It recently made the news that Vanessa Bryant, the widow of Kobe Bryant, has filed a lawsuit against the company that operated the helicopter that Kobe Bryant, his daughter, and seven others were killed in on January 26, 2020.

The Crash

Kobe Bryant had been known to take helicopters as opposed to driving due to Los Angeles traffic. On this particular day, Kobe was taking the helicopter to his daughter’s game with a few of her teammates, their parents, and coaches. The crash is still under investigation but reports suggest it happened as a result of pilot error while flying in heavy fog. In the midst of it all, most were wondering why the pilot, Ara Zobayan, chose to fly in those conditions.

According to CNN the fog was so dense that the LAPD had decided to ground its helicopters. So, why was Ara Zobayan flying? According to reports, the pilot received Special Visual Flight Rules (SVFR) clearance. SVFR clearance allows a pilot to fly in weather conditions worse than those allowed for regular visual flight rules. The investigation is continuing in efforts to find what mistakes were made that led to nine people losing their lives.

Why Bring a Lawsuit?

There is a conventional wisdom that people make claims or file lawsuits because they’re greedy for money. In our experience, nothing could be further from the truth. Aside from medical bills & lost time at work, people with serious injuries often face a lifetime’s worth of medical challenges. A settlement compensating someone for injuries caused by another’s negligence is their one opportunity to try and help them work through the physical and financial challenges that come with being seriously hurt.

But then you have people like the Bryants. Considering Kobe’s career in the NBA, his family is almost certainly not in need of money in the way that others who have not been so successful are. It’s hard to fathom that she sees this case as a get-rich-quick scheme because, frankly, she’s already there. If I had to guess, she is most likely making this claim to make a difference.

Unsafe Toys

There is a long history of tort cases causing individual businesses, and even whole industries, to make changes to promote consumer safety. For example, in 2005 a 2-year-old boy in Virginia died after eating small magnets that had fallen out of a broken Magnetix toy. His parents thought he had a stomach bug, when he actually had a string of magnets and blocking his intestine, leading to his death. They resorted to the civil justice system after nothing was being done by the manufacturer and after more kids got hurt in similar incidents. The result? Changes being made by the manufacturer and the Consumer Product Safety Commission to implement new safety standard tests before toys with magnets can be put on the shelves.

Defective Tires

Similarly, in the late 90s and early 00s, there was a rash of defective Firestone tires on Ford Explorers that failed while driving, killing hundreds and seriously injuring who knows how many more. There was a recall, but it was civil litigation that revealed that Ford knew about the tire issue that could lead to rollover accidents but that Ford tried to hide that evidence. If not for the civil action, it’s possible that nothing would ever have been done to hold Ford to its responsibility for selling a safe product and, importantly, to get an unsafe product off of shelves when it found out about a major safety issue.

The history of tort law is full of examples like these where individuals made a claim or filed a lawsuit and fought against giant corporations to make changes to safety. There is a chance that Mrs. Bryant may not win this case, but even with a loss it could inspire a change in policy. Helicopter pilots may think twice before asking to fly in dangerous weather conditions and SVFR clearance may tend to err on the side of caution as opposed to letting experienced pilots test their limits.

A major principle of tort law is to try and put people back in the position they were before their injury. This is generally a fiction though. There’s no time machine available to go back and tell a pilot not to fly in conditions or to take a drunk driver’s keys. Sometimes, the best Plaintiff’s can hope for is that a claim or a lawsuit causes enough financial trouble for a defendant (or raises the possibility of financial trouble for an industry) that better safety practices are put into place to protect others from suffering the same kinds of harm that the plaintiff has.

Be safe out there.

From ABC News earlier this week:

An appeals court has cleared a driver in a fatal crash after agreeing she faced an “unforeseen emergency” when a back-seat passenger untied her bikini top.

Brittany Lahm of Manhattan briefly took her hands off the wheel when her bikini top came off while she was driving on the New York Thruway in July 2008, the Daily News reported (http://nydn.us/1b01Hz9 ).

Lahm and a group of friends were returning to Rockland County after a day at the New Jersey shore when Brandon Berman allegedly pulled the bikini strings. He was killed when the vehicle hit a guardrail and flipped.

In a 3-1 decision, the Brooklyn Appellate Division last week upheld a Rockland jury verdict, which found Lahm’s bikini top problem constituted “a sudden and unforeseen emergency not of her own making.”

The verdict came after a 2011 civil trial brought by Jason Pelletier, one of four passengers in Lahm’s car.

Pelletier, who was injured in the crash, sued Lahm for damages. He testified that she leaned forward for about 20 seconds as she attempted to retie her bathing suit top. His lawyers argued that she should have pulled over before trying to adjust her top.

Lahm testified that she took her hands off the wheel for only a second.

Of all the muddied waters in Indiana tort law that we navigate as trial lawyers, one of the muddiest has to be what is discussed in the ABC News article as the “sudden emergency doctrine.”  The common law tort of negligence requires that one must act as a reasonably prudent person, and a failure to do so renders that person liable for all foreseeable damages to another caused by that failure.   However, because incidents sometimes occur based at least in part on conditions outside of our control, the law has long recognized that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal circumstances.  Willis v. Westerfield, 839 N.E.2d 1179, 1184-85 (Ind. 2006) (citing W.P. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196 (5th ed.1984).   The basis of the sudden emergency doctrine is that “the actor is left no time for adequate thought, or is reasonably so disturbed or excited that the actor 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 accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision, one which no reasonable person could possibly have made after due deliberation.” Id.

Okay, fair enough.  So, the sudden emergency doctrine is not really intended to lessen the standard of care and judgment that a person must exercise in the course of their actions, but a emergency is simply one of the circumstances that a judge or jury can consider in forming a judgment about the person’s fault.

However, despite the fact that Indiana courts have made very clear that the sudden emergency doctrine applies only in narrow circumstances, you would not believe how often defendants attempt to raise “sudden emergency” as an excuse for their negligent conduct.   In our work as trial attorneys, we often see the party or parties defending a case try to invoke the sudden emergency doctrine when the road conditions are less than pristine on account of weather (e.g. rain or snow).  Or, in a recent federal court case, the defendant (the driver of a semi tractor trailer) rear-ended a second semi rig in front of his, forcing the latter semi into our client’s vehicle and causing serious injury to our client.  Although the defendant in that case was cited by the investigating officer for following too closely, he tried to raise “sudden emergency” to diminish his responsibility for causing the multi-vehicle, multi-impact collision.  (Thankfully, the trial court refused to consider a “sudden emergency” jury instruction.)

Admittedly, the sudden emergency doctrine still has its place in tort law and trial practice, but it should be a limited one.  For one, in a case involving a motor vehicle collision, defendants should not be automatically granted the right to argue “sudden emergency” to a jury just because the roadways were slick on account of rain, sleet, snow, or even ice.  Why?  Because the danger in this instance is not “so imminent” that the defendant would not have known about the possibility, leaving no time for deliberation.  Second, a defendant should not be permitted to claim sudden emergency for rear-ending a slowing vehicle because he could not bring his vehicle to a stop prior to impact.  Finally, in the medical setting, a medical provider should not be afforded the luxury of sudden emergency doctrine if he or she damages a patient’s tissue or organ from overcauterizing during surgery.