*1 551 A.2d McKEE, McKEE, by and Ruth her Parent Colleen a Minor Guardian, in Her own and Ruth McKee Natural
Right, Appellants, v. EVANS, Raymond Linden and Michael P. P. H. Trecki.
Mark CARROLL, Minor, CARROLL, by Margaret her Parent a Olive Minor, Carroll, Guardian; Jacqueline and Natural Carroll, Guardian; her Parent and Natural Olive Olive Carroll, Right, in Her own
v. EVANS, Raymond Linden and Michael P. P. H. Trecki.
Mark Appeal Margaret CARROLL. WAITE,
Ricky Joseph Appellant, EVANS, Raymond P. Linden and Michael P. Trecki.
Mark H. Pennsylvania. Superior Court Argued Feb. 1988. Filed Nov. 1988. *5 Kerrington Lewis, J. Pittsburgh, for appellant at No. 00644PGH86.
John A. Caputo, Pittsburgh, for appellant at No. 00691PGH86. IV,
John W. Jordan Pittsburgh, for appellee Michael P. Evans. BROSKY, WIEAND,
Before McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, JOHNSON, POPOVICH and JJ.
BROSKY, Judge: These are consolidated appeals from judgments entered on verdicts after appellants’ post-trial denied, motions were as well as from an order granting a new trial limited to damages.
Appellants, (hereafter Colleen McKee “Colleen”), Marga- (hereafter ret Carroll “Margaret”) and Ricky Joseph Waite (hereafter “Ricky”) contend that the trial court erred in not granting them a new trial on both liability and damages.
Their specific representations before the court en banc *6 concern the alleged erroneous admission of a police officer’s testimony to the of point impact of a relative head-on collision between two of the three involved motor vehicles and the trial court’s purportedly faulty instructions to the that the jury police officer’s on impact of was based solely upon location of debris the accident scene.
Appellants secondly challenge trial court’s charge to on the jury applicability of the sudden emergency doctrine respect with to appellee, (herein- Raymond Linden “Linden”), after whose negligence the jury found not to be a substantial factor in causing the subject collision.
alsoWe address the issue of propriety of admitting of testimony Mark Trecki his concerning alcohol consump- prior tion to the accident in question.
Because we conclude that the trial court erred in instructing the on jury applicability the sudden emergency case, doctrine to this we vacate the judgments entered on the verdicts as well as the order a granting new trial on damages and remand for a new trial on both liability and damages parties.1 to all
The operative facts giving rise to the accident which is
subject
the instant appeal are as follows:
26,
January
consideration,
1. The Order of
granting
en banc
appeals
1986,
Pittsburgh,
severed the
filed at Nos. 707-710
because the
parties
appeals
filed at those docket numbers had not moved
Thus,
reargument.
only
for
appeals technically
before the court
en banc are those filed at
Pittsburgh,
Nos.
691 and 692
1986.
discussion,
infra,
Pursuant
to our
awarding
we are
a new trial as to all
parties
liability
damages.
Supreme
both
and
Our
Court has recent-
ly stated that the award of a new trial restores the case to the status it
Hence,
occupied
that,
before trial.
that court concluded
on remand
trial,
for a new
the matter is to be tried
parties
de novo as to all
and
Moreover,
held,
all issues.
appellate
the court
may
an
court
sua
sponte
parties,
order a new trial as to all
including
presently
those not
appellate
before the
Philadelphia
court. Rivera v.
Theological Semi-
Borromeo,
Inc.,
nary
(1986).
St. Charles
510 Pa.
Linden had at first to block, decided drive around the hoping Instead, that Evans would leave. this incident be- gan minute, a ten-to-fifteen pursuit ten-mile of by Linden through Evans the West End City Pittsburgh. time, During this kept bumping Evans rear of Linden’s car flicking high his beams on and off. Evans also to attempted pass However, Linden on the latter’s left. Linden would not allow to him pass Evans because he (Linden) that if was afraid in passing, Evans succeeded Linden rear end would Evans.
Linden indicated that Evans would have physically over, if pulled harmed him he had and he was fearful during episode. the entire Linden did at stop police not passed station which he this because would have required him to cross over to the left side of the road. Linden feared that Jeep Evans’ would have struck him attempted had he to to get police cross over the road station. Linden
When reached the Road top Windgap curve, he sharp lights coming observed vehicle him towards opposite from the direction. Linden stated that he inwas cut left to lane. He then hit the brakes and right by Mark colliding to avoid with the vehicle driven attempt (hereafter “Trecki”) opposite from the di- coming Trecki He not Almost simulta- rection. could avoid accident. Trecki, impact by from the neously with vehicle driven Linden, Evans, rear him. Trecki’s three according ended Colleen, passengers appellants, Margaret are the instant Ricky. I. bearing upon first treat the two related issues We will (hereafter Police Officer Katherine Vallone’s “Officer Val- lone”) impact. testimony
A. contend Officer testi- Appellants initially Vallone’s opinion evidence as to the mony improper amounted Appellants argue of the accident. that admission cause error for rendition because it called qualified expert. true, posit, investigating
It is
that an
appellants
may
officer
did not
an accident
police
who
witness
unless he/she has
opinion
render an
at trial as
its cause
Clark, 411 Pa.
qualified
expert.
been
as an
Smith v.
Hutchinson,
(1963);
331 Pa.Super.
190 A.2d
Reed v.
(1984);
Henning,
The of portion Officer Vallone’s which appel- lants find particularly objectionable is that her concerning was, of placement drawing an “X” on the signifying what belief, her the of point impact the Linden between and placement Trecki vehicles. the “X” on the police diagram report was in the north bound lane traffic. She premised this upon respective belief positions and subject roadway vehicles the location debris the scene. Officer Vallone also testified that she had spoken witness, Scheuer, with Linden another Mr. Thus, obtain information concerning impact. based upon positions respective ap- vehicles they peared subsequent accident, to Officer Vallone location of the debris her conversations with Linden Scheuer, and Mr. she was to identify able *9 police “X” her by was the on impact represented which diagram. N.T. 736. report Vallone, asked of the she
Officer when what debris which consisted, the explained found at scene that debris would glass headlights consist of from and dirt from fenders point have fallen from the vehicles at the which would located “on impact. She indicated that debris was of the that the “X” wrong side road” and “was show that wrong point impact was on the side [she] believe[d] road.” could not tell of the N.T. 748. Officer Vallone from point distance from the center line she what believed impact to be. following exchange place took on cross-examination Margaret:
of Officer Vallone counsel is X Q. drawing How far on the from the center your line? far.
A. Not diagram This made to That was to wasn’t scale. show I impact wrong on the what believe was side road, period. of the line,
I know from the just don’t how far center that it on the of the road. wrong was side Q. you many So don’t know how feet it from the was center line? No, just
A. that it on the side of the wrong was road. Q. And it so that it more toward you have drawn is road; line side is right center than to the that correct?
