(Concurring in Part; Dissenting in Part).
Because I would affirm the decision of the district court in refusing to give the sudden emergency instruction to the jury, I cannot agree with that portion of the majority opinion. I do agree with the majority’s discussion of the costs issues raised and concur in that portion of the opinion only.
I. Sudden Emergency
Plaintiff tendered the following sudden emergency instruction that tracked SCRA 1986, 13-1617:
A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence or the appearance of an imminent danger to himself or another, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.
His duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.
If, at that moment, he does what appears to him to be the best thing to do and if his choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions, then he has done all that the law requires of him, even though, in the light of after events, it might appear that a different course would have been better and safer.
The district court refused the tendered instruction on the basis that there was no evidence to support it. The court also indicated that “there is no evidence on the part of the only person who would know, Julie Dunleavy, as to what she was confronted with at all. It requires the jury to speculate. I won’t allow it.”
I agree that a party is entitled to an instruction on his or her theory of the case if there is evidence to support it. See McNeely v. Henry, 100 N.M. 794, 800, 676 P.2d 1359, 1365 (Ct.App.1984). The question this court must answer, however, is whether evidence supported giving the sudden emergency instruction.
I am not concerned that Plaintiff was unable to relate what she observed and what she did. A sudden emergency instruction may be given where circumstantial evidence supports it. See, e.g., Gapske v. Hatch, 347 Mich. 648, 81 N.W.2d 337, 343 (1957); Kirkman v. Baucom, 246 N.C. 510, 98 S.E.2d 922, 925 (1957). For example, it is easy to visualize a case where two occupants of a vehicle careen off of a highway and are both killed. In defending a suit brought by the passenger, the estate of the deceased driver would be entitled to an instruction on sudden emergency based on physical facts showing that the accident occurred at the crest of a hill, the presence of the carcass of a dead animal in a right hand lane, skid marks veering toward the left within a few feet of where the animal was hit, and tires or skid marks veering from that point across the roadway to where the vehicle came to rest. From those facts, a jury would be able to infer that the driver, at night, at the crest of a hill suddenly encountered an animal which was either present or which darted in front of the car, so that the driver’s actions could be evaluated in light of that peril.
In contrast, in the case before us there is no evidence as to Plaintiffs speed, her distance from the intersection when Defendant commenced his turn and when Plaintiff should have reacted, no time-distance analysis, no evidence of braking distances, or other vital facts. Therefore, I do not believe the jury in the case before us could draw an inference that Plaintiff confronted a sudden emergency or that alternative choices were available to her. To hold otherwise, requires speculation or conjecture. Thus, I agree with the district court’s ruling.
Although I found no New Mexico case which specifically sets forth the criteria that must be found in order to give an instruction, the following can be gleaned from the instruction itself and case law:
(1) the claimed emergency actually or apparently existed; (2) the perilous situation was not created or contributed to by the person confronted; (3) alternative courses of action in meeting the emergency were open to such person or there was an opportunity to take some action to avert the threatened casualty; and (4) the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or similar situation.
Eslinger v. Ringsby Truck Lines, Inc., 195 Mont. 292, 636 P.2d 254, 259 (1981) (citing C.R. McCorkle, Annotation, Instructions on Sudden Emergency in Motor Vehicle Cases, 80 A.L.R.2d 1, 15-17 (1961)) [hereinafter McCorkle]; see also UJI 13-1617. Here, we are primarily concerned with the first and third criteria — whether an emergency actually or apparently existed and whether an alternative course of action was available to Plaintiff. To make that determination, I look to the testimony of Defendant and the physical facts as testified to by the investigating officers, the only evidence regarding liability.
A. Whether an Emergency Existed
The collision giving rise to this lawsuit happened during mid-afternoon on September 17, 1985, at the intersection of St. Michael’s Drive and Pacheco Street in Santa Fe. Defendant testified that he had been proceeding easterly on St. Michael’s Drive prior to negotiating a left turn off of St. Michael’s Drive onto Pacheco Street. Defendant testified that he proceeded into the turn bay, slowed to approximately five to ten miles per hour, came to a near, stop to allow one or two vehicles westbound on St. Michael’s Drive to pass, activated his left turn signal, looked to the east, and proceeded to make his left turn. Defendant testified that no more than four to five seconds elapsed from the time he commenced his turn to the time of impact. He testified that he accelerated to approximately five to ten miles per hour across the westbound lanes of St. Michael’s Drive before being hit broadside on his right. Defendant denied ever having seen the oncoming vehicle being driven by Plaintiff. Plaintiff had no recollection of the accident or any of the events leading up to it. There were no other witnesses to the accident.
