MODEL PENAL CODE ANNOTATED

 
 
RESTATEMENT OF THE LAW, SECOND, TORTS

Copyright 1965, American Law Institute

RULES AND PRINCIPLES
Division Two - Negligence
Chapter 12 - General Principles
Topic 3 - Determination of Standard of Conduct
Title B - Factors Important in Determination of Standard of Reasonable Conduct


§ 296 EMERGENCY

 (1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.
(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.
 
 

COMMENTS & ILLUSTRATIONS:  Comment:

a.  The rule stated in Subsection (1) of this Section is applicable where the sudden emergency is created in any way other than by the actor's own tortious conduct, as where it is created by the unexpected operation of a natural force or by the innocent or wrongful act of a third person. The fact that the emergency is created by the actor's own conduct does not prevent the rule from being applicable if his conduct is not tortious.

b.  The rule stated in Subsection (1) is a special application of the rule stated in § 283 that "unless the actor is a child the standard of conduct to which he must conform is that of a reasonable man under like circumstances." Among the circumstances which must be taken into account is the fact that the actor is confronted with such an emergency as is described in this Section. The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor's conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. The mere fact that his choice is unfortunate does not make it improper even though it is one which the actor should not have made had he had sufficient time to consider all the effects likely to follow his action.

c.  Activity requiring special training or aptitude.  In determining whether the actor is to be excused for an error of judgment in a sudden emergency, importance is to be attached to the fact that many activities require that those engaged in them shall have such natural aptitude or special training as to give them the ability to cope with those dangerous situations which are likely to arise in the course of such activities. Thus, a driver of a high speed interurban omnibus would not be reasonably competent to drive unless by constant training and practice he had become capable of almost automatic reaction to the numerous situations which are likely to arise and which, when they arise, require prompt and proper action.

d.  Prior tortious conduct.  Where the emergency itself has been created by the actor's own negligence or other tortious conduct, the fact that he has then behaved in a manner entirely reasonable in the light of the situation with which he is confronted does not insulate his liability for his prior conduct. Such liability is not precluded by the fact that he has acted reasonably in the crisis which he has himself brought about. It is not his reasonable conduct in the emergency which makes him liable, but his prior tortious conduct creating the emergency. This is well illustrated by cases involving the rule of the last clear chance, stated in §§ 479 and 480. Thus where the plaintiff is charged with contributory negligence, and the defendant can be liable only on the basis of the last clear chance, there is no liability if the defendant has acted reasonably in the emergency which has arisen, and which affords him the last clear chance.
 
 

REPORTERS NOTES:  This Section has been changed from the first Restatement by the addition of Subsection (2), in order to make it clear that the actor is liable only for his prior tortious conduct, and not for his reasonable conduct in the emergency.

Comment a is supported by Kelley v. Safeway Stores, Inc., 105 App D.C. 406, 267 F.2d 683 (1959); Heerman v. Burke, 266 F.2d 935, 73 A.L.R.2d 1206, 13 N.C.C.A.3d 385 (8 Cir. 1959); Gamalia v. Badillo, 53 Cal. App. 2d 375, 128 P.2d 184 (1942); Denver-Los Angeles T. Co. v. Ward, 114 Colo. 348, 164 P.2d 730 (1945); Napier v. Du Bose, 45 Ga. App. 661, 165 S.E. 773 (1932); Elmore v. Des Moines City R. Co., 207 Iowa 862, 224 N.W. 28 (1929); Barnhardt v. American Glycerin Co., 113 Kan. 136, 213 P. 663, 31 A.L.R. 721 (1923); Metzinger v. Subera, 175 Kan. 542, 266 P.2d 287 (1954); Remmer's Ex'r v. Mayhugh, 303 Ky. 366, 197 S.W.2d 450 (1946); Louisville & N.R. Co. v. Wright, 193 Ky. 59, 235 S.W. 1 (1921); Pennington's Adm'r v. Pure Milk Co., 279 Ky. 235, 130 S.W.2d 24 (1939); St. Johnsbury Trucking Co. v. Rollins, 145 Me. 217, 74 A. 2d 465, 21 A.L.R.2d 88 (1950); Kane v. Worcester Consolidated R. Co., 182 Mass. 201, 65 N.E. 54 (1902); Nees v. Minneapolis St. R. Co., 218 Minn. 532, 16 N.W.2d 758 (1944); Majure v. Herrington, 243 Miss. 692, 139 So. 2d 635 (1962); Hersey v. Fritz, 91 N.H. 484, 22 A.2d 770 (1941); McClard v. Reid, 190 Tenn. 337, 229 S.W. 2d 505 (1950); Morrison v. Perry, 104 Utah 139, 122 P.2d 191 (1942), modified 104 Utah 151, 140 P.2d 772; Jones v. Hanbury, 158 Va. 842, 164 S.E. 545, 31 N.C.C.A. 158 (1932); Southern P.M. Lines v. Burks, 187 Va. 53, 46 S.E.2d 26 (1948); Bergstrom v. Ove, 39 Wash. 2d 78, 234 P.2d 548 (1951).