A. that it side of the My point wrong was is to relationship yellow road. What the double line my pen fell on the may just have been where road. here, X you marked the the X could be here Q. So where here; up or it could be correct? *10 long
A. as as the point Just is understood it on the side of the road. wrong
N.T. 747-49. Linden, direct, for
Initially, counsel on asked Officer Vallone the basis her point where the impact of belief had occurred the vehicles, between Linden and the Trecki i.e., placement the of the “X” her police report diagram. on
BY MR. ROSENBERG Now,
Q. Officer, you have the photograph the position resting the place between the of Linden and Trecki vehicle X? an Yes,
A. sir.
Q. us you Would tell what that identifies? A. That identifies what I believe to been point have the of impact. on
Q. And do you belief, what base that Officer? A. The the roadway. debris on Q. right. All you Did talk also to a witness? Yes, sir,
A. I did.
Q. What was his name?
A. Nick Scheuer.
Q. you Did talk him night? to that Yes, sir, A. I did.
Q. Did information from help received him you identify the of point impact? Yes, sir,
A. it did. Q. you Did car, also talk to of the occupants some in the in the several cars? Yes,
A. sir.
Q. you Do remember who they may have been? A. According my to I reports with spoke opera- [sic] tor of the second vehicle which would have been Mr. Linden. that, I
Mr. didn't hear your Lewis: Honor. A. I According my reports spoke with Mr. Linden who have the operator vehicle, would been of the second as as well the witness.
BY MR. ROSENBERG:
Q. that you So observed the of positions the vehicles as existed, they you saw the on the roadway, you debris talked you witness Mr. Linden and from identified, things you all those from of identified point impact? Yes, sir.
A. N.T. supplied. 735-36. Emphasis
It is evident from the foregoing that Officer Vallone based her impact upon discernible factors: her observation location debris roadway, positions respective vehicles as she *11 found them upon her arrival at the scene of the accident Scheuer, and with her conversations Mr. an eyewitness, and Linden. Additionally, counsel for appellants requested Offi- cer her Vallone recount upon observations based the diagram which she on her police drew She report. reit- erated numerous on times cross-examination her pur- pose in placing the controversial “X” on the diagram was to been, show the impact upon where had based the foregoing debris, events—the settlement of the resting the places positions of the in the vehicles aftermath of the collision and her interviews with Mr. Scheuer and Linden. Thus, Officer Vallone based her her testimony police report of the drawing which consisted the accident scene as her she observed it and notes. interview
Appellants rely on several cases which they urge this accept dispositive court to as of their contention that the of Officer testimony Vallone’s the substance went to cause and, therefore, of the accident should have been disallowed. Our perusal plus these authorities others which we deem persuasive more to the us contrary forces to decline appel- lants’ invitation. Clark, supra, Smith v.
In the Pennsylvania Supreme Court a trial based upon awarded new the erroneous allow- police opinion ance of a officer’s testimony that the cause there due to accident was the driver’s failure to react in a manner which would have him enabled to execute a curve eye- was not an the officer Smith in the road. Since as event, Supreme speculative held Court witness his as to the opinion jury’s province an invasion of the Moreover, Court considered Supreme ultimate issue. that the accident occurred because opinion the Officer’s respond to a curve appropriately the driver’s failure Henning, Lesher v. highly prejudicial. the road upon officer arrived police who non-eyewitness supra, accident, at was asked an automobile investigate scene appel- of the accident cause directly trial whether arriving at stop sign upon at the stop failure to lant-driver’s intersection: us, as you tell Would Q. FOR APPELLEE]: [COUNSEL a determi- investigation, did make you of your a result accident occurred? nation howof Yes, I did. A. PREBULA]: [TROOPER there any Yes. Was FOR Q. APPELLEE]: [COUNSEL as to whether or not investigation your indication of stop at the stopped sign had Lesher automobile before intersection? entering the No, not.
A. it did 33-34; first emphasis 449 A.2d at Pa.Super. Id. 302 held, in grant- This court added; in text. emphasis second rendition improper upon Trooper’s a new trial based ing accident, that the above as to the cause *12 at the evidence physical of the upon analysis was not based what was but, rather, solely upon premised was scene words, the other eyewitnesses. him two by related to on the scene and interviewed in arrived Trooper Lesher the trial, opinion his as to he then stated At witnesses. the witnesses’ simply upon of the accident based cause The Lesher court accident occurred. of how the version conclusion, it was corroborated though even this rejected Hutchinson, a supra, Again, Reed v. other witnesses. mishap the testified on did not witness officer who police on the road at the cut marks he had observed direct that cross-examination, asked he was On scene of the accident. dislodge- the result of wheel markings were if the wheel the his at concerning non-presence After objection ment. time the accident occurred and his inability support conclusion as lack a result of his of expertise, he then asked, based his on observations at the scene and his witnesses, interviews of other he whether was able to ascertain if the offending had come off wheel before or the after vehicle to which had it been attached hit the had guard rail. This query elicited the following response:
Q. opinion, Would state you your sir. Yes, A. sir. It was my opinion, observing after the observing vehicles, scene and the the that accident was a wheel, result of the front the right wheel, front becoming vehicle or dislodged dislocated for un- some known reason from the itself causing opera- the vehicle tor to loose right control and veer to the striking and guardrail, the coming rest the at same. Id. Pa.Super. 1099; at 480 A.2d emphasis at added. it is true that
While Officer Vallone also her based opinion regarding point impact from with interviews inspection witnesses and her of the accident scene for i.e., physical fallen the resting debris the evidence— positions of respective involved, the vehicles merely she utilized this information her on formulating opinion point or, of impact words, initial on other location the actual collision between Linden and Trecki distinguishable motor vehicles. This is from situation in Reed where the officer testified categorically the driver a had lost control as result of his becoming dislodged, wheel him causing into ultimately guard hit rail. The court quite properly rejected then his as tantamount to rendering opinion However, an as to causation. the testi- of Officer Vallone not mony does reflect that she gave any unequivocal, similar responses. causative Russell, Anderson v. Similarly, in supra, this court af- firmed the trial grant premised court’s upon new trial interjection Chief Police’s of his assessment of impact trial between the minor plaintiff’s bicycle and a did truck. Chief witness accident. The trial held, however, court that he could not offer his opinion *13 of point impact merely upon based in the gouge marks
135 court, affirming, and this court roadway. trial to was tantamount Frey’s testimony Chief reasoned that of the accident as to the cause his expressing opinion Most expert. as an qualification the prerequisite without prop- the could held that Chief the trial court significantly, scene, he at the accident to what observed testify as erly However, since the trial marks in the road. including any did not gouge the marks found, agreed, and we court it logically impact, of any point indicate conclusively even testi- any not offered could have that the Chief concluded impact bicycle of between point bearing upon mony of the cause truck, as to the testify let alone and the mishap. of references, point impact, while Vallone’s
Officer at the acci- her observations upon based were nevertheless before, the included, as have stated scene, we dent which roadway on the location of the debris positions, vehicles’ A Linden. with Mr. Scheuer and her conversations as to formed her assessment of these factors composite or, in cause, accident, other location, subject not words, point impact. supra, v. Speelman, find Commonwealth
Instead, we Sales, Inc., Ace Motor F.Supp. and Ernst v. (3d Cir.1983), to be con F.2d 661 aff'd, (E.D.Pa.1982), officer did Speelman, police who trolling here. interrogated at the occurrence the accident was witness He was the accident scene. inspection as to his trial as to where he believed opinion asked render an occurred, His not as to its cause. response was accident oil, observations, scene, of at the debris his upon based deci the trial court’s upheld marks. This court gouge Here, too, Officer his at trial. permit sion to loca opinion of her testimony consisted Vallone’s i.e., collision, hotly controverted tion of the too, court, we, have Speelman also As did the impact. testi respect in what Officer Vallone’s perceiving difficulty establishing causation risen to the level could have mony oc as to where the accident had opined only when she curred. *14 supra, Ernst, a police officer who did not witness the
accident but who arrived on the scene within five to ten permitted minutes thereafter was response to in testify to plaintiffs counsel’s query, “Were to you able ascertain whether the from vehicle.”, follows, debris was the Ernst as my opinion “It that it did.” At 1223. The connection [sic] between the plaintiff’s debris and the car leading was a trail point from a on the roadway plaintiff’s to vehicle. The United States District Court for the Eastern District of Pennsylvania held that testimony regarding Officer’s was, impact first, and location of lay debris opinion testimo- ny, since the officer testifying did not see the accident occur. Secondly, significantly, for our purpose, District Court determined that of type lay opinion testimony under was admissible Federal of Rule Evidence 701 which reads:
Rule 701. Opinion Testimony by Lay Witnesses
If the is testifying witness not as an expert, his testi- in mony opinions the form of or is inferences limited to opinions (a) those or inferences which are rationally based perception (b) of the witness and helpful a clear understanding of his or the determination a in fact issue.
