Opinion
No. 22887-8-III
Filed: April 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No. 01-2-00594-9. Judgment or order under review. Date filed: 03/10/2004. Judge signing: Hon. Lesley a Allan.
Counsel for Appellant(s), Peter Devin Poulson, Attorney at Law, 222 Eastmont Ave, PO Box 7132, East Wenatchee, WA 98802-0132.
Counsel for Respondent(s), Robert William Sealby, Carlson McMahon Sealby PLLC, 37 S Wenatchee Ave Ste F, PO Box 2965, Wenatchee, WA 98807-2965.
Deborah Lindblom was injured when Jim Fisher backed into her with his truck. She sued him, alleging negligence. He defended, alleging a sudden emergency. After a trial, the jury found in favor of Mr. Fisher and against Ms. Lindblom. She appeals, claiming that the jury should not have been instructed regarding the sudden emergency doctrine. We affirm the order of the trial court.
FACTS
On June 20, 1998, Jim Fisher and Deborah Lindblom drove to a restaurant in Leavenworth, Washington, for a dinner engagement. When they arrived at the restaurant, they discovered that the streets were crowded and the parking was limited. Mr. Fisher saw that a parked vehicle was preparing to leave a parallel parking space, so he positioned his pickup behind the parked vehicle. At that point, Ms. Lindblom exited the pickup and walked behind it. The parked vehicle's reverse lights came on and it backed up toward Mr. Fisher's pickup. Mr. Fisher decided that the moving vehicle was going to hit his pickup and, to avoid getting hit, he moved his pickup. The pickup struck Ms. Lindblom.
On appeal, Ms. Lindblom has provided only a limited record of proceedings consisting of the testimony of Mr. Fisher and Ms. Lindblom's motion to dismiss.
Later, Ms. Lindblom sued Mr. Fisher, alleging that she had been injured by his negligence. In his response, Mr. Fisher asserted the sudden emergency doctrine as an affirmative defense. The case was tried to a jury. After the parties had presented their evidence, Ms. Lindblom brought a motion to dismiss Mr. Fisher's affirmative defense. She asked the court to rule as a matter of law that the facts of the case did not warrant an instruction on the sudden emergency doctrine.
The court initially denied the motion. After further reflection, the court granted the motion. Finally, the court reversed itself again and denied the motion, reasoning that there was adequate testimony to establish a jury question regarding the application of the sudden emergency doctrine. The court instructed the jury on the sudden emergency doctrine. The jury determined that Mr. Fisher was not negligent.
The instruction stated: `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.' Clerk's Papers at 30.
ANALYSIS
Ms. Lindblom asserts that the trial court abused its discretion in instructing the jury on the sudden emergency doctrine. Essentially, she asserts that the facts of the case did not warrant such an instruction. Briefly put, she questions whether Mr. Fisher was faced with a sudden emergency requiring an instantaneous decision. She also argues that, whatever emergency confronted Mr. Fisher, it was an emergency caused by his own negligence.
Standard of Review. A trial court's decision to give a particular jury instruction is reviewed under an abuse of discretion standard. Boeing Co. v. Key, 101 Wn. App. 629, 632, 5 P.3d 16 (2000). Instructions are sufficient if, read as a whole, they permit both parties to argue their theories of the case, are not misleading, and properly set forth the applicable law. Gammon v. Clark Equip. Co., 104 Wn.2d 613, 617, 707 P.2d 685 (1985). A trial court should not instruct the jury of a legal theory that is not supported by substantial evidence. Pederson's Fryer Farms, Inc. v. Transamerica Ins. Co., 83 Wn. App. 432, 447, 922 P.2d 126 (1996). Sudden Emergency Doctrine. The sudden emergency doctrine concerns a situation where a `person is placed in a position of peril and must choose between courses of action to avoid the peril.' Haynes v. Moore, 14 Wn. App. 668, 669, 545 P.2d 28 (1975). In this case, Mr. Fisher argues that the doctrine was applicable because he had to move his pickup in order to avoid getting hit. In response, Ms. Lindblom analyzes Mr. Fisher's testimony and argues that it does not sufficiently establish a sudden emergency requiring an instantaneous decision.
The sudden emergency doctrine applies if there is an emergency that is sudden or unanticipated. Bell v. Wheeler, 14 Wn. App. 4, 7, 538 P.2d 857 (1975). More specifically, there must have been a `confrontation by a sudden peril requiring instinctive reaction' where Mr. Fisher did not have `time to consider various alternatives.' Albrecht v. Groat, 91 Wn.2d 257, 261, 588 P.2d 229 (1978). Here, Mr. Fisher did not actually state that he was confronted by an unanticipated emergency or that he was placed in sudden peril requiring an instinctive reaction. Rather, Mr. Fisher simply stated that he had to move his pickup in order to avoid getting hit. The pivotal question is whether there was sufficient evidence of a sudden emergency to create a jury question. The trial court recognized that it was a close question, and, after some hesitation, decided that there was sufficient testimony to establish a jury question regarding the application of the sudden emergency doctrine. We agree with the trial court. The evidence — and the inferences from the evidence — are sufficient, if barely so, to create a jury question. If there is a conflict of evidence on the applicability of the sudden emergency doctrine, the court must instruct on the doctrine. Bell, 14 Wn. App. at 6.
Ms. Lindblom also argues that Mr. Fisher's emergency was created by his own negligence. According to Ms. Lindblom, Mr. Fisher created his own emergency by stopping his vehicle in a no-parking zone, in a place that was too close to a parked vehicle. Also, he failed to look back or honk his horn before backing up. Ms. Lindblom argues that, if Mr. Fisher had not been negligent, there would have been no emergency.
An instruction regarding the sudden emergency doctrine should not be given `if the emergency is brought about by the negligence, in whole or in part, of the person seeking its benefit.' Haynes, 14 Wn. App. at 669. However, even if the party has been negligent, the doctrine is appropriate if there is evidence `from which it could be concluded that the emergency arose through no fault of the party.' Brown v. Spokane County Fire Protection Dist. No. 1, 100 Wn.2d 188, 197, 668 P.2d 571 (1983). This includes a `reasonable inference' that the emergency was not a result of the party's negligence. Lee v. Cotten Bros. Co., 1 Wn. App. 202, 217, 460 P.2d 694 (1969). In other words, if there is conflicting evidence as to whether the party's negligence `contributed to the emergency,' the jury is entitled to the instruction. Haynes, 14 Wn. App. at 671.
In his testimony, Mr. Fisher conceded that he may have positioned his pickup too close to the parked vehicle. In denying the motion to dismiss the affirmative defense, the court referenced Ms. Lindblom's testimony that she did not believe that Mr. Fisher's pickup was parked too close to the other vehicle. The court also relied upon the fact that the parked vehicle initiated the problem by backing toward the pickup. Here, there is conflicting evidence as to whether Mr. Fisher's negligence created the emergency. For that reason, the court acted within its discretion to give the instruction.
Finally, we are persuaded that the jury instructions, read as a whole, permitted each party to argue his or her theory of the case. Mr. Fisher could argue that he was faced with a sudden emergency requiring an instinctive reaction. Ms. Lindblom could argue that Mr. Fisher was not confronted by a sudden emergency requiring an instantaneous decision. And, she could further argue that he created his own emergency by acting negligently. In other words, each party could argue his or her theory of the case based upon jury instructions that correctly set forth the applicable law. There was no error.
We affirm the order of the trial court.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and SCHULTHEIS, J., Concur.