Mesa AZ | Personal Injury attorney Brian T. Allen answers the following question:

Q: Three weeks ago, I was driving down the freeway on my to work. It was rush hour, so bumper-to-bumper traffic except for in the carpool lane, where it was much less crowded. I was in the lane adjacent to the carpool lane, stuck behind other cars and going maybe 30 miles per hour. The cars in the carpool lane were going much faster. As a car in the carpool lane was passing me, it suddenly swerved into my lane and hit me. I was hurt pretty bad, and I had to spend time in the hospital. I now want to sue the other driver who hit me to cover my medical costs. However, he says that he swerved into my lane to avoid a box that fell out of the truck in front of him, and that he shouldn’t be liable because it was an emergency situation. Is there some sort of emergency exception to liability? If so, how will it affect my case?

A: There is not an explicit exception, but an emergency situation might have a bearing on how a jury decides your case. The fate of your case will turn, in part, on whether the jury finds that the other driver was negligent. The jury will find him negligent if his actions breached the duty of care that he owed you – the duty to act reasonably in the circumstances. In determining this, the jury may be allowed to consider the effect of an emergency situation on what was and was not reasonable in the circumstances. The judge can instruct the jury on this subject as follows:

In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency. An “emergency” is defined as a sudden and unexpected encounter with a danger, which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you feel that under normal conditions some other or better course of conduct could and should have been followed.      

The existence of a sudden emergency and a person’s reaction to it are only some of the factors you should consider in determining what is reasonable conduct under the circumstances.

So, if this instruction applies to your case, the jury will consider whether the box constituted an emergency to the other driver, whether he was negligent in encountering the box, and then whether he acted reasonably to avoid harm to himself when he swerved around the box and hit you. If the jury finds that he acted reasonably when avoiding the box, the jury may find that he wasn’t negligent.

However, there are a couple of things to note. First, the instructions clearly indicate to the jury that the emergency situation is not the only factor the jury should consider. The jury may find that the other driver did not act reasonably in the circumstances, even if it finds that there was a legitimate emergency situation, for reasons not listed in the instruction. If this is the case, the jury may still find that the other driver was negligent.

Second, the judge does not have to apply this instruction to your case. The instruction can only apply in the case of a true emergency – “the rare case in which the emergency is not of the routine sort produced by the impending accident but arises from events that a person could not be expected to anticipate.” If the emergency was of the routine sort that a person should expect to encounter, the instruction should not apply.

Back in 1997, the Arizona Supreme Court explained what sorts of traffic emergencies a person should anticipate in a case called Myhaver v. Knutson. You can read it here. The Court stated that:

“…under present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles and persons in the highway, and of other vehicles at intersections, just as one who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to negligence.”

It would seem that the other driver in your case swerved to avoid the sudden appearance of an obstacle. Based on the Supreme Court’s explanation above, a judge may find that this was not a true emergency. If the judge so finds, the jury will not be allowed to consider the emergency-situation instruction when determining if the other driver acted reasonably.

Of course, this is only a brief explanation of how the law might apply in your case. To obtain more information on the ins-and-outs of this particular area of Arizona law, please give us a call.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Mesa AZ|Emergency Situations or any other personal injury, please feel free to contact Brian T. Allen at  480.461.5335,  log on to,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.