The District Court then concluded that the officer’s testimo- ny concerning impact upon was based his percep- tion of physical evidence which he found at the scene. The Ernst court reasoned, believe, we soundly:
The logic officer’s simple accident occurred —the where the largest concentration debris was found and dissipated the direction in proceeded which the car point of rest. opinion This was ... such a nature as to be A helpful jury. a trial judge may exercise discre- tion to lay opinion admit testimony ... and under the circumstances of this case that discretion was not abused. 1223; At citations omitted. import
The
of the above rationale is
A
clear.
lay
witness’ opinion testimony is
long
admissible so
it
of that which he/she observes
perception
based on his/her
helpful
an ultimate fact
clarifying
would be
that
also found
it matters
trier.
Ernst court
an ultimate
opinion testimony
upon
touches
proffered
reading
flows from
logically
issue. This conclusion
and,
701(b)
conjunction
supra,
Rule of Evidence
Federal
of which
therewith, Federal
of Evidence
both
Rule
court:2
upon by
were relied
the Ernst
Issue
Opinion
Rule 704.
on Ultimate
*15
other-
opinion
in the
of an
or inference
Testimony
form
it
is
because
embraces
objectionable
wise admissible
not
trier of fact.
by
issue to
decided
the
an ultimate
be
509,
We therefore opinion problem. the evidence We to approach taking this as our adopt that own. approach now action, moving present of beyond are conscious we however, that law, of the it It is of essence cases. thoughtful criti- response experience in to evolves than of the of the law is this more true cism; aspect of no action, moreover, radical hardly is Our law of evidence. opened stand not now reaching. The witness or far like the would act who oath-swearers witnesses become centuries; nor intend that our trials do we early Com- givers. Advisory opinion of influential See parades remains knowledge Personal Notes to Rule 704. mittee of an admissibility expression lay to the prerequisite rules that have do no more than abandon We opinion. decision, to include an Rule has been amended this 2. the Ernst Since inapplicable matter now hand. exception proved difficult both articulation and If application. judge proffered trial decides that the opinion would helpful, be or if helpful, confuse, even mislead, would prejudice time, or the jury, or would waste he may exclude it. Advisory See Committee Notes to Rule 704. appeal, judge’s On in regard discretion will be respected, and reversal occur in only will those cases where discretion has clearly abused, been and actual prejudice has occurred.
Id.,
523-24,
259 Pa.Superior Ct. at
Appellants posit that Officer
Vallone’s
concern-
ing point of impact
erroneously
as going
admitted
the ultimate
fact
issue—a
of negligence
determination
or
leaving
not—thus
nothing for
jury
consider based
upon
presented
the facts
and the potentially prejudicial
impact her testimony would have
because
her status as a
However,
police officer.
in Lewis,
as we wrote
supra:
ultimate issue rule has been criticized
because
[T]he
the inherent
difficulty
deciding what
an
constitutes
particular
Note,
ultimate issue
case.
Opinion
See
Testimony Invading the Province
Jury,
*16
484,
Moreover,
(1951).
U.Cinn.L.Rev.
486-88
the ratio-
rule,
nale for
opinion
the
that ultimate issue
should be
function,
excluded because
‘usurps’
it
the jury’s
has been
rhetoric’,
labelled ‘mere empty
no
because
witness can
usurp the
function even if
jury’s
he wants to. Wig-
7
more,
Note,
1920;
supra,
486;
at
supra,
see Grismore
§
Products,
232
Consolidated
Iowa
these to the trial upon a deference predicated monwealth deciding lay opinion testimony court’s discretion whether helpful avoiding resolution jury, be thus would concerning the questions necessity difficult theretofore an or whether it would embrace opinion testimony dual-pronged place problematic issue. ultimate explained the Lewis that the trial admissibility, court test testimony, of such helpfulness need consider only judge confusing prejudicial its or solely by potentially checked con Only appellate when an court impact upon jury. *17 in that error was manifest the admission prejudicial cludes the trial court’s decision reversed. opinion will be lay of Thus, forsaking of these trou previously assessment the salutory of rule concepts and furtherance blesome effectuated, only require we now the trial court to the view if proffered testimony, based on the perceptions, witness’ light helpfulness of its the jury to in the latter’s deliberation concludes, ultimate issue. If the trial so court it must further the to inquiry lay ensure that the opinion proffered will not unduly confuse or prejudice the fact finder. When two-step this analysis has completed, been the court will either admit or lay exclude the opinion testi- mony.
Applying Ernst
of
bar,
facts
the case at
we
conclude that Officer Vallone’s testimony
upon
was based
perception
her
of
she
what
discerned at the scene
the
of
accident —the location of the debris and the
resting
ultimate
positions
the motor vehicles involved in the accident.
Her conversations with Mr. Scheuer and Linden also in-
volved
interplay
an
between her
perception
observable
and
her. The Ernst court
what these witnesses related to
held,
here,
as we do
that
that officer’s testimony
to
only went
accident,
localization of the
not
its cause.3
Lewis,
3. The
supra,
Ernst court does not cite our decision in
even
though
explanation
by
years.
