Graham v. Check

• Decision Date: 22 December 2020
• Docket Number: No. 42 WAP 2019,42 WAP 2019
• Citation: 243 A.3d 153
• Parties: Francis G. GRAHAM, Appellant v. Larry CHECK, Appellee
• Court: Pennsylvania Supreme Court

243 A.3d 153

Francis G. GRAHAM, Appellant

v.Larry CHECK, Appellee

No. 42 WAP 2019

Supreme Court of Pennsylvania.

Submitted: April 21, 2020

Decided: December 22, 2020

OPINION

JUSTICE WECHT

Pennsylvania tort law recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm. When the evidence suggests that such "sudden emergencies" may have played a role in a case, the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant's performance commensurately. But since the advent of the automobile, Pennsylvania law also has imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections. The case now before us involves such a scenario. Citing darkness, an obstructed view, and a want of evidence of any overtly careless behavior by the driver, the trial court in this case charged the jury on sudden emergency—the pedestrian's ostensibly abrupt appearance in front of the driver mere moments before impact. We hold that the trial evidence failed to establish a foundation for that instruction here. The decision to charge the jury on sudden emergency was prejudicial error in this case, and the plaintiff is entitled to a new trial.

In the Borough of East Pittsburgh, Center Avenue, running east-west, forms a T intersection with Route 30, which runs north-south. The stem of the T runs west from the intersection, and across Route 30 from that stem. At the top of the T, there is a bus stop. Just southwest of the intersection there is a gas station. The intersection is signaled, but the only artificial light in the vicinity of the intersection is cast by the gas station and its sign.

Just before 6:00 a.m. on March 8, 2016, Francis Graham crossed Route 30 from the southwest corner of the intersection to the bus stop, intending to catch a local bus to downtown Pittsburgh, where he planned to board a Greyhound bus to Cleveland. After arriving at the bus stop, he realized that he did not have exact fare, so he decided to cross the highway to the gas station to get change. There was a pedestrian signal, but Graham did not activate it. Instead, observing that the signal for cross-traffic was red, and after confirming that oncoming traffic from the south was stopping for the signal,¹ Graham, who was wearing dark clothing, began his crossing in the marked crosswalk at an ordinary rate of speed.

As Graham crossed, Larry Check was approaching the intersection on Route 30 from the north. From Graham's perspective as he crossed the highway, Check was traveling in the farthest of four lanes, but Graham did not see him during the first part of his crossing. Another car, driven by Joseph Millach, waited southbound in the third lane for the signal to change. The signal turned green when Graham had reached or was somewhat past Route 30's centerline, at least partially obscured from Check's view by Millach's car as Check rolled toward the intersection on Millach's right side. Check was slowing for the signal, but the light turned green before he stopped, and Check began to accelerate, passing Millach and entering the intersection at between fifteen and thirty miles-per-hour.² On the far side of the intersection, in the fourth lane from the bus stop, Check struck Graham with his car. Check testified that he applied the brakes as quickly as he could upon seeing Graham, but that he first saw Graham at a distance of only seven to ten feet. Check was unsure whether he began braking before or just after he struck and severely injured Graham with the left-front portion of his car. Graham testified that he did not see Check's car until just before it struck him.

Graham filed a negligence suit against Check, and the case was tried before a jury. Over Graham's objection, the trial court granted Check's request to include the sudden emergency doctrine in its jury charge, instructing the jury as follows:

In this case, Check claims he is not liable for Graham's harm because he faced a sudden emergency and responded reasonably according to the circumstances. In order to establish this defense, Check must prove to you all of the following:

1. Check faced a sudden emergency requiring immediate responsive action.

2. Check did not create the sudden emergency.

3. Check's response to the sudden emergency was reasonable under the circumstances.

4. Check must prove that defense by a preponderance of the evidence.³

Aside from this instruction, the substantive portion of the trial court's charge provided only the general definition of negligence,⁴ the outlines of contributory negligence and apportionment of liability under comparative negligence principles,⁵ and the following instruction regarding the right-of-way at signaled intersections:

Vehicular traffic facing a circular green signal may proceed straight through or turn right or left, unless a sign at such place prohibits either such turn except that vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time of [sic ] the signal is exhibited.⁶

The jury returned a defense verdict, the trial court denied Graham's post-trial motions, and Graham appealed to the Superior Court.

Graham argued there that the trial court erred in charging the jury on the sudden emergency doctrine because Check was familiar with the road, Graham was in the crosswalk at an intersection, and Check had a duty to anticipate the presence of a pedestrian in a crosswalk. In short, Graham argued that Check experienced nothing that a reasonably prudent driver would not have anticipated, so that any sudden emergency necessarily was of Check's own creation, disqualifying him from the benefit of the instruction.

In our most recent decision involving the sudden emergency doctrine, this Court described the doctrine as follows:

The sudden emergency doctrine ... is available as a defense to a party who suddenly and unexpectedly finds him or herself confronted with a perilous situation which permits little or no opportunity to apprehend the situation and act accordingly. The sudden emergency doctrine is frequently employed in motor vehicle accident cases wherein a driver was confronted with a perilous situation requiring a quick response in order to avoid a collision. The rule provides generally, that an individual will not be held to the "usual degree of care" or be required to exercise his or her "best judgment" when confronted with a sudden and unexpected position of peril created in whole or in part by someone other than the person claiming protection under the doctrine. The rule recognizes that a driver who, although driving in a prudent manner, is confronted with a sudden or unexpected event which leaves little or no time to apprehend a situation and act accordingly should not be subject to liability simply because another perhaps more prudent cause of action was available. Rather, under such circumstances, a person is required to exhibit only an honest exercise of judgment. The purpose behind the rule is clear: a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence. It is important to recognize, however, that a person cannot avail himself of the protection of this doctrine if that person was himself driving carelessly or recklessly.⁷

The burden of establishing a sudden emergency lies with the party asserting it.⁸ The Superior Court thus has held that, "where the evidence leaves some doubt as to whether an emergency situation existed," the matter must be resolved by a jury.⁹ Nonetheless, "if the emergency itself could have been avoided by the exercise of reasonable care ... that doctrine cannot be invoked."¹⁰

Counterposed against this doctrine in the context of a pedestrian strike is the bedrock principle that a driver bears a heightened duty of care relative to pedestrians crossing at intersections.¹¹ Thus, we have held:

It is the duty of the driver of a motor vehicle at all times to have his car under control, and having one's car under control means having it under such control that it can be stopped before doing injury to any person in any situation that is reasonably likely to arise under the circumstances. A pedestrian has the right of way at an intersection. The driver of a vehicle is under a duty to anticipate the presence of a pedestrian at an intersection and control his vehicle so that no harm will result. Motorists are under a duty to exercise a very high degree of care at intersections. They must be able to stop at the slightest sign of danger.¹²

"At street crossings drivers must be highly vigilant and maintain such control that they can stop their cars on the shortest possible notice. It is the highest duty of motorists. The pedestrian has the right of way."¹³ "[I]t is the presence of the intersection, not the position of someone therein, which determines the care required of the approaching drivers. This duty applies whether it is a dead-end intersection or a complete intersection."¹⁴

The Superior Court in this case correctly observed that, when confronted with a question concerning a motorist's negligence in striking a pedestrian, the operative question "is not whether a motorist saw the pedestrian before impact, but whether the motorist should have seen the pedestrian before impact."¹⁵ The court continued, "[t]hus, while a motorist has a duty to look out for a pedestrian who may be crossing at an intersection, he also may benefit from the sudden emergency...