Dunleavy v. Miller, 20642

CourtSupreme Court of New Mexico
Citation116 N.M. 353,862 P.2d 1212,1993 NMSC 59
Docket NumberNo. 20642,20642
PartiesJulie DUNLEAVY, Plaintiff-Respondent, v. Stephen A. MILLER, Defendant-Petitioner.
Decision Date22 October 1993


We granted certiorari to review the defendant-petitioner's contention that New Mexico should withdraw adherence to the "sudden emergency" doctrine in negligence cases and discontinue use of the corresponding Uniform Jury Instruction on sudden emergency, SCRA 1986, 13-1617 (Repl.Pamp.1991) (UJI Civil 1617). In addition, the case raises the question whether a plaintiff who recovers a judgment against the defendant but fails to accept an offer of judgment pursuant to SCRA 1986, 1-068 (Repl.Pamp.1992) (Rule 68) may be deemed the "prevailing party" for purposes of awarding costs under SCRA 1986, 1-054(E) (Repl.Pamp.1992) (Rule 54(E)).

We hold that UJI Civil 1617 is inconsistent with the philosophy of our Uniform Jury Instructions; that the sudden emergency doctrine underlying the instruction is unnecessary, potentially confusing to the jury, and conducive to overemphasizing one party's theory of the case; and that, accordingly, UJI Civil 1617 should no longer be used in instructing the jury in a negligence case.

As to the tension between Rules 54(E) and 68, we hold that a plaintiff who recovers a judgment is the prevailing party and entitled to recover his or her costs, at least as incurred before the defendant makes a Rule 68 offer of judgment. If the plaintiff's recovery exceeds the amount of the offer, as it may have in this case, then the plaintiff is entitled to an award of all of his or her taxable costs, undiminished by any liability to pay the defendant's postoffer costs. On the other hand, if the plaintiff recovers less than the amount offered, then the plaintiff is entitled to his or her taxable costs incurred before the offer, but not those incurred afterwards, and is liable to the defendant for the defendant's taxable postoffer costs.


In September 1985, plaintiff-respondent Julie Dunleavy and defendant-petitioner Steven Miller collided with one another at the intersection of Pacheco Street and St. Michael's Drive in Santa Fe, New Mexico. Miller had been driving east on St. Michael's Drive before attempting to turn left onto Pacheco Street. Miller's turn placed his car directly in the path of Dunleavy's car, which at that time was proceeding west in the middle lane of St. Michael's Drive. According to the testimony of police officers who attempted to reconstruct the accident, Dunleavy applied her brakes shortly before the collision; her vehicle skidded and veered to the right before striking Miller's vehicle. There was no evidence that Miller braked or took any evasive action to avoid the collision. Miller received a traffic citation for failure to yield the right of way.

Dunleavy filed a complaint for personal injuries, alleging that she had suffered bruises and abrasions throughout her body and a serious closed-head injury as a result of Miller's negligence. The case was tried to a jury in late August and early September 1989. Dunleavy requested the trial court to instruct the jury in accordance with UJI Civil 1617. The trial court declined to give the requested instruction because Dunleavy, who recalled nothing about the circumstances of the accident, did not testify about her reaction to Miller's car turning in front of her. The court stated that Dunleavy's failure to testify concerning the situation that confronted her before the collision would require the jury to speculate about whether an emergency existed.

At the end of the trial, the jury returned a verdict assessing Dunleavy's damages at $91,267.20. The jury apportioned negligence 76% to Miller and 24% to Dunleavy, so that Dunleavy's net award was reduced to $69,363.15.

Several months before the trial, Miller served an offer of judgment on Dunleavy, pursuant to Rule 68, in the amount of $70,000, "costs inclusive." Dunleavy did not accept the offer. After trial, the trial court found Miller entitled to recover his postoffer costs because the jury's award after adjustment for Dunleavy's comparative negligence did not exceed the offer of judgment. The trial court, over Dunleavy's objection, awarded Miller all costs incurred after he made his offer, as listed in his bill of costs. The court thus further reduced Dunleavy's net award by $14,737.93.

Dunleavy requested an award of her costs under Rule 54(E), as the prevailing party in the action. The trial court denied Dunleavy's request for costs, ruling that she was not the prevailing party because the jury's award after reduction for comparative fault was less than the offer of judgment. The court then entered judgment for Dunleavy in the sum of $54,625.22.

