In a 3-1 decision, the Appellate Division, Second Department recently upheld a trial court’s decision declining to set aside a defense verdict in favor of a driver who caused a fatal accident after a passenger in her vehicle undid the driver’s bikini top thereby exposing her breasts.

In Pelletier v. Lahm, Brittany Lahm was driving her vehicle on the New York Thruway when her passenger, Brandon Berman, suddenly pulled the strings on Lahm’s bikini top, thereby causing it to fall.  Lahm reacted by taking her hands off the steering wheel for a split second to cover herself.  While her hands were off the steering wheel, the car suddenly veered to the right.  When she tried to correct this, she lost control and the car struck the center guardrail, flipped over and came to rest upside down in the southbound lanes, killing the plaintiff who was also a passenger in Lahm’s car.

After testimony, the court charged the jury on the “emergency doctrine.”  Under New York law, the “emergency doctrine” recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context.

Unexpectedly, the jury came back with a defense verdict in favor of Lahm, finding that her reaction to her bikini top suddenly being undone was reasonable.  The plaintiffs moved to set aside the jury’s verdict and the trial court denied the motion.  In upholding the decision, the Appellate Division found that the trial court properly charged the jury with the emergency doctrine because there was a reasonable view of the evidence supporting the occurrence of a qualifying emergency that was not of Lahm’s doing, which left it in the hands of the jury to determine whether there was an emergency and if so, whether Lahm’s actions were reasonable and prudent.

This case demonstrates the wide latitude with which the emergency doctrine can be used as a defense to negligence.

Special thanks to Michael Nunley for his contributions to this post.  For more information, please contact Nicole Y. Brown at .