WPI 12.02 Duty of One Confronted by An Emergency
6 WAPRAC WPI 12.02Washington Practice Series TMWashington Pattern Jury Instructions--Civil
6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 12.02 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Part II. Negligence—Risk—Misconduct—Proximate Cause
Chapter 12. Specific Factors Affecting Negligence and Contributory Negligence
WPI 12.02 Duty of One Confronted by An Emergency
A person who is suddenly confronted by an emergency through no negligence of his or her own and who is compelled to decide instantly how to avoid injury and who makes such a choice as a reasonably careful person placed in such a position might make, is not negligent even though it is not the wisest choice.
NOTE ON USE
Use this instruction when the evidence justifies a finding of an emergency, as described in the Comment.
COMMENT
In Bell v. Wheeler, 14 Wn.App. 4, 5–9, 538 P.2d 857 (1975), the court held that it was error to refuse to give WPI 12.02 when the evidence justified its use. See also Szupkay v. Cozzetti, 37Wn.App. 30, 33–34, 678 P.2d 358 (1984), holding that WPI 12.02 correctly states the law. By contrast, an emergency instruction that does not include the reasonably careful person standard incorrectly states the law. See Sehlin v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 38 Wn.App. 125, 128–29, 686 P.2d 492 (1984).
This instruction is applicable only when there is sufficient evidence of a sudden emergency. Mills v. Park, 67 Wn.2d 717, 719, 409 P.2d 646 (1966); Bennett v. McCready, 57 Wn.2d 317, 319–20, 356 P.2d 712 (1960). Evidence of unavoidable accident is not sufficient to justify an emergency instruction. Stolz v. McKowen, 14 Wn.App. 808, 811, 545 P.2d 584 (1976). Care must be taken not to imply contributory negligence if that is not in issue. Mills v. Park, 67 Wn.2d at 719.
The emergency doctrine applies after a person is placed in a position of peril. Zenith Transp., Ltd. v. Bellingham Nat'l Bank, 64 Wn.2d 967, 973–75, 395 P.2d 498 (1964); Haynes v. Moore, 14 Wn.App. 668, 545 P.2d 28 (1975). The emergency doctrine cannot be invoked by one whose own negligence brought about or contributed to the emergency. Tobias v. Rainwater, 71 Wn.2d 845, 858–59, 431 P.2d 156 (1967); Sandberg v. Spoelstra, 46 Wn.2d 776, 782, 285 P.2d 564 (1955).
An emergency instruction is properly refused if there was no alternative course of action available to the actor. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 668 P.2d 571 (1983) (holding that the emergency doctrine did not apply because the driver had no alternative to striking the other vehicle).
Other cases discussing the emergency doctrine include: Tuttle v. Allstate Ins. Co., 134Wn.App. 120, 130–33, 138 P.3d 1107 (2006); Walker v. King County Metro, 126 Wn.App. 904, 912, 109 P.3d 836 (2005); Moore v. Union Pacific R.R., 83 Wn.App. 112, 116–17, 920 P.2d 616 (1996); McCluskey v. Handorff-Sherman, 68 Wn.App. 96, 841 P.2d 1300 (1992); and Brown v. Yamaha Motor Corp., U.S.A., 38 Wn.App. 914, 691 P.2d 577 (1984).
[Current as of September 2018.]
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