Rickman v. FedEx Freight CA4/3 ( 2024 )

Filed 10/8/24 Rickman v. FedEx Freight CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JOSEPH MELVIN RICKMAN,
Plaintiff and Appellant, G063921
v. (Super. Ct. No. CIVSB2028736)
FEDEX FREIGHT, INC., OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of San Bernardino
County, Michael A. Sachs, Judge. Reversed. Appellant’s request for judicial
notice. Denied.
The Law Offices of Jacob Emrani, Jacob Emrani, Gabriel A. Clift;
Esner, Chang, Boyer & Murphy, Holly N. Boyer and Rowena J. Dizon for
Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Raul L. Martinez; Oium Reyen
& Pryor, Robert C. Diemer, Hilary E. Youngblood; Hassard Bonnington and
Hilary E. Youngblood for Defendant and Respondent.
* * *
A person confronted by a sudden and unexpected emergency has
little time to decide between alternative courses of action to avoid the
emergency. The sudden emergency doctrine therefore recognizes that one
confronted with a sudden peril is not expected to use the same judgment, in
choosing between those alternative responses, that would be required in
calmer, more deliberative moments. In other words, the existence of the
sudden emergency is a factor to be taken into account in determining
whether the actor exercised reasonable care under the circumstances.
During a sandstorm in which visibility was reported to be zero, a
truck driven by Duane Vaughn Marker, an employee of FedEx Freight, Inc.
(FedEx), struck the back of a truck driven by Joseph Melvin Rickman.
Rickman sued FedEx for negligence. The trial court granted FedEx’s motion
for summary judgment based on the sudden emergency doctrine.1
We conclude the trial court erred by applying the sudden
emergency doctrine to grant summary judgment in favor of FedEx for two
independent reasons. First, FedEx failed to establish Marker was not
negligent in causing, or contributing to the creation of, the sudden
emergency. Second, FedEx failed to establish the doctrine applied on the facts
of this case because there was no evidence Marker made a snap decision to
respond to the peril in one way, rather than another. We reverse.
1
The doctrine also has been referred to as the imminent peril
doctrine or the acts in emergencies doctrine, as well as other names. We refer
to it as the sudden emergency doctrine for consistency and ease of reference.
2
FACTUAL AND PROCEDURAL BACKGROUND
On October 9, 2019, Rickman was injured in a rear-end collision
while driving eastbound in the number 2 lane on Interstate 40 (I-40).
Rickman had been driving 55 miles per hour but slowed down due to a dust
storm and visibility issues. Rickman was struck from behind by a FedEx
truck driven by Marker. At the time of the impact, Rickman’s vehicle was
stopped.
2
Rickman filed a negligence lawsuit against FedEx. FedEx moved
for summary judgment, asserting the sudden emergency doctrine as a
complete defense. After briefing and a hearing, the trial court granted the
motion and entered judgment in favor of FedEx. The trial court denied
Rickman’s motion for a new trial, and Rickman filed a timely notice of appeal.
DISCUSSION
I.
STANDARD OF REVIEW
We review the grant of summary judgment de novo. (Sales v. City
of Tustin (2021) 65 Cal.App.5th 265, 271.)
“‘A trial court should grant summary judgment “if all the papers
submitted show that there is no triable issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” [Citation.]
A defendant may establish its right to summary judgment by showing that
one or more elements of the cause of action cannot be established or that
there is a complete defense to the cause of action. [Citation.] Once the moving
defendant has satisfied its burden, the burden shifts to the plaintiff to show
2
Rickman also sued Marker. The parties stipulated to dismiss
Marker from the litigation without prejudice.
3
that a triable issue of material fact exists as to each cause of action.
[Citation.] A triable issue of material fact exists where “the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof.”’
[Citation.]
“‘“We review the trial court’s decision de novo, considering all the
evidence set forth in the moving and opposition papers except that to which
objections were made and sustained. [Citations.]” [Citation.] We view the
evidence and the inferences reasonably drawn from the evidence “in the light
most favorable to the opposing party.”’ [Citation.]
