Tansy v. Morgan

Citation604 P.2d 626,124 Ariz. 362
Decision Date26 December 1979
Docket NumberNo. 14168,14168
PartiesApril TANSY and Paul Tansy, wife and husband, Appellants, v. Charles E. MORGAN and Jane DOE Morgan, husband and wife, Appellees.
CourtSupreme Court of Arizona

Paul Broadwell, P. C., Robert C. Howard, Jr., Phoenix, for appellants.

Johnson, Tucker, Jessen & Dake, P. A., by G. Michael Jessen, Richard H. Oplinger, Phoenix, for appellees.

GORDON, Justice:

Plaintiffs April and Paul Tansy appeal a judgment in favor of defendants Charles E. and Jane Doe (Michelle) Morgan after trial by jury of an automobile collision suit. Assuming jurisdiction pursuant to 17A A.R.S. Arizona Rules of Civil Appellate Procedure, Rule 19(e), we reverse the judgment of the Superior Court.

The facts in this case, as they developed from testimony at trial, are almost entirely undisputed. April Tansy was driving her car eastbound on Peoria Avenue near 71st Avenue with her sister and nephew as passengers in the front seat. The weather was clear, and there were no visual obstructions on Peoria Avenue that day. At the site of the accident, Peoria Avenue had a 50 m. p. h. speed limit and was a two-lane roadway which was level and straight for a long distance in both directions. Plaintiff came to a slow stop, because there were two tumbleweeds on her side of the road, one of which was blocking her vision. At the location where plaintiff halted, there was a shoulder on the right side of the road that was just wide enough for one car. Beyond the shoulder was an irrigation ditch. Because of oncoming westbound traffic in the other lane, plaintiff was prevented from circumventing the tumbleweeds via the paved portion of the road.

Plaintiff remained at a stop for two or three minutes while she and her sister discussed whether they ought to get out and remove the obstructions. Plaintiff did not activate her emergency flashes while stopped, but she and her sister testified at trial that she did keep her foot on the brake to prevent her car, which had an automatic transmission, from moving. The only disputed fact in the case is whether plaintiff's brake lights were in operation while she was stopped. 1

Defendant Charles Morgan had driven east onto Peoria Avenue from 73rd Drive with his wife Michelle Morgan seated beside him. It was approximately a quarter of a mile from 73rd Drive to the site of the accident. There were no other vehicles between defendant's and plaintiff's cars. As he entered Peoria Avenue, defendant began traveling at 25-30 m. p. h. He first became aware of plaintiff's car ahead of him when he was approximately 300 feet from it. At that point, he concluded that the vehicle was moving, because he saw no brake lights, no intersection, and no other apparent traffic impediment, which might have caused plaintiff's car to stop.

When defendant was approximately 100 feet from plaintiff's car, and traveling at about 45 m. p. h., he realized that plaintiff's car was not moving. He braked immediately, but was unable to stop and collided with the rear of plaintiff's vehicle. Defendant did not swerve to the left because of oncoming westbound traffic. Although he did consider swerving to the right, he chose not to, viewing it unsafe because of the irrigation ditch beyond the road's shoulder.

Plaintiffs appeal the judgment entered on the jury's verdict in defendants' favor and the court's denial of a motion for a new trial, citing as error two jury instructions, which the court gave over plaintiffs' timely objections.

The first challenged instruction involved the doctrine of sudden emergency:

"A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence or the appearance of imminent danger to himself or others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation. If at that moment he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events it should appear that a different course would have been better and safer.

"If a motor vehicle driver himself created the sudden emergency or brought about the perilous situation through his own negligence, he cannot avoid liability for an injury merely on the ground that his acts were done in the stress of a sudden emergency. He cannot shield himself behind an emergency created by his own negligence."

Preliminarily, it bears emphasis that this Court must view the evidence from a perspective most favorable to the party who requested the instruction, in this case the defendants. Worthington v. Funk, 7 Ariz.App. 595, 442 P.2d 153 (1968).

Precedent instructs that three prerequisites must be satisfied before a sudden emergency instruction is appropriate. There must be a sudden or unexpected confrontation with imminent peril. See, e. g., Sheehy v. Murphy, 93 Ariz. 297, 380 P.2d 152 (1963); Worthington v. Funk, supra; Kudrna v. Comet Corp., Mont., 572 P.2d 183 (1977); Vander Laan v. Miedema, 385 Mich. 226, 188 N.W.2d 564 (1971). The emergency must not be a result of the negligence of the person seeking the instruction. See, e. g., Cano v. Neill, 12 Ariz.App. 562, 473 P.2d 487 (1970). Finally, the party seeking application of the doctrine must have had two or more alternative courses of conduct available. Dobbertin v. Johnson, 95 Ariz. 356, 390 P.2d 849 (1964); Woods v. Harker, 22 Ariz.App. 83, 523 P.2d 1320 (1974).

Plaintiffs contend that the first two of the above requirements were not met. We are persuaded that the evidence in the case did not reasonably support the instruction, See Rodriguez v. Besser Co., 115 Ariz. 454, 565 P.2d 1315 (App.1977), because the defendant was not suddenly or unexpectedly confronted with imminent peril. Plaintiff's car had been stationary for several minutes. It was in plain view, in broad daylight, under favorable weather conditions for a period of time that was more than ample to give defendant the opportunity to stop. Other courts faced with fact situations similar in various respects to the instant one have concluded that a sudden emergency instruction was improper. E. g., Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978); Kudrna v. Comet Corp., supra; Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504 (1974); Vander Laan v. Miedema, supra; Spillers...

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6 cases
  • Gagnon v. Crane
    • United States
    • Supreme Court of New Hampshire
    • July 24, 1985
    ...supra 88 N.H. at 167, 184 A. at 871; Jones v. Railroad, 83 N.H. 73, 84-85, 139 A. 214, 221 (1927); see also Tansy v. Morgan, 124 Ariz. 362, 364, 604 P.2d 626, 628 (1979); Miller v. Porter, 156 Conn. 466, 469, 242 A.2d 744, 746 The evidence in the case at bar fails to demonstrate to us that ......
  • Cameron v. Westbrook, 1 CA-CV 10-0398
    • United States
    • Court of Appeals of Arizona
    • February 7, 2012
    ...instruction; and 3) the person seeking the instruction had at least two alternative courses of conduct available. Tansy v. Morgan, 124 Ariz. 362, 364, 604 P.2d 626, 628 (1979). Cameron asserts the first two requirements were not satisfied. We disagree. ¶9 The jury heard testimony from sever......
  • Petefish By and Through Clancy v. Dawe
    • United States
    • Court of Appeals of Arizona
    • May 25, 1982
    ...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 th......
  • Jones v. Munn, 17055-PR
    • United States
    • Supreme Court of Arizona
    • April 9, 1984
    ...is challenged, we must view the evidence in a light most favorable to the party who requested the instruction. See Tansy v. Morgan, 124 Ariz. 362, 604 P.2d 626 (1979). In this case Munn requested the instruction. (We note that the party who requests the sudden emergency instruction need not......
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