In Washington, and in many other states, defendants in a car accident can assert that they were “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.” WPI 12.02. The sudden emergency doctrine applies when a person has been placed in a position of peril and must make an instinctive choice between courses of action after the peril has arisen. See Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 197, 668 P.2d 571 (1983) (citing Sandberg v. Spoelstra, 46 Wn.2d 776, 285 P.2d 564 (1955)). The sudden emergency doctrine is not available to one whose negligent conduct creates a hazard. Pidduck v. Henson, 2 Wn. App. 204, 206, 467 P.2d 322 (1970) (citing Tackett v. Milburn, 36 Wn.2d 349, 218 P.2d 298 (1950) and Miller v. Cody, 41 Wn.2d 775, 252 P.2d 303 (1953)); Tuttle v. Allstate Ins. Co., 134 Wn. App. 120, 131, 138 P.3d 1107 (2006); 16 Wash. Prac., Tort Law And Practice § 2:33 (4th ed.). Under such circumstances, negligence is a question of fact for the jury to decide. Rhaodes v. DeRosier, 14 Wash.App. 946, 546 P.2d 930 (Div. 1 1976).
Currently, many commercials tout a cars autonomous vehicle (“AV”) capability for sensing a pending accident. Commercials show situations where a leading truck drops something or comes to an abrupt and unexpected stop. The following car’s AV system reacts, resulting in the car coming to a stop or avoiding a collision. The driver of the AV equipped car sighs in a sense of relief. These commercials reveal the goal: that automated driving systems will reduce crash rates by reducing the opportunity for and decreases the impact of driver’s errors.
In the event the AV system is unable to avoid the collision and the driver does not act, will the Sudden Emergency Doctrine still apply? Under the current “reasonable and careful person” standard, the standard will not apply to a situation that the AV system did not work to avoid the collision. Rather, the current standard will need to be replaced with a “reasonable AV and careful person reaction time” standard. This standard will account for both the reaction time of the AV system and the human driver. There have not been any court ruling or regulations establishing the “reasonable” AV reaction time.
Counselors can already predict the testimony by the following car’s driver, “I thought the AV would react” and/or “I relied on the AV.” In order to assert the sudden emergency doctrine, it will likely be necessary to employ engineers/experts with the foundational qualifications to determine the reaction time of the subject AV system. The expert will be asked to establish whether the AV system’s base reaction time was reasonable. Only then can an expert opine that the AV system could not have reacted in time because it faced a sudden situation. The next issue will be whether a human driver could have reacted in time, i.e., faster than the AV system; and whether humans would have done something more to avoid a collision? At some point this analysis will lead to multiple scenarios, some speculative. Speculative testimony is not admissible. So, asserting the sudden emergency doctrine may come down to bell curves based on reaction time data. It is time to dust off those statistics text books because crossing an expert may require an inquiry into the means, medians, standard deviation, and distribution of their reaction time data set.
To complicate this analysis, many AV systems will be collecting data for analysis in real time. Software would allow for the vehicle to update its base reaction time in different situations. This would likely render data collections useless. The reaction time of the vehicle in the particular situation may not be the same the next day. Asserting the sudden emergency doctrine will become a complex situation requiring heavy data analysis. But, it will be necessary to preserve the defense to liability.
To conclude, it will be necessary to work up and support the claim that no human or AV system could have avoided a collision in a given circumstance in order to assert the sudden emergency doctrine. The defense will need to be developed and presented in a way that a court and jury will understand. A party is entitled to have his theory of the case presented to the jury by proper instructions if this theory is supported by the evidence. Dabroe v. Rhodes Co., 64 Wash.2d 431, 392 P.2d 317 (1964); De Koning v. Williams, 47 Wash.2d 139, 286 P.2d 694 (1955). That is going to be a difficult task but necessary.