Ernst
proffer
followed
four
Lewis
We can
no
except, perhaps,
this
omission
that counsel in the
bring
Ernst case did not
our
decision Lewis to the attention of the
opinion only
District Court. The District Court
inapplicability
informs us
(Pennsylvania) evidentiary
of state
law to Ernst. The
states, instead,
governed directly
court there
by
that Ernst is
However,
footnote,
Federal Rules of Evidence.
in a
the Ernst court
cases,
Pennsylvania
cites
opinion
which held as inadmissible
testimo-
ny going to the
cause
the accident. The District Court considered
inapposite
these authorities to be
police
to the situation in Ernst because the
testimony
relating
officer’s
in that case was limited to
where
occurred,
Instead,
accident had
not
its cause.
the District Court
testimony
by
police
likened the
given
rendered
officer in Ernst
that
Moss,
Pa.Super.
(1981),
by
in Morris
Moreover, impact any potentially prejudicial Officer (which, might hold, had we it did testimony have Vallone’s for not) appellants’ repeated counsel generated opinion now as objected-to solicitation of Vallone's Officer Counsel, effect, had succeeded point impact. by asking stirring up a hornet’s nest on cross-examination among are by counsel Colleen questions, typical which follows: as here that the Linden car
Q. There has been difference your opinion slid. Would that make a impact? if a slid after regarding debris car Yes, A. it would. 758; added. emphasis
N.T. event, Mr. car or Mr. Linden’s car is Q. Evans’ any and this is not to scale. point impact behind the shown was? opinion us a what you give your Can distance No, I A. can’t. 759; Arlene quer- added. Counsel for also emphasis
N.T. ied: this, Vallone, I want to
Q. Officer don’t belabor but us important is to all of impact very you point Lewis, 701 and adoption of Federal Rules Evidence 704. court’s supra. opinion have an as expressed in your police report impact, correct? Yes, A. sir.
Q. And, of course, you were not an eyewitness to this accident so you what are giving us your opinion based upon things that you saw and things you learned at the accident scene ? *19 Yes,
A. sir. 761-62;
N.T. emphasis added. Q. IAnd believe that you have trying been to tell us that it is your opinion as to point impact [sic] of was based upon several things, one which was your of conversation Ray with Linden ? Yes,
A. sir. 762; emphasis
N.T. added. Q. Now, you told us that one of the other factors that caused you the opinion as to the point form impact was the debris ? Yes, A. sir. 763;
N.T. emphasis added. Q. And would I also be correct in stating that you couldn’t tell us at point this what the debris was that you caused opinion ? form A. I’d say that it is the normal debris that is there after a collision. 764; emphasis
N.T. added. Hence, we do not find this testimony prejudicial since, as stated, we have already counsel for the very appellants who now complain had effectively opened the door to such testimony. Ernst, supra. Sweener v. First Baptist Cf. Church, 516 Pa. (1987) 533 A.2d (appellant’s intro- duction of testimony point assumed of impact is con- ceded on cross-examination to be merely speculative; appel- lant cannot complain then about its introduction when cross-examination). Any therefor un- basis is revealed on accorded to Officer weight due which the have jury may type persist- this testimony by Vallone’s was occasioned tactic have interrogation, may ent whatever its intended was, The Vallone as we have been. Officer Opinion, lay opinion. stated elsewhere admissible as Ernst, supra; Lewis, our role supra. perceive We do to be their counsel now voice appellants’ advocate when objection very testimony they to the admission of the which Appellants complain elicited at trial. cannot be heard to about effect created the strat- any potentially prejudicial egies their own counsel.
B. regard appellant’s argument With second that the trial court’s the location of charge jury unduly emphasized being single important the debris as most factor locating support find no in the impact we record. foregoing exhaustively discussion recounts the *20 components which factored into Officer Vallone’s evaluation point impact. repeat of the of We need not that analysis here. The trial cautioned the that it had the judge jury responsibility recalling the evidence adduced and deter- the mining body facts. He also instructed that that Officer testimony regarding Vallone’s the debris was one for its (the jury’s) credibility. determination as to her other words, Officer that the of testimony point impact Vallone's upon was based the location of the went to its debris evidentiary weight, admissibility, not to its to be determined Ernst, supra. See charged: the The trial court jury. question
The debris can’t be mistaken and the is the only said, of in credibility Officer Vallone what she whether it, it, spoke she observed noted and or correctly directly it. course the location of the credibly about Of debris also had of the great importance you photographs cars.
N.T. 896. in
It is now well established this Commonwealth charge of a are not reviewed for error portions jury 144 Rather,
isolation.
an appellate
is bound
court
to examine
the
charge
its
its
entirety against
evidentiary back
ground. From that
must determine, first,
examination we
and,
whether
if
any
so,
error was
committed
whether
error was
to the
prejudicial
complaining party. Reilly by
Reilly
SEPTA,
204,
v.
507 Pa.
(1985);
Our of the review record of Officer Val- lone and of trial judge’s charge to the in its jury entirety leads us unqualifiedly conclude that no abuse discretion was committed here in admitting Officer Val- lone’s nor was the testimony, charge jury trial court’s regarding the or point impact erroneous unduly preju dicial. As demonstrates, the trial record amply location only debris a factor in Officer Vallone’s evalua tion of impact where the occurred. Consequently, appellants cannot be awarded a trial on either new bases.
II. Colleen, claim Margaret Ricky also to a entitlement new trial instruction trial upon based erroneous of the judge jury applicability sudden emer- *21 gency doctrine to the facts of the instant case. agree We that the this appellants giving with instruction consti- mandating error trial. do Appellants tutes reversible a new our challenge, hinge nor does decision here upon, given correctness of the law in or the substance of charge. Rather, gravamen of argument their and the for our decision to award new trial predicate here focus on the instance, doctrine’s in the first inapplicability, matter at hand.
The objected-to portion charge reads as follows:
So there is point this submitted behalf of Raymond Linden, very similar to the I which read which was submitted on Trecki, behalf of Mr. to the effect that if Raymond Linden driving was under the stress of a sud- den not the emergency, product of his negligence, own his action in attempting to extricate himself and passen- his ger from the emergency should judged situation not be by the same standard of due care as required would be him had he had an opportunity to reflect on his course of action and to act upon his reflections and when speak we of a sudden emergency it is true that this awas continu- thing, chase, ous but at all it times was an emergency type situation because the car coming was along and hitting him according to times, Linden at at least ten although Evans contends only it was several times. N.T. 889-90.
A.
Before proceeding to
analyze
sudden emer
gency doctrine as it has been interpreted by
appellate
courts
Commonwealth,
of this
we reiterate
objec
that an
portion
tionable
of a jury charge is not to
be examined
isolation
Instead,
for error.
is
charge
scrutinized
its
entirety
error,
to determine whether
if present,
preju
dicial to the affected party.
SEPTA,
Reilly v.
supra;
Orluck,
Elder v.
supra. The trial judge
charge
bound to
only on the
applicable
law
parameters
factual
of a
particular case.
