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
mespo im sorry but i dont see your point at all. granted brandon was the total ass in the backseat. but at 19 he had to know HIS ACTIONS could cause a deadly accident it isnt like car accidents happen once every 6 months
they happen 6 -10 times a day everyday. opening a umbrella in a car. sticking his feet in her face. sticking your feet in the face of someone who is driving. is sure to cause a accident. I DONT GIVE A DAMN WHAT HE WAS ON. we all know cars are lethal weapons. and considering they were on a highway. he had to know and understand his own actions….
im wondering if brandon had a death wish and used these antics to fulfill his wish?…. and no im not sorry for my speculation brandon wasnt a 9 yr old though he was acting like one that day…
if anything pelletier should have sued brandons family.. if not for brandons actions none of this would have happened. so i totally agree with the jury. you can’t blame brittany for a natural reaction to being unclothed.. she leaned forward for the passenger to help her tie one end and he untied the other… which could have caused the death of not only all in brittanys car but if she had of hit someone elses car their death also……. Brandon is to blame and his family is the one to sue… since in the society i live in. its always the parents fault when the adults children cause mayhem and destruction. the child could be 45 and the first thing out of idiots mouths is.. where are the parents. im sure the parents are to blame they raised this criminal…. if the parents had of been sterilized etc…..
brittanys guilt is enough. but brandon is the culprit…
Some further thoughts on this:-
1/ The appeal court as well as the jury deserves praise for getting it right;
2/ A significant proportion of 19 year old US females would act the same way as Brittany did, what the percentage is I do not know but as a guess I would put it between 10% and 90%;
3/ Given America’s draconian laws about sex offender registers, maybe covering her breasts was a sensible thing to do since indecent exposure is classified as a sex crime in at least some states and being convicted of a sex crime comes with compulsory sex offender registration which leads to results such as people unable to hold a job or who are forced to live under bridges in the back blocks.
leejcarroll:
” Being uncovered by someone was not in her control. (And Mespo I don’t see anything in his behavior, based on the article, that indicated he would do something ‘to’ her, He was an ass in his behavior but attempting to remove, and continuing to do so after someone in the back tried to help her retie the first string he undid, was not foreseeable.)”
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From the opinion:
“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. ”
Given this recitation of facts a reasonably prudent driver with his feet in her face (and fairly pretty face etc. to boot) would probably have concluded that things were going to escalate into a dangerous situation in the cab of that car then traveling at 65 mph.
I guess if this happened to the appellate judge she would have liked it….. Good grief….
“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?”
Well put, particularly in light of comments that Mr. Berman’s act was foreseable based on his other actions while in the car.
“Given Christian Americans’ beliefs about sex, ie that it is vile, filthy, evil and disgusting the answer she would give is obviously A.”
I’ll admit that I don’t know any Christians (American or not) who hold this view.
leejcarol: She responded in an immediate way as she had always been taught to respond.
Agreed, and anybody that drives even a moderately recent model car knows that we are so insulated from the speed by a “smooth ride” on a freeway in clear weather that it is easy to forget we are traveling at a lethal speed, particularly with distractions and irritations. Her response would probably have been quite different if the danger was more apparent; like on a motorcycle or climbing a cliff with the danger of falling prominent in her mind.
I don’t blame her for her response, in the circumstances I think her response should have been more predictable to Brandon.
(Tony, the only speeding ticket I ever got was on the turnpike, no other cars in site, (and this was in a 1964 Plymouth belvedere stationwagon – in 197 2, or 3. When I noticed the radared state trooper I looked at the speedometer and I was going 90 mph. It felt like not going fast at all. -he was nice enough said he clocked me at 85, would cite for 80 so I wouldn’t lose my license.) Even when there is traffic it is sometimes hard to gauge, look away for even a few minutes form the speedometer and you could be speeding by a lot, often just to keep up with the rest of the traffic.
mespo, Although I did a lot of work for insurance companies I have said here and elsewhere they are “soulless b@stards..” At least when I was a plaintiff in a personal injury lawsuit I knew exactly w/ whom I was dealing. I worked both sides, but mostly defense.
nick:
God forbid, you (unless you’re a physician) have any say in the policy you bought and paid for. It’s the insurance company who decides what you pay for premiums and what its pays it claims. Nice work if you can get it.
