The Duty of One Confronted by an Emergency

Posted Tuesday, November 29, 2016 by Ed Harper

Washington Pattern Instruction (WPI) 12.02 states the following: “A person who is suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.”

The instruction requires several factors: a sudden emergency; the emergency was not caused by their own actions, confronted with a choice; and does not have time to think through the decision.

The case of Tuttle v. Allstate, 134 Wn.App.120 (2006 ) the appellate court overturned the trial court’s use of this jury instruction.

In Tuttle, Plaintiff Denise Tuttle sued Brock Gallien for personal injuries. One evening in 2003, Ms. Tuttle was driving southbound on Interstate 5 when her car hit something on the road, causing it to flip over. Several minutes later, Brock Gallien, also traveling southbound on I-5, ran into Tuttle’s vehicle.. Tuttle was seriously injured in the accident. At trial Gallien testified he was driving south in the center lane on I-5…he saw Tuttle’s vehicle “just a fraction of a second before the collision…occurred,” but later he contradicted himself by saying that he did not see the Tuttle’s vehicle before striking it. Prior to striking the Tuttle vehicle, Gallien had noticed people on the right side of the road with flashlights and determined to move to the left hand lane. Tuttle at 125.

Tuttle’s counsel objected to the introduction of this jury instruction that it did not apply and it would confuse the jury. The appellate court agreed that the undisputed evidence was that Gallien had no time to react at all, much less make a choice between alternative courses of action. Tuttle at 131.

The emergency doctrine, to apply, the person has been placed in a position of peril and must make an instinctive choice between courses of action after the peril has arisen…The doctrine excuses an unfortunate human choice of action that would be subject to criticism as negligent were it not that the party was suddenly faced with a situation which gave him no time to reflect upon which choice was best. Tuttle id.

Here, as a driver, Gallien noticed something was amiss up ahead. He made a conscious decision to change lanes. He turned his signal on, he looked over his shoulder, he wanted to allow another vehicle to move over – this thought process takes time. However, when confronted with Tuttle’s vehicle directly in his path, he had no time. He made no choice. This car merely struck Ms. Tuttle’s car. Thus, the court reasoned this jury instruction should not have been given and it was error to do so.

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