It is
recognized
also well
that a trial judge
may not instruct the
on
jury
inapplicable
law
to the matter
before it.
Hamely
543,
See
v.
365 Pa.
George,
146
error);
in issue
Nye
v. Com.
when
constitutes reversible
Dept.
209,
Transportation,
Pa.Super.
331
B. mind, proceed With this we now our explain refusal to find a sudden emergency, interpreted by courts of Commonwealth, on the facts of the instant case.
This rule has been
defined
our
invariably
by
courts:
The ‘sudden emergency’ doctrine is available as a defense
suddenly
to a defendant
and unexpectedly
who
finds
perilous
himself confronted
situation that permits
with
no
opportunity
danger
respond appro-
assess the
priately. Carpenter v. Penn
Transportation
Central
Co.,
v.
9,
(1979);
Stacy Throw-
Pa.Super.
269
Chiodo
Downham
Pa.Su
*23
(1988).
646
498, 500-01,
645,
Papan
Accord
per.
454 A.2d
Hartman,
163,
(1986);
drea v.
A.2d 822
507
352
Pa.Super.
Elder,
360,
supra;
v.
329
478
Sagan Destefano,
Pa.Super.
Co.,
(1984);
Carpenter
Transp.
v. Penn Central
A.2d 828
arises
9,
rule
“where
(1979).
269
This motor vehicle accident eases operator where the was con life-threatening situation re fronted a perilous, with often quiring spontaneous response to avoid the dan impending ger of a collision. Carpenter, supra. invoking One cannot responsible be defense of sudden emergency and excused from ordinarily creating very peril lacked the time to react as he would he liability because under foreseeable circumstances. have done otherwise 148
Thus, one driving carelessly or recklessly cannot
him-
avail
self of the
protection, since,
rule’s
normally,
peril would
arisen in
have
the first
instance. Chadwick v. Popad-
ick,
88,
399 Pa.
(1960);
Nonetheless, one in the
position
unenviable
of con
fronting a sudden emergency, not of his
making,
own
will
responsible
not be
for exercising what later turns out to be
mistaken judgment
in extricating himself from the
if
peril
no time existed to
upon
reflect
a more prudent course of
conduct. All the law has required is an honest exercise of
judgment
if, upon
even
hindsight and with time to con
*24
deliberate,
sciously
the actor
performed
could have
differ
ently. Sagan, supra;
Varner,
v.
Potenburg
Pa.Super.
284
19,
(1981);
149
Sorenson,
268,
supra;
Pa.Super.
cord Elder
Hanlon v.
289
(1981).
Situations other than also objects may qualify A successfully invoke the sudden doctrine. emergency typical but non-exclusive list includes the of a appearance cloud, Whitehouse, dust v. Unangst Pa.Super. (1975); blocking
A.2d 695
a sudden
McElroy, supra,
road,
swerving
blinding
the sudden
of another vehicle or
lights,
deer
in the
Unangst, supra,
standing
roadway,
and,
failure,
Chadwick, supra,
Gilligan
even brake
Shaw,
(1971).
Pa.
However, the object unforeseen movement of an or the sudden apparition an obstruction on the roadway implicated any moving instrumentality suddenly voked have not text, Lehner, example, thrust out in front of the actor. For and runaway in infra Palmer, text, passengers two hurled themselves out of a infra they injury streetcar to avoid what believed to be imminent Stebner, text, injury or death. his hand which he cast the actor suffered severe infra through glass attempting escape door in *25 uncontrollable, inferno-like conditions in And in a steam room. Carpenter, supra, emergency per- the sudden there invoked was the necessity atop ceived of the decedent to climb a train car to retrieve clothing flung his dent was then electrocuted. The court which his assailant had there where the dece- rejected the doctrine not due moving object suddenly flung
to the absence of
but, rather,
in front of the actor
any exigency
because of the lack of
to retrieve his
clothing.
emergency
We
our
rest
decision here not to find a sudden
Hence,
application.
on the doctrine’s broader
car never
the fact that the Evans
suddenly
veered in front of the Linden vehicle bears no
emergency
relevance to our refusal to find a sudden
in this case.
perforce
not
trigger
do
of the
applicability
doctrine.5
Randolph,
supra (improper
charge jury
sudden emer-
gency
blinding
due to
lights from another vehicle when
driver of first
speed upon
vehicle did not reduce his
con-
fronting the lights; any emergency
own);
created
his
Inc.,
v. Motor Freight Express,
Schiele
525,
348 Pa.
36 A.2d
(1944) (driver
cannot invoke sudden
rule
emergency
due
fog
truck
when
driver collides
another truck
with
where
driving
conditions);
former was
too fast for
Westerman
Stout,
232 Pa.Super.
(1975)
151
emergen-
on road but
it
merely approaching
is not sudden
(dust
Hollern,
is not
supra
emergency
cloud
sudden
cy);
in
to
speed
where driver became aware of it
time
reduce
and
on
on
approaching
keeping
brake
it instead of
foot
accelerator);
(vehicle
op-
from
Downey, supra
approaching
of
posite
emergency
direction in same lane of travel was
making
driver’s own
to
be-
attempted
where driver
steer
speeding
tween that approaching vehicle and another
ve-
his
option
hicle on
left
driver
either to
or to
stop
when
had
berm,
obviating
emergency).
drive off
thus
also
application
doctrine has
found
in accident cases
or
involving vehicles other than
on
automobiles
trucks and
terrains other than roadways.
e.g., Murphy
See
v. Neely,
437, 179
(1935)(the
319
439
turning
Pa.
A.
off of an airplane
ignition during
unexpected,
an
sudden nose dive was proper
of the
light
emergency
airplane
sudden
of the
dropping
unexpected
turning
where the
not the
off
falling,
legal
ignition,
accident);
was the
cause
of
Johnson v.
Co.,
436,
(1960)
399 Pa.
A
also may
protective
seek the
umbrella
See,
Sacks,
488,
the rule.
Bauer
Pa.
e.g.,
v.
355
50 A.2d
(1947)
(pedestrian
351
the middle of the street within the
begins
ap
crosswalk who
run when faced with rapidly
proaching automobile towards other side of street to avoid
being struck was faced with a sudden emergency
he
when
run);
Stephens,
continued
Maselli v.
381 Pa.
A.
200
(1938) (same);
Morgan,
West
Pa.
streetcar
rails was
with
when
parked
trailer-truck
towards a
State-owned truck
speeding
him as he
to run
suddenly
attempted
veered toward
*27
Co.,
v. Robert Hawthorne
curb);
Hall
safety
towards the
(sudden
470,
(1947)
Pa.Super.
161
Passengers,
pedestrians,
than
are
cover
rule,
though
of the doctrine in
application
ed
even
“dart
negate
cases seems to
the aforementioned
out”
some
i.e.,
theory,
moving instrumentality
suddenly thrusting
a
Chiodo,
supra;
travel. See
path
into the
operator’s
out
Elder,
Sagan,
Carpen
Papandrea,
supra;
supra;
supra;
ter,
supra.
