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Court of Appeal:
Emergency Defense Unavailable to Driver Blinded by Storm
Opinion Says Shield to Tort Liability Requires Choice Between Alternatives, Does Not Apply to Accident Where Driver Was Not Presented With Any Option but Slamming Brakes
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that the sudden emergency doctrine—providing a defense to negligence claims when a person is confronted by exigent circumstances that impede the ability to deliberate calmly—only shields a defendant from tort liability if a choice between multiple alternatives is required.
A driver faced with “brown-out” conditions—under which he cannot see anything—during a severe sandstorm on a highway in San Bernardino County was given no alternative but to slam on the brakes and hit the unseen vehicle in front of him, rendering the doctrine inapplicable, the court declared.
The accident in question occurred on Oct. 9, 2019, in San Bernardino County when FedEx Freight Inc. employee Duane Marker drove his delivery truck into the back of Joseph Rickman’s vehicle. On Dec. 29, 2020, Rickman filed a complaint against FedEx and Marker, asserting negligence claims against the parties.
After Marker was dismissed as a defendant, FedEx moved for summary judgment, asserting the sudden emergency doctrine as a complete defense. In the motion, the defendant alleges:
“Plaintiffs negligence action arises from a rear-end collision by one truck into another during a sudden dust storm on eastbound Interstate 40 east of Newberry Springs on October 9, 2019. It is undisputed that the dust storm went from mild to blinding all of a sudden. The FEDEX driver suddenly found himself in a blackout, resulting in a rear-end collision.
“The sudden emergency doctrine is a complete defense to Plaintiff’s negligence claims. The FEDEX driver found himself in a sudden emergency, a blinding dust storm, wholly out of his control and without warning. The FEDEX driver acted reasonably in the circumstances. Plaintiff therefore cannot meet his burden to show that FEDEX acted negligently.”
San Bernardino Superior Court Judge Michael A. Sachs granted the motion on Sept. 29, 2022, finding that the defense applied to Rickman’s claims. Judgment was entered in favor of the defendants on Oct. 27, 2022.
Justice Martha K. Gooding authored the unpublished opinion, filed Tuesday, reversing the judgment. Gooding found that the defense was inapplicable as Marker had no alternative action available to him under the circumstances and had contributed to the accident by not slowing down earlier when the storm became visible ahead.
Acting Presiding Justice Joanne Motoike and Justice Thomas A. Delaney joined in the opinion.
Choice Required
Gooding cited the 1955 opinion by this district’s Court of Appeal in Staggs v. Atchinson, Topeka and Santa Fe Railway Company. There, a railroad company was sued after a 21-month-old child wandered onto the tracks and was hit by a train.
The court held that the trial judge erred in instructing the jury on the emergency doctrine as the defendant’s agents could not have avoided the accident where the child was only noticed moments before the collision.
In the opinion, written by Presiding Justice Thomas P. White (later a justice of the California Supreme Court), the Staggs court noted that the other cases applying the doctrine involved scenarios where a choice was made—citing one case in which it was successfully asserted by a driver who had to choose between braking and swerving to avoid hitting a pedestrian.
Other Jurisdictions
Noting that “[m]any other jurisdictions” have held that the sudden emergency doctrine does not apply absent a choice between alternatives, Gooding cited cases from Connecticut and Arkansas, among others.
Turning to the present case, she quoted from the traffic collision report, which says:
“[Marker] observed there were high winds and blowing sand which increased in intensity as he proceeded eastbound. [Marker] lost visibility to the front of his vehicle as the blowing sand conditions increased to an almost brown out. [Marker] reacted by applying [the FedEx truck’s] brakes. A couple of seconds later, [Marker] felt the front of [the FedEx truck] impact another vehicle.”
Under these circumstances, the justice opined:
“There was no evidence Marker was forced to choose between alternative courses of action once Rickman’s vehicle suddenly appeared immediately in front of his truck. To the contrary, the evidence shows the short distance between Rickman’s vehicle and Marker’s truck and Marker’s speed ‘foreclosed any other option besides reflexively slamming on the brakes.’ ”
Gooding also explained that the defense is not without limitations, saying that “the sudden emergency doctrine only applies where the defendant has not acted negligently in causing (or contributing to) the sudden emergency.” She wrote:
“It is true that Marker did not cause or contribute to the dust storm, but that is not the sudden emergency in this scenario. The sudden emergency here was the change from a dust storm to a brownout that made it impossible for Marker to see in front of him.”
Considering this interpretation of the emergency, she reasoned:
“There was evidence regarding Marker’s conduct before the accident from which a reasonable trier of fact could conclude he was negligent. Rickman testified the dust storm was visible for five miles before he drove into it; similarly, Marker testified that when he got back on the road after taking a break, he drove about five miles before he hit the dust storm. This supports an inference that Marker also could see the dust storm well before he drove into it….Marker testified that he drove through the dust storm for five miles before the collision occurred and that he did not begin to brake until one minute prior to the collision. In other words, Marker did not slow down in the dust storm until the storm worsened to the point of brownout. Marker did not testify he was attempting to pull off the highway or otherwise come to a stop when the accident occurred.”
The jurist continued:
“Although Marker’s conduct did not cause the dust storm, how he acted after he encountered it—including his speed before and after it became a brownout—is still relevant….FedEx did not establish Marker was not negligent before Rickman’s vehicle suddenly became visible in front of his truck during the brownout.”
The case is Rickman v. FedEx Freight Inc., G063921.
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