“‘On review of a summary judgment, the appellant has the
burden of showing error, even if he did not bear the burden in the trial court.’
[Citation.] ‘“As with an appeal from any judgment, it is the appellant’s
responsibility to affirmatively demonstrate error and, therefore, to point out
the triable issues the appellant claims are present by citation to the record
and any supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.”’” (Abdulkadhim v. Wu
(2020) 53 Cal.App.5th 298, 301 (Wu).)
II.
THE SUDDEN EMERGENCY DOCTRINE
The sudden emergency doctrine is described in the Restatement
Second of Torts, at section 296: “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.” (Italics added.) The comment to
section 296 explains, in part: “The law does not require of the actor more than
it is reasonable to expect of him under the circumstances which surround
4
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.”
(Rest.2d Torts (1965) § 296, com. b.)
Prosser and Keeton’s treatise on tort law explains the doctrine
thus: “The courts have been compelled to recognize that an actor who is
confronted with an emergency is not to be held to the standard of conduct
normally applied to one who is in no such situation. An emergency has been
defined as a sudden or unexpected event or combination of circumstances
which calls for immediate action; and although there are courts which have
laid stress upon the ‘instinctive action’ which usually accompanies such a
situation, it seems clear that the basis of the special rule is merely that the
actor is left no time for adequate thought, or is reasonably so disturbed or
excited that the actor cannot weigh alternative courses of action, and must
make a speedy decision, based very largely upon impulse or guess. Under
such conditions, the actor cannot reasonably be held to the same accuracy of
judgment or conduct as one who has had full opportunity to reflect, even
though it later appears that the actor made the wrong decision, one which no
reasonable person could possibly have made after due deliberation. The
actor’s choice ‘may be mistaken and yet prudent.’ [¶] There are, however, a
number of limitations which have hedged the ‘emergency’ rule. It does not
mean that any different standard is to be applied in the emergency. The
conduct required is still that of a reasonable person under the circumstances,
5
as they would appear to one who was using proper care, and the emergency is
to be considered only as one of the circumstances. An objective standard must
still be applied, and the actor’s own judgment or impulse is still not the sole
criterion. The actor may still be found to be negligent if, notwithstanding the
emergency, his acts are found to be unreasonable. The ‘emergency doctrine’ is
applied only where the situation which arises is sudden and unexpected, and
such to deprive the actor of reasonable opportunity for deliberation and
considered decision. Furthermore, it obviously cannot serve to excuse the
actor when the emergency has been created through the actor’s own
negligence, since he cannot be permitted to shield himself behind a situation
resulting from his own fault.” (Prosser & Keeton, Torts (5th ed. 1984) § 33,
pp. 196–197, fns. omitted.)
California recognizes the sudden emergency doctrine. “[A] person
who, without negligence on his part, is suddenly and unexpectedly confronted
with peril, arising from either the actual presence, or the appearance, of
imminent danger to himself or to others, is not expected nor required to use
the same judgment and prudence that is required of him in the exercise of
ordinary care in calmer and more deliberate moments.” (Leo v. Dunham
(1953) 41 Cal.2d 712, 714, italics added; see Wu, supra, 53 Cal.App.5th at
pp. 301–302 [same]; Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216
[“Where the evidence indicates that an individual was confronted with a
sudden emergency, he is entitled to an instruction which advises the jury as
to the amount of care which he was required to exercise while acting under
its stress”]; see also CACI No. 452.) As one appellate court in this state
recently held: “‘The doctrine of imminent peril is properly applied only in
cases where an unexpected physical danger is presented so suddenly as to
6
deprive the driver of his power of using reasonable judgment.’” (Shiver v.
Laramee (2018) 24 Cal.App.5th 395, 399 (Shiver).)
III.