A
is confronted
the im
passenger who
with
peril of a collision
would otherwise culminate
pending
which
or
rescue
from
injury may
in death
serious
him/herself
See
a
emergency.
imminent disaster on
basis of
sudden
Co.,
Rys.
Lehner v.
208,
(1909)
223 Pa.
A. 525
Pittsburgh
72
from streetcar as
back
(passenger
leaps
plunges
it
who
and
track to
steep
winding
approaching
wards down a
avoid
in
and
the course of
from the car
danger
injured
jumping
attempt
faced
sudden
from which she
emergency
was
with
Co.,
Palmer v.
herself);
Ry.
Warren Street
206
ed to save
(1903) (same); DeGregorio Malloy,
Research has disclosed three cases which do not involve vehicle accidents and our which courts have addressed or not of applicability emergency the sudden doctrine. Noll, supra, granted the trial court notwith- judgment standing the of appellee/defendant verdict favor bank rule tellers, which invoked the on the basis that one of its during the of a robbery, disregarded course bank an order from everyone one the robbers to the bank at teller, eight time not move. to ten seconds after issued, order in disregard thereof, dropped behind the counter. The robbers this action and immediately saw *28 fired three shots in the teller’s direction. of the One bullets in the lodged hip appellant/plaintiff-customer of upon whom waiting. Appellant charged the teller had been negligence failing on the in to part the teller the robber’s order obey argued that the teller and the bank should have realized that the if robbers would shoot their directives were danger. followed that would be to appellant likely be disagreed, The Court Supreme holding proximate that the cause of appellant’s injury was the result an independent (the robbers) action of third persons issuing their unlaw- move, ful directive not disregard to not the teller’s In illegal applying order. the sudden the emergency rale to action, Supreme teller’s the Court reasoned: In very had brief interval he to determine his what conduct It should be. was obvious that his life inwas jeopardy. dropping His act to floor the was one of self-defense Whether he only. prompted was by reason or instinct no can say. one could exigency not have greater, been and he be held perfect cannot to judgment the under circumstances. 215,
More in supra, recently, refused to find the existence of sudden emergency relative to the action, decedent’s the result of which was that he was electrocuted one of atop appellant/defendant’s train cars at one of its non-operating stations. The decedent’s presence at the train station could explained i.e., deserted not be — he whether was there as a voluntarily trespasser or was involuntarily. Decedent, brought according there to his death, given statement before was robbed and stabbed. disrobe, His assailant forced decedent to for the except latter’s socks and undershirt. The then threw the assailant the clothing atop car on which the decedent was later found fled, electrocuted. After the assailant had the decedent top to the of train car in to retrieve attempt climbed the an clothing. his He stated that the car was dark and aban- but, fact, decedent, in doned and for the unfortunately through electricity eleven thousand volts of flowed the overhead lines to the ear. He electrocuted he was when the on pantograph, top contacted the metal structure the voltage car which transferred the from the lines the car. The decedent’s representative, appellee, argued that dece- dent in the emergency was midst of a sudden which necessi- climbing top tated his of the car the train to retrieve his clothing response, which the had there. assailant thrown appellant argued: railroad claims, however,
Appellant law, that as a matter of terminated, had and in emergency charg- the court erred ing the jury the doctrine. ar- Essentially, appellant gues the only emergency was the actual robbery decedent, stabbing fled, and that once the assailant emergency was end. Implicit argu- at an within this ment is a claim position being that the decedent’s a railroad only station clad his socks and undershirt an emergency such as to appellee entitle charge.
269 Pa.Super. at A.2d at 40. court, This expressing agreement, reasoned: we do Instantly, not deem the decedent’s status one permitting charge as to sudden emergency doctrine. appellant’s As noted in and in opinion brief the dissenting below, in the court sudden emergency robbery, stabbing decedent’s forced removal of clothes his fled, had run its course once assailant and the action climbing the decedent car to top the train his not part retrieve clothes was of that emergency *30 Indeed, situation. his action in attempting to recover Ms clothes rather than seek aid for his wound may itself evidence a conscious and deliberate action rather than a reflexive and unconscious re-action to the situation. Nor do we believe that the decedent’s would, unclad state in the situation presented, here constitute an emergency. Because the area of the station in which the robbery took place was in use and the decedent was not immediate- ly exposed others, must we conclude that his situation was not one requiring ‘[sjhortage of decision, time for and circumstances which perturb would or upset judgment of the ordinary reasonable man....’ Restate- ment Appendix, Reporter’s Notes. Comment a. § Therefore, the lower court in erred charging on this doctrine.
269 Pa.Superior 16-17, Ct. at 40-41; 409 A.2d at footnote omitted.
The emergency claimed instantly is not the motor vehicle accident which has been the subject litigation this is, rather, but purported Linden’s sudden dilemma which arose when he and Arlene saw Evans up drive the street in his Jeep towards them as they were seated in Linden’s parked car outside the residence of Arlene’s parents where the latter also resided. This in resulted the ensuing ten-to- minute, fifteen ten-mile chase which culminated the sub motor ject vehicle accident. Linden testified at trial that his car parked was immediately front of the dwelling where Arlene resided and that she going get was out of his car just as she coming saw Evans up the street Jeep. Ms After informing Linden that the Jeep driver her was former boyfriend, Arlene him immediately “get told out of there.” N.T. 786. After Arlene move, told Linden to he car, started the hoping that Evans would leave the two However, alone. Evans began to follow Linden and at one permit refused to the former to make a left turn. chase, During Evans was bumping Lin- back of and, den’s car alternately, flicking high his beams on and off. Linden testified that he was “very scared.” “Because car, I hitting my he back *31 [Evans] [Linden’s] if didn’t know he going push my was car off road or else.” N.T. anything 788. Linden also refused to let Ivans because the former was afraid of a rear-end him pass collision and was also afraid of a physical confrontation Evans Linden capable inflicting with whom felt was him. injury upon
Linden passed police during a station this ten-mile course stop but did not because he feared that Evans would hit him his or car. His fear length increased with the of his journey, as did the of his speed vehicle. He testified several times that he was afraid of physical harm from might Evans which result a broken nose or losing a few teeth. N.T. 815. Linden further stated that he would have kept going long until, as Evans had or as Linden had hoped, police a officer would have stopped him.
