# McKEE BY McKEE v. Evans

> Supreme Court of Pennsylvania · November 30, 1988 · 380 Pa. Super. 120

URL: https://www.frixlaw.com/law-library/cases/9703818

## Case

- **Full name:** Colleen McKEE, a Minor by Ruth McKEE, Her Parent and Natural Guardian, and Ruth McKee in Her Own Right, Appellants, v. Michael P. EVANS, Raymond P. Linden and Mark H. Trecki; Margaret CARROLL, a Minor, by Olive CARROLL, Her Parent and Natural Guardian; And Jacqueline Carroll, a Minor, by Olive Carroll, Her Parent and Natural Guardian; And Olive Carroll, in Her Own Right, v. Michael P. EVANS, Raymond P. Linden and Mark H. Trecki. Appeal of Margaret CARROLL. Ricky Joseph WAITE, Appellant, v. Michael P. EVANS, Raymond P. Linden and Mark H. Trecki
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 30, 1988
- **Citations:** 380 Pa. Super. 120; 551 A.2d 260; 1988 Pa. Super. LEXIS 3663
- **Precedential status:** Published
- **Opinion:** Concurrence by Beck
- **Judges:** Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich, Johnson
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9703818

## How later opinions describe it (automated extraction)

- concluding that the driver being chased had not faced a sudden emergency, since he had several options available and time to choose any one of them in a rational, conscious manner, the court declared that this driver should not be permitted to reap the benefit of his own folly…
- finding that where jury found defendant negligent, but also determined that defendant's negligence was not a substantial factor in causing the subject accident, new trial was warranted on both liability and damages

## Opinion text

BECK, Judge,
concurring:
I concur in the result reached by the majority that Officer Valone’s testimony was properly admissible as evidence of the point of impact of the accident.
I also agree with the majority that the sudden emergency doctrine has no applicability to the facts of this case. Moreover, I find the sudden emergency doctrine serves more to confuse than enlighten a jury.
The doctrine recognizes that a person, usually a defendant, who finds him or herself in a perilous situation, cannot be expected to exercise the degree of care of a reasonable person acting under normal circumstances. The reason for the special jury instructions is the recognition that the reasonable person who had an opportunity to reflect before he or she acted might have acted differently. E.g. Chiodo v. Gargloff & Downham Trucking Co., 308 Pa.Super. 498 , 454 A.2d 645 (1983).
Initially, I am critical of the doctrine because it is unnecessary. Traditional rules of tort law .already provide a satisfactory foundation for analyzing questions raised by circumstances of sudden emergency 1 , and the special instructions given by the judge to the jury obfuscate rather than clarify the task of the jury. In a traditional negligence analysis, after the jury determines that a sudden emergency exists, the jury then decides whether the defendant acted *165 as a reasonable person under the emergency conditions. In other words, in order to avoid liability for negligence, the defendant must conduct him or herself as a reasonable person under the emergency circumstances. If the defendant acts unreasonably under the emergency conditions, he or she may be liable.
Case law, on the other hand, including the majority’s opinion in the instant case, has miscast the sudden emergency doctrine as a defense which will render a defendant “not ... responsible for any mistake of judgment in extricating himself from the impending dangerous situation.” Opinion at 273. On the contrary, as is noted in PROSSER AND KEETON ON TORTS, § 33 at 196-97 (5th ed. 1984), the doctrine does not provide a complete defense because “[t]he conduct required [by the defendant] is still that of a reasonable person under the [emergency] circumstances ..., and the emergency is to be considered only as one of the circumstances.” Id.
Another element of confusion is whether the circumstances of a particular case require the invocation of the doctrine. The instant case is one example of an improper invocation of the doctrine, and the majority opinion is replete with examples of other cases where the doctrine was mistakenly applied by the trial court.
Furthermore, the sudden emergency doctrine provides a disproportionate advantage for defendants because it in a sense imposes on a plaintiff a higher burden of proving negligence than exists in an ordinary case. It unduly focuses the jury’s attention on the circumstances in which the defendant acted, instead of encouraging the jury to assess the defendant’s conduct objectively, albeit with due regard for all of the attendant circumstances. See Gunn, supra (citing Knapp v. Stanford, 392 So.2d 196 (Miss. 1980)). This is true whether or not the doctrine is viewed as a complete defense that arises whenever a sudden emergency exists. If the jury views the sudden emergency doctrine as a total defense, then the mere invocation of the doctrine is sufficient to insulate the defendant from liability. On the *166 other hand, even if the jury does not view the doctrine as a total defense, it is still more likely than not that the jury will respond to the judge’s instruction on sudden emergency by concluding that a defendant’s “instinctive” reaction was not negligent.
The bias in favor of the defendant is clear. Take, for example, a situation in which a large boulder suddenly falls from a hill abutting the road. This would create a sudden emergency. In this scenario, the driver must quickly choose to swerve to the right onto a lower part of the hill (and perhaps endanger himself) or must quickly choose to swerve to the left onto incoming traffic. If he chooses the latter course, and injures a party in an on-coming car, the sudden emergency instruction gives greater legitimacy to the defendant’s action than it may deserve. It impedes the jury from making the proper inquiry, i.e. what would a reasonable person have done under the emergency circumstances. The jury is likely to assume that the sudden emergency alone insulates the defendant from liability. I can posit no policy ground for thus advantaging the defendant, who made a choice, over the injured plaintiff in the on-coming car, who was not negligent and was injured.
Thus, although in the case sub judice I agree with the majority that the sudden emergency doctrine was inapplicable, I would add that my concerns with the doctrine as a whole lead me to conclude that it should be eliminated altogether.
. See Gunn, The Sudden Emergency Doctrine is Abolished in Mississippi, 51 Miss.L.J. 301 (1980).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9703818. Public record. Not legal advice.