FEDEX’S MOTION FOR SUMMARY JUDGMENT
In support of its motion for summary judgment, FedEx set forth
the following undisputed material facts in its separate statement, each
supported by relevant citations to evidence:
“1. Plaintiff’s Complaint alleges two causes of action for
Negligence against FedEx Freight, one for motor vehicle negligence, the other
for general negligence, arising from his claim of a collision on I-40 eastbound,
in San Bernardino County, on October 9, 2019.” (Some capitalization
omitted.)
“2. Specifically, by this action, Plaintiff claims that he slowed due
to a dust storm and was rear-ended by a FedEx Freight vehicle.” (Some
capitalization omitted.)
“3. Plaintiff testified at his deposition that he had been trailing a
Ford pickup truck at about 55 mph, and that they both slowed as they started
to come into the dust storm.”
“4. Plaintiff testified at his deposition that all of a sudden, he
actually got into a dust storm, and that when the dust storm hit, he could not
see another vehicle in front of the truck he was following.”
“5. Plaintiff testified at his deposition that when he was driving
in the dust storm, he did not put on his hazard lights.”
“6. The FedEx Freight driver, Duane Marker, testified at his
deposition that minutes before the collision, the weather was very windy and
dusty.” (Some capitalization omitted.)
7
“7. The FedEx Freight driver, Duane Marker, testified at
deposition that: ‘There was a dust storm, and it got completely dark. I could
not see before impact. It went from a mild dust storm that I had been into
hundreds of times to a black out that I have never been in before. And I
described it like putting my hand over my eyes. I could not see anything. And
I explained to him that the truck appeared, you know, within—I had no time
to stop. I tried to stop, but the truck appeared. I knew I was going to hit
him.’” (Some capitalization omitted.)
“8. Plaintiff testified that when the FedEx Freight driver came to
his cab after the accident they were both still engulfed in the dust storm, and
that it took another 20 to 30 minutes for the dust storm to clear.” (Some
capitalization omitted.)
In opposition to the motion for summary judgment, Rickman
offered the following additional undisputed material facts, also supported by
citations to evidence in the record:3
“Defendant’s Driver, Duane Marker, testified that he had been
driving in the dust storm for five miles prior to the collision occurring.”
“Defendant’s Driver, Duane Marker, testified that it was a
protocol for truck drivers to reduce their speed when driving in a dust storm.”
“Defendant’s Driver, Duane Marker, testified that about a minute
prior to the collision, he was driving at 55 [mph], at about 30 seconds prior,
he was driving between 35-40 mph, and at about 3 seconds prior, he was
driving at about 35 mph.”
3
The trial court overruled all of FedEx’s objections to Rickman’s
evidence.
8
“Defendant’s Driver, Duane Marker, testified that when he
entered the dust storm, it was not very bad, and he did not change his speed
limit much.”
The trial court’s order granting the motion for summary
judgment reads, in relevant part, as follows: “The Court finds that Defendant
FedEx Freight, Inc. has established that it is entitled to judgment as a
matter of law under the doctrine of sudden emergency, such that it cannot be
held negligent in any way relating to the subject collision with Plaintiff
Joseph Rickman on October 9, 2019, and Plaintiff’s Opposition and evidence
does not create any question of material fact. The Court finds that there are
no issues of material fact and Defendant established the necessary elements
of a sudden emergency defense, as follows:
“1. There was a sudden and unexpected emergency situation in
which someone was in actual or apparent danger of immediate injury;
“2. Defendant did not cause the emergency; and
“3. Defendant acted as a reasonably careful person would have
acted in similar circumstances, even if it later appears that a different course
of action would have been safer.” (Some capitalization omitted.)
IV.