TonyC, Having defended many accidents w/ this scenario you are quite correct. Your insured[the driver] wants to see the plaintiff prevail, making a defense difficult.
However, to mitigate some of the vitriol against Pelletier here, I will play Devil’s Advocate on his side. I suspect Pelletier really was injured in the accident, and was attempting to recover damages from Lahm’s insurance coverage. If they were friends, she might not even have taken offense at that attempt, and in fact may feel responsibility and guilt for his injuries (IMO, misplaced). But the suit would be defended by her Insurance company as they saw fit; and despite any sympathy for Pelletier in his attempt or even hope that he succeeded, she may have still chosen to be honest in her testimony and hope that was enough. The verdict is correct, but we should not presume Pelletier is betraying his friendship with Lahm. I don’t know them or what happened to him, but I can see a plausible scenario where they both might have hoped he would prevail.
I’d analyze this case slightly differently. Two things appear true in this case to me. First, the decedent’s action in untying the bikini were foreseeable given his prior conduct in the car, and second, recovery should have been denied to both driver and passenger. Our driver should have slowed down and hence was negligent for not doing so given the carnival occurring in the car. And our decedent, even in his inebriated state, knew or should have known the reaction of the driver when he pulled the “rip cords.” As such he was a causative force in the accident which should, in my judgment, render no recovery for his estate. In essence the two were in a joint venture in this foolishness and neither should receive a recovery. One enabled the other in this likely drunken fools errand. Now, any third party injured in the accident should receive compensation from both negligent actors.
This case is total bullsheis. Did any of the ultracretins in the vehicle that sued Brittany Lahm do anything to stop or prevent Brandon Berman from acting like, well, another ultracretin? Did they even so much as suggest that Brandon cease his puerile conduct? Did any of the ultracretins suggest that Brittany slow down because there were so many ultracretins in the vehicle that an accident could easily occur because of their infantile, dangerous conduct? Is Brittany expected to be a mindreader?
The answer to all of the above questions is no. And the ultracretins didn’t do diddly. The jury got it right.
Will anybody learn anything from this terrible accident? Unfortunately, not. Reasonable, intelligent people wouldn’t be engaging in such conduct to begin with, so they would not confronted by such a situation. And ultracretins will continue to do what ultracretins do: make stupid, reckless decisions that endanger others and themselves.
I think Tony C. and Carlyle have it right. I would just add that none of us are so controlled that we can’t be rattled by a surprising action. Her reaction was instinctive and ended in tragedy, but she couldn’t foresee what would happen and lost control. Sometimes accidents are merely accidents and no one is to blame.
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Annie,
If you’d like to make that request directly, the Prof’s email is on the Corrections page.
I ask God to let me eat pasta and not gain weight.
I ask Santa for a new flat screen TV.
Serenity now.
Bron, Her reaction was stupid and deadly. But you know what, I’ve investigated death crashes involving people texting, smoking[cigs and joints] falling on their lap, putting on makeup, road rage, tuning the radio, getting a blow job, and many more stupid actions. So, this one really doesn’t surprise me.
Nick wrote: “Bron, Her reaction was stupid and deadly. But you know what, I’ve investigated death crashes involving people texting, smoking[cigs and joints] falling on their lap, putting on makeup, road rage, tuning the radio, getting a blow job, and many more stupid actions. So, this one really doesn’t surprise me.”
This was an immediate and probably unconscious reaction. Texting, road rage, radio, etc are active chosen behaviors. Being uncovered by someone was not in her control. (And Mespo I don’t see anything in his behavior, based on the article, that indicated he would do something ‘to’ her, He was an ass in his behavior but attempting to remove, and continuing to do so after someone in the back tried to help her retie the first string he undid, was not foreseeable.)
(But I wrote sometime back she was also negligent in that she continued to keep this fool in the car and did not pull over when he started acting out.)
You can activate for our society nt being so ‘prudish’ but we are and little girls are taught very early on, you do not show your body. Even wearing a bikini or bikini top still keeps a woman clothed in the areas where we have always been taught is private and not to be exposed to the world. She responded in an immediate way as she had always been taught to respond.)