An emergency has been defined as a sudden or unexpected event or combination of circumstances which calls for immediate action. Trinity Universal Ins. Co. v. Farmers Co-op. Exchange, 171 Kan. 501, 233 P.2d 468 (1951); Colfax County v. Butler County, 83 Neb. 803, 120 N.W. 444 (1909). A good many courts have laid stress on the "instinctive action" which usually accompanies the emergency rule. Collette v. Boston & Maine R. Co., 83 N.H. 210, 140 A. 176 (1928); Whicher v. Phinney, 124 F.2d 929 (1 Cir. 1942). It has, however, been applied where the actor testified that he was perfectly calm. Triestram v. Way, 286 Mich. 13, 281 N.W. 420 (1938). Shortage of time for decision, and circumstances which would perturb or upset the judgment of the ordinary reasonable man appear to be the gist of the situation. Napier v. Du Bose, 45 Ga. App. 661, 165 S.E. 773 (1932); Graham v. Hines, 240 S.W. 1015 (Tex. Civ. App. 1922), error refused.

The standard of conduct in an emergency is still an external one. The actor's own judgment or impulse is not the sole criterion, and he may still be negligent if he acts unreasonably. Lederer v. Connecticut Co., 95 Conn. 520, 111 A. 785 (1920); Lemay v. Springfield St. R. Co., 210 Mass. 63, 96 N.E. 79, 37 L.R.A. N.S. 43 (1911); Gravel v. Roberge, 125 Me. 399, 134 A. 375 (1926); Raolaslovic v. New York Central R. Co., 245 N.Y. 91, 156 N.E. 625 (1927); Lunzer v. Pittsburgh & L. E. R. Co., 296 Pa. 393, 145 A. 907 (1929); Seele v. Purcell, 45 N.M. 176, 113 P.2d 320 (1941); Triestram v. Way, 286 Mich. 13, 281 N.W. 420 (1938); Dahlstrom v. Hurtig, 209 Minn. 72, 295 N.W. 508 (1940); Alabama Great So. R. Co. v. Hunt, 204 Ala. 504, 86 So. 100 (1920); Barkshadt v. Gresham, 120 S.C. 219, 112 S.E. 923 (1922); Phillips v. Delta Motor Lines, Inc., 235 Miss. 1, 108 So. 2d 409 (1959); Warnke v. Essex, 217 Md. 183, 141 A.2d 728 (1958); Leonard v. United States, 131 F. Supp. 694 (D. Wyo. 1955), affirmed, 235 F.2d 330 (10 Cir. 1956), cause remanded, 352 U.S. 996, 77 S. Ct. 555, 1 L. Ed. 2d 540.

Comment c is supported, as to the duty to anticipate and prepare for emergencies, by Ratcliffe v. Speith, 95 Kan. 823, 149 P. 740 (1915); Bybee Bros. v. Imes, 288 Ky. 1, 155 S.W.2d 492 (1941); Kachman v. Blosberg, 251 Minn. 224, 87 N.W.2d 687 (1958); Jones v. Boston & Maine R. Co., 83 N.H. 73, 139 A. 214 (1927); Pope v. Patterson, 243 N.C. 425, 90 S.E. 2d 706 (1956); Ritter v. Johnson, 163 Wash. 153, 300 P. 518, 79 A.L.R. 1270 (1931). See also, as to providing the necessary mechanical equipment, Pappaceno v. Picknelly, 135 Conn. 660, 68 A.2d 117 (1949); Strahl v. Miller, 97 Neb. 820, 151 N.W. 952, Ann. Cas. 1917A, 141 (1915), affirmed 239 U.S. 426, 36 S. Ct. 147, 60 L. Ed. 364; Larkin v. Saltair Beach Co., 30 Utah 86, 83 P. 686, 3 L.R.A. N.S. 982, 116 Am. St. Rep. 818, 8 Ann. Cas. 977 (1905). Also, as to the employment of suitable personnel, Collins v. Riverside Amusement Park Co., 61 Ariz. 135, 145 P.2d 853 (1944); Pickett v. City of Jacksonville, 155 Fla. 439, 20 So. 2d 484 (1945); Mullen v. Russworm, 169 Tenn. 650, 90 S.W.2d 530 (1936).

Comment d:  See, holding the actor liable for prior negligence notwithstanding his reasonable conduct in the emergency: Tennessee Copper Co. v. Smith, 216 F.2d 428 (6 Cir. 1954); District of Columbia v. Tilghman, 157 A.2d 629 (D.C. Munic. Ct. App. 1960); Bellere v. Madsen, 114 So. 2d 619, 80 A.L.R.2d 1 (Fla. 1959); Seitner v. Clevenger, 68 So. 2d 396 (Fla. 1953); Rohde v. St. Louis Public Service Co., 249 S.W.2d 417 (Mo. 1952); Tucker v. Blankenmeier, 315 S.W.2d 724 (Mo. 1958); Milicevich v. Paterline, 388 Pa. 346, 131 A.2d 129 (1957); Casey v. Siciliano, 310 Pa. 238, 160 A. 1 (1933); Luce v. Chandler, 109 Vt. 275, 195 A. 246 (1937); Lindberg v. Goode, 200 Va. 784, 108 S.E.2d 364 (1959); Chaney v. Moore, 101 W. Va. 621, 134 S.E. 204, 47 A.L.R. 800 (1926); Ackley v. Farmers Mut. Auto Ins. Co., 273 Wis. 422, 78 N.W.2d 744 (1956); Metz v. Rath, 275 Wis. 12, 81 N.W.2d 34 (1957).

The liability is for the prior negligence, and not for the reasonable conduct in the emergency. Norwood Transportation Co. v. Bickell, 207 Ala. 232, 92 So. 464 (1922); Windsor v. McKee, 22 S.W.2d 65 (Mo. App. 1929); Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9 (1933).