July 25, 1980
JOHN VOLTERANO, APPELLANT
MARY ALICE KELLY
No. 3046 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County, Civil Division - Trespass, No. 2928 November Term, 1972.
Before Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a Dissenting Opinion.
CAVANAUGH, J., files a Dissenting Opinion.
I believe the court erred in not granting the first point for charge and the first part of the third point as set forth in the majority opinion. The court in charging on the emergency doctrine stated:
The rule of sudden emergency provides that where one finds himself or herself in a position of danger which was not the result of his or her negligence, he or she will not be held responsible for a mistake in judgment in extricating himself or herself from the danger created by the sudden emergency. One confronted by a sudden perilous situation not created by his or her own fault is not required to exercise the highest or even the ordinary degree of judgment.
One may be legally blameless in spite of an error of judgment where he or she is placed in a situation of peril through no fault of his or her own where it would be unreasonable to hold him or her to exercise cool and correct judgment.
The defendant wants you to apply this principle to this case because of the possibility that you might conclude that she could have acted differently when the brakes allegedly failed. She contends that under the circumstances you should not hold her to strict account-ability for accuracy of judgment or for failing to take an alternative course of action.
Any party who was free from fault in bringing about the perilous situation may claim advantage of the emergency doctrine. When one claims that he or she was subjected to a sudden emergency, the doctrine will not come to that person's rescue if his or her negligence caused the situation to arise.
The question of whether the rule of sudden emergency applies in this case is one for you to decide in the light of all the evidence and the circumstances of this case.
Ladies and gentlemen of the jury, with reference to the emergency doctrine which I have discussed with you, I want to state further what the law is on the matter as an addition to what I've said.
The jury must determine whether the actions of the defendant, from the time of the brake failure, if they believe there was a brake failure, until the moment of impact, taking into account the Court's charge as to negligence and the sudden emergency doctrine, used the means available to her to avoid the accident. And, of course, negligence cannot be applied because of a failure to perform a duty in such sudden emergency which did not arise out of the negligence of the defendant and where there was no opportunity to apprehend, that is appreciate, the situation and act accordingly. When one finds himself in a position of danger which is not the result of his negligence, he is not responsible if he makes a mistake in judgment in getting out. An honest exercise of judgment is all that is required of him or her even if he could have done better had he had time to deliberate. (Emphasis added.)
While a reading of our cases would support all of the above language as an application of the emergency doctrine,*fn1 I believe that our courts have failed to distinguish between legal descriptions of the doctrine and a proper instruction for the jury. The instruction given by the trial court can only lead the jury to conclude that a whole new standard of care arises where one encounters an emergency.
Negligence is the absence of the ordinary care which a reasonably prudent person would exercise in the circumstances presented. In an emergency situation, what we really have is an additional circumstance, i.e., an emergency (brakes failed) necessitating hastened action. "It thus involves nothing more than an application of the general standard of reasonable care to a specific situation," Lewis v. Mellor, Pa Super. , , 393 A.id 941, 950 (1978)*fn2 and "the standard of care is the same in every negligence case, only the circumstances differ." Eichman v. Dennis, 225 F.Supp. 531, 533 (E.D.Pa. 1963) (applying Pennsylvania law). See also Westerman v. Stout, 232 Pa. Super. 195, 200, 335 A.2d 741, 744 (1975) where we held that the jury must determine "that the party confronted with the emergency acted in reasonable manner in light of the circumstances."
The appropriate charge, therefore, is still one of reasonable care under the circumstances and the fact that one is involved in an emergency situation not of his own creation simply presents additional circumstances which the jury must consider in determining whether or not the actor acted reasonably.*fn3
The term, "honest exercise of judgment," introduced in Palonsky v. Dabonsky, 313 Pa. 73, 76, 169 A. 93, 94 (1933), is one of the many expressions which have been used to describe the measure or degree of care which an individual is required to exercise under varying circumstances to meet the test of due or reasonable care. In my view, this expression together with language which excuses "mistakes" in judgment and "errors" in judgment fails to carry an adequate explanation of "reasonable care" required in an emergency situation. Where the jury is being instructed on the law, the language must be imperative and the jury should have no latitude of interpretation in the law. Labalzo v. Varoli, 409 Pa. 15, 19, 195 A.2d 557, 560 (1962).
To the average layman the term, "honest exercise of judgment," for example, will have variations in meaning. In extracting the language from the Hartman case, supra at note 1, without an adequate explanation of the term, the jury might naturally interpret it to mean that the defendant acted without culpability or evil intent.
The duty of a trial judge in charging a jury is to make an accurate statement in plain language of the applicable principles of law and he must "accurately and impartially" assist the jury in applying these principles to the facts of the case before them. Kimmel v. Yellow Cab Co., 414 Pa. 559, 563, 201 A.2d 417, 419 (1964). The recital of a particular quotation as a rule of law may be proper guidance for the court; however, it does not always provide an appropriate guide for the jury.*fn4
In reviewing the charge it is apparent that although the trial court properly defined negligence and gave the "reasonable standard of care" requirement at the outset of the instruction, it took it away by substituting the "honest exercise of judgment" standard without reiterating the general requirement of reasonableness. I am convinced that the impression given to the jury was that they measure the duty of care required by the defendant in terms of whether or not he made an "honest exercise of judgment" regardless of the reasonableness of that judgment. The court cannot rely on the possibility that the jury would add that requirement to their consideration.
*fn1 The last portion of the charge was given by the court in response to appellant's request that the court charge the jury as to the motorist's duty after an emergency arises, and as stated by the court is an almost verbatim quotation from Hartman v. Gieraltowski, 189 Pa. Super. 316, 320, 181 A.2d 688, 690 (1962), citing Noll v. Marion, 347 Pa. 213, 215, 32 A.2d 18, 19 (1943).
Prosser, Torts (4th Ed.) § 34, at 180-181. See also Sapienza v. Lankanau Hospital, 2 Phila.C.R. 510 (1979).
*fn2 In Lewis, our court, using this language rejected a proposed charge covering an emergency situation. It approved a charge similar to the one which I feel is both inadequate and misleading.
*fn4 In Eichman v. Dennis, 225 F.Supp. 531, 533 (E.D. Pa. 1963) the court noted that quotations from opinions are made likely to mislead the jury.
Plaintiff's points for charge, which were refused, were largely quotations from various Pennsylvania Supreme Court decisions and were, of course, correct statements of the facts and law in those cases. However, each case differed in its factual setting. In charging a jury it is incumbent upon the trial judge to avoid misleading the jury in the case being tried. Quotations from opinions in other cases are more likely to mislead than are broader statements of basic principles of law which are molded to fit the facts at issue.