Filed 4/10/20 Babski v. Lowell CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

LINDA BABSKI,

Plaintiff and Appellant,

v.

ROCKY LOWELL,

Defendant and Respondent.

C088065

(Super. Ct. No. 34-2015-00183612-CU-PA-GDS)

This is a personal injury action arising out of a traffic collision on Highway 50 in Sacramento. On February 14, 2015, plaintiff Linda Babski was injured when the car she was a passenger in was rear-ended by a pickup truck driven by defendant Rocky Lowell shortly after a third vehicle discharged a blinding cloud of white smoke. After a jury returned a special verdict finding Lowell not negligent, the trial court denied Babski’s motion for new trial. This timely appeal followed.

On appeal, Babski contends the trial court prejudicially erred in instructing the jury on the affirmative defense of the sudden emergency doctrine (CACI No. 452 [“Sudden Emergency”]), which shields a defendant from liability in a negligence action where he, acting with reasonable care, is suddenly and unexpectedly confronted by an emergency he did not cause. (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 397 (Shiver).) According to Babski, reversal is required because there was insufficient evidence to support an instruction on this defense. She further argues that reversal is required because Lowell’s negligence precluded the application of the doctrine. We reject these contentions and affirm the judgment.

FACTUAL BACKGROUND

“ ‘We state the facts in the light most favorable to the jury’s [special] verdict, resolving all conflicts and indulging all reasonable inferences to support the judgment.’ ” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1459, fn. 1.)

The Accident

On a sunny, clear late Saturday afternoon in mid-February 2015, Babski was riding in the front passenger seat of a car driven by her friend, Valerie Kelly. They were traveling in moderate traffic on Highway 50 in the “slow lane” at a speed of 50 to 55 miles per hour (mph) when the car in front of them suddenly discharged a small cloud of white smoke. Shortly thereafter, the same car discharged a large, dense, blinding cloud of white smoke. At that point, Lowell, who was driving a pickup truck, was about 110 feet behind Kelly’s car traveling at a speed of approximately 50 mph.

The cloud of white smoke was so large and dense that it resulted in “zero visibility.” Lowell could not see the front hood of his pickup truck, let alone determine whether Kelly’s car was slowing, accelerating, and/or moving to the right or left.

In response to the cloud of smoke, Kelly and Lowell slowed down; they both took their foot off their accelerator and applied their brake. Neither Kelly nor Lowell forcefully applied their brake. Rather, they both gradually slowed down because they were afraid of colliding with another car.

Lowell estimated that he was inside the cloud of smoke for about five to 10 seconds before his pickup truck rear-ended Kelly’s car at a speed of approximately 45 mph. According to Babski, about nine to 15 seconds elapsed between the discharge of smoke and the collision. Kelly estimated that the collision occurred about seven to 10 seconds after the discharge of smoke, as she was steering her car toward the right-hand side of the highway at a speed below 20 mph.

The collision occurred near the Mather Field Road exit while both vehicles were inside the cloud of smoke. Due to poor visibility, Kelly could not see the car in front of her after she entered the smoke. Nor could she see Lowell’s pickup truck behind her. Lowell did not see Kelly’s brake lights prior to the collision. When asked, Lowell indicated that he did not attempt to pull off the highway after entering the cloud of smoke, even though he knew he was traveling in the lane immediately next to the shoulder of the highway.

After the collision, both vehicles came to a stop on the highway. Kelly was “in the lane of traffic” when she was taken out of her car.

Expert Testimony

At trial, the jury heard testimony from two accident reconstruction experts. Elaine Serina, Ph.D., testified as an expert for the defense while Daniel Trudell testified as an expert for plaintiff.

Dr. Serina did not fault Lowell for failing to avoid the collision, explaining that the lack of visibility from the cloud of smoke prevented him from determining how Kelly had reacted to the smoke. While Dr. Serina acknowledged that, in hindsight, she could come up with “scenarios” in which Lowell could have avoided the collision, this did not change her opinion that she did not fault Lowell for failing to avoid the collision under the circumstances. She opined that the collision occurred because Lowell and Kelly slowed down at “different rates.”

When Trudell testified, he agreed with Dr. Serina that the accident would not have occurred absent the cloud of smoke. He conceded that Lowell was traveling at a safe distance behind Kelly prior to the discharge of smoke and did not fault Lowell for entering the cloud of smoke. However, he opined that the cloud of smoke did not cause the collision, and that the accident would not have occurred if Lowell had slowed down quicker in response to the smoke.

Both experts concluded that Lowell was driving approximately 12 to 15 mph faster than Kelly at the time of the collision.

DISCUSSION

Babski contends the trial court prejudicially erred in instructing the jury on the affirmative defense of the sudden emergency doctrine pursuant to CACI No. 452. According to Babski, reversal is required because there was insufficient evidence to support an instruction on this defense. She further argues that reversal is required because Lowell’s negligence precluded the application of the doctrine. We disagree.

