Appeal by plaintiff from judgment entered 1 July 2005 by Judge
W. Osmond Smith, III in Durham County Superior Court. Heard in the
Court of Appeals 21 August 2006.
The Law Office of James Scott Farrin, by Kenneth M. Gondek,
Bryant, Patterson, Covington, Idol & Lewis, P.A., by David O.
Lewis, for defendant-appellee.
MARTIN, Chief Judge.
Plaintiff, Frances Carrington, brought this action seeking
money damages for personal injury and property damage allegedly
sustained when her motor vehicle collided with one operated by
defendant, Rebecca Emory, on 4 June 2003. Plaintiff alleged the
collision occurred as a result of negligence on defendant's part;defendant denied plaintiff's allegations and asserted plaintiff's
contributory negligence as an affirmative defense.
Briefly summarized only to the extent necessary to discuss
plaintiff's contentions on appeal, the evidence at trial tended to
show that on 4 June 2003, at around 8:00 a.m., plaintiff and
defendant were both traveling on Roxboro Road in Durham. It had
rained earlier in the morning. Roxboro Road has two lanes of
traffic in both directions and a left turn lane at the intersection
of Roxboro and Olympic in both directions. Plaintiff was traveling
in the left northbound lane. Defendant was traveling south and,
immediately before the collision, moved into the left turn lane at
the intersection of Roxboro and Olympic. Though the parties
offered conflicting evidence as to some of the facts related to the
accident, their evidence is consistent that defendant began her
left turn as plaintiff approached. Seeing plaintiff approach,
defendant ultimately stopped her car partially within plaintiff's
lane. Plaintiff swerved her vehicle to the left. The right rear
panel of plaintiff's car struck the right front corner of
At the charge conference, plaintiff requested a jury
instruction on the doctrine of sudden emergency. The trial judge
denied plaintiff's request, saying I think both of you can argue
that the applicable law, even without that charge, is what is
reasonable under the circumstances. The jury found defendant
negligent and plaintiff contributorily negligent. Pursuant to
N.C.G.S. 1A-1, Rule 59, plaintiff moved for a new trial on thegrounds that the trial court had erred in denying her request for
an instruction on the doctrine of sudden emergency. The motion was
denied. Plaintiff appeals. We reverse and order a new trial.
A trial court must instruct the jury on the law with regard to
every substantial feature of a particular case. Mosley & Mosley
Builders, Inc. v. Landin Ltd.
, 87 N.C. App. 438, 445, 361 S.E.2d
608, 612 (1987). To prevail on the issue of error in refusing a
request to instruct the jury on a particular instruction, plaintiff
(1) the requested instruction was a correct
statement of law and (2) was supported by the
evidence, and that (3) the instruction given,
considered in its entirety, failed to
encompass the substance of the law requested
and (4) such failure likely misled the jury.
Liborio v. King
, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274
Under the first element, the jury instruction requested was a
correct statement of the law. Plaintiff requested North Carolina
Pattern Jury Instruction 104.40 on the doctrine of sudden
N.C.P.I. Civ. 104.40 (Motor Vehicle Volume). Jury
instructions in accord with a previously approved pattern jury
instruction provide the jury with an understandable explanation of
the law. State v. Anthony
, 354 N.C. 372, 395, 555 S.E.2d 557, 575
Essential to the analysis of the second element, whether the
charge requested was supported by the evidence, the evidence must
be considered in the light most favorable to the party requestingthe jury instruction. Long v. Harris
, 137 N.C. App. 461, 467, 528
S.E.2d 633, 637 (2000); see also Bolick v. Sunbird Airlines, Inc.
96 N.C. App. 443, 448-49, 386 S.E.2d 76, 79 (1989), aff'd
, 327 N.C.
464, 396 S.E.2d 323 (1990).
To receive a jury instruction on sudden emergency, plaintiff
must present substantial evidence showing, first, she perceived an
emergency situation and reacted to it, and second, the emergency
was not created by plaintiff's negligence. Long
, 137 N.C. App. at
467, 528 S.E.2d at 637. Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. Banks v. McGee
, 124 N.C. App. 32, 34, 475 S.E.2d
733, 734 (1996) (quoting State v. Smith
, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980)). An emergency situation has been defined
as that which compels a party to act instantly to avoid a
collision or injury. Holbrook v. Henley
, 118 N.C. App. 151, 154,
454 S.E.2d 676, 678 (1995) (quoting Keith v. Polier
, 109 N.C. App.
94, 98-99, 425 S.E.2d 723, 726 (1993)). [A] sudden emergency
arises in most, if not all, motor vehicle collisions, but the
doctrine of sudden emergency is applicable only when there arises
from the evidence in the case an issue of negligence by an operator
after being confronted by the emergency. White v. Greer
, 55 N.C.
App. 450, 453-54, 285 S.E.2d 848, 851 (1982).
As to the perception and reaction to an emergency situation,
plaintiff presented evidence that on initially seeing defendant's
car she did not believe defendant was going to stop before turning.