Plaintiff does not seem to challenge that evidence. Her theory is that Defendant suddenly pulled out in front of her so that she did not have sufficient time within which to take evasive action to either avoid or lessen the impact of the collision. Whether that theory is supportable depends upon a number of missing facts, including (1) the position of Plaintiff’s vehicle at the time Defendant entered the westbound lanes of St. Michael’s Drive; (2) Plaintiff’s distance from the intersection at that time; (3) Plaintiff’s speed; (4) Plaintiff’s reaction time; and (5) the normal stopping distance of Plaintiff’s vehicle had she reacted when Defendant made his turn. Not only do these missing facts render it impossible to say that a fact question was presented as to whether Plaintiff confronted an emergency situation, appellate review is severely handicapped because of an inadequate record.
We are also handicapped, as was the jury, because the two officers who testified could neither recall anything about the accident, nor could they refresh their recollection based upon the report made at the time. Approximately five years had expired between the time of the accident and the day of trial. Both officers simply testified from the report making certain interpretations and observations based solely on that report. We are further handicapped because we do not have available for review a diagram that was attached to the police report as well as a diagram offered through Officer Rael, both of which were referred to extensively during the examination of the officers. Nor do we have any of the photographs showing the condition of the two vehicles after the accident. Plaintiff did not request any exhibits to be made part of the record on appeal. See SCRA 1986, 12-212(A); Schneider, Inc. v. Shadbolt, 103 N.M. 467, 468, 709 P.2d 189, 190 (1985) (appellate court not obligated to send for record not requested by appellant), cert. quashed, 104 N.M. 632, 725 P.2d 832 (1986).
Notwithstanding these obstacles, I have reviewed the testimony of the investigating officers and Defendant, the only evidence bearing on liability, and am able to glean certain physical facts. As to the roads in question, St. Michael’s Drive runs in a generally easterly-westerly direction, where it is intersected on the north by Pacheco Street. St. Michael’s Drive is divided by a median with a cut-out at Pacheco Street and a turn bay for eastbound traffic turning left off of St. Michael’s Drive onto Pacheco Street. There are no controls, signs, or signals at this intersection. The approximate width of the westbound lanes of St. Michael’s Drive is thirty-seven feet, ten inches. There are apparently three lanes for westbound traffic on St. Michael’s Drive. The width of Pacheco Street, which is two lanes, is fifty-three feet, ten inches, where it intersects with St. Michael’s Drive.
According to the information on the police report, the accident occurred during daylight hours, the weather was clear, and the road was.dry. From the point of impact easterly on St. Michael’s Drive, the road is straight and level, and there are no obstructions in either direction.
Both officers testified from the report which described skid marks from the point of collision easterly that had been laid down by Plaintiff’s vehicle. Officer Rael, who was in charge of the investigation, testified from the report that the skid marks appeared to veer from the center lane to the right, and then make an abrupt change of direction northerly. He did not give the measurements of the skid marks. Officer Sisneros, now Chief of Police, took the measurements and testified that the report indicated an overall length of ten and one-half feet for the skid marks. Based upon his usual method of taking measurements, Officer Sisneros placed the point of impact at the point where the marks angled toward the north. This was approximately seven feet of the ten and one-half feet that was measured. Officer Sisneros said that the remaining approximate three and one-half feet may not have been skid marks, but rather marks laid down after the vehicles came together. Officer Rael placed the point of impact near the line between the middle lane and the curb lane; Officer Sisneros placed it in the curb lane. Neither officer could say for sure the exact location because the diagram was not to scale. Both officers agreed that the amount of skid marks laid down were short.
Based on those facts, could the jury infer that Plaintiff was “suddenly and unexpectedly confronted with peril?” See UJI 13-1617. I would hold that it could not without the assistance of expert testimony reconstructing the accident and showing a time-distance study. It is not even clear that such an inference would be possible absent knowing Plaintiff’s speed before she perceived Defendant’s car. Assuming that Plaintiff’s speed could be ascertained based upon the skid marks her vehicle laid down, expert testimony would be required to show the respective positions of the two vehicles from the time Defendant commenced his turn until the point of impact. According to Defendant’s testimony, he proceeded across the westbound lanes of St. Michael’s Drive at about five to ten miles per hour in approximately four to five seconds, and the impact occurred right at or within the curb lane. Thus, Defendant had commenced from a near stop and transversed two full lanes before the point of impact, a distance of 25.2 feet (two-thirds of thirty-seven feet, ten inches, the total width of St. Michael’s Drive). The right front side of Defendant’s car was struck by the front end of Plaintiff’s vehicle.