THE SUDDEN EMERGENCY DOCTRINE IS NOT A COMPLETE DEFENSE TO
NEGLIGENCE UNDER THE FACTS OF THIS CASE
FedEx’s moving papers failed to establish a complete defense to
the negligence claims against it. First, the sudden emergency doctrine is not
a complete defense to a claim of negligence. Rather, it is a part of the
determination whether a defendant acted as a reasonable person under the
circumstances. (See Pittman v. Boiven, supra, 249 Cal.App.2d at pp. 216–217;
accord City of Terre Haute v. Simpson (Ind.Ct.App. 2001) 746 N.E.2d 359, 367
9
[“Although the sudden emergency doctrine is generally described as an
affirmative defense, it does not act to excuse fault, but rather defines the
conduct to be expected of a prudent person in an emergency situation”];
Helms v. Church’s Fried Chicken, Inc. (N.C.Ct.App. 1986) 344 S.E.2d 349, 352
[“‘Sudden emergency’ is not a legal defense which may operate to bar an
action; it is only one factor to consider in making the reasonable person
determination”]; Collins v. Rambo (Ind.Ct.App. 2005) 831 N.E.2d 241, 245
[“Although the sudden emergency doctrine is often described as an
affirmative defense, ‘it does not act to excuse fault, but rather defines the
conduct to be expected of a prudent person in an emergency situation’”].)
Second, the sudden emergency doctrine only applies where the
defendant has not acted negligently in causing (or contributing to) the sudden
emergency. (Shiver, supra, 24 Cal.App.5th at p. 397 [“The doctrine applies
where a defendant, acting with reasonable care, is suddenly and
unexpectedly confronted by an emergency he did not cause”].) 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.
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. Although Marker acknowledged it was “protocol” for
drivers to reduce their speed when driving in a dust storm, he testified he
10
maintained his speed at 55 miles per hour even after he entered the dust
storm and for some time thereafter. Indeed, 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.
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. There are material disputed facts whether
Marker was negligent in not slowing his vehicle sooner and whether his
failure to slow his speed upon encountering the dust storm contributed to the
creation of the perilous situation. In other words, FedEx did not establish
Marker was not negligent before Rickman’s vehicle suddenly became visible
in front of his truck during the brownout.
Two cases from California courts have affirmed orders granting
summary judgment based on the sudden emergency doctrine, but each is
factually distinguishable from this case.
In Shiver, supra, 24 Cal.App.5th 395, defendant Laramee was
driving a tractor-trailer in the far right lane of the freeway. (Id. at p. 397.)
Three vehicles entered the freeway via the entrance ramp on the right and
merged into the far right lane in front of Laramee. (Ibid.) In an apparent act
of road rage, the first of the three cars slammed on its brakes. (Ibid.) The
second car braked hard to avoid hitting the first car, and the third car braked
hard to avoid hitting the second car. (Ibid.) Laramee braked, but was unable
to stop or take evasive action before hitting the third car, driven by plaintiff
Shiver. (Ibid.) Shiver sued Laramee for negligence. (Ibid.)
11
Laramee moved for summary judgment under the sudden
emergency doctrine. (Shiver, supra, 24 Cal.App.5th at p. 397.) The trial court
acknowledged the doctrine rarely applies on summary judgment (id. at
p. 397), but granted the motion, noting: “A freeway driver with the right of
way is not required to anticipate an act of road rage that unexpectedly causes
merging traffic in front of him to come to almost a dead stop.” (Id. at p. 397.)
“‘“The general rule is that every person has a right to presume that every
other person will perform his duty and obey the law, and in the absence of
reasonable ground to think otherwise it is not negligence to assume that he is
not exposed to danger which comes to him only from violation of law or duty
by such other person.”’” (Id. at p. 402.) The court concluded Laramee had not
been negligent before the first car slammed on its brakes and that Laramee’s
actions after the first car slammed on its brakes were reasonable under the
circumstances.
By contrast, here FedEx did not ask the trial court to determine
that Marker was not negligent before the dust storm turned to a brownout;
nor did it ask the trial court to determine whether Marker’s actions during
the brownout were negligent. FedEx suggests that once the emergency arose,
Marker’s actions were automatically non-negligent. That is not a proper
application of the sudden emergency doctrine.
