There 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
John, I would agree w/ our assessment if this occurred in Europe. Unfortunately, it is an “emergency” in this country for a woman to have her breast exposed.
Unless this jerk fondled the driver, this does not even constitute 4th degree sexual assault. As I said previously, our cultural puritanical view of the female breast was a contributing factor in this tragedy. Throwing out “sexual assault” cavalierly and w/o understanding of the statutes only diminishes the too many instances of REAL sexual assault.
It seems to me, on a scale of competing harms, exposed breasts do not constitute an emergency of a nature that precedes the responsibility to maintain control of a moving vehicle. Certainly a vehicle can be controlled by a naked driver.
The passenger is at fault for his contributory actions but the driver appears responsible for losing control of the vehicle by removing her hands from the wheel and also appears responsible for bad judgement with regard to operating with the obnoxious passenger on board.
It appears to me the emergency first occurred when the driver removed her hands from the wheel at speed.
In may opinion the jury got it right and I rather like Tony C.’s explanation.
Well, I hate to say it, but a bikini is really not appropriate unless you´re at the pool or the beach. My girlfriend found that out the hard way when she ran out of gas on a major interstate (before cell phones) while wearing only a bikini. Even today with cell phones, it is not a good idea. Men too. Seriously, put on a t-shirt if you´re driving home from the beach. The sand and saltwater and sweat will ruin your car seat.
If she needs a lawyer I am available.
Whenever anyone is acting badly I always expect them to start disrobing the nearest woman. Did that judge expect someone to start stripping her after her ruling?
Yes the emergency rule is appropriate. It was sexual assault in my view, I’m sure she was shocked and felt threatened, and probably wasn’t thinking clearly at that moment. Someone in the back seat should’ve helped her tie it. It sounds as if the all the guys in that car were being jerks.
For anyone opposed to the graduated license wherein young drivers are only allowed one passenger, this should change their mind. That said, I’m not aware of graduated license restrictions applying to 19 years olds, although they probably should.
What Mike A. said.
I side with the jury in this instance. We have all seen instances in which teenagers are horsing around in moving vehicles. However, in this case, Mr. Berman’s act of untying Ms. Lahm’s top constituted direct interference with her ability to safely operate the vehicle. She should not be charged with anticipating that action any more than she might anticipate that he would suddenly grab the steering wheel. Under this particular set of facts, I believe it was reasonable for the jury to apply the emergency rule.
Im conflicted on this.
On the one hand she should have pulled over much sooner, his behavior, such as putting his legs up etc. should have made her realize he needed to be stopped.
On the other none of his behavior, as reported here, would have noticed her that he would do something like untying her top.
Yes, Nick, it is a shame we still have the puritanical rule but we do. Almost all women will have an immediate unconscious reaction “I must cover myself back up.”
She first tried to stay in control and Brandon could not contain himself and made the situation worse by untying the second string. Sad to say he did bring it on himself. The other passengers who I think also have a part to play in this, were lucky that he was the only one who died. Why didn’t they insist he stop his asinine and potentially dangerous behavior, or be put out of the car, before it became dangerous and deadly?
While all drivers are expected to be ready for unexpected road actions by others I find it hard to believe that we could expect Brittany to foresee this from inside of the car. I agree with Dredd – Brandon is the one responsible for this mishap.
“What do you think?” – JT
Brandon, not Brittany, essentially killed himself and potentially everyone else in the car.
The jury got it.
The poor woman should not have wasted time covering her breasts, she should have back-fisted the jerk who untied her top and drove on to a safe pull over. Unfortunately, most women have been taught to play “nicely”.
I think it was a valid emergency, however her response was not the most prudent or reasonable response.
If Jason Pelletier alleges there was plenty of time for Lahm to anticipate the actions of Berman; then there was an equal amount of time for him to anticipate Berman’s actions, and he could have warned or intervened on Lahm’s behalf in the 20 minutes prior to the crash. He could have demanded to be let out of the car.
That he and the front-seat passenger apparently took no reasonable actions to forestall an accident during Berman’s 15 minutes of misbehavior is reasonable proof, in my view, that Berman’s misbehavior was not considered by any of the passengers to be so dangerous as to cause the accident it did.
I think the jury got it right. It is unfortunate that we still have a puritanical view vis a vis women’s breasts. In Europe, what this a$$hole kid did would not have been such a big deal.
In answer to the Prof’s question: that depends. I saw a comment that characterized what Mr. Berman did as a sexual assault. To determine whether that is a correct characterization, I think, would require knowledge of past behavior. If there was no basis in the parties past conduct to conclude that Mr. Berman’s “antics” might include exposing Ms. Lahm’s breasts, then I’d say the emergency rule would apply because none of Mr. Berman’s other actions would have required (or created a very strong desire) for a young woman to want to cover up. Having written all this, I acknowledge that my understanding of the emergency rule is limited to this blog post and a somewhat flippant news story.
“There is an interesting…..”
Prof. JT,
Fill in the blank: picture of a barely dressed woman on my blog? How do you explain that one to the wifey? I would be hugging the couch tonight trying to explain that one! LOL!