Underpinning each of the cases which we have ana- lyzed the applicability or not of the sudden emergency doctrine is the making a necessity split-second decision because of an impending It is clear exigency. that even the Noll, Stebner cases, i.e., non-motor vehicle provide no assistance to parties Linden. The protec- who invoked the tion of the doctrine there life-threatening were faced with (Stebner, suffocation, situations with and the bank teller in Noll with the shot), real possibility getting the need to take immediate action and the lack of sufficient time within which to prudently contrast, assess the exigency. exchange Margaret between Linden and counsel for reveals following respect with alleged peril: Linden’s Now,
Q. let’s talk about the choices that had. you You could have asked Arlene to out get of the ear and house, ingo couldn’t you? have, I could
A. yes. Q. thought You could have said or at that point Arlene go house, ahead into the Mike Evans would possibly have gone to confront her you go would home? That was a it? possibility, wasn’t
A. it, here Sitting today thinking about yes. There is lot possibilities. a
Q. You had that choice and you had choice of stopping about, at fire station that we all heard didn’t It you? choice?
A. Yes.
Q. And you had the choice stopping police choice, too, station. That was a it? wasn’t A. way, In a yes, sir.
Q. And also you car; had the choice of stopping your that correct?
A. Yes. *32 doors; And
Q. locking the is that correct? Yes,
A. sir. Q. Now, if Mr. Evans confronted you point, got at that Jeep out of his and he was on foot up your walked car, you your locked, had car running and the doors could you stepped have on the gas pulled then and away? Yes, A. sir.
Q. He standing would have been the street? A. Yes. Now,
Q. I think you testified that it your intention pass not to let him you?
A. Yes.
Q. did point; And he cut off at one you that correct? A. Yes.
Q. he cut you you When completely stopped were off then?
A. I stop, yes. did And
Q. you up did to back have all? No.
A.
Q. You went around just his vehicle? A. His vehicle went around my left side skidded across the street.
Q. you just your So turned again? wheel and pulled out left A. Made a turn.
Q. But it was your distinct intention to let him pass you; is that correct?
A. Yes. 815-817;
N.T. emphasis supplied. facing We have stated that an actor a sudden emergency, courts, as defined our will not responsible same be degree as one confronted might judged with what be under the circumstances then prevailing as normal and foreseea- any ble for mistake of judgment delivering himself from See, Noll, the exigency. Moore, e.g., supra; supra; Car- penter, supra.
We cannot say, us, however, based on the record before ten-mile, that this ten-to-fifteen pursuit through minute West End of the City Pittsburgh constituted a sudden emergency. indicates, As the record Linden had several options available and had time in his favor within which to rational, exercise one in any manner, conscious beginning with what we consider to be the most obvious and immedi- ate alighting from his vehicle info the safe confines choice— of the residence of Arlene’s parents, especially when Evans had, upon seeing couple, remained in the Jeep.
We find our decision in controlling here, Carpenter be for we Linden’s concluding would be remiss in action in this regard was the product Instead, unconscious reflex. it evidenced a conscious and deliberate act. Carpenter, *33 supra. Nor does Linden’s situation compel us to find a “ ‘[sjhortage decision, of time for and circumstances which would perturb upset or the judgment of the rea- ordinary Id., sonable 17, man...” 269 Pa.Superior Ct. at 409 A.2d 41. Neither the existence of an immediate harbor of ten-minute, nor a safety ten-to-fifteen pursuit mile contem- plate application of this doctrine under jurispru- prevailing dence In this Commonwealth. per- We do not ceive the which, existence of any exigency under the facts case, of this would call for a jury instruction on the sudden emergency doctrine. It was error for the trial court to so charge the jury. analysis Our case law Commonwealth leads us to the unqualified conclusion that
160 doctrine has no simply applicability emergency the sudden Indeed, may which have any emergency at bar. the case creation, which, upon judicious of Linden’s own arisen was reflection, failed to materialize. More- would have simply behavior, irrational Linden over, subsequent of his by virtue may the rule protection abandoned whatever effectively relatively him he chose to leave the afforded when have the close parked of his automobile and safe environment Lin- Carpenter, supra. of Arlene’s home. See proximity his reap the benefit of own permitted den should not be in that jury charge therefore not entitled to a folly and is regard. state sampling jurisdictions
A of sister representative of the sudden Pennsylvania’s application indicates that See, anomaly. is not a jurisprudential doctrine emergency 506, Hatley, v. (Tex.Ct.App.1985) 693 510 e.g., Illey S.W.2d case; condition (motor emergency is a vehicle “Sudden unexpectedly proximately and not arising suddenly and of the person act or omission by any negligent caused his part for immediate action on and which calls question A emergency sudden time for deliberation. without his con- consequences from the party relieve a would Kaminski, 66-67, 368 duct.”); 220 Neb. Maloney case; (1985) (motor rule can be vehicle N.W.2d not of the is sudden and emergency when the invoked creation, of action to choose alternative courses actor’s own evident; is split-second make a decision exist and the need to reflection, was erro- taken, more mature upon action which doctrine is to submitted neous; emergency “The sudden be course of wrong that a where there evidence jury the actor is from the results of which pursued, action was and shortness of time of the stress to be excused because made.”); Heidbreder v. under which the decision was Trustees, 95, Northampton Twp. App.2d Ohio him (1979) shot at (police officer believed robber N.E.2d 825 intending car to hit car and fired back at get-away from instead, get-away off the car driver; ricochetted bullet child; emergency ques- old sudden three-year and struck for reflection and if officer had time jury police tion is for
161
should
ableto
and
anticipate
be
handle
situa
extraordinary
tions). Additionally,
three sister jurisdictions have either
completely
abandoned
or have
the use of jury
abolished
instructions on the
in
motor vehicle cases. See
doctrine
Knapp
Stanford,
(Miss.1980)
Our of the sudden rule emergency is also no less consistent with that of two commentators on notable subject.
An has emergency been defined as a sudden or unex- pected event or combination circumstances which calls action; for immediate although there are courts upon which have laid stress the ‘instinctive action’ which usually situation, accompanies such a it seems clear that special basis of the rule is that the actor merely is left no time for or is adequate thought, reasonably so dis- turbed or excited weigh that the actor cannot alternative action, decision, courses of and must make a speedy based very largely upon impulse guess. or The doctrine’ ‘emergency applied only where the situa- tion unexpected, which arises is sudden and and such as the actor of deprive reasonable for deliber- opportunity Furthermore, ation and considered decision. it obviously cannot serve to excuse the actor has emergency when created through negligence, been actor’s own since he permitted cannot to shield himself be behind a situation from his resulting own fault. Keeton, Torts,
W. Prosser and W.P. Law (5th 1984); However, ed. footnotes omitted. these commen- “[djespite logic tators also caution that and sim- basic doctrine, of the sudden it fre- plicity emergency is all too misapplied on the facts or quently jury misstated instruc- tions.” Id. 197; footnote omitted. *35 in jury, that this is no less true here.
We believe 3, No. found that Linden Interrogatory to was answer however, Interrogatory in to No. negligent; response deliberating negligence did not also find Linden’s body in accident. causing subject factor We be substantial judge’s charge reluctant to conclude that the trial would be on doctrine did not affect jury emergency the sudden upon appeal premised. the ultimate verdicts which this entered on Consequently, judgments we vacate all the the order grant- the trial court. We also vacate verdicts Instead, this ing damages. a new trial on we remand liability matter to the trial court for a new trial on both damages parties.6 as to all
III. admitting propriety we address Lastly, concerning consumption prior Trecki’s alcohol testimony in question. the accident
The motion counsel for
limine
presented by
appellants
preclude any testimony
Trecki and counsel for
on
regarding
consumption
Relying
the alcohol
Trecki.