In Wu, supra, 53 Cal.App.5th 298, two cars were travelling in the
same direction in the same lane on the freeway, both at about 70 miles per
hour. (Id. at p. 300.) The driver of the first car, Wu, observed a third car
stopped in that lane 20 to 30 car lengths ahead and changed lanes to avoid a
crash. (Ibid.) The second car, driven by Al-Kuraishi, however, crashed into
the stopped car, leading to Al-Kuraishi’s death. (Ibid.) Al-Kuraishi’s family
sued Wu (and others) for negligence. (Ibid.) The trial court granted Wu’s
12
summary judgment motion on the grounds of the sudden emergency doctrine.
(Ibid.)
The appellate court affirmed. “Under the ‘sudden emergency’ or
‘imminent peril’ doctrine, ‘a person who, without negligence on his part, is
suddenly and unexpectedly confronted with peril, arising from either the
actual presence, or the appearance, of imminent danger to himself or to
others, is not expected nor required to use the same judgment and prudence
that is required of him in the exercise of ordinary care in calmer and more
deliberate moments.’ [Citation.] ‘A party will be denied the benefit of the
doctrine . . . where that party’s negligence causes or contributes to the
creation of the perilous situation.’” (Wu, supra, 53 Cal.App.5th at pp. 301–
302.) Al-Kuraishi’s family argued Wu created the emergency by changing
lanes so late that Al-Kuraishi was unable to see the stopped car and respond.
(Id. at p. 302.) The appellate court agreed with Wu that the sudden
emergency was the stopped car in the lane in which the two cars were
traveling at highway speeds. “An emergency or peril under the sudden
emergency or imminent peril doctrine is a set of facts presented to the person
alleged to have been negligent. It is that actor’s behavior that the doctrine
excuses. [Citations.] It is irrelevant for purposes of the sudden emergency
doctrine whether Wu’s lane change created a dangerous situation for
Al-Kuraishi or anyone else; the only relevant emergency is the one Wu faced.”
(Ibid.)
In contrast to Shiver and Wu, FedEx failed to meet its burden on
summary judgment of showing Marker was not negligent in causing or
contributing to the emergency; it therefore cannot invoke the sudden
emergency doctrine.
13
V.
FEDEX’S MOTION FOR SUMMARY JUDGMENT DID NOT ESTABLISH THE SUDDEN
EMERGENCY DOCTRINE APPLIED ON THE FACTS OF THIS CASE
In its motion for summary judgment, FedEx failed to establish
the sudden emergency doctrine applied to these facts because there was no
evidence that Marker was required to immediately choose between two or
more possible actions when the sudden peril arose. Marker testified at his
deposition: “There was a dust storm, and it got completely dark. I could not
see before impact. It went from a mild dust storm that I had been into
hundreds of times to a black out that I have never been in before. [¶] And I
described it like putting my hand over my eyes. I could not see anything. And
I explained to him that the truck appeared, you know, within—I had no time
to stop. I tried to stop, but the truck appeared. I knew I was going to hit him.”
(Italics added.) Marker’s testimony precluded the sudden emergency doctrine
from coming into play.
Even assuming the evidence offered by FedEx was sufficient to
invoke the sudden emergency doctrine and shift the burden on summary
judgment to Rickman to show it did not apply, Rickman’s evidence in
opposition was sufficient to meet that burden. Through Marker’s deposition
testimony, Rickman showed that established protocols require truck drivers
to reduce their speed when driving in a dust storm; that Marker did not
reduce his speed when he entered the dust storm; that Marker had been
driving through the dust storm for three or four miles before starting to slow
down; and that Marker was driving 55 miles per hour one minute before the
collision, 35 to 40 miles per hour 30 seconds before the collision, and 35 miles
per hour three seconds before the collision.
14
Rickman also offered into evidence the traffic collision report,
which attributed the following statement to Marker: “[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.” (Italics added.)
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.”
(Collins v. Rambo, supra, 831 N.E.2d at p. 248.) Thus, FedEx did not show
the sudden emergency doctrine was applicable.
