Petefish By and Through Clancy v. Dawe
| Decision Date | 25 May 1982 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 672 P.2d 937,137 Ariz. 593 |
| 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. 5289. |
| Court | Arizona Court of Appeals |
On the evening of September 16, 1978, the defendant-appellee, Grady C. Dawe, overturned his father's 1965 Chevrolet pickup truck. One of the passengers therein, Joshua W. Petefish, was severely injured, and filed a claim in negligence against Grady Dawe for injuries he sustained. 1 Since Grady Dawe was a minor, his parents were named as parties defendant on theories of derivative negligence 2 (for the actions of their minor child), and negligent entrustment of an automobile to an unsafe driver.
The matter proceeded to a jury trial on all issues. Allegations of contributory negligence and assumption of risk were abandoned, with Dawes' sole defense being that Grady was a skilled and competent driver who was not negligent on the night of the accident. Following the trial, judgment for the appellees was entered, based on a jury verdict for the defense on both the negligent driving and negligent entrustment claims. Appellants have appealed from this judgment and the denial of their motions for judgment N.O.V. and for a new trial.
Although several legal issues were raised and argued at trial, appellants have raised only one issue for consideration by this Court: whether the giving of a "sudden emergency" instruction constituted reversible error under the facts of this case. Having reviewed the entire record, we conclude that the testimony warranted such an instruction, and that the instruction, as offered to the jury, correctly stated the law of Arizona. Thus, the judgment is affirmed.
At the time of the accident, Grady Dawe was 15 years old and was not yet licensed to drive a motor vehicle. Nevertheless, the evidence showed that he had extensive daytime and nighttime driving experience and was often allowed to drive his parents' vehicle on the country roads surrounding his home in Cave Creek, Arizona. On the night in question, he had received permission to drive the family pickup to a desert party near his home. Grady attended the party, accompanied by three teenage friends, Jeffrey Wilms, Todd Davis, and Neil Cowie.
While attending the party, Grady Dawe was approached by an acquaintance, Chuck O'Connor. O'Connor was concerned over the rapid loss of air in one of his tires, and having no spare, he requested that Dawe follow him into town. Dawe agreed, and O'Connor drove off, accompanied by his brother, Paul O'Connor, Matt Parsons, and Joshua Petefish. Dawe followed, accompanied by his previously mentioned passengers, all of whom were seated in the cab of the pickup. Both vehicles proceeded south on Spur Cross Road, headed toward Cave Creek.
Approximately three-tenths of a mile from the site of the party, the O'Connor vehicle stopped. Dawe stopped alongside, and with minimal explanation, Joshua Petefish got out of the O'Connor car and jumped into the bed of the Dawe pickup. O'Connor again drove off and Dawe followed. Later, it was learned that Petefish removed himself from the O'Connor vehicle because he did not trust the deflating tire.
O'Connor proceeded on, and shortly thereafter rounded a sharp right-hand curve on the winding Spur Cross Road. The deflating tire blew out entirely, causing the O'Connor vehicle to spin around in the road. The car was still in "drive," and it began creeping back in the very direction from which it came. Meanwhile, the Dawe pickup was rapidly approaching, though still out of sight around the curve. Grady Dawe and all of his passengers testified that Dawe had the pickup in complete control and was rounding the curve in a safe and reasonable manner. Suddenly, they claimed, they were blinded by the bright headlights of the O'Connor vehicle, which seemed to be coming "right at" them. Dawe testified that a collision seemed inevitable, and in an act of desperation, he spun his wheel to the right. The pickup swerved to the right; it struck the right-hand embankment, rolled over and came to rest without ever touching the O'Connor vehicle. All passengers in the cab escaped through a window with minor injuries except Joshua Petefish. He was found underneath the truck, seriously injured. All of Dawe's passengers testified that peril of collision with the O'Connor vehicle was imminent, and each would have taken evasive action to avoid an apparent head-on collision if they had been driving. Realizing the seriousness of the accident, Chuck O'Connor attempted to return to the party to seek help in his disabled car. Unfortunately, once his car was moved, its location at the time of the rollover has never been precisely determined. Rather, the location has become an issue of dispute.
Appellants contended throughout the trial that Dawe had lost control of his vehicle before O'Connor's car came into view, or that in any event, the O'Connor vehicle was so far away that it could not possibly have presented an appearance of imminent peril. To support their theory of the case, appellants presented a qualified accident reconstructionist, Mr. Paul Blubaum, who testified in substance that the O'Connor vehicle played no causal part in Dawe's rollover. Rather, Mr. Blubaum concluded that Dawe's negligent driving was the sole cause of the rollover. This evidence, of course, conflicted sharply with the testimony of Dawe and his passengers concerning a "sudden emergency," and brings us to the central legal issue of whether the circumstances present herein warranted application of the "sudden emergency doctrine."
It is well settled in Arizona law that an actor who is faced with sudden unexpected peril cannot be held to the standard of care of a reasonably prudent man who is not faced with such peril. See Sheehy v. Murphy, 93 Ariz. 297, 380 P.2d 152 (1963); Southwestern Freight Lines v. Floyd, 58 Ariz. 249, 119 P.2d 120 (1941); Stump v. Fitzgerald, 14 Ariz.App. 527, 484 P.2d 1056 (1971). In appropriate circumstances, a person charged with negligence is entitled to have the jury instructed on the sudden emergency doctrine. See Campbell v. Brinson, 89 Ariz. 197, 360 P.2d 211 (1961); Western Truck Lines v. Berry, 52 Ariz. 38, 78 P.2d 997 (1938). It should be noted, however, that the sudden emergency doctrine is not a departure from the reasonable man standard of care. Rather, it is merely an aid in determining negligence, informing the jury that the hypothetical reasoanble man may make unwise choices when faced with sudden peril. See Fulton v. Johannsen, 3 Ariz.App. 562, 416 P.2d 983 (1966); D. Wilson, Arizona Automobile Negligence, § 17 (1962).
Traditionally, Arizona has imposed three prerequisites to the giving of the sudden emergency instruction: (1) there must be a sudden or unexpected confrontation with imminent peril; and (2) the emergency must not be a result of the negligence of the person seeking the instruction; and (3) the party seeking the instruction must have had two or more alternative courses of conduct available. See Tansy v. Morgan, 124 Ariz. 362, 364, 604 P.2d 626, 628 (1979), citing authority for each of the prerequisites. Where any prerequisite is lacking, either as a matter of law or through a deficiency in the evidence, the giving of the instruction has been held to be reversible error. See Woods v. Harker, 22 Ariz.App. 83, 523 P.2d 1320 (1974) (); Livesay v. State, 126 Ariz. 345, 615 P.2d 642 (1980) (); Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964) ().
Appellants contend that all prerequisites were lacking in the case at bar. Thus, they contend that the giving of the instruction was reversible error. Before proceeding to examine the prerequisites individually, however, we take notice of the general rules regarding jury instruction on sudden emergency. Our courts have held that the instruction is warranted where reasonably supported by the evidence, even though that evidence may be slight. Furthermore, when reviewing the giving of the instruction, we view the facts in a light most favorable to the party requesting the instruction. See, e.g., Tansy v. Morgan, 124 Ariz. 362, 604 P.2d 626 (1979); Johnson v. Orcutt, 92 Ariz. 295, 376 P.2d 557 (1962); Winchester v. Palko, 18 Ariz.App. 534, 504 P.2d 65 (1972); Worthington v. Funk, 7 Ariz.App. 595, 442 P.2d 153 (1968); Fulton v. Johannsen, 3 Ariz.App. 562, 416 P.2d 983 (1966). Bearing these rules in mind, we turn to the prerequisites.
Appellants contend that no real or apparent emergency ever existed in the instant case. The argument is threefold: (1) that the O'Connor vehicle posed no real peril; (2) that the O'Connor vehicle was too far away to create an appearance of peril; and (3) that the trial judge was under the erroneous impression that any subjective apprehension of peril, no matter how unreasonable, would support the sudden emergency defense to negligence.
We may assume for purposes of this opinion that the O'Connor vehicle posed no real peril to Grady Dawe. We disagree, however, with the other conclusions drawn by appellants. First, we do not believe that the physical evidence was so conclusive as to require a ruling, as a matter of law, that no appearance of peril existed. As previously mentioned, the location of the O'Connor vehicle at the time of the rollover was an issue of considerable factual dispute in trial. Appellants attempted to prove its...
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