Petefish By and Through Clancy v. Dawe, 16135-PR

• Decision Date: 06 October 1983
• Docket Number: No. 16135-PR,16135-PR
• Citation: 672 P.2d 914,137 Ariz. 570
• Parties: Joshua W. PETEFISH, a minor and disabled person, By and Through his guardian ad litem, Kenneth P. CLANCY, Plaintiffs-Appellants, v. C. Kendall DAWE and Millie Dawe, husband and wife; and Grady C. Dawe, a single person, Defendants-Appellees.
• Court: Arizona Supreme Court

Page 914

672 P.2d 914

137 Ariz. 570

Joshua W. PETEFISH, a minor and disabled person, By and Through his guardian ad litem, Kenneth P. CLANCY, Plaintiffs-Appellants, v. C. Kendall DAWE and Millie Dawe, husband and wife; and Grady C. Dawe, a single person, Defendants-Appellees.

No. 16135-PR.

Supreme Court of Arizona, In Banc.

Oct. 6, 1983.

Reconsideration Denied Nov. 15, 1983.

Langerman, Begam, Lewis & Marks by Samuel Langerman, Noel Fidel, Phoenix, for plaintiffs-appellants

Robbins & Green, P.A. by Michael J. O'Grady, Phoenix, for defendants-appellees.

FELDMAN, Justice.

Appellant (plaintiff) petitioned for review of a decision of the court of appeals which affirmed the judgment of the trial court. All issues on appeal pertain to the propriety of an instruction on the sudden emergency doctrine. We granted review in order to examine and settle the law of this state with regard to that doctrine. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Ariz.R.Civ.App.P. 23.

A detailed version of the facts is set forth in the decision of the court of appeals. Petefish v. Dawe, --- Ariz. ---, 672 P.2d 937 (App.1983) (No. 1 CA-CIV 5289, filed May 25, 1982). A brief summary follows.

Defendant Grady Dawe was driving his parents' truck on a dirt road near Cave As O'Connor's car rounded a curve in the road, the deflating tire blew out and the vehicle spun completely around in the road. At the end of the spin, O'Connor's car began to travel back in the direction from which it had come. About this same time, Dawe's truck rounded the curve. Dawe and the other passengers in his truck testified that they were blinded by the headlights of O'Connor's approaching car, that it seemed to be close and coming right at them on the wrong side of the road. It was uncontested that O'Connor's vehicle had its headlights on high beam. Dawe testified that in order to avoid a head-on collision, he applied his brakes and turned his steering wheel sharply to the right. As a result, he ran off the road and his truck rolled over. Plaintiff was very seriously injured.

Creek, Arizona on the night of September 16, 1978. Plaintiff was a passenger. Dawe was following a car driven by a friend, Chuck O'Connor. A tire on O'Connor's car had been losing air; since O'Connor did not have a spare, he had asked Dawe to follow him into town.

Plaintiff brought a negligence action against Dawe and his parents. Dawe denied that he was negligent and claimed that he had run off the road in an attempt to avoid the sudden emergency he faced. He argued that his actions were reasonable under the circumstances of that emergency. Over plaintiff's objections, the trial court instructed on the sudden emergency doctrine. The jury returned a verdict in favor of defendants, and plaintiff appealed. All issues raised on appeal pertain to the application of the sudden emergency doctrine under the facts of this case and to the wording of the instruction given the jury on that subject.

ANTECEDENT NEGLIGENCE

Plaintiff's first argument is based on Dawe's alleged antecedent negligence in driving. Plaintiff contends the emergency doctrine is inapplicable because Dawe's negligence was a cause of the emergency. We acknowledge 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. Gilbert v. Quinet, 91 Ariz. 29, 33-34, 369 P.2d 267, 270 (1962); Restatement (Second) of Torts § 296, comments a and d (1965). However, where there is an issue of fact on the question of antecedent negligence, the jury must be instructed conditionally and "allowed to determine whether the ... driver was responsible for the suddenness of the crisis which he faced." Gilbert v. Quinet, 91 Ariz. at 33-34, 369 P.2d at 270. Dawe and three of his passengers all testified that Dawe was driving properly, at a reasonable speed, on his side of the road and in control of his vehicle until seeing the lights of O'Connor's car heading right at them. The court of appeals held that this evidence did present an issue of fact with respect to whether the "emergency" had been caused by Dawe's antecedent negligence. We agree with the analysis made by the court of appeals.

ALTERNATIVE COURSES OF CONDUCT

Plaintiff contends the emergency doctrine is only applicable where the actor has chosen among alternative courses of conduct. Since plaintiff does not claim that Dawe improperly chose between alternatives, he argues that the emergency doctrine was irrelevant in this case and the court therefore erred by instructing on the doctrine. The court of appeals agreed with the plaintiff's characterization of this aspect of the emergency doctrine but held that the jury could have found that Dawe had a choice between alternatives so that the instruction was warranted.

While we agree with the result, we think the emphasis on alternative courses of action is misplaced. The emergency doctrine is not so much a matter of deliberate choice between alternatives available to meet a sudden emergency as it is a matter of impulse and reaction.

An emergency has been defined as a sudden or unexpected event or combination of circumstances which calls for immediate action; and although there are courts which have laid stress upon the "instinctive action" which usually accompanies such a situation, it seems clear that the basis of the special rule is merely that the actor is left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though it later appears that he made the wrong decision, which no reasonable man could possibly have made after due deliberation. His choice "may be mistaken and yet prudent."

W. Prosser, Handbook of the Law of Torts § 33, at 169 (4th ed. 1971) (footnotes omitted).

The court of appeals stated that "[o]ur courts have held that the doctrine is inapplicable where the person charged with negligence had no opportunity to choose between two or more alternative courses of action." ¹ While it is true that the statement has often been made, we think it legally incorrect. The doctrine is applicable when there is reaction, or time to react, even though a deliberate choice is not made. If the other elements are fulfilled, the doctrine applies wherever the actor has reacted to the emergency, even though that reactive conduct might be quite impulsive and negligent absent such an emergency. Vanderkarr v. Bergsma, 43 Wis.2d 556, 566-67, 168 N.W.2d 880, 885 (1969).

Logically, of course, in every reactive situation there are at least two alternatives. One is to do nothing, and the other is to react. The greater the emergency, the more likely that reaction is the result of impulse rather than conscious deliberation. The logical focus of the sudden emergency doctrine as an excuse for otherwise unreasonable action is on the impulse of reaction. It must be remembered that there may not have been an opportunity "for ... thoughtful balancing of proper expedients. When unraveled in the illuminating glare of hindsight, [the] problem may become ... deceptively easy of solution; but ... an 'emergency' [is] 'an unforeseen combination of circumstances which calls for immediate action'." Leek v. Dillard, 304 S.W.2d 60, 69 (Mo.App.1957). There are cases, such as the one at bench, in which it probably would have been better if the actor had not reacted at all. There are other cases where even in the presence of emergency the actor had a chance to determine that there were alternatives and to react by picking one of them. The doctrine may be applicable in both situations; however, the focus should not be on the existence of a deliberate choice between alternative courses of conduct to meet the emergency, but, rather, upon the reasonableness of the actor's reaction to the emergency. Under either analysis, however, the predicate for giving the sudden emergency instruction was present in this case. We therefore agree with the court of appeals' resolution of this issue.

REASONABLE/UNREASONABLE APPREHENSION OF DANGER

Finally, defendant attacks the application of the emergency doctrine to this case on the theory that the apprehension of peril does not entitle an actor to invoke the sudden emergency rule unless that apprehension is reasonable. Arguing from this premise, plaintiff claims that Dawe's apprehension was unreasonable as a matter of law so that the instruction should not have been given at all. Even if properly given, plaintiff claims the wording of the instruction was erroneous because it failed to inform the jury that Dawe was not entitled to the benefit of the emergency doctrine unless they found the peril with which he thought himself confronted was either actual or reasonably apprehended to be actual. The essence of both arguments is that the unreasonable or negligent apprehension of danger where none exists is a circumstance which precludes the application of the emergency doctrine to the actor's subsequent attempt to evade the danger.

Without citation of authority, the court of appeals agreed with this theory. Though many cases contain language which indicates the apprehension must be reasonable (e.g.: Woods v. Harker, supra note 1), cases with a specific holding on that point are more difficult to find. However, where the point has been considered, the cases have uniformly held that the doctrine is inapplicable where the sudden peril was neither real nor reasonably apprehended. Beaumaster v. Crandall, 576 P.2d 988, 992 (Alaska 1978); Allen v. Pearce Dental Supply Company, 149 Kan. 549, 551, 88 P.2d 1057, 1059 (1939); Beck v. Browning, 129 Tex. 7, 10, 101 S.W.2d 545, 546 (1937); Slate v. Hogback Mountain Ski Lift, Inc., 122 Vt. 8, 12, 163 A.2d 851, 854-55 (1960). For this...