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. I would ask Professor Turley to reconsider allowing this commenter Nick Spinelli access to the comment section of this blog. His behavior is aggressive and abusive.

  2. Annie, What? So little confidence? And to think you don’t know half the stuff we know about him…

  3. Well then I guess we’ll just have to ask Annie to clear her questions with you in the future before asking them since this is your blog.

    Or not.

  4. The question was irrelevant, and stupid, not necessarily in that order. I gave it the response it deserved. I’m not an enabler.

  5. “I have participated in numerous sexual assault prosecutions as lead investigator and can do more than just cite statutes, having a working knowledge of both criminal and civil law.”

    Is that why you pulled something out of your ass instead of answering the question properly, nick?

    Tsk, tsk, tsk.

    Some people never learn.


    I have done some very stupid things in my life. I do not think anyone here can state anything different. However, it may have seemed like a good idea at the time. Dear Women on this blog, I am a guy, I have been yoiung, I have been stupid. I working on the stupid, Young is not an option. Stup-id is. …. I’m working on it.
    I am much smarter now, but is the experience of being stupid that has helped me get smarter.
    Such is life, such is stupidity, and learning.
    YOU can’t fix stupid, but I can. It is tough to be young. It is responsibility to me to get old. …. I think there is a number of responsible people on this blog. …… I like to play with my betters. I learn how to play better.
    College, sports, or life. Getting better seems like a good thing. Thank you all. …..

  7. Nick:

    That girl was none to bright for worrying more about her tatas than safety.

    H3ll, I bet she pulled the guys swim suit off at a bar earlier and this was pay back. Guy probably walked around for 5 minutes showing off too before he pulled them back up.

  8. And Spinelli, I don’t give your unsolicited legal opinions any credence , that is precisely why I asked for an attorney’s learned opinion.

  9. Unfortunately some people think they deserve respect, some even say they “require” it, yet they engage in disrespectful behavior daily. Some people are not fooling others, they are quite transparent.

  10. I’m not attorney, I state that regularly and proudly. However, I have participated in numerous sexual assault prosecutions as lead investigator and can do more than just cite statutes, having a working knowledge of both criminal and civil law. I defer to attorneys in most matters of law but even someone like you could have looked up the statute. The law is not rocket science. But, everything and everyone is relative, I urge you to read the Carlyle Moulton comment, it’s intelligent and superbly reasoned.

  11. Carlyle Moulton, Your assessment is superb. It is propelled to profound based on the previous Puritanical inquiry. Great job using reason.

  12. A person is dead, there are seriously important civil issues, and one person is obsessing on a woman having her bikini top unstrapped from around her neck and if that constitutes 4th degree sexual assault.. Unfortunately, people like this often serve on juries. Thankfully, the jurors in this case followed the facts and jury instructions, which most certainly didn’t ask if 4th degree sexual assault was committed.

  13. Suppose Brittany had been asked this question beforehand:-

    Suppose you are driving your car returning from the beach with several friends, you are dressed in a bikini and one of your friends unties your bikini top. Which of the following actions would you take:-

    A) Take your hands off the wheel to hide your breasts with the result that you crash the car, kill one of your passengers and injure the others;
    B) Keep control of the car long enough to pull over to the side of the road and to retie the bikini and to kick the obnoxious passenger out even though this allows drivers and passengers in other cars to see your extremely sexy and extremely vile filthy and disgusting breasts.

    Given Christian Americans’ beliefs about sex, ie that it is vile, filthy, evil and disgusting the answer she would give is obviously A. After all the worst thing that would happen is that she would crash the car, kill one of her passengers and injure the others, while if she chose B she let strangers see her breasts she is subject to a level of humiliation to which death would be preferable.

    Had she been allowed to meditate on the question for some time she might have come to the conclusion that risking death just to cover her breasts would be silly, but she did not have time to meditate, the emergency of uncovered breasts was thrust upon her, she did not have time to consider that taking her hands off the wheel would risk an accident, she was dealing with the emergency of uncovered breaths which because of her US upbringing she considered much more serious than it really is. Had I been on the jury I would have come to the same decision.

  14. Annie,

    A lot of it depends upon circumstance because consent (or lack thereof) is a factor for most sex crimes in NYS, but arguably forcibly removing someone’s clothes might be forcible touching under NYSPC 130 § 130.52 which reads:

    “A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor’s sexual desire.
    For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.
    Forcible touching is a class A misdemeanor.”

    Or possibly sexual abuse –

    NYSPC 130 § 130.55 – Sexual abuse in the third degree.

    “A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person’s lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.
    Sexual abuse in the third degree is a class B misdemeanor.”

    NYSPC 130 § 130.60 Sexual abuse in the second degree.

    “A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

    Incapable of consent by reason of some factor other than being less than seventeen years old; or

    Less than fourteen years old.

    Sexual abuse in the second degree is a class A misdemeanor.”

    NYSPC 130 § 130.65 Sexual abuse in the first degree.

    “A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:
    (a) By forcible compulsion; or
    (b) When the other person is incapable of consent by reason of being physically helpless; or
    (c) When the other person is less than eleven years old.”

    If Bob, Esq. is reading this, he can probably give you a better answer. He’s from New York so he might know some specific case law. You can see an overview of the NYSPC that covers sexual offenses here. However, the general answer would be “yes they could be charged but what kind of charge would depend on the circumstances”. You may want to read §130.05 on consent.

  15. Spinelli, with all due respect I asked the attorneys here. I specifically asked them because I want the educated opinion of an attorney, unless you are also an attorney and forgot to add it to the list of all your other illustrious accomplisments.

  16. A forced strip search would almost certainly include contact of areas deemed sexual. Undoing a bikini top from the back would not establish fondling or unwanted touching of a sexual area. If the bikini top were unhinged from the front, POSSIBLY 4TH degree sexual assault but I think the shoot from the hip, prudish, Midwestern sexual hang ups are in play here, There are interesting legal concepts here, sexual assault is a shoot from the hip distraction. He should not have done it, that seems to be undisputed, Maybe the more salient issues have eluded you.

  17. There are several cases of police officers in several states being charged with sexual assault in forced strip searches. To the attorneys here, could a person (non cop) be charged with sexual assault for forcefully removing a person’s clothing?

  18. ok whats left out of this article is that the Brittany was driving on the highway at the time with traffic covering all sides of her.. exactly where would she have pulled over? slowed down yes but pull over. im not sure she could have.. as for pelletier suing her i wonder why he didnt do anything to stop brandons actions? he obviously wasnt in the front seat but in the back with brandon. he should have belted brandon to make him stop the minute he opened that umbrella. , when he stuck his feet in the girls face. or when he spit tobacco out the window… either way he played as big a part in causing the crash by not doing anything to put a end to brandons antics.
    as for the judge she apparently thinks brittany is a psychic and knew that brandon would loosen her bikini top. prude cow that she is.

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