In Staggs v. Atchison, Topeka & S.F. Ry. Co. (1955) 135
Cal.App.2d 492, the California Court of Appeal held that the trial court erred
by instructing the jury regarding the sudden emergency doctrine where the
defendant’s agents “could not have avoided the accident or in any manner
have lessened [the plaintiff’s] injuries” after the danger was observed. (Id. at
p. 503.) The court noted that the instruction should only be given “‘where at
least two courses of action are present after the danger is perceived and where
no negligence is chargeable to the person to whom those courses of action are
open.’” (Id. at pp. 502–503; see Perry v. Piombo (1946) 73 Cal.App.2d 569,
572; Connor v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 746, 757.)
Many other jurisdictions applying section 296 of the Restatement
Second of Torts reach the same conclusion. In Miller v. Porter (Conn. 1968)
242 A.2d 744, the Connecticut Supreme Court held the sudden emergency
15
doctrine did not apply where the defendant had no choice about how to act
once the emergency arose. “There are no claims of proof advanced which
indicate that the defendant was able to choose any course of action after the
emergency arose. From all that appears, events occurred with such rapidity
that the defendant had no opportunity to do anything. Indeed, we note that
the defendants based their argument to the jury, in part, on the theory of
unavoidable accident. [Citation.] [¶] If there are claims of proof which
indicate that an opportunity existed, however brief, to choose a course of
action after the emergency arose, a charge on the sudden emergency doctrine
is justified. [Citation.] If, however, there are no claims of proof which show
such an opportunity existed, the court should not charge on the doctrine of
sudden emergency. [Citations.] The present case falls within the latter
situation, and the trial court erred in charging on the doctrine of sudden
emergency.” (Id. at p. 746.)
In Collins v. Rambo, supra, 831 N.E.2d 241, plaintiff Collins and
defendant Rambo were in their vehicles in a controlled left turn lane. (Id. at
p. 243.) Both vehicles proceeded forward when the green arrow was
illuminated. (Ibid.) When a recklessly-driven van disregarded posted signs
and forced itself into the left-turning traffic (ibid.), Collins braked suddenly;
Rambo also slammed on her brakes, but collided with the rear of Collins’s
vehicle. (Ibid.) A jury found in Rambo’s favor on Collins’s negligence
complaint, after being instructed regarding the sudden emergency doctrine.
(Id. at p. 244.) The appellate court reversed the judgment. “Where one is
confronted with a sudden emergency, without sufficient time to determine
with certainty the best course to pursue, he is not held to the same accuracy of
judgment as would be required of him if he had time for deliberation.
Accordingly, if he exercises such care as an ordinarily prudent man would
16
exercise when confronted by a like emergency, he is not liable for an injury
which resulted from his conduct, even though another course of conduct would
have been more judicious, or safer, or might even have avoided the injury[.]
[¶] . . . [T]he doctrine recognizes that the sudden emergency robs the actor of
the time to thoughtfully reflect or deliberate among various choices.” (Id. at
p. 248.)
“In slamming on her brakes, Rambo did not make a ‘choice,’
among several options, that in hindsight was not as prudent as a different
choice. No evidence was presented that she could have driven into the lane to
the right of the turn lane. No evidence was introduced that she could have
steered her car to the left. No evidence was shown that Rambo was far
enough back to be able to steer her car around Collins’ Explorer in any
direction to avoid the collision. To the contrary, the only evidence as to
following distance indicated that Rambo’s vehicle was very close, perhaps less
than a foot away from Collins vehicle. In sum, there was no evidence of any
more prudent evasive maneuvers that could have been chosen if Rambo had
had more time to ponder what to do upon being faced with the Explorer’s
sudden stop. The short distance between Rambo’s car and Collins’ Explorer
as well as her speed foreclosed any other option besides reflexively slamming
on the brakes. This is not the type of situation to which the doctrine was
meant to apply.” (Collins v. Rambo, supra, 831 N.E.2d at p. 248.)