Dunleavy appealed from the judgment to the Court of Appeals in October 1989 and in the following month appealed from the trial court's order denying her objections to Miller's bill of costs. The Court of Appeals consolidated the two appeals. On appeal, Dunleavy argued that the trial court had made three errors: (1) It failed to give a jury instruction on sudden emergency; (2) it ruled that Dunleavy could not recover costs from Miller because she was not the prevailing party; and (3) it awarded Miller all of his requested postoffer costs despite the fact that many of the costs were not taxable under New Mexico law. In May 1992 the Court of Appeals issued its opinion, holding that there was sufficient evidence to support Dunleavy's contention that she was entitled to an instruction on sudden emergency, Dunleavy v. Miller, 116 N.M. 365, 862 P.2d 1224 (Ct.App.1992). The Court of Appeals therefore reversed the judgment and remanded the case to the trial court for a new trial on the issues of liability and damages.

The Court of Appeals also addressed the trial court's award of costs because the issue was likely to recur on remand. The Court held that Dunleavy was the prevailing party under Rule 54(E); that "where the judgment finally obtained is for less than the offer of judgment, the offeree is entitled to recover his pre-offer costs but is not entitled to post-offer costs and must also pay the offeror's post-offer costs[;]" and that the trial court had abused its discretion in allowing certain, relatively minor, sums to be assessed as costs against Dunleavy.

Miller filed a petition for a writ of certiorari, requesting that we consider whether a jury instruction on sudden emergency should continue to be given in New Mexico, whether under the facts the instruction should have been given in this case, and whether Dunleavy was the prevailing party entitled to recover costs under Rule 54(E). We affirm the Court of Appeals' rulings in part and reverse in part; and we remand the case to the trial court with instructions to reinstate its judgment in Dunleavy's favor, except that portion of the judgment offsetting Dunleavy's recovery by Miller's postoffer costs, and otherwise to proceed in accordance with the discussion later in this opinion.


We first discuss Miller's contention that we should abolish use of a jury instruction on the sudden emergency doctrine, as contained in UJI Civil 1617. That uniform instruction reads as follows:

A person who, without negligence on [his] [her] part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence or the appearance of an imminent danger to [himself] [herself] or another, is not expected nor required to use the same judgment and prudence that is required of [him] [her] in the exercise of ordinary care in calmer and more deliberate moments.

[His] [Her] duty is to exercise only the care that a reasonably prudent person would exercise in the same situation.

If, at that moment, [he] [she] does what appears to [him] [her] to be the best thing to do and if [his] [her] choice and manner of action are the same as might have been followed by any reasonably prudent person under the same conditions, then [he] [she] has done all that the law requires of [him] [her], even though, in the light of after events, it might appear that a different course would have been better and safer.

Use of the sudden emergency doctrine goes back to at least the early part of the nineteenth century, see Jones v. Boyce, 171 Eng.Rep. 540, 541 (K.B.1816), and was discussed with approval by the United States Supreme Court in 1839, see Stokes v. Saltonstall, 38 U.S. (13 Pet.) 181, 190, 10 L.Ed. 115 (1839). See generally Virgil G. Gillespie, Comment, The Sudden Emergency Doctrine, 36 Miss.L.J. 392, 393-95 (1965) (discussing history of sudden emergency doctrine). This Court first applied the doctrine in Melkusch v. Victor American Fuel Co., 21 N.M. 396, 410-11, 155 P. 727, 731-32 (1916); and in a series of cases over the ensuing years we have given our continuing approval to jury instructions on sudden emergency under appropriate circumstances.1 Although there has thus been a long history behind the sudden emergency doctrine, this "does not in itself justify its continuation if change therein or abandonment thereof are demanded in order to accomplish justice." Syroid v. Albuquerque Gravel Prods. Co., 86 N.M. 235, 237, 522 P.2d 570, 572 (1974).

The sudden emergency doctrine recognizes that when a person is confronted with a sudden or unexpected event calling for immediate action, that person does not have the opportunity to weigh the safety of alternative courses of action and thus cannot be expected to act with the same accuracy of judgment as one who has had time to reflect on the situation. W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 33, at 196 (5th ed. 1984) [hereinafter Prosser ]. The doctrine appears to have been...

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