1.0 Standard of Review

“ ‘ “It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence” ’ and ‘ “necessary for the jury’s understanding of the case.” ’ ” (People v. Brooks (2017) 3 Cal.5th 1, 73.) It is also well settled that this duty to instruct extends to “any affirmative defense for which the record contains substantial evidence [citation]—evidence sufficient for a reasonable jury to find in favor of the defendant [citation]—unless the defense is inconsistent with the defendant’s theory of the case [citation].” (People v. Salas (2006) 37 Cal.4th 967, 982; see Brooks, at pp. 73, 75 [“Substantial evidence supporting sua sponte instruction on a particular defense is evidence that is ‘sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable [persons] could have concluded’ ” ’ that the particular facts underlying the instruction did exist.”].)

We review the evidence in the light most favorable to the applicability of the affirmative defense instruction, since a party is entitled to an instruction if the evidence presented at trial could establish the elements of the theory presented. (Chanda v. Federal Home Loans Corp. (2013) 215 Cal.App.4th 746, 755.)

2.0 Sudden Emergency Doctrine

The sudden emergency doctrine, also referred to as the imminent peril doctrine, shields a defendant from negligence liability “where [he], acting with reasonable care, is suddenly and unexpectedly confronted by an emergency he did not cause.” (Shiver, supra, 24 Cal.App.5th at p. 397.) In the context of a traffic accident, it applies where “ ‘an unexpected physical danger is presented so suddenly as to deprive the driver of his power of using reasonable judgment.’ ” (Id. at p. 399.)

The doctrine rests on the theory that “a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.” (Leo v. Dunham (1953) 41 Cal.2d 712, 714 (Leo).) “The basis of the rule is ‘that the actor is left no time for thought, or is reasonably so disturbed or excited, that he cannot weigh alternative courses of action, and must make a speedy decision, based very largely upon impulse or guess. Under such conditions, the actor cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though it later appears that he made the wrong decision, which no reasonable man could possibly have made after due deliberation. . . .’ ” (Schultz v. Mathias (1970) 3 Cal.App.3d 904, 912, disapproved on another ground in Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 364-365 & fn. 1.)

“ ‘The test [for determining the applicability of the doctrine] is whether the actor took one of the courses of action which a standard man in that emergency might have taken, and such a course is not negligent even though it led to an injury which might have been prevented by adopting an alternative course of action.’ ” (Schultz v. Mathias, supra, 3 Cal.App.3d at pp. 912-913.) “A party will be denied the benefit of the doctrine . . . where that party’s negligence causes or contributes to the creation of the perilous situation.” (Pittman v. Boiven (1967) 249 Cal.App.2d 207, 216; see Shiver, supra, 24 Cal.App.5th at p. 399.)

Cases where the doctrine is applicable “ ‘involve situations where at least two courses of action are present after the danger is perceived . . . .’ ” (Staggs v. Atchison, T. & S. F. R. Co. (1955) 135 Cal.App.2d 492, 502.) Thus, the doctrine was applicable where a defendant testified that when she saw the plaintiff’s car coming fast through an intersection she “ ‘stepped on [her] brakes and swerved to the right to possibly get out of his way,’ ” and that she “panicked but did the best she could in the split second that she had to act.” (Grinstead v. Krushkhov (1964) 228 Cal.App.2d 793, 794-795.) Had the defendant swerved to her left rather than the right, she might have avoided the collision and nothing prevented such an action, and “[s]he thus had a choice of which course to take.” (Id. at p. 795.) The doctrine also applied where the defendant driver, who did not see pedestrians until they poked their heads out from beyond the front of another vehicle (a truck) and ran out in front of him, “could have sounded his horn, or swerved sharply to the left, or to the right, or relied upon his brakes alone, or done a combination of these things to avoid the collision or lessen the probability of striking the plaintiff.” (Christensen v. Bergmann (1957) 148 Cal.App.2d 176, 179-180, 185.) Likewise, the doctrine was applicable where a driver could have applied his brakes sooner or swerved to the right to avoid a rear-end collision. (McHale v. Welton Tollet Hall (1967) 257 Cal.App.2d 342, 344-345, 348-349.) But where the defendant “took the only course of action available” when confronted with another car and did not testify about “alternative courses of action being available to her” or “choosing one of two available courses of action,” the doctrine was not applicable. (Anderson v. Latimer (1985) 166 Cal.App.3d 667, 674-675.)

A sudden emergency instruction is proper when there is “evidence which would permit a reasonable jury to conclude that [emergency] conditions existed.” (Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 37 (Damele); see Leo, supra, 41 Cal.2d at p. 715 [“Ordinarily, whether a person has been suddenly confronted with imminent peril is a question of fact to be submitted to the jury.”].) It is then for the jury to decide whether an emergency actually existed and, if so, whether actions taken in response to the emergency were reasonable under the circumstances. (Damele, at p. 37 [“Whether the conditions for application of the [sudden emergency] doctrine exist is itself a question of fact to be submitted to the jury.”].)

