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Olar v. Bennett, 2023 Pa. Super. LEXIS 640 (December 29, 2023) (Lazarus, J.).

George Olar (Olar) and Carol Lutz (Lutz) (collectively Plaintiffs) filed this appeal from the judgment, entered in favor of Defendant Ronald Bennett (Bennett), after the trial court denied Plaintiffs’ motion for a new trial. Upon review, we conclude the evidence presented in this automobile accident case failed to establish a foundation for a sudden emergency instruction, and that Plaintiffs were entitled to their requested instructions on a driver’s duty of care. Finding prejudicial error, we reverse and remand for a new trial.

On May 6, 2016, at approximately 11:30 p.m., Plaintiffs left a birthday party at the Fraternal Order of Owl’s Nest 9051 (Owl’s Nest), located on Little Deer Creek Valley Road in West Deer Township. They walked across Little Deer Creek Valley Road to return to their vehicle, which was parked in the lot across the road from the Owl’s Nest. Little Deer Creek Valley Road is a two-lane roadway that runs north and south with a posted speed limit of 25 miles per hour (mph). The area is lit with streetlights lining the northbound lane, and ambient light from shops and business along the southbound lane, including the light from the Owl’s Nest sign. Bennett, driving northbound on Little Deer Creek Valley Road, struck the Plaintiffs with his minivan as they were crossing the road. Plaintiffs suffered serious injuries.

Over Plaintiffs’ objection, the court granted Bennett’s request for a charge on the sudden emergency doctrine and denied Plaintiffs’ requested points for charge.

Following trial, the jury found Bennett was not negligent and returned a verdict in his favor.

The trial court denied Plaintiffs’ three requested points for charge, all of which essentially state a driver’s duty to be attentive to what is occurring in front of his vehicle. The court reasoned that, given Bennett’s testimony that he did not see Plaintiffs until he was upon them, these jury charges “would be more applicable during the day light.” Trial Court Opinion, 12/28/22, at 4 (unpaginated). We disagree with this reasoning. A driver’s duty of vigilance and attentiveness is required just as much, if not more, at night than in daylight. “[I]t is not the function of the trial court in charging a jury to advocate, but rather to explain the principles of law [that] are fairly raised under the facts of a particular case so as to enable the jury to comprehend the questions it must decide.” Lockhart v. List, 542 Pa. 141, 665 A.2d 1176, 1179 (Pa. 1995).

With respect to the charge on sudden emergency, the court reasoned that since Bennett’s testimony “was the only evidence [of] what had occurred[,] the [c]ourt thought it more appropriate to instruct the [j]ury with respect to the sudden emergency doctrine as requested by [Bennett].” Trial Court Opinion, supra at 4. We disagree with this analysis as well.

Pennsylvania tort law recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm. When the evidence suggests that such “sudden emergencies” may have played a role in a case, the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately. But since the advent of the automobile, Pennsylvania law also has imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.

Graham v. Check, 664 Pa. 105, 243 A.3d 153, 157 (Pa. 2020).

Night driving is not an emergency. A driver has an obligation to adjust his speed based upon road and weather conditions, including visual obstructions, to ensure his ability to react to foreseeable events. See Lockhart, supra; see also 75 Pa.C.S.A. § 3361 (“No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead”); id. (“[E]very person shall drive at a safe and appropriate speed . . . when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.”). Night driving is a form of visual obstruction, and here, particularly where Bennett testified that he was familiar with the area, including the crossing area for the Owl’s Nest parking lot, the court should not have instructed on sudden emergency. See Cannon v. Tabor, 434 Pa. Super. 232, 642 A.2d 1108, 1112 (Pa. Super. 1993) (at night, assured clear distance is scope of driver’s headlights).

Clearly, driving at night requires more concentration and awareness than driving in daylight, even absent adverse weather conditions. In the instant case, Bennett was familiar with the area; he was aware of the location of the Owl’s Nest and the Owl’s Nest parking lot. Patrons of the Owl’s Nest would foreseeably cross the street to the parking lot. Moreover, this is not a “dart-out” case. There is no indication in the record that Plaintiffs, both in their seventies, were running across the road or that they appeared two feet in front of Bennett’s vehicle out of nowhere. In fact, the only eyewitness testified that he saw Olar moving slowly as he crossed the roadway. Here, like in Graham, the only evidence of “suddenness” arose “from [Bennett’s] failure to observe [Plaintiffs] until [they were] nearly upon him.” Graham, supra at 169-70.

Based on our review of the record in this case, the evidence presented does not support a determination that Bennett was “confronted with a sudden and unforeseeable occurrence[.]” See Graham, supra; see also Lockhart, supra at 1180 (purpose behind sudden emergency doctrine is that driver confronted with sudden and unforeseeable occurrence, because of shortness of time in which to react, should not be held to same standard of care as someone confronted with foreseeable occurrence); Schofield v. Druschel, 359 Pa. 630, 59 A.2d 919, 922 (Pa. 1948) (having one’s car under control means that in any situation reasonably likely to arise, driver will be able to stop his car before doing injury to person or property). As Bennett testified, he does not know why he did not see Plaintiffs in the roadway until impact. Under these circumstances, a driver’s inexplicable failure to see pedestrians crossing the road is not a sudden emergency. Like in Graham, it might not be negligence under the circumstances that Bennett did not see Plaintiffs sooner, “but that does not make the situation a sudden emergency, only an unfortunate one.” Graham, supra at 170.

We conclude, therefore, that the trial court committed reversible error in failing to instruct the jury on a driver’s duty of care and in charging the jury on sudden emergency.