Plaintiff applied her brakes and reduced her speed. Plaintiff sawdefendant's car stop within the turn lane, outside of plaintiff's
lane of travel. Plaintiff proceeded forward, accelerating to
regain speed. After this first stop, defendant then advanced to
start turning across the road before coming to a second stop. At
this point, the front third of defendant's car was stopped in
plaintiff's lane of travel. Plaintiff testified that this second
stop occurred when plaintiff was almost at the intersection. In
addition, plaintiff indicated that she could not stop her car in
time to avoid hitting defendant's car. Plaintiff swerved as a
reaction to defendant's car impeding her lane of travel. She
testified that the maneuver was taken in an attempt to avoid a
head-on collision. Plaintiff provided substantial evidence that
she perceived an emergency situation and reacted to it.
As to whether plaintiff negligently created the emergency, the
defendant contends that plaintiff failed to maintain both a proper
lookout and control of her vehicle. For the sudden emergency
doctrine to be improper on this point, the evidence suggesting
plaintiff brought about or contributed to the emergency through her
negligence must be strong enough to preclude the potential for
substantial evidence to the contrary. See Day v. Davis
, 268 N.C.
643, 647, 151 S.E.2d 556, 559 (1966) (applying the sudden emergency
doctrine under similar facts and leaving defendant's allegations of
contributory negligence for jury determination under proper
instructions.). Considered in the light most favorable to
plaintiff, there was substantial evidence to permit the jury to
find that plaintiff did not negligently create or contribute to theemergency. Plaintiff presented evidence that she had the right-of-
way at a green light and was traveling under the speed limit due to
the rainy conditions. When plaintiff first thought defendant might
turn across her lane, she showed caution by braking. Seeing
defendant stop, plaintiff resumed her forward travel. Defendant
then pulled in front of plaintiff's vehicle. Defendant admitted
that plaintiff could not have continued in her lane of travel
without striking defendant's vehicle. Based on this evidence, the
jury could find that defendant's actions, rather than plaintiff's,
were the cause of the sudden emergency and that any negligent acts
of the plaintiff occurred after she was confronted with the
The jury instruction, as given, failed to encompass the
substance of the sudden emergency doctrine. Plaintiff requested
the following instruction:
A person who, through no negligence on her
part, is suddenly and unexpectedly confronted
with peril arising from either the actual
presence, or the appearance of, imminent
danger to herself or to others, is not
required to use the same judgment that is
required when there is more time to decide
what to do. Her duty is to exercise only that
care which a reasonably careful and prudent
person would exercise in the same situation.
If at that moment her choice and manner of
action might have been followed by such a
person under the same conditions, she does all
that the law requires of her, although in the
light of after-events it appears that some
different action would have been better and
N.C.P.I. Civ. 104.40 (Motor Vehicle Volume). After denying
plaintiff's request, the trial court instructed the jury onplaintiff's theory of defendant's negligence, defendant's theory
of plaintiff's contributory negligence, and that plaintiff had a
duty to exercise the care a reasonably careful and prudent person
would exercise under the same or similar circumstances.
The doctrine of sudden emergency, however, provides a less
stringent standard of care for one who, through no fault of his
own, is suddenly and unexpectedly confronted with imminent danger
to himself or others. Holbrook
, 118 N.C. App. at 153, 454 S.E.2d
at 677-78. The doctrine gives courts a means of explaining to the
jury the effect of external forces on whether a duty of care was
, 96 N.C. App. at 448, 386 S.E.2d at 79. The
instruction specifically indicates that an imprudent act in
response to an emergency may be found reasonable in light of the
circumstances. In the present case, the emergency itself was a
substantial feature of the case. The trial court's instruction,
however, focused only on the reasonable person determination and
did not embody the less stringent standard of care in the face of
a specific external force, such as defendant's car impeding
plaintiff's lane of traffic. As a result, the instruction given
did not encompass the substance of the sudden emergency doctrine.
Finally, plaintiff has shown that the failure to include a
jury instruction on the doctrine of sudden emergency likely misled
the jury. When a party makes a correct request for a jury
instruction, failure by the trial court to provide the substance of
the instruction will constitute reversible error. McLain v. Taco
., 137 N.C. App. 179, 182, 527 S.E.2d 712, 715 (2000)(quoting Calhoun v. Highway Comm'n
, 208 N.C. 424, 426, 181 S.E.
271, 272 (1935)). Reversible error has been found in the failure
to provide the substance of the doctrine of sudden emergency when
appropriate. See Day
, 268 N.C. at 648, 151 S.E.2d at 560; Davis v.
, 14 N.C. App. 23, 29, 187 S.E.2d 360, 364 (1972). Further,
if an appellate court is unable to determine whether an erroneous
instruction prejudiced a plaintiff, the plaintiff is entitled to a
new trial. Orthodontic Ctrs. of Am., Inc. v. Hanachi
, 151 N.C.
App. 133, 136, 564 S.E.2d 573, 575 (2002) (citing Word v. Jones
350 N.C. 557, 565, 516 S.E.2d 144, 149 (1999)).
Judges HUNTER and McCULLOUGH concur.
*** Converted from WordPerfect ***