Myhaver v. Knutson
| Citation | 942 P.2d 445,189 Ariz. 286 |
| Decision Date | 15 July 1997 |
| Docket Number | No. CV-96-0400-PR,CV-96-0400-PR |
| Parties | , 247 Ariz. Adv. Rep. 17 Bruce P. MYHAVER and Barbara A. Myhaver, husband and wife, Plaintiffs/Appellants/Cross-Appellees. v. Elmo G. KNUTSON and Lois Knutson, husband and wife, Defendants/Appellees/Cross-Appellants. |
| Court | Supreme Court of Arizona |
Plaintiffs Bruce and Barbara Myhaver sought review of a court of appeals' decision holding that the "sudden emergency" instruction was properly given in a case arising out of an automobile collision. See Myhaver v. Knutson, No. 2 CA-CV 95-0279 (Memorandum Decision). We granted review to determine whether a sudden emergency instruction is ever appropriate under the principles espoused in Rosen v. Knaub, 175 Ariz. 329, 857 P.2d 381 (1993) (), and Petefish v. Dawe, 137 Ariz. 570, 672 P.2d 914 (1983). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), Ariz.R.Civ.App.P. 23, and A.R.S. § 12-120.24.
In November 1990, Elmo Knutson was driving north on 43rd Avenue near Bell Road in Phoenix when Theresa Magnusson entered 43rd Avenue from a shopping center driveway and headed south in Knutson's lane. Seeing Magnusson's car in his lane, Knutson accelerated and swerved left, avoiding what he perceived to be an impending head-on collision. In doing this, he crossed the double yellow line into oncoming traffic and collided with Bruce Myhaver's pickup. Magnusson continued south not realizing she was involved. A police officer who saw the accident stopped her a short distance away and asked her to return to the scene.
Myhaver was seriously injured as a result of the collision and brought a damage action against both Knutson and Magnusson. Magnusson settled and was named as a non-party at fault, and the Myhavers proceeded to trial against Knutson.
Prior to trial, the Myhavers moved for partial summary judgment, questioning the viability of the sudden emergency instruction. The parties submitted memoranda on the effect of the then-recently decided Rosen case. Following oral argument, the judge acknowledged that Rosen cast doubt on the propriety of the sudden emergency instruction but denied the Myhavers' motion, noting that Petefish had never been overruled.
At trial, a different judge ruled that the instruction was appropriate under the facts and instructed the jury as follows:
In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency.
An "emergency" is defined as a sudden and unexpected encounter with a danger which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed.
RAJI (Civil) 2d Negligence 6.
The jury found Knutson not liable. On appeal, the Myhavers argued that the sudden emergency doctrine is inconsistent with Arizona's adoption of comparative negligence and should thus be abandoned. Alternatively, they urged that the trial judge erred in giving the instruction under the facts of the case and that it constituted an impermissible comment on the evidence, violating Ariz. Const. art. 6, § 27.
The court of appeals observed that although the sudden appearance instruction was disapproved in Rosen, use of the sudden emergency instruction had never been disapproved or overruled. In addition, the court noted that Petefish not only approved the instruction but distinguished sudden emergency from sudden appearance. Petefish, 137 Ariz. at 573 n. 1, 672 P.2d at 917 n. 1. The court of appeals therefore concluded the instruction was properly given. The court stated further that even if it had been improper, there was no prejudice because the instruction given contemplated the possibility of Knutson's antecedent negligence and the Myhavers were free to argue that possibility.
We granted review to consider the propriety of giving the instruction in this or any case. 1
The RESTATEMENT (SECOND) OF TORTS § 296 (1965), discusses "emergency" as follows:
(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.
(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which had produced the emergency.
Thus, the sudden emergency instruction tells the jury that in the absence of antecedent negligence, a person confronted with a sudden emergency that deprives him of time to contemplate the best reaction cannot be held to the same standard of care and accuracy of choice as one who has time to deliberate. See Jeffrey F. Ghent, Annotation, Modern Status of Sudden Emergency Doctrine, 10 A.L.R.5th 680, 687 (1993). Criticism of this doctrine has focused on its ability to confuse a jury as to (1) whether the reasonable person standard of care, or some lower standard, applies in an emergency; and (2) how it affects the application of comparative negligence principles. 2 Id. The annotation's author notes that a few jurisdictions have abolished sudden emergency instructions, either generally or just in automobile accident cases, while others have discouraged their use, sometimes placing specific restrictions on which cases are appropriate for their use. Id. at 688. However, several jurisdictions still explicitly retain the sudden emergency doctrine, either generally or with the qualification that sudden emergency instructions are allowed but not required. Id. at 695.
Consideration of a sudden emergency is, of course, not a separate doctrine but only a part of the determination of what is reasonable care under the circumstances.
The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor's conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. The mere fact that his choice is unfortunate does not make it improper even though it is one which the actor should not have made had he had sufficient time to consider all the effects likely to follow his action.
RESTATEMENT (SECOND) OF TORTS § 296 cmt. b.
Commentators on Arizona's negligence law have described the problem and the present state of our law as follows:
Conceptually, the emergency doctrine is not an independent rule. It is merely an application of the general standard of reasonable care; the emergency is simply one of the circumstances faced. Arguably, giving a separate instruction on sudden emergency focuses the jury's attention unduly on that aspect of a case. The Arizona Supreme Court has expressly declined to decide the question of the propriety of a separate emergency instruction.
JEFFERSON L. LANKFORD & DOUGLAS A. BLAZE, THE LAW OF NEGLIGENCE IN ARIZONA § 3.5(1),
[189 Ariz. 289] at 43 (1992) (citing Petefish, 137 Ariz. at 575[n. 2], 672 P.2d at 919[n. 2] ). 3
The question we declined to reach in Petefish is squarely before us in this case. Petefish was a passenger in Dawe's truck. Dawe was following a car around a curve when he was suddenly blinded by what he believed to be the car's headlights coming back on the wrong side of the road. He applied his brakes and turned his steering wheel sharply to the right to avoid the perceived head-on collision. As a result, the truck ran off the road and rolled.
In Petefish's subsequent damage action, Dawe claimed he was forced to run off the road to avoid the perceived emergency, arguing that his evasive actions were therefore appropriate and reasonable. Instructed on the sudden emergency doctrine, the jury returned a verdict in favor of Dawe. On Petefish's appeal, we recognized that a sudden emergency is simply a factor to 137 Ariz. at 575, 672 P.2d at 919 (citations omitted). However, even in an emergency the Id. The instruction is applicable only when the actor either faced or reasonably perceived imminent peril. Id. at 574, 672 P.2d at 918. Therefore, we affirmed "the rule that an actor is not entitled to the benefit of the emergency doctrine when his own negligence has been a cause of the emergency." Id. at 572, 672 P.2d at 916. These concepts were contained in the uniform instruction given in the instant case. See Petefish, 137 Ariz. at 577 n. 6, 672 P.2d at 921 n. 6.
We reached a different result in Rosen, in which a sixteen-year-old skateboarding at night was hit by Knaub's truck. Knaub claimed that Rosen suddenly appeared in the street, leaving no time to...
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