3.0 Analysis

The affirmative defense of the sudden emergency doctrine is set forth in CACI No. 452. Over Babski’s objection, the trial court instructed the jury with CACI No. 452, as follows: “Rocky Lowell claims that he was not negligent because he acted with reasonable care in an emergency situation. Rocky Lowell was not negligent if he proves all of the following: [¶] 1. That there was a sudden and unexpected emergency situation in which someone was in actual or apparent danger of immediate injury; [¶] 2. That Rocky Lowell did not cause the emergency; and [¶] 3. That Rocky Lowell acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer.”

We conclude the trial court properly instructed the jury with CACI No. 452. Viewing the evidence in the light most favorable to the applicability of the instruction, substantial evidence supported instructing the jury on the sudden emergency doctrine. The record discloses sufficient evidence from which a jury could reasonably conclude that a sudden emergency situation arose in which Kelly, Lowell, and Babski were in actual or apparent danger of immediate injury. There was evidence that the car driving in front of Kelly unexpectedly discharged a large, dense cloud of white smoke, which resulted in “zero visibility” for Kelly and Lowell as they were traveling on Highway 50 in moderate traffic at speeds of 50 to 55 mph. There was no evidence that any negligence on the part of Lowell caused or contributed to the discharge of smoke, and there was sufficient evidence from which a jury could reasonably conclude that Lowell “acted as a reasonably careful person would have acted in similar circumstances.” (CACI No. 452.) The evidence discloses that Lowell was driving at a safe speed and distance behind Kelly’s car when the blinding cloud of smoke was suddenly discharged, and that he gradually slowed down in response to the smoke by taking his foot off his accelerator and applying his brake. On this record, defendant was entitled to the sudden emergency instruction.

We find no merit in Babski’s various arguments claiming there was insufficient evidence to support instructing the jury with CACI No. 452, including her contention that the instruction was not warranted because there was no evidence that Lowell had two courses of action after he perceived the danger from the cloud of smoke. This is a question to be determined by the trier of fact, unless it can be said from the evidence that, as a matter of law, defendant had no alternative course of action available to him. (See Leo, supra, 41 Cal.2d at pp. 715-716.) We cannot make such a finding on this record. Here, as discussed, the evidence discloses that Lowell took his foot off his accelerator and gradually applied his brake in response to the blinding cloud of smoke. He did not veer to the left or right. Instead, he proceeded straight ahead at a reduced speed. The record contains sufficient evidence to support a finding that he could have taken a different course of action after he perceived the danger from the cloud of smoke: he could have braked harder and/or veered to his right or left to avoid hitting Kelly’s car. At trial, Lowell testified that he made no effort to pull off the highway after he entered the cloud of smoke, even though he knew he was driving in the lane immediately next to the shoulder of the highway. Babski’s accident reconstruction expert opined that the collision could have been avoided if Lowell had slowed down quicker by applying his brake more forcefully. Nothing prevented such action on Lowell’s part. He thus had a choice of which course to take. “Whether he was negligent in not selecting the best or safest of these courses in the face of the emergency was for the jury to decide.” (Christensen v. Bergmann, supra, 148 Cal.App.2d at p. 185 [instruction proper where defendant could have avoided collision by sounding his horn, or swerving to his left or right, or by relying upon his brakes alone]; see Leo, supra, 41 Cal.2d at pp. 715-716 [sudden emergency instruction proper where truck driver could have avoided collision by proceeding straight ahead or swerving in a different direction]; Grinstead v. Krushkhov, supra, 228 Cal.App.2d at p. 797 [instruction proper where defendant could have avoided collision by swerving in a different direction].)

Finally, we reject Babski’s contention that the trial court erroneously instructed the jury with CACI No. 452 because Lowell negligently contributed to the alleged sudden emergency situation by failing to pay attention to the roadway ahead of him. The question of “[w]hether the one seeking to invoke the doctrine [of sudden emergency] was free of negligence is ordinarily a question of fact for the jury. Where the evidence would support a finding that [the defendant] was not negligent and the conditions for the applicability of the doctrine are otherwise met, he is entitled to the instruction.” (Philo v. Lancia (1967) 256 Cal.App.2d 475, 482.) On this record, we cannot conclude, as a matter of law, that the record shows negligence on Lowell’s part that contributed to the creation of the emergency condition such that he should have been denied the benefit of the sudden emergency doctrine. The record contains sufficient evidence from which a reasonable jury could conclude that Lowell was not negligent, and that the sole cause of the emergency condition was the sudden and unexpected discharge of a dense cloud of blinding smoke by a vehicle that was not driven by him.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Lowell. (Cal. Rules of Court, rule 8.278(a)(1).)

/s/

BUTZ, J.

We concur:

/s/

ROBIE, Acting P. J.

/s/

MAURO, J.