plaintiff actually chose the least safe of the available courses, but whether he failed
to exercise that degree of care required of a reasonably prudent person under that
circumstances. Similarly, one is not necessarily negligent of contributory negligence
in taking the safe way available, when in the exercise of ordinary care he could take
either way, provided he exercise reasonable care to avoid an obvious hazard which
he knows, or should discover in the way chosen. A person is by no means held to
judge and act in the same way under all circumstances. The opportunity which he
had to think and act must be considered in determining whether he exercised due
care in making a choice between methods and course of conduct. The law does not
require a choice unerring in the light of after-event; it requires such a choice as,
under all the known or obvious circumstances, a reasonably prudent man might
make. As hereinafter discussed, the fact that one is acting in the stress of an
emergency or sudden peril not due to his own act or omission justifies conduct that
would otherwise be regarded as negligent.
In determining whether the conduct is contributory negligence, the fact that he is
confronted with a sudden emergency which requires immediate decision is a factor
that must be considered. The emergency or sudden peril doctrine may also invoked
where a plaintiff is charged with contributory negligence in that having had more
than one available course of action he negligently chose the more dangerous one.
The law recognizes the fact that a prudent man, when confronted with an expected
danger may fail to use the best judgment, may omit some precaution he might have
taken, and may not choose the best available method to meet the dangers of the
situation. Likewise, the law does not expect one to exercise the same degree of
judgment in an emergency wherein his personal safety is threatened, as in a
situation where he is not subject to the fear of sudden disaster. One who is forced to
act under the stress of nervous excitement produced by a peril confronting him
cannot be expected to act with coolness and precision or with the prudence which
under other circumstances would be considered as essential of due care.
However the doctrine has limitations, and one confronted by an emergency or
sudden peril is not excused from any and all errors of judgment or omission; and his
conduct is still to be judge by the standard of the ordinarily prudent man.
The presence of sudden peril will not excuse all errors of judgment and all
omissions; the person injured must have exercise such diligence as the
circumstances permit, the standard care required being that of a person of ordinary
prudence confronted with the same situation. In other words, the same standard of
conduct, namely the conduct of the ordinary prudent man, applied in determining
contributory negligence generally applies in determining whether the plaintiff was
negligent when he was confronted with an emergency.
For the doctrine to apply, there must be either a real danger, or the circumstances
must be such as might create apprehension of danger in the mind of an ordinarily
prudent person. The apprehension of peril must be reasonable. Also for the situation
or danger to be considered an emergency it must not be one which should have
been anticipated or should have been met by preparation. Further, the appