New York Court Rules That Jury Properly Denied Liability Under The Emergency Rule When Woman Crashed After Her Bikini Top Was Untied

bikini25n-1-webbikini25n-2-webThere is an interesting ruling on the scope of the emergency rule out of New York. Brittany Lahm, 24, was sued by a passenger in her car after it crashed on the way back from the beach — killing Brandon Berman, 19, and injuring others. The appellate court however ruled that the jury could properly conclude that she was faced with an emergency when Berman suddenly untied her bikini top while she was driving — causing her to let go of the wheel to cover up herself. The question turns on whether the act of Berman was truly sudden and unanticipated. It is a novel claim: Berman was acting so badly that Lahm should not have been surprised by his untying of her bikini top.

Lahm was sued by Jason Pelletier, one of four passengers in her Lexus. Pelletier says that his injuries denied him a promising football career at Yale University. He testified at the 2011 trial that Lahm had leaned forward for up to 20 seconds as she tried to retie her bikini top while she was going about 65 mph. The appeal is based on the alleged error of the court in its instruction allowing for the emergency rule to be considered.

However, the court found that the jury was on good ground to find that the unexpected act of Berman was “a sudden and unforeseen emergency not of her own making.” The court noted that Berman was misbehaving on the ride but that “Brittany did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed.”

The dissenting appellate judge, Justice Sheri Roman, disagreed. She believed that Berman was acting so obnoxiously that Lahm should have foreseen the problem. Accordingly she believed that “it cannot be said that Brittany did not have time for “thought, deliberation or consideration,” in the face of Brandon’s behavior . . . To the contrary, the record reveals that Brittany had a full opportunity to reflect on the ongoing situation, which occurred over a span of approximately 15-20 minutes.” Here is her view of the relevant facts:

In the present case, the evidence at trial established that, prior to the accident, Brandon engaged in a course of distracting conduct, including spitting chewing tobacco out the window, opening an umbrella inside the vehicle, leaning halfway out of the window, [*10] and using the umbrella to clean the tobacco off the exterior of the vehicle. Brandon, who had been laughing about his actions, then proceeded, from the backseat, to stick his feet over the center console into Brittany’s face. While the source of Brandon’s merriment was unknown, Brittany noted it was Brandon’s birthday and assumed that he was “on something” that day. Despite Brandon’s conduct, Brittany never attempted to pull the vehicle over, or to slow the vehicle down and, instead, continued to travel on the Thruway at a speed of 65 miles per hour.

Brandon then pulled the bikini string tied around Brittany’s neck. As a result, Brittany released the steering wheel with her right hand to hold up her top and yelled at Brandon. Holding onto the steering wheel with her left hand and her bikini top with her right hand, Brittany leaned forward so the front-seat passenger could re-tie the string. As Brittany leaned forward, Brandon pulled the second bikini string on her back. It was at that moment Brittany testified she took both hands off the steering wheel for “a split second” to grab her bikini top. As a result, she lost control of the vehicle.

Viewing Brandon’s conduct in totality, the situation was neither sudden nor unexpected, and, in fact, could have been reasonably anticipated in light of the surrounding circumstances.

The problem is that emergency doctrine cases are mixed questions of law and fact. Under CPLR 4404(a), a trial court “may set aside a verdict . . . and direct that judgment be entered in favor of a party entitled to judgment as a matter of law.” That would require a pretty strong case that there was no basis for applying the emergency rule in such a circumstance. The state courts have ruled that “The emergency instruction is . . . properly charged where the evidence supports a finding that the party requesting the charge was confronted by a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration'” See Rivera v. New York City Tr. Auth., 77 NY2d at 327.

Most states specify that the sudden emergency rule may not be invoked by one whose negligence created or contributed to the emergency. “The (sudden emergency) rule * * * cannot be invoked by one who has brought the emergency upon himself by his own wrong or who has not used due care to avoid it.” 38 Am.Jur. Negligence § 41, p. 687. Moreover, New York courts have held that the rule is not applicable where the “emergency” is one which the actor should have anticipated and been prepared to meet, as in certain routine traffic accidents. Thus, “the emergency rule should not be charged . . . in the absence of special facts justifying such charge” See Voleshen v. Coles, 60 AD2d 468, 471; see also, Aldrich v. Madison Taxi, 49 AD2d 1012.

What do you think? Should Berman’s behavior prior to the crash render the emergency rule null and void since Lahm had time to pull over and anticipate further disruptions?

Kudos: Professor John Banzhaf

64 thoughts on “New York Court Rules That Jury Properly Denied Liability Under The Emergency Rule When Woman Crashed After Her Bikini Top Was Untied

  1. Vernon, a person with whom I worked related an event that happened to him. He was driving at speed on a highway near Kangaroo Valley south of Sydney when a huntsman spider dropped into his lap, startling him and causing him to swerve across 3 lanes. IIRC there was a police car near by and the police stopped him but the police accepted his explanation.

    Huntsman spiders are perfect for startling people in situations like this, they are harmless but big, the spread of their legs being of the order of size of a human hand.I suspect that such spider incidents are responsible more than a few road accidents in Australia.

  2. First rule as a passenger: Do NOT distract or interfere with the driver.

    The moron could have placed his hands over Brittany’s eyes and said “guess who”. She’d probably take both hands off the wheel to remove his hands, and the same result could occur (his death).

    Doesn’t matter if you think puritanical views caused this. Not every woman desires to flash her breasts at the nearest punk kid.

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