her
operate
speed
failed to
vehicle
driver has
stopped
such
vehicle can
within
control
ahead, the
must be found
clear distance
driver
assured
Starcher, 367
Spearing
as a matter of law.”
omitted).
(1987) (citations
532 A.2d
al.,
et
Recently,
in McKee et al. v. Evans
Court,
banc,
(1988),
sitting en
discussed
177 The ‘sudden emergency’ doctrine is as available a defense to a defendant who suddenly and finds unexpectedly himself confronted with a perilous situation that permits no danger to assess opportunity respond appro- priately____ The doctrine is as successfully applied defense where proves the defendant that he did not create the emergency responded ... and where he in a fashion____ reasonable 146-147,
380 Pa.Superior Ct. at
551
(citations
A.2d at 272
omitted).
recognized
Court
invoking
McKee
that “[o]ne
dеfense
sudden emergency cannot
for
responsible
creating
very peril and is ordinarily excused from liabili-
ty
he
because
lacked the time
react
he
to
would have
Id.,
done under otherwise foreseeable circumstances.”
380
Pa.Superior Ct. at
findWe although the trial court charged the correctly jury cоncerning the assured clear rule, distance the court finding erred that the sudden applicable doctrine was case. In motor cases, vehicle accident the sudden emergency doctrine be invoked is testimony where there “the sud- suggesting den of a moving object” into a vehicle’s path intellection Schriver, travel. Brown v. 386 A.2d “Consequently, evidence confronta- pre-existing, tion with static road does prop- conditions call for erly an instruction on applicability the sudden McKee, doctrine.” supra, Schriver, A.2d at 274. In Brown v. example, driver of car had lost control his vehicle when apparently slipped on some gravel cinders on the road- way surface. The driver had he testified that did not notice gravel prior losing granted control car. in Brown, new trial because charged court had not jury concerning rule, assured clear distance ahead but charged had instead them regarding the sudden emer- gency recognized doctrine. We clear “the ‘assured applies distance ahead’ rule to static or essentially static objects emergency’ while the ‘sudden doctrine applies moving suddenly unexpectedly instrumentalities Brown, path
thrust into a driver’s supra, travel.” *6 (footnote 470, 386 A.2d and citations Pa.Super. at 46 omitted). Brown, the that of jury In determined the driver gravel negligent the car had encountered the was not operation in his of the vehicle. also v. Soren- See Hanlon (1981)(trial son, 268, 433 60 erred Pa.Super. 289 A.2d court doctrine charging emergency” in the “sudden jury respect highway to the fact the was covered with with 531, McCartan, Pa.Super. 280 421 v. gravel); McErlean (where a in of (1980) jury A.2d 849 returned verdict favor defendant-driver, the required new trial was because the doctrine, emergency’ jury ‘sudden which was included road instructions, apply does not to a wet surface involved Wolson, accident); Pa.Super. auto 262 in an Sullivan v. (1979) (snow road, ice on 397, 396 1230 as well A.2d automobile, preexisting all condi- were presence stopped not entitled to sudden tions so that defendant motorist was doctrine). emergency in lot parking the pothole potholes
The existence of condi- was a static road preexisting, Chevrolet trial court erred when Thus, tion. it is evident that the doc- concerning emergency instructed the sudden jury ahead rule was trine. the assured сlear distance Only mentioning the court erred applicable.1 though Even has failed jury, doctrine to the emergency sudden resulting from any specific prejudice to demonstrate Generally, emergency place takes within where a sudden and clear distance, range assured distance rule assured clear clear concerning jury instructed it. inapplicable should not be is 45, Schriver, Pa.Super. It 386 A.2d 49 Brown v. 254 jury charge the assured clear distance proper to on both emergency where facts do not rule sudden doctrine ahead and the Mickey conclusively emergency. a sudden establish the existence of 1199, (1984) (citatiоns Ayers, Pa.Super. A.2d 1203 485 omitted). Reading, 538 A.2d See abo Cervone (trial jury clear properly on assured court instructed doctrine, evi- where distance rule and sudden ahead truck, in an with a as to whether involved accident dence conflicted highway motorcycle, suddenly the motor- moved onto the front of cycle). сharge. erroneous by Kukowski was found forty percent regard have been that, this accident. We find under the particular facts case, the instant the actual by verdict returned the rejection demonstrates sudden doctrine or, alternative, factfinder failure consider Orluck, it. See Elder v. A.2d 474 (1984). Indeed, the rejection this doctrine is supported testimony Kukowski, she wherein states that she and her having driving husband were difficulty over the terrain of the parking prior accident, lot thus indicating they were not surprised by an isolated patch rough roadway:
Q. Now, you tell the jury your own words what *7 happened you to pick up your after went car. s>¡
jfe s¡c sjs $ sfc A. This second had to day go quite we around a few gave cars which us one-way lane out to the exit. In direction, we found it paving difficult. The very was—made car jolt violently my where husband had the accident. Well,
Q. you describe to the jury you what mean by jolting violently? side,
A. The car went from side to and I up went I air. I hit my up, suddenly remember when head the car right____ went to the
R.R. at 66a-67a. Based
upon
jury’s determination that
forty percent nеgligent
Kukowski was
opera-
vehicle,
tion of his motor
find
no prejudice
resulted
from the sudden emergency jury instruction.
Generally, where a factfinder determines that a motor
operator
vehicle
was faced with a
emergency,
sudden
which
required
spontaneous response
to avoid the impending
danger, the operator is “excused from
because he
liability
lacked time to react as he
have done
would
under otherwise
McKee,
foreseeable circumstances.”
supra,
that a
at
Id. Under new Rule there must be that the deny in order to the award plaintiff delay caused Thus, emphasis delay damages. trial court’s demands, Sophie reasonableness of Kukowski’s settlement decision, is misplaced Craig while relevant under Further, of the Rule as the light provisions new clеar, Rule a plaintiff comment the new makes failure comply discovery should not affect the award a result. delayed unless trial was any delayed Kukowski’s actions actually Whether *9 in fact, the trial the instant case question which by must be determined the trial court remand. upon affirm Accordingly, we the Order entered June (No. 1988), Philadelphia reverse the Order 13,1988, (No. 1988), entered Philadelphia October remand for proceedings further consistent opinion. with this relinquished. Jurisdiction is
TAMILIA, J., files a concurring and dissenting opinion.
TAMILIA, Judge, concurring and dissenting: I in concur the result as to for the remand purpose reconsideration of light new Rule and I also analysis by. concur majority interplay of the emergency doctrine clear assured However, distance rule. I respectfully dissent to the con- majority clusion that trial charge court’s emergency ignored doctrine was jury and therefore harmless.
We are say unable what extent the considered charge the effect on their decision to apportion dаmages per against cent 60 per Chevrolet and against cent analysis Chester Kukowski. Pursuant interrelationship between doctrine and rule, clear distance I assured which is sound and believe correct, charge keeping with that analysis made which certain doctrine did not apply, could well have the jury away finding turnеd from a of negligence against its apportion- reduced against ment it considerably.
I manner in can be believe justice rendered grant this case is to trial new with directions that the emergency charge given. sudden not be Should the result of a against new once be in favor appellee, then the remand instructions as to of Rule appeal apply. would