“The Emergency Doctrine”
I had someone ask me the other day what is the “emergency doctrine” and when does it apply? The emergency doctrine is a rule which precludes a finding of negligence when the person is confronted with an emergency. For the doctrine to apply; (1) the party seeking it’s benefits must be free from the negligence which contributed to the creation of the emergency; (2) the time element in which action is required must be short enough to preclude the deliberate and intelligent choice of action; (3) the element of negligence inquired into must concern management and control. Edeler v. O’Brien, 38 Wis. 2d 691, 697, 698, 158 N.W. 2d 301 (1968).
The emergency doctrine, as stated in Papacosta v. Papacosta, 2 Wis. 2d 175, 85 N.W. 2d 790 (1957), is that a person faced with an emergency which his conduct did not create or help to create is not guilty of negligence in the methods he chose, or failed to choose, to avoid the threatened disaster if he is compelled to act instantly without time for reflection.
What would be an example of where the “emergency doctrine” applies? If you are driving down the street in your car, and you suddenly have a heart attack which causes you to pass out and as a result you cause a serious car accident, you may be relieved of any negligence as you were faced with an immediate emergency which you could not control. By example on where it might not apply, in a case from 27 years ago, the court of appeals said that the testimony did not support the conclusion that an insect striking the driver of a vehicle created an emergency situation, but did not rule out that there could be situations in which an insect sting or bite might create an emergency.” Garceau v. Bunnel, 148 Wis. 2d 146, 434 N.W. 2d 794 (Ct. App. 1988). see 148 Wis. 2d at 154 n. 2.
The jury instruction reads as follows:
1105A Management and Control-Emergency
“When you consider negligence as to management and control, bear in mind that a driver may suddenly be confronted by an emergency, not brought about or contributed to by (his) (her) negligence. If that happens and the driver is compelled to act instantly to avoid collision, the driver is not negligent if (he) (she) makes a choice of action or inaction that an ordinarily prudent person might make if placed in the same position. This is so even if it later appears that (his) (her) choice was not the best or safest course.
This rule does not apply to a person whose negligence wholly or in part created the emergency. A person is not entitled to the benefit of this emergency rule unless (he) (she) is without fault in creating the emergency.
You should consider this emergency rule when you determine whether (name) was negligent as to management and control.”
(Wisconsin Civil Jury Instructions)
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