The Future of the Sudden Emergency Doctrine in Pennsylvania: The Doctrine Remains Viable But It’s No Longer a Defense

Tort law in Pennsylvania recognizes that “sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.”  Graham v. Check, 243 A.3d 153, 157 (Pa. 2020).  This notion is coined the “sudden emergency doctrine” and, historically, where the evidence in a case suggests that these “‘sudden emergencies’ may have played a role in a case,” the jury may be instructed that “it should assess the defendant’s performance commensurately” if it determines that “such an emergency contributed to the accident.”  Id.  Our Supreme Court recently considered the application of the sudden emergency doctrine in Graham v. Check.  While the Court’s opinion confirms that the sudden emergency doctrine continues to be a viable doctrine, the Court went to great lengths to note that the doctrine should not be understood as a “defense” and offered careful guidance pertaining to its applicability moving forward.

I.  History of The Sudden Emergency Doctrine in Pennsylvania
The sudden emergency doctrine has been available as “a defense to a party who suddenly and unexpectedly finds him or herself confronted with a perilous situation which permits little or no opportunity to apprehend the situation and act accordingly.”  Levey v. DeNardo, 725 A.2d 733, 735–36 (Pa. 1999) (quoting Lockhart v. List, 665 A.2d 1176, 1180 (Pa. 1995)).  To that end, the doctrine has frequently been utilized in motor vehicle accident cases “wherein a driver was confronted with a perilous situation requiring a quick response in order to avoid a collision.”  Id. (quoting Lockhart, 665 A.2d at 1180).

Generally, the rule provides as follows:

[A]n individual will not be held to the “usual degree of care” or be required to exercise his or her “best judgment” when confronted with a sudden and unexpected position of peril created in whole or in part by someone other than the person claiming protection under the doctrine. The rule recognizes that a driver who, although driving in a prudent manner, is confronted with a sudden or unexpected event which leaves little or no time to apprehend a situation and act accordingly should not be subject to liability simply because another perhaps more prudent course of action was available. Rather, under such circumstances, a person is required to exhibit only an honest exercise of judgment. The purpose behind the rule is clear: a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence. It is important to recognize, however, that a person cannot avail himself of the protection of this doctrine if that person was himself driving carelessly or recklessly.

Id. (quoting Lockhart, 665 A.2d at 1180) (emphasis added).

The burden of establishing a sudden emergency lies with the party asserting it.  See Chadwick v. Popadick, 159 A.2d 907, 909 (Pa. 1960).  Where the emergency itself could have been avoided by the exercise of reasonable care, then the doctrine cannot be invoked.  See Downey v. Rymorowicz, 154 A.2d 179, 182 (Pa. 1959).

II.  Graham v. Check
Graham involved a motor vehicle accident that occurred at a busy intersection.  The plaintiff entered the intersection without activating the pedestrian signal, although he confirmed that oncoming traffic “was stopping for the [red] signal” prior to entering the intersection.  Graham, 243 A.3d at 158.  As the plaintiff crossed the mid-point of the intersection within the crosswalk, the signal for oncoming traffic turned from red to green.  The defendant, who was slowing for the red signal, began to accelerate after the signal turned green.  The defendant entered the intersection “between fifteen and thirty miles-per-hour” and struck the plaintiff.  Id.  The defendant claimed that he only first saw the plaintiff at a distance of seven to ten feet prior to impact because the plaintiff’s presence was obstructed by another vehicle.  At trial, the judge granted defendant’s request for a jury instruction on the sudden emergency doctrine.  The jury returned a defense verdict.

On appeal, the plaintiff argued that the trial court erred in charging the jury on the sudden emergency doctrine because the defendant was familiar with the road, the plaintiff was in the crosswalk at an intersection at the time of impact, and the defendant had a duty to anticipate the presence of a pedestrian in a crosswalk.  Id. at 159.  More specifically, the plaintiff contended that the defendant “experienced nothing that a reasonably prudent driver would not have anticipated,” as such, “any sudden emergency necessarily was of [the defendant’s] own creation.”  Id.

In response, the defendant claimed the jury instruction on the sudden emergency doctrine was proper insofar as he entered the intersection at a speed well below the posted limit, the signal had turned from red to green in his favor, his attention was not diverted from the road, and he was “unexpectedly and suddenly” confronted with the appearance of the plaintiff in his lane of travel.  Id. at 162.

Graham provided our Supreme Court with the opportunity to revisit the applicability of the sudden emergency doctrine.  The Court noted that while the majority of jurisdictions across the country have “retain[ed] the sudden emergency doctrine in some form,” some courts have found that the “modern principles of comparative fault and the apportionment of liability” have rendered the doctrine obsolete.  Id. at 165 & 167.  With this backdrop in mind, the Court provided as follows:

These currents in the law, these other jurisdictions’ cautionary notes, and the circumstances of this case give us cause and occasion to underscore that the sudden emergency doctrine should not be understood as a “defense” in the common sense, and we find it ill-advised to use the word “defense” in sudden emergency jury instructions in future cases . . . .
. . .
[T]he presence of an emergency may be extraordinary enough to merit separate mention.  Even so, it remains only one among the panoply of surrounding circumstances that a jury must take into account in assessing the reasonableness of each party’s actions or omissions.  To treat the sudden emergency doctrine as a defense can only diminish the imperative centrality in negligence of the question whether a party exercised the care of a reasonably prudent person under all of the circumstances presented.

Id. at 168 (emphasis added).  With respect to pedestrian/intersection accidents, the Court stated “it is difficult to envisage a circumstance in which a pedestrian who departs the curb with the signal in his favor, moves at an ordinary pace within a crosswalk at a busy intersection, and is struck when he has crossed three of four lanes at a steady pace can present any basis for granting a driver the benefit of the sudden emergency defense,” reasoning that the law imposes “heightened vigilance” to drivers at intersections.   Id. at 169 & 171.

Ultimately, the Court held that the trial court erred in instructing the jury on the sudden emergency doctrine, as the evidence “left no reasonable basis upon which a jury could have found a sudden emergency” based upon the defendant’s conduct.  Id. at 171.  The Court remanded the case for a new trial.

III.  Considerations Moving Forward Post-Graham
Graham provides the following guidance: (1) the sudden emergency doctrine should not be understood as a “defense” per se, but rather an available instruction in very limited instances where, essentially, the circumstance presented is truly unforeseeable and the jury is permitted to evaluate the alleged tortfeasor’s conduct through that lens; (2) the word “defense” should be removed from “sudden emergency” jury instructions moving forward, though trial courts may provide language of “honest exercise of judgment” to evaluate the alleged tortfeasor’s conduct; and (3) a sudden emergency will not diminish the standard of care when the emergency arises from the actions of the party seeking the benefit of the doctrine.

While Graham is properly understood as an acknowledgment that the sudden emergency doctrine continues to be viable in Pennsylvania, its application moving forward has shifted from what has long been viewed by many as a “defense” to an instruction where a jury is allowed to view an “extraordinary” emergency simply through a different lens.  And specific to the pedestrian/motor vehicle accident context, given the heightened duty of care required of a driver approaching an intersection, it is unlikely that the doctrine will be applicable in motor vehicle/pedestrian accidents at intersections.

Ryan R. Corkery is a Partner in our Philadelphia office.
Malena Kinsman is an Associate in our Pennsylvania office.