Prince,
(1969), appel-
Morreale v.
436 Pa.
As of the case the record deposition testimony of Trecki into following during the trial: at the did have
Q. you party you any- After arrived thing to drink?
A. Yes. drinking?
Q. you What were A. Beer. 1, supra.
6. See note
Q. much you How did have? five, six, A. About seven glasses beer or more. Q. What size glasses talking are we about?
A. Twelve ounce.
Q. In your opinion you were intoxicated? No, A. well with the thing today, new with breath test stuff, I probably would have been. Q. You think you would have been more than one point?
A. But to Probably. my knowledge, I wasn’t. *36 No, Q. period over what you of time did drink this beer?
A. From 1:80, 11:00 until two o’clock.
N.T. 266-67. Donovan,
Since Critzer (1927), 289 Pa. A. it has been the rule in this Commonwealth that when recklessness or issue, carelessness is proof of intoxi cation relevant, but the mere fact of consuming alcohol is being admissible as unfairly prejudicial unless it reason ably establishes Reichert, intoxication. Cusatis v. 267 Pa. Super. 247, 249-250, (1979) 406 A.2d 788-89 (collecting cases).
In the us, Trecki, himself, case before admitted that he intoxicated, was “probably” that he had consumed seven or more glasses twelve-ounce of beer at a party within a period three-hour prior to the immediately accident and that his blood alcohol level was “probably” more than .10%. view, our statements, alone, these are sufficient evidence of intoxication to introduce the questioned deposition testimo- ny. conclude, We therefore as did counsel for both Evans and Linden in briefs, their appellate that the trial court did not commit in permitting error the above-quoted testimony.
Judgments entered on all verdicts are reversed vacat- ed; order granting a new trial on damages is also reversed
and vacated. Matter is for trial remanded a new on both liability damages. Jurisdiction is not retained.7
BECK, J., files a concurring opinion. J., WIEAND, files a concurring statement which OLSZEWSKI, J., joins. J.,
TAMILIA, concurs the result.
BECK, Judge, concurring:
I concur in the result reached majority Officer Valone’s testimony properly as evidence of admissible impact of the accident. agree
I also with the majority that the emergency sudden doctrine has no applicability to the facts of this case. Moreover, I find the sudden emergency doctrine serves enlighten more to confuse than jury. a recognizes person, doctrine that a usually a defen- dant, situation, who finds him or herself in perilous cannot expected be to exercise the degree care of a reasonable person acting under normal circumstances. The reason special jury instructions is the recognition that person reasonable had an who to reflect before opportunity or she might he acted have acted differently. E.g. Chiodo *37 Co., v. Gargloff Pa.Super. & Downham Trucking 308 454 A.2d 645 (1983). I
Initially, am critical the doctrine it because is unnec- essary. Traditional rules of tort .already provide law a for satisfactory questions foundation analyzing raised emergency1, circumstances sudden in- special given by judge structions jury rather obfuscate than the task of In a clarify jury. traditional negligence analysis, after the jury determines a emergen- sudden exists, the then decides cy jury whether the defendant acted above, light disposition In unnecessary 7. of our we consider it argument appellants' remaining reach of the which concerns the inadequacy Margaret, damage Ricky. awards to Colleen and Gunn, Emergency See Mississip 1. The Sudden is Doctrine Abolished in (1980). pi, 51 301 Miss.L.J. person as a reasonable under the emergency conditions. words, other in order to avoid liability negligence, defendant him must conduct or herself as a reasonable person under the If emergency circumstances. the defen- dant acts conditions, under the unreasonably emergency he or she may be liable. law, hand,
Case including the other the majority’s case, opinion the instant has miscast emergen- the sudden doctrine as a cy defense which will render a defendant “not responsible ... for any judgment mistake of in extricating himself from impending dangerous situation.” Opinion PROSSER AND at 273. On the contrary, as is noted TORTS, (5th 1984), KEETON ON 33 at 196-97 ed. § doctrine does not a provide complete defense because “[t]he conduct required [by the is still that of a reason- defendant] person ..., able under the [emergency] circumstances the emergency is to be considered only as one of the Id. circumstances.”
Another element of confusion is whether the circumstanc- es of a particular require case the invocation of the doc- trine. The instant case is one example improper of an doctrine, invocation of the and the majority opinion re- with plete examples of other cases the doctrine where mistakenly applied by the trial court.
Furthermore, the sudden doctrine emergency provides a disproportionate advantage for defendants because it in a sense imposes plaintiff on a a higher proving burden of negligence than exists in an ordinary case. It unduly focuses the jury’s attention on the circumstances in which acted, the defendant instead of encouraging the jury assess the defendant’s conduct albeit with due objectively, regard Gunn, for all of the attendant circumstances. See supra Knapp (citing Stanford, (Miss. So.2d 1980)). This is true whether or not the doctrine is viewed as a complete defense that arises emergen- whenever sudden exists. If cy jury views the sudden emergency doctrine *38 defense, as a total then the mere invocation of the doctrine is sufficient to insulate the defendant from liability. On the hand,
other even if the not jury does view the doctrine as a defense, total it is more than still not that the likely jury respond will judge’s instruction sudden emergency by concluding that a defendant’s reaction “instinctive” was negligent. in the Take, bias favor of defendant is clear. example, a situation in which a boulder large suddenly falls from a hill abutting the road. This would a create sudden scenario, In emergency. the driver must quickly choose a right to swerve to the onto lower of the hill part (and himself) perhaps endanger or must choose quickly to the incoming swerve to left onto traffic. If chooses he the course, latter on-coming car, a in an injures party the sudden emergency gives greater instruction legitimacy to the impedes defendant’s action than it may deserve. It the jury from making proper inquiry, i.e. would what a person have done under the emergency reasonable circum- The jury likely stances. to assume that sudden alone emergency insulates the defendant from I liability. can no posit policy ground for thus advantaging defen- dant, choice, injured who made a over the plaintiff car, on-coming who not negligent injured. was and was Thus, although the case I with judice agree sub that the majority inapplica- sudden doctrine emergency was ble, I my would add that with concerns the doctrine as a whole lead me to conclude it should eliminated be altogether.
WIEAND, Judge, concurring: I concur majority decision award new my judgment, trial. the trial jury court’s instruction on the sudden doctrine emergency unnecessary was and un- It adequate warranted. would have been instruct jury to determine whether Linden had exercised reasonable care in view the circumstances with he con- which I fronted. would also hold that it was to permit error Officer an express opinion Vallone location regarding the when, conceded, Officer impact Vallone her opin- *39 statements extra-judicial in part upon based ion was the accident. scene of witnesses OLSZEWSKI, J., joins.
551 A.2d JEFFERSON, Appellant, Mary A. and Blue Cross COMPANIES FARM INSURANCE
STATE Philadelphia America Plan and and Health Greater
Equitable Life Assurance. Pennsylvania. Superior Court Argued Oct. 1988. Dec. 1988.
Filed