As Predictable as the Seasons

In the nineteenth century, the law of negligence in this country was particularly harsh. While the tort of negligence had developed its present formulation—imposing on all people a duty to act reasonably to prevent foreseeable injuries—the doctrine of contributory negligence led to harsh—often unfair—results. Under the common law doctrine of contributory negligence, in the event that the injured person was at fault—even to the slightest degree—he or she could not recover for his or her injuries. In other words, contributory negligence was a complete defense to a negligence suit.

Potential for Injustice

Given the significant potential for creating an injustice, it should not be surprising that English and American courts developed doctrines to mitigate the unfair results in these kinds of cases. One such doctrine, the sudden emergency doctrine, held that a person who acted in response to a sudden or unexpected event that was created through no fault of his or her own could not be expected to choose a course of action with the same degree of care as an individual who had the benefit of time for careful reflection. Courts developed the sudden emergency doctrine to provide injured people who were confronted with someone else’s negligent conduct with some possibility of recovery even if the decision they made in the heat of the moment proved to be something other than the most prudent course of action.

Another response to the doctrine of contributory negligence was the doctrine of comparative negligence. Most American jurisdictions follow this doctrine, which limits an injured person’s recovery proportionally to his or her own negligence. Thus, if a jury determines that the plaintiff was 23% at fault for his or her injuries, the plaintiff can only recover 77% of his or her damages.

Contributory Negligence

The sudden emergency doctrine developed to mitigate the sometimes harsh outcomes of contributory negligence. In recent years, it was frequently asserted as an affirmative defense by defendants in injury cases. Often, the basis for the defense was that the driver was “surprised” to encounter snow and ice on the roads during the winter. There are certain inescapable facts of science that we all encounter through life. Fire is hot. Gravity pulls things to the ground. Ice is slippery. Water freezes at 32º Fahrenheit.

Despite these inescapable truths, the sudden emergency doctrine had become a standard defense raised in wintertime car crashes. Car crash in a blizzard? “Oh, it came out of nowhere, and I didn’t expect that people in front of me on the highway would be going below the speed limit.” Slide through an icy intersection? “I’d driven four blocks and had not slipped at all!” Cross the center line and hit someone head on? “I don’t remember what happened, but the expert witness says I must have lost control when I hit a patch of ice.” These are all actual examples of how the sudden emergency doctrine has been invoked.

It was defenses like these that prompted the Iowa Supreme Court to reject a trucker’s argument that the dazzling rays of the setting sun blinded her creating a sudden emergency. Noting that the trucker had driven the westbound route several times before, and crediting her argument that she was not responsible for the setting of the sun, the Court noted that “there is nothing more certain than the sun setting in the west.” Similarly, there is nothing more predictable than water turning to ice when the temperature drops below freezing.

In 2011 and 2013, the Colorado Supreme Court re-examined this doctrine, and ultimately abolished it in Bedor v. Johnson, 2013 CO 4. In doing so, the Court recognized that Colorado law had outgrown the doctrine. Colorado’s legislative adoption of the comparative fault doctrine largely eliminated the harsh effects of the older contributory fault system. Moreover, Colorado’s view that the sudden emergency doctrine was not an affirmative defense, but rather a clarification of general negligence principles meant that juries in negligence cases were already being instructed that, in determining whether a party was negligent, they should consider all of the facts and circumstances existing at the time.

Most importantly, the Colorado Supreme Court observed that the pattern jury instruction for the sudden emergency doctrine posed a significant risk of misleading jurors. The poorly phrased instruction suggested that the trial court had already concluded that a sudden emergency existed and that the trial court had determined that the Defendant had encountered the emergency through no fault of his or her own. As phrased, it also suggested that the doctrine was a defense to negligence claims. It focused the jury’s attention on events occurring during and after the emergency, rather than on the totality of the circumstances surrounding the emergency.

This development does not mean that, in cases of genuinely unexpected emergencies, litigants will be unable to argue that their conduct was reasonable in light of the unexpected emergent situation. It does mean, however, that people who encounter icy roads or the setting (or rising) sun cannot get a special exculpatory instruction when their encounters are run-of-the-mill, ordinary parts of life in Colorado.