Car Hits Pedestrian at 82nd and Fifth:

Was “Emergency Doctrine” Implicated?

It takes two to make a car/pedestrian accident. Was the driver excused from liability under the emergency doctrine?

Aguilera De Diaz asserted that she was crossing the street, within the crosswalk, with the light in her favor, when she was struck by Richard D. Klausner’s vehicle, which was making a left turn. But Klausner countered that De Diaz, in fact, was not crossing the crosswalk from the northeast side of the street, but rather, out of nowhere, appeared to be coming from the west side of the street, causing impact to the left driver side of his vehicle as he was making a left turn.

Klausner also maintained that he did not see De Diaz in the crosswalk until he stopped his vehicle, after De Diaz was struck. Prior to turning left, he looked to both the northeast and northwest bound side of the street and observed that there were no pedestrians in the crosswalk.

There were multiple issues of fact that could not be resolved as a matter of law. The trial court denied De Diaz’s motion for summary judgment on liability and for dismissal of several of Klausner’s affirmative defenses. An appeal followed.

The appellate court held that the trial court erred in denying the portion of De Diaz’s motion to dismiss Klausner’s assertion of the emergency doctrine. The emergency doctrine recognized that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.

Klausner alleged that, prior to the accident, he was traveling eastbound on East 82nd Street, heading towards the First Avenue intersection—an area with which he was very familiar. And maintained that he was driving slowly and carefully.

As Klausner approached First Avenue, he stopped at a red traffic light. When the traffic light turned green, he looked at the northwest and northeast sides of First Avenue, and purportedly proceeded to drive "slowly and carefully," making a left turn onto First Avenue. And alleged that, as he began driving on First Avenue, he "suddenly—and without warning—felt that something or someone had contacted his vehicle while driving at a low speed. Afterwards, Klausner stopped his car and observed De Diaz standing in the crosswalk.

Those allegations — viewed in a light most favorable to Klausner – were insufficient to raise an issue of fact as to the existence of a qualifying emergency. Klausner maintained that he did not see De Diaz before she was struck by his vehicle and that she was not in the crosswalk when he began turning onto the avenue – and that it was only after De Diaz was struck that he observed her in the crosswalk. But without having perceived or reacted to any emergency, Klausner could not rely on the emergency doctrine to excuse his conduct.

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