BY MICHAEL L. NEFFAn elderly, retired postal worker lives in Ohio. Loving baseball, come March there’s no place he’d rather be than spring training in Florida. So, each year, he packs up his Toyota Highlander SUV and drives south, through Kentucky, Tennessee and Georgia, to reach his destination.
Unfortunately, on March 20, 2014, something catastrophic happened. As the man was exiting off Cobb Parkway in Marietta to use the restroom, his foot became “stuck” on the accelerator. In an effort to avoid hitting a line of stopped cars in front of him, he chose to swerve off the road. He eventually hit a ditch and went airborne, causing a horrific crash that seriously injured a 24-year-old woman, Anna Woodard, and her father, Boris Woodard.
Anna died from her injuries, and Boris was seriously injured.
The elderly man claimed he had never had his foot “stick” on the accelerator before. It was totally unforeseen. It was a classic “Sudden Emergency.”
At least, this is what the defense attorney wanted us to believe in the matter of a wrongful death case my firm resolved in January for $6.75 million days before trial.
But, that wasn’t the whole story. And when a defendant claims “sudden emergency,” that is your cue to initiate an appropriately detailed inquiry about the defendant’s medical history.
Over the last 20 years, I’ve run into the defense of the Sudden Emergency Doctrine several times. It always strikes me as a thinly-veiled plea for sympathy from the defense lawyer.
“Don’t punish my client because something happened outside of his control.”
However, plaintiff lawyers shouldn’t be hamstrung by this doctrine. In fact, when a defendant invokes the Sudden Emergency Doctrine in Georgia, it can be a doorway to obtain full discovery – something that can help you debunk this defense. Debunking the defense was the second chapter in our efforts to obtain justice for the Woodard family.
The first chapter was defeating a lawsuit filed against the Woodards by the defendant’s insurance company. The insurance company’s lawsuit against my injured clients alleged breach of a purported settlement contract. The insurer alleged it had settled with the Woodards for the $100,000 policy limits even though it did not timely pay the policy limits in response to our pre-suit demand, which plainly stated “timely payment is an essential element of acceptance.” Judge Richard Story ruled that the insurer had failed to settle, and the Eleventh Circuit Court of Appeals certified several questions to the Supreme Court of Georgia.1 The Supreme Court of Georgia eventually rejected the insurer’s theory that O.C.G.A. § 9-11-67.1 allowed it to pay late and still settle, and the Eleventh circuit ruled there was no settlement.2
Discovery proceeded in the wrongful death case while the “breach of contract” action wound its way through federal district court, the Eleventh Circuit, the Supreme Court of Georgia and back again. Thus, we obtained justice for the Woodards by battling on two fronts. This story is about the merits of the wrongful death front and the lack of merit of the tortfeasor’s “sudden emergency” defense.
UNDERSTANDING THE SUDDEN EMERGENCY DOCTRINE
As a threshold issue, you should understand that the Sudden Emergency Doctrine requires that the defendant be free of any negligence. The case law states that a Sudden Emergency occurs when a defendant is faced with “sudden peril caused by circumstances in which the defendant did not participate,” and the circumstances “offered [the defendant] a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.”3 In other words, a defendant cannot create the emergency or participate in the circumstances that caused it and still hide behind the Sudden Emergency Doctrine.
Because of this, the Sudden Emergency Doctrine can be debunked by the doctrine of negligence per se. In our case, the elderly defendant was cited for a number of traffic violations, including vehicular homicide in connection with the wreck. In the criminal case against him, his defense attorney negotiated a plea for “failure to maintain lane.” A charge for “driving too fast for conditions” was merged into that plea. In Georgia, when a person violates a traffic law, is cited, and then admits guilt, that constitutes negligence per se.4 The guilty plea established that the Defendant in our civil case “participated” in the negligent act. In essence, negligence per se barred reliance on the Sudden Emergency Doctrine.
OBTAINING FULL DISCOVERY ON FORESEEABILITY OF THE “EMERGENCY”
In my mind, combating the Sudden Emergency Doctrine, like combating many other defenses, is about getting evidence of foreseeability. And, when a defendant invokes the Sudden Emergency Doctrine – especially in cases that involve medical issues – then full discovery must be had.
This is not to say that a defendant will just hand over all of his medical records. You will usually have a fight about that. But even if you’re forced to file a motion to compel, you should seek full discovery concerning the defendant’s medical history.
