• David Omer

Oh Deer! The Sudden Emergency Doctrine

Sudden emergencies? This should be fun.

Some of you North Raleigh-ites may be familiar with Possum Track Road. It runs north of Six Forks through a heavily wooded area, crossing over Falls Lake once before meandering to its conclusion near some neighborhoods on the other side of Raven Ridge Road. Being where it is, between the woods and the lake, it's not at all uncommon to see big groups of deer hanging out beside or on the road. There's one curve that is particularly sinister; it actually runs through a public game land, and there are constantly deer all over the place. I use Possum Track three or four times a week to go to church or my parents' house, and I always hold my breath on that one curve. If a deer jumped out, I would almost certainly crash my car.

If you've ever had a deer jump out in front of you, you know that it's a harrowing experience. If you're lucky, you have enough time to make the objective decision to turn, brake, or just hit the fool thing in order to avoid wrapping your car around a tree. In a lot of cases, though, the driver doesn't have time to think and ultimately acts based entirely on impulse. There are also a lot of cases where the driver swerves to miss the deer and actually hits another driver. In these and similar cases, what does the landscape look like when a sudden emergency forces you to take evasive action?

Like most personal injury matters, the answer is going to be highly subjective and fact-driven. The broad-strokes answer is that North Carolina does recognize a "relaxed" negligence standard where a sudden emergency forces a driver to "act instantly to avoid a collision or injury[.]" This only applies, however, if the driver "makes such a choice as a person of ordinary prudence placed in such a position might make[.]" The subjectivity of this standard means that the question of liability all depends on (i) what the specific sudden emergency was, (ii) what your response to the emergency was, and (iii) whether that reaction was reasonable under the circumstances. Let's look at a few common fact patterns.

#1: Ice on the road. Having had my own, ahem, "difficulties" with driving on ice, I can tell you firsthand that it's really hard not to hit the panic button when your car starts sliding. You might hit the brakes, oversteer, or just pull a Carrie Underwood and let go of everything. But if this happens and you hit somebody else, you're most likely going to be held liable for their damages. In cases where the weather's cold enough for ice to exist, and especially if there's snow on the ground, it's not going to be enough that you didn't see the ice before hitting it. Under these circumstances, you're supposed to be aware of the possibility of icy roads, and cognizant of the effect it can have on your driving. The same rings true when it's been raining and there are puddles on the road that could cause your vehicle to hydroplane.

#2: Drivers pulling up short in front of you. I deal with this on 540 and I-40 on a near-daily basis. The guy or gal in front of me fails to appreciate just how slow the folks up the road are going, and that forces him or her to slam on the brakes, which in turn forces me to slam on the brakes. If you're following too closely or being inattentive, you might be inclined to swerve into the next lane in order to avoid hitting the driver in front of you. If there's someone in the lane you're swerving into, there's a good chance that you're going to hit them. If that happens, again, the sudden emergency doctrine will not apply, and you'll be liable. That's because you're expected to anticipate that sudden stops could occur in front of you, meaning that you have a duty to follow at a safe distance that allows you sufficient time to properly react to such maneuvers.

#3: Folks in the road. You're driving downtown or through a neighborhood when a pedestrian darts out in front of you. In order to avoid the pedestrian, you swerve and collide with another car. Liable? Depends! If the pedestrian is an adult and you're not in a situation where it would be reasonable to expect people to jump out in front of you, the sudden emergency doctrine should apply to preclude liability. If the pedestrian is a child, though, the standard gets a bit tougher to meet. If you know there are kids around (like in a neighborhood or school zone), the law will impose a duty on you to (i) expect kids to be near the road and (ii) recognize that kids might not have the wherewithal to appreciate the danger of running out in the road. You therefore have to tailor your conduct by slowing down, keeping a sharp lookout, and giving plenty of warning to any kids who start to cross the street in front of you.

#4: Wrong-way drivers. This one's more rare, but we do see it from time to time. Given the abject rarity of people driving on the wrong side of the road, along with the relatively short time that drivers have to respond, these situations tend to involve a major panic element. North Carolina courts have recognized this, and have held that the sudden emergency doctrine does apply in relaxing the negligence standard of a driver who collides with another while attempting to avoid a wrong-way driver.

#5: Deer! This is probably the most common "sudden emergency" fact pattern that I see. Whether the doctrine applies depends entirely on why the driver undertook an avoidance maneuver. Note that the standard for whether the sudden emergency doctrine applies requires the driver to be "suddenly and unexpectedly confronted with imminent danger to himself or others." That means that if you swerved to avoid killing the poor deer, you're still liable because you didn't act to avoid imminent danger to yourself or others. However, if you swerved because hitting the deer might have placed you or your passengers in harm's way, the sudden emergency doctrine should apply and you should be able to avoid liability.


What seems like a simple idea can definitely get tricky. You can inoculate against a lot of potential issues by remembering that you have a duty to be aware of your surroundings, including the condition of the road, the actions of other drivers, and pedestrians (particularly children) who might be near the road. Be careful out there!

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