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CAUSE NO. 2015-58786
HALEY McNEIL § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 129" JUDICIAL DISTRICT
§
JAMES BELL, §
Defendant. § HARRIS COUNTY, TEXAS
Plaintiff Haley MeNeil’s Trial Brief Regarding Sudden Emergency
TO THE HONORABLE COURT:
COMES NOW, Haley McNeil, Plaintiff and files this Trial Brief Regarding Sudden
Emergency, and would show the Court as follows:
The common law doctrine of sudden emergency is comprised of four elements:
1. The condition must have arisen suddenly;
The condition must have arisen unexpectedly;
The condition must zef have been proximately caused by the negligent act or
omission of the person whose conduct is being inquired about; and
4, The conduct that would constitute negligence under ordinary circumstances
must have occurred after the emergency arose without giving the person time to
deliberate.
(Emphasis added.) Evans », Albrhite, 111 S.W.3d 282, 286 (Tex, App.— Texarkana
2003, no pet.); Oldham v. Thomas, 864 S.W.2d 121, 126 (Tex. App.—Houston [14" Dist.]
1993, aff'd in part, rev'd in part on other grounds, 895 S,W.2d 352 (Tex. 1995). Where the
alleged negligence occurred before the emergency arose, the sudden emergency defense isinapplicable, Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex. App.— El Paso 1998,
pet. denied). (Emphasis added.)
A sudden emergency instruction has been held proper in the following types of cases:
rs}
A rear-end collision on wet pavement in the rain. Loutsiana-Pacific Corp. v.
Knighten, 976 §.W2d 674, 676 (Tex. 1998); see also Clark ». Cotten, 573
S.W.2d 886, 888 (Tex. Civ. App.— Beaumont 1978, writ ref’d n.r.e.)
(instruction properly given in a case in which the car hydroplaned on wet
pavement).
Where a four-year-old child wandered into the path of a car, the defendant
driver was entitled to an instruction on sudden emergency, because the
defendant was confronted with a sudden and unexpected condition without
time for deliberation. Yarbrough ». Berner, 467 S.W.2d 188, 190-191 (Tex.
1971).
A driver of truck that caused a multi-vehicle accident unexpectedly lost
consciousness shortly before the accident. Evans, at 111 S.W.3d at 286, supra.
A driver crested a highway overpass only to find traffic at a complete
standstill, because there was evidence that there was no reason for the driver
to expect that condition. Jordan v. Sava, Inc., 222 S.W.3d 840, 847-850 (Tex.
App.— Houston [1* Dist.] 2007, no pet.).
On the other hand, in a case in which an emergency arose because the defendant failed
to keep a proper lookout and approached the plaintiff's car too closely before attempting
to brake, the defendant was not entitled to an instruction on sudden emergency because
the doctrine cannot be used by a person whose negligence helped create the situation.
Higginbotham v. Ritchie, 367 S.W.2d 210, 212 (Tex. Civ. App.— Fort Worth 1963, no
writ). “Ifa party attempting to invoke the doctrine is negligent before a ‘sudden
emergency’ arises, the doctrine is not applicable since it cannot be used by a person
whose negligence helped create the situation.” Jd.In the instant case, Plaintiff’s written pleadings and the evidence show Defendant was
negligent for, inter alia, drinking and driving, speeding, following too close, and unsafe
lane change. As a result, the negligence of Defendant Bell would have arisen priar to the
sudden emergency, not after. See Borrego, 964 S.W.2d at 959. In addition, similar to the
facts in Higginbotham, Defendant’s “negligence helped create the situation.” See
Higginbotham, 367 S.W.2d at 212. The third and fourth prongs of the test for submission
of sudden emergency thus are not satisfied. Therefore, a sudden emergency instruction
should not be given to the jury.
Even assuming for the sake of argument that sudden emergency is applicable to this
case (and it clearly is not), an inferential rebuttal defense should not be presented to the
jury in a separate jury question, but instead be submitted as an instruction. Lemos v.
Montez, 680 S.W.2d 798, 799-800 (Tex. 1984); Herrera v. Balmorhea Feeders, Inc., 539
S.W.2d 84, 86-87 (Tex. App.—El Paso 1976, writ ref’d n.r.e.); see Tex. R. Civ. P. 277.
Prayer
WHEREFORE, Plaintiff requests that this Court deny Defendant’s request to submit
an instruction on sudden emergency, and for other relief as may be just and proper.
Respectfully submitted,
OF BRIAN C. GUTIERREZ, PLLC
. GUTIERREZ
State BalNo. 24055605
206N. Main Street, Suite 110
Bryan, Texas 77803Tel. (979) 823-5555
Fax. (979) 823-5556
Attorney for Plaintiff Haley McNeil
Certificate of Service
This is to certify that a true and correct copy of the foregoing legal instrument has been
forwarded to all parties and/or their attorneys of rior as provided under Rules 21 and 21a
of the Texas Rules of Civil Procedure this thea day of January 2017.