Similarly, in Bardwell v. McLaughlin (Ark. 1975) 520 S.W.2d
277, the defendant had less than one-half second to react when he saw the
decedent in the roadway, given his speed and the normal reaction time. The
court concluded the sudden emergency doctrine did not apply because the
defendant “had no chance to swerve or brake his vehicle.” (Id. at p. 278.) “The
basis of the sudden emergency doctrine is that the driver be in a stressful
17
situation which dictates a quick decision as to possible courses of conduct.
[¶] . . . [¶] The sudden emergency instruction given to the jury in the case at
bar is cast in terms of ‘judgment.’ The driver must be aware of the danger in
a situation where he has a choice of action. In Howard v. Tri-State Ins. Co.,
253 Ark. 405, 486 S.W.2d 76, 77 (1972), [the Arkansas Supreme Court] held it
error for the trial court to give a sudden emergency instruction where there
was ‘not one iota of testimony of either driver finding himself in an
emergency situation and taking action accordingly.’ There, neither driver
perceived a situation in sufficient time to indicate an emergency and make a
decision between alternative courses of action. Likewise, in the case at bar, it
was physically impossible for appellee to make a decisional act after seeing
the decedent. Only the instructions on comparative negligence are applicable
in this factual situation.” (Id. at pp. 278–279; accord DiCenzo v. Izawa
(Hawaii 1986) 723 P.2d 171, 179, citing Prosser & Keeton, Torts, supra, § 33
at p. 196, italics added [rationale for sudden emergency rule is “‘the actor is
left no time for adequate thought, or is reasonably so disturbed or excited
that [he] cannot weigh alternative courses of action, and must make a speedy
decision based very largely upon impulse or guess’”]; Myhaver v. Knutson
(Ariz. 1997) 942 P.2d 445, 447 [“in the absence of antecedent negligence, a
person confronted with a sudden emergency that deprives him of time to
contemplate the best reaction cannot be held to the same standard of care
and accuracy of choice as one who has time to deliberate”]; Caristo v. Sanzone
(N.Y. 2001) 750 N.E.2d 36, 38 [“The emergency instruction is, therefore,
properly charged where the evidence supports a finding that the party
requesting the charge was confronted by ‘a sudden and unexpected
circumstance which leaves little or no time for thought, deliberation or
consideration’”]; Rustin v. Smith (Md.Ct.App. 1995) 657 A.2d 412, 415 [“For
18
the ‘acts in emergencies’ instruction to be applicable, however, the emergency
cannot arise from the defendant’s own conduct, and there must be some
conduct or action on the part of the defendant in response to the
emergency”].)
VI.
REQUEST FOR JUDICIAL NOTICE
Rickman requests that we take judicial notice of (1) a page from
the National Weather Service website entitled “Dust Storms and Haboobs,”
and (2) a page from the Arizona Department of Transportation website
entitled “Why you should turn off your vehicle’s lights when pulling aside for
dust.” Rickman contends the documents are subject to judicial notice under
Evidence Code section 452, subdivision (h) because they contain “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” (Ibid.) FedEx opposes the request for judicial notice.
We deny the request for judicial notice. Neither of these
documents was presented to the trial court. Even where documents are
proper subjects of judicial notice, “‘courts have cautioned against judicially
noticing matters that were not before the trial court. “[A]s a general rule the
[appellate] court should not take . . . [judicial] notice if, upon examination of
the entire record, it appears that the matter has not been presented to and
considered by the trial court in the first instance.” [Citations.] Such a rule
prevents the unfairness that would flow from permitting one side to press an
issue or theory on appeal that was not raised [in the trial court].’” (Carleton v.
Tortosa (1993) 14 Cal.App.4th 745, 753–754, fn. 1.)
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DISPOSITION
The judgment is reversed. Appellant to recover costs on appeal.
GOODING, J.
WE CONCUR:
MOTOIKE, ACTING P. J.
DELANEY, J.
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