In the recent case of Graham v. Check, No. WAP 2019 ( Pa. Dec. 22, 2020) a 5-2 majority of the Pennsylvania Supreme Court reinterpreted the when the sudden emergency “defense” can be applied in a pedestrian-vehicle accident.
Prior to Graham, the sudden emergency doctrine was available as defense to a party who suddenly and unexpectedly finds themselves confronted with a perilous situation which permits little to no opportunity to apprehend the situation and act accordingly. A defendant was entitled to a jury instruction where the defendant proved that they faced a sudden emergency requiring immediate responsive action; they did not create the sudden emergency; their response to the sudden emergency was reasonable under the circumstances; and there was a preponderance of evidence in using that defense. However, the majority in Graham felt emboldened to declare that, “the sudden emergency doctrine should not be understood as a “defense” in the common sense …notwithstanding that the term features in the current suggested standard jury instructions.”
A detailed dissenting opinion in the case chastised the majority for what the minority perceived as a sua sponte ruling that “the sudden emergency doctrine is no longer a viable defense in the Commonwealth.” The majority attempted to address this contention in a footnote by cautioned that its ruling should not be read that expansively. Despite this caveat, early commentary concerning the decision has some plaintiff’s attorneys claiming that the sudden emergency defense has in fact been abolished.
The facts of the case involved Plaintiff Graham attempting to cross an intersection during the early morning hours. The intersection was controlled by a stoplight which was green in favor of Defendant Check. There was a pedestrian signal, but Graham did not activate it. Graham, who was wearing dark clothing, was struck in a crosswalk. Check testified that he had the green light and that his view of Graham was obstructed by darkness and by a vehicle in the next lane.
The trial court charged the jury on sudden emergency and the instruction was upheld by the Superior Court. However the Supreme Court determined that the, “…trial evidence failed to establish a foundation for that instruction here” and that the decision to so instruct amounted to prejudicial error entitling Graham to a new trial. Writing for the majority, Justice Wecht stated, “[properly] understood, the doctrine of sudden emergency does not offer a defense.” According to Wecht the proper issue to have focused upon was whether “a party exercised the care of a reasonably prudent person under all of the circumstances presented”, and in this case the majority found that Check did not.
Wecht observed that Pennsylvania law imposes a heightened standard of care upon drivers to exercise vigilance when it is reasonably foreseeable that a pedestrian will cross their path – especially at an intersection. The majority determined that, “…it [is] difficult to endorse the conclusion that Check’s failure to observe Graham until well after he came into Check’s field of view was anything but a self-created emergency” and therefore an instruction to the jury on sudden emergency was not proper. The majority did however seem to differentiate between situations when pedestrians had been in the roadway for some time, (such as Graham), rather than having just stepped off the curb. The opinion does leave open the possibility that a sudden emergency instruction would be proper where a pedestrian darts out into traffic as opposed to one that is further established in the roadway. Lastly, while the Graham opinion might be interpreted by some to severely impair the use of the sudden emergency doctrine in pedestrian cases, the court did point out that the defense of contributory negligence was still a viable and proper instruction to be given to a jury in this type of case.
Please contact David Friedman with any questions on this new case.