In our case, we sought the medical records of all of the defendant’s treaters in Ohio. My partner, Susan Cremer, did a phenomenal job combing through the records as they came into our office. What we found was alarming.
Unbeknownst to us initially, the defendant had been diagnosed with polymyositis, an immune disorder that results in atrophy of the muscles in a person’s extremities, including their hips and thighs. The defendant told his doctors that his biggest concern was his “instability,” which is why he wore a medical-help necklace in case he fell. He had also been diagnosed with diabetic neuropathy, which, according to evidence in his records, caused his vision to “fluctuate.”
We uncovered evidence that the defendant had a host of medical concerns for years, including numbness in his feet, beginning 15 years prior to the wreck. The defendant’s leg strength and control of his leg muscles had gotten particularly bad in the five years preceding the wreck.
We also found evidence that the defendant had fallen two to three times a year in the last several years. This led his doctors to prescribe him a “lift chair,” which he used regularly. His doctor’s records also noted that the defendant walked with a cane and sometimes a walker (even though the defendant refused to admit using anything but a cane).
Our detailed analysis of the defendant’s medical history allowed us to cross-examine the defendant on all of these points. And, no answer would turn out good for him. Either he would admit the host of medical conditions, or he would disagree with the plain language of the medical records. Either way, a jury would likely view the evidence in our favor.
DEPOSING THE TREATING DOCTORS
Remember, the Sudden Emergency Doctrine is an affirmative defense in Georgia. Therefore, the defendant bears the burden of affirmatively proving it, and a defendant cannot simply claim “Sudden Emergency” without providing evidence. Often, a strategic motion for partial summary judgment by the Plaintiff can smoke out that the defense has no factual basis to support the defense.
In our case, the defendant strategically chose not to have his treating doctors testify or provide any evidence early on in the case. When the defendant later moved for summary judgment, arguing in part Sudden Emergency, we pointed out that the defendant had not met his burden. There was no testimony from his doctors in Ohio at all – particularly on how the loss of control of his leg was unforeseeable. Thus, the court was precluded from granting the motion.
In the weeks before trial, the defense tried to remedy this defect by noticing the evidentiary deposition of the defendant’s longtime physician in Cleveland. The doctor had treated the defendant for decades, and thus, we knew the deposition was an attempt to “explain away” all of the bad evidence in the medical records.
The defense also wanted to point out that the doctor had never told the defendant not to drive. However, regardless of whether a doctor or other medical professional told the defendant not to drive, he had an independent obligation to discern whether he was capable of making the cross-country trip without the possibility of injuring someone. Thus, the defendant’s doctor admitted:
The doctor also could not argue with the definitions of medical terms like “polymyositis” or “diabetic neuropathy.” By sheer definition, these medical conditions can cause numbness, weakness, and loss of muscle control.
Thus, the defendant’s last-ditch effort to “explain away” the medical records turned into important evidence that we would present to the jury on the issue of foreseeability. And, foreseeability debunks the Sudden Emergency Doctrine.
DON’T CONFLATE THE SUDDEN EMERGENCY DOCTRINE AND THE ACT OF GOD DEFENSE
As explained above, the Sudden Emergency Doctrine occurs when a defendant encounters a “sudden peril,” where the defendant does not participate in the negligence and where he has no time to assess the situation. This is different from the “Act of God” defense. However, I have seen several defense attorneys conflate the two.
Like the Sudden Emergency Doctrine, an “Act of God” must be the sole proximate cause of a plaintiff’s injury. It cannot coexist with the defendant’s negligence. However, “Acts of God” are by statute “produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death, or illness.”5 The statute expressly states that Act of God “excludes all idea of human agency.”6
So, while the doctrines are similar, they are not identical. Acts of God are most often associated with natural occurrences. Rhetorically, too, an “Act of God” may be far more dangerous to plaintiffs than a “Sudden Emergency.” Naming something an “Act of God” may be more likely to appeal to a juror with closely-held religious beliefs. It also may appeal to jurors who may blindly accept that “bad things happen.” Be on the lookout for the crafty defense argument that tries to interject God into a foreseeable event. ●
About the Author
Michael Lawson Neff is the principal of Neff Law in Atlanta. Mike leads a team of four attorneys who seek justice in catastrophic injury and wrongful death cases. Mike is the author of “Premises Liability: A Guide to Success,” published by Trial Guides in 2017.