Emergency Doctrine Properly Applied to Exonerate Driver Brittany Lahm in “Bikini Top” Fatal Car Accident Case

In Pelletier v. Lahm, decided November 20, 2013, the Appellate Division, Second Department upheld the trial court’s decision to instruct the jury as to the “emergency doctrine” and the resulting jury verdict for defendant Brittany Lahm in connection with a fatal car crash.

Specifically, it affirmed the trial court’s denial of plaintiff’s motion, pursuant to CPLR 4404(a), to set aside the verdict on the issue of liability and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial.


The facts, as summarized by the trial court:

[T]his action stems from a one-car motor vehicle accident which occurred on July 12, 2008. On that date, Defendant Brittany Lahm was operating a vehicle owned by Defendant Philip Lahm, and had four passengers in the vehicle with her. Plaintiff was a rear seat passenger, along with decedent Brandon Berman, and another teenage male. The group was headed home from a day at the Jersey Shore and Defendant Brittany Lahm was headed north on the New York State Thruway to drop off one of the passengers. At some point, while traveling northbound on the New York State Thruway just south of the Suffern exit, decedent Brandon Berman pulled the bikini strings of Defendant Brittany Lahm’s bathing suit, causing her to take her hands off the wheel to cover herself, and thereby losing control of the vehicle. The vehicle then veered out of the lanes and struck the guardrail, flipped multiple times in the air, crossed over into the southbound lanes, and came to rest on it’s roof in the middle of the southbound lanes. As a result of the tragic accident, Brandon Berman died, and Plaintiff suffered considerable injuries as well.

Trial Court Decision

The trial court refused to hold, as a matter of law, that the removal of the bikini top was not a “qualifying emergency”:

In viewing the evidence in the light most favorable to Defendant Brittany Lahm, it cannot be said that there is no reasonable view of the evidence that could show that she was confronted with a sudden and unforeseen circumstance not of her own making. In fact, the bulk of the testimony by both Defendant Brittany Lahm, as well as Plaintiff himself, surrounded the bikini string pulling by decedent Brandon Berman. Although Plaintiff’s counsel repeatedly asked this Court, and continues to ask this Court, to find that a woman’s bikini top being removed suddenly and exposing her breasts with three males sitting in the car was not a qualifying emergency as a matter of law, this Court cannot and will not make that blanket and bright line rule. Counsel for Plaintiff repeatedly argued, and continues to argue, that a woman’s mere embarrassment at the sudden and unwanted exposure of her breasts to her male passengers does not rise to the level of “danger.” However, the majority of the cases regarding the use of the emergency charge, if not all of the cases, do not use the term “danger” to label the qualifying emergencies; in fact, the cases speak of a “sudden and unforeseen occurrence,” which was clearly present in this case. Therefore, this Court finds that it was properly left to the jury to decide whether a qualifying emergency existed. Consequently, this Court does not find error on it’s own part in giving the emergency charge to the jury.

Appellate Division Upholds the Trial Court

The Appellate Division held that the trial court properly instructed the jury on the “emergency doctrine”.  Before deciding to instruct a jury on the emergency doctrine, a trial court

must make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a ‘qualifying emergency’. Only then is a jury instructed to consider whether a defendant was faced with a sudden and unforeseen emergency not of the actor’s own making and, if so, whether [the] defendant’s response to the situation was that of a reasonably prudent person. 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.

The appellate court held that those circumstances were present here:

[V]iewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury, based upon Brittany’s testimony, there is a reasonable view of the evidence that her conduct was the product of a sudden and unexpected circumstance. … Brittany’s general awareness that Brandon Berman, a passenger in her vehicle, had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that Brittany did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed. It was for the jury to find whether Brittany was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person.


Judge Roman dissented, arguing that the “emergency doctrine” should not have been charged to the jury.  

She cited evidence that Brandon had “engaged in a course of distracting conduct,” and that “the situation was neither sudden nor unexpected, and, in fact, could have been reasonably anticipated in light of the surrounding circumstances”.  

In addition, she argued that “Brittany had a full opportunity to reflect on the ongoing situation” and “weigh alternative courses of conduct over that period of time”, as

demonstrated by the fact that she took corrective measures in response to Brandon’s actions, including yelling at him to get back inside the vehicle, using her electronic controls to roll up Brandon’s window, and admonishing him to stop acting like an “idiot” and to stop sticking his feet in her face.

Therefore, according to her, the jury should not have been instructed on the emergency doctrine.

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