New York’s Court of Appeals has held that a driver who, while making a left turn, struck and killed a pedestrian whom he did not see until only a fraction of a second before hitting her because of sun glare, was not entitled to have the jury instructed on the emergency doctrine. Lifson v. City of Syracuse and Derek Klink, 2011 WL 4834512, 2011 N.Y. Slip Op. 07145 (Decided October 13, 2011). The common-law emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency. A classic example of an emergency is when a child steps off the sidewalk and darts into the street between parked cars right in front of oncoming traffic.
The accident in Lifson occurred on February 29, 2000 at approximately 4:05 P.M. at a T-intersection. The defendant driver was turning left onto a one-way street where traffic came from the driver’s right, and the pedestrian was crossing the one-way street to the driver’s left in an unmarked crosswalk. The driver testified that before making the turn he “cleared the road”, and that he had been looking to his right, toward the oncoming traffic when he started turning. He maintained that, when he looked back to his left, mid-turn, he was blinded by the sun, “all of a sudden.”
He reacted by looking down and to his right and, when he looked up, the first object he saw was Ms. Lifson. Although he applied the brakes, he was unable to avoid hitting her, having seen her only a fraction of a second prior to impact. There was no evidence that Ms. Lifson darted out in front of Klink’s car, or that Klink was traveling at an excessive rate of speed.
The Court of Appeals, in a 7-2 decision written by Chief Justice Robert D. Lippman, held that the driver should have known that he was about to turn to the west at a time of day that the sun would be setting. “It is well known, and therefore cannot be considered a sudden and unexpected circumstance, that the sun can interfere with one’s vision as it nears the horizon at sunset, particularly when one is heading west.” The court was clear to state that sun glare can never generate an emergency situation.
In the view of the dissent, written by Associate Justice Robert S. Smith, plaintiff’s argument rested on the seemingly obvious proposition that no one should be surprised to find the sun setting in the west. The dissent noted that when deciding whether an emergency instruction was properly given, the issue is not whether the emergency was foreseeable; it is whether it was sudden and unexpected. “Yet surely everyone who has driven a car knows that good drivers are sometimes surprised to find the sun in their eyes. Drivers cannot be expected to have always at the forefront of their minds the time of day, the season of the year, the direction they are traveling, the weather conditions and the presence or absence of obstruction in a particular spot.”
In reading the court’s decision I was struck by the complete lack of discussion as to whether the defendant driver created his own “emergency” by failing to exercise reasonable caution in observing the presence of pedestrians before starting his left turn. The decision specifically notes that at the time he began to make his left turn the driver was looking to his right and that he first looked back to his left mid-turn at which time he was blinded by the sun. He then looked down and did not see the pedestrian until he looked back up. The decision also states that there was no evidence that Ms. Lifson darted out in front of Klink’s car, but is notably bereft of details as to which direction the pedestrian was crossing or how far from any corner she was when she was struck.
There is nothing contained in the decision that indicates that there was any reason why the defendant driver did not see Ms. Lifson before beginning to make his left turn, such as his view to his left being obstructed. Sun glare was not a factor in the driver’s ability to observe any pedestrians before he started his turn. He started to turn left while looking to his right and thus was not looking in the direction he was moving in. If the driver had properly taken note of his surrounding and the presence of pedestrians before turning and was looking where he was going, Ms. Lifson’s presence in his path would not have been sudden and unexpected.
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