dissenting. As the majority opinion demonstrates, some state courts have, in the last decade, considered whether the sudden emergency doctrine remains useful and appropriate in the context of comparative negligence. Some have said it does, and some have said it does not.
The argument against the doctrine, and thus against AMI 614 which embodies it, is that it either conflicts with or is made unnecessary by the theory of comparative negligence.
There is no conflict. Both the standard negligence instruction, AMI 301, and AMI 614 focus on requiring conduct such as that which would be exercised by a reasonably prudent person under the same circumstances or situation. The question becomes, then, whether AMI 614 is mere surplusage. It is not, and the case now before us demonstrates the reason for that conclusion.
For the sudden emergency instruction to have had any effect in this case, the jury must first have decided that Mr. Webb was “suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence.” A major flaw in the majority opinion is found in the remark that “. . .we believe that the instruction is tantamount to instructing the jury that Webb’s responsibility for what occurred is all but nullified by the trial court’s finding that a sudden emergency was caused solely by the negligence of Wiles.” The first question presented by the instruction is whether Mr. Webb created the emergency to any degree. It has nothing to do with deciding negligence on the part of Mr. Wiles — a matter not at issue.
Assuming the jury decided that Mr. Webb was not at fault in creating the emergency situation, its next task was to decide whether he used the same “care that a reasonably careful person would use in the same situation.” The majority opinion states that the instruction “skews the analysis in favor of the defendant.” That cannot be so, for virtually the same language as appears in AMI 301 governs the determination whether the defendant acted reasonably when confronted with the sudden emergency. Nor does the instruction excuse a defendant who has not created the emergency but who, in the words of the majority opinion, is “woefully negligent in other respects.” To suggest that the instruction prompts condonation of such conduct underestimates jurors’ intelligence.
The leading case among those decided by the jurisdictions which have considered and rejected the idea that the sudden emergency doctrine should be done away with is Young v. Clark, 814 P.2d 364 (Colo. 1991). Quoting an earlier Colorado case, the Colorado Supreme Court viewed the doctrine as an “evidentiary guideline by which a trier of fact may properly apply the prudent [person] rule in evaluating the evidence of negligence being considered.” Responding to criticisms such as those leveled by the majority in the case now before us, the Colorado Court said:
Such reasoning, in our view, is based on unfounded assumptions about how jurors perceive an instruction explaining the relatively simplistic sudden emergency doctrine. The pattern instruction used by Colorado courts... is a clear statement of the doctrine and obligates the finder of fact to do nothing more than apply the objective “reasonable person” standard to an actor in the specific context of an emergency situation. It thus does not operate to excuse fault but merely serves as an explanatory instruction, offered for purposes of clarification for the jury’s benefit. [Footnote omitted.]
This is a case in which the defendant was shown to have driven into an oncoming lane of traffic, an action which would ordinarily be condemned as demonstrative of negligence at least. The sudden emergency instruction does no more than refine the factual issue.
If the jury in this case found that Mr. Webb was confronted by a sudden emergency, there is not one whit of evidence, physical or otherwise, that he did anything to cause that emergency, allegations of inattentive driving notwithstanding. The question became whether his reaction to it, as demonstrated by the skid marks and explained by his own testimony, was reasonable under the circumstances, i.e., whether it was unreasonable for him in that split-second situation to have veered into the oncoming lane of traffic. The jury answered that question affirmatively in response to a specific interrogatory. The judgment should be affirmed.
I respectfully dissent.
Arnold, C.J., and Corbin, J., join in this dissent.