Plaintiff relies on Martinez v. Schmick, 90 N.M. 529, 565 P.2d 1046 (Ct.App.), cert. denied, 90 N.M. 687, 567 P.2d 486 (1977), which, like this case, involved an intersectional collision between a left-turning vehicle and an oncoming vehicle. In that case, we held it error not to give the sudden emergency instruction. In Martinez, the plaintiff, who had been proceeding southerly on Coors Road in daylight at the speed of forty-five miles per hour collided with the defendant, who was making a left turn from the northbound lane of Coors Road going westerly on Blake Road and travel-ling at the moment of impact at five miles per hour. At the place of the accident, Coors Road has two lanes for southbound traffic, each twelve feet wide. The accident occurred in the right-hand southbound lane. The view both north and south from the intersection on Coors Road was unobstructed for a distance of at least one hundred yards. Plaintiff’s vehicle left thirty feet of skid marks. Plaintiff testified, in that case, that he did not see the defendant’s vehicle until it was in front of him and making a left turn across his lane of travel; the defendant never saw the plaintiff’s vehicle before impact. Id. 90 N.M. at 530-31, 565 P.2d at 1047-48. Martinez is distinguishable because in that case the plaintiff did testify as to the closeness between the vehicles when the defendant made his turn; and the skid marks in that case, coupled with the fact that the defendant only had to transverse approximately twelve feet, would permit a jury to infer that the plaintiff was watching but did not have sufficient time to avoid the accident.
In contrast, with only seven to ten and one-half feet of skid marks and two lanes for Defendant’s vehicle to transverse, it is equally, if not more probable, for a jury to infer that Plaintiff, like Defendant, was not keeping a proper look out and observing what was in plain sight. “Where evidence is equally consistent with two hypotheses, it tends to prove neither.” Stambaugh v. Hayes, 44 N.M. 443, 451, 103 P.2d 640, 645 (1940).
An inference is defined as “a process of reasoning whereby, from facts admitted or established by the evidence, or from common knowledge or experience, a reasonable conclusion may be drawn that a further fact is established.” Id. An inference is to be “clearly distinguished from mere guess or conjecture, and must not only be rational, but a logical deduction from established facts and not one of several inferences which might with equal propriety be drawn from same facts.” Id.
B. Use of Instruction Where Only One Possible Course of Action
I also find persuasive Defendant’s argument that the sudden emergency instruction is not necessary where there was only one course of action available to Plaintiff. Officer Rael testified that, judging from the scene and his investigation, there were no options available to Plaintiff in attempting to avoid the collision other than slamming her brakes and veering to the right.
In arguing for the instruction, Plaintiff’s counsel suggested that, with a car turning in front of Plaintiff, she might go in one direction, or she might go in the other direction, or she might absolutely panic and hit the floor. This was the type of speculation that the district court found objectionable. See Archibeque v. Homrich, 88 N.M. 527, 531, 543 P.2d 820, 824 (1975) (sudden emergency instruction based on speculation or conjecture held not proper).
The rationale behind the sudden emergency instruction is to highlight to the jury that the individual could not be expected to carefully evaluate alternative courses of action when confronted with a situation involving unexpected peril. Where there is no evidence of availability of a course of action other than that taken, there is no reason to give the sudden emergency instruction. See, e.g., Anderson v. Latimer, 166 Cal.App.3d 667, 212 Cal.Rptr. 544, 549 (Ct.App.1985) (“An instruction on imminent peril should not be given unless at least two courses of action are available to the party after the danger is perceived.” (citing Casey v. Russell, 138 Cal.App.3d 379, 188 Cal.Rptr. 18 (Ct.App.1982))). See generally McCorkle, supra, at 17 (in order to give sudden emergency instruction alternative course of action must be open to individual to avoid the threatened casualty). Because there was no alternative course of action available to Plaintiff by which she may have avoided the accident, it was unnecessary to give the sudden emergency instruction to the jury.
The majority, citing Dickenson v. Regent of Albuquerque, Ltd,., 112 N.M. 362, 363, 815 P.2d 658, 659 (Ct.App.), cert. denied, 112 N.M. 388, 815 P.2d 1178 (1991), dismisses Officer Rael’s opinion, which Plaintiff relies on heavily, on the basis the jury was “free to reject uncontradicted expert opinion evidence.” They overlook, however, the rule that although the jury is free to disregard Officer Rael’s testimony, they are not justified in finding the opposite was true, i.e., that Plaintiff had other choices. See De Baca v. Kahn, 49 N.M. 225, 231, 161 P.2d 630, 633 (1945). Additionally, I also disagree that sufficient circumstantial evidence existed to support giving the instruction. The majority lists four possible options they claim Plaintiff could have taken. Officer Rael’s testimony that the skid marks began in the middle lane, however, does not permit the fact-finder to infer any of the choices described. An inference must be reasonable. Stambaugh, 44 N.M. at 451, 103 P.2d at 645.
C. Possible Abandonment of Sudden Emergency Instruction
Although I base my opinion on the lack of evidence to support giving a sudden emergency instruction, and the fact that there was no other course of action available to Plaintiff thereby rendering the instruction unnecessary, I comment briefly on Defendant’s alternative arguments. I do so to call attention to the lack of utility in giving a sudden emergency instruction. Cf. Williamson v. Smith, 83 N.M. 336, 341, 491 P.2d 1147, 1152 (1971) (eliminating assumption of risk in secondary sense as a defense since covered by contributory negligence).
Defendant points out that many jurisdictions have abandoned the use of the instruction and, that in any event, the doctrine merely emphasizes the “under the circumstances” portion of the general reasonable person standard of care covered by other instructions. In discussing these points, it is well to keep in mind that sudden emergency is neither a plaintiff’s nor a defendant’s doctrine. See, e.g., Barbieri v. Johnson, 90 N.M. 83, 85, 559 P.2d 1210, 1212 (Ct.App.1976) (sudden emergency instruction was equally applicable to either of two drivers involved in the collision), cert. denied, 90 N.M. 7, 558 P.2d 619 (1977); Young v. Clark, 814 P.2d 364, 365 (Colo.1991) (en banc) (instruction is used by both plaintiffs and defendants to counter charges of negligence). “The sudden emergency doctrine is merely the application of the ‘reasonable person’ standard to a situation in which a reasonable person cannot be expected to act with forethought or deliberation.” Martinez, 90 N.M. at 531, 565 P.2d at 1048; see also Romero v. State, 112 N.M. 291, 295, 814 P.2d 1019, 1023 (Ct.App.), rev’d in part on other grounds, 112 N.M. 332, 815 P.2d 628 (1991). Because it is merely an application of the reasonable person standard, Defendant makes a strong argument that the instructions covering “ordinary care” and “circumstantial evidence” provide the jury with sufficient guidance without the need of an additional instruction. For example, instruction 5 given in this case stated:
“Ordinary care” is that care which a reasonably prudent person would use in the conduct of his own affairs. What constitutes “ordinary care” varies with the nature of what is being done.
As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases. In deciding whether ordinary care has been used, the conduct in question must be considered in the light of all the surrounding circumstances. [Emphasis added.]
That instruction, coupled with the circumstantial evidence instruction, sufficed, according to Defendant, to provide the jury with sufficient guidance. Moreover, says Defendant, to give an additional sudden emergency instruction not only unduly emphasizes the “under the circumstances” portion of the general standard, but also serves to confuse the jury. The doctrine is not without its critics and, as discussed below, has been abolished in several jurisdictions.
The sudden emergency doctrine has been criticized because the perceived hazard presented by the sudden emergency rule has “the tendency to elevate its principles above what is required to be proven in a negligence action.” Knapp v. Stanford, 392 So.2d 196, 198 (Miss.1980). The sudden emergency instruction does not change a party’s duty to exercise due care. See, e.g., Young, 814 P.2d at 365. See generally W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 33, at 196-97 (5th ed. 1984) [hereinafter Prosser ]. It does not provide for a diminished standard; rather, the fact that there may be an emergency is merely one of the circumstances to be considered. Id. Based on these and similar rationale, several jurisdictions have abolished the doctrine for separate instruction to the jury. See, e.g., Knapp, 392 So.2d at 199; Simonson v. White, 220 Mont. 14, 713 P.2d 983, 989 (1986) (“[t]he instruction adds nothing to the law of negligence and serves only to leave an impression in the minds of the jurors that a driver is somehow excused from the ordinary standard of care”); cf. DiCenzo v. Izawa, 68 Haw. 528, 723 P.2d 171, 181 (1986) (“Inasmuch as the risk of prejudicial error in instructing the jury on the doctrine exceeds by far the possibility of error in not doing so, we think the wiser course of action would be to withhold sudden emergency instructions.”). See generally Prosser, supra, at 197 (explaining that Illinois, Florida, Kansas, and Missouri recommend that no sudden emergency instruction be given). But see Young, 814 P.2d at 367-68 (considers those jurisdictions which have abolished the doctrine and chooses to leave the doctrine intact for Colorado).
While these arguments are appealing, this court has no authority to abolish or modify any instruction approved by our. supreme court. See State v. Gibbins, 110 N.M. 408, 412, 796 P.2d 1104, 1108 (Ct.App.), cert. denied, 109 N.M. 631, 788 P.2d 931 (1990). Such action can only be taken by the supreme court. I point out these concerns and arguments for that court’s consideration.
Because I would affirm the decision of the district court in refusing to give the sudden emergency instruction to the jury, I respectfully dissent.