Via E-File and Serve
Jay A. McKendree
Fanaff & Baldwin
P.O. Box 258829
Oklahoma City, OK 73125
iC, GUTIERREZ
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CAUSE NO. 2015-58786 HALEY McNEIL § IN THE DISTRICT COURT Plaintiff, § § v. § 129" JUDICIAL DISTRICT § JAMES BELL, § Defendant. § HARRIS COUNTY, TEXAS Plaintiff Haley MeNeil’s Trial Brief Regarding Sudden Emergency TO THE HONORABLE COURT: COMES NOW, Haley McNeil, Plaintiff and files this Trial Brief Regarding Sudden Emergency, and would show the Court as follows: The common law doctrine of sudden emergency is comprised of four elements: 1. The condition must have arisen suddenly; The condition must have arisen unexpectedly; The condition must zef have been proximately caused by the negligent act or omission of the person whose conduct is being inquired about; and 4, The conduct that would constitute negligence under ordinary circumstances must have occurred after the emergency arose without giving the person time to deliberate. (Emphasis added.) Evans », Albrhite, 111 S.W.3d 282, 286 (Tex, App.— Texarkana 2003, no pet.); Oldham v. Thomas, 864 S.W.2d 121, 126 (Tex. App.—Houston [14" Dist.] 1993, aff'd in part, rev'd in part on other grounds, 895 S,W.2d 352 (Tex. 1995). Where the alleged negligence occurred before the emergency arose, the sudden emergency defense isinapplicable, Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex. App.— El Paso 1998, pet. denied). (Emphasis added.) A sudden emergency instruction has been held proper in the following types of cases: rs} A rear-end collision on wet pavement in the rain. Loutsiana-Pacific Corp. v. Knighten, 976 §.W2d 674, 676 (Tex. 1998); see also Clark ». Cotten, 573 S.W.2d 886, 888 (Tex. Civ. App.— Beaumont 1978, writ ref’d n.r.e.) (instruction properly given in a case in which the car hydroplaned on wet pavement). Where a four-year-old child wandered into the path of a car, the defendant driver was entitled to an instruction on sudden emergency, because the defendant was confronted with a sudden and unexpected condition without time for deliberation. Yarbrough ». Berner, 467 S.W.2d 188, 190-191 (Tex. 1971). A driver of truck that caused a multi-vehicle accident unexpectedly lost consciousness shortly before the accident. Evans, at 111 S.W.3d at 286, supra. A driver crested a highway overpass only to find traffic at a complete standstill, because there was evidence that there was no reason for the driver to expect that condition. Jordan v. Sava, Inc., 222 S.W.3d 840, 847-850 (Tex. App.— Houston [1* Dist.] 2007, no pet.). On the other hand, in a case in which an emergency arose because the defendant failed to keep a proper lookout and approached the plaintiff's car too closely before attempting to brake, the defendant was not entitled to an instruction on sudden emergency because the doctrine cannot be used by a person whose negligence helped create the situation. Higginbotham v. Ritchie, 367 S.W.2d 210, 212 (Tex. Civ. App.— Fort Worth 1963, no writ). “Ifa party attempting to invoke the doctrine is negligent before a ‘sudden emergency’ arises, the doctrine is not applicable since it cannot be used by a person whose negligence helped create the situation.” Jd.In the instant case, Plaintiff’s written pleadings and the evidence show Defendant was negligent for, inter alia, drinking and driving, speeding, following too close, and unsafe lane change. As a result, the negligence of Defendant Bell would have arisen priar to the sudden emergency, not after. See Borrego, 964 S.W.2d at 959. In addition, similar to the facts in Higginbotham, Defendant’s “negligence helped create the situation.” See Higginbotham, 367 S.W.2d at 212. The third and fourth prongs of the test for submission of sudden emergency thus are not satisfied. Therefore, a sudden emergency instruction should not be given to the jury. Even assuming for the sake of argument that sudden emergency is applicable to this case (and it clearly is not), an inferential rebuttal defense should not be presented to the jury in a separate jury question, but instead be submitted as an instruction. Lemos v. Montez, 680 S.W.2d 798, 799-800 (Tex. 1984); Herrera v. Balmorhea Feeders, Inc., 539 S.W.2d 84, 86-87 (Tex. App.—El Paso 1976, writ ref’d n.r.e.); see Tex. R. Civ. P. 277. Prayer WHEREFORE, Plaintiff requests that this Court deny Defendant’s request to submit an instruction on sudden emergency, and for other relief as may be just and proper. Respectfully submitted, OF BRIAN C. GUTIERREZ, PLLC . GUTIERREZ State BalNo. 24055605 206N. Main Street, Suite 110 Bryan, Texas 77803Tel. (979) 823-5555 Fax. (979) 823-5556 Attorney for Plaintiff Haley McNeil Certificate of Service This is to certify that a true and correct copy of the foregoing legal instrument has been forwarded to all parties and/or their attorneys of rior as provided under Rules 21 and 21a of the Texas Rules of Civil Procedure this thea day of January 2017. Via E-File and Serve Jay A. McKendree Fanaff & Baldwin P.O. Box 258829 Oklahoma City, OK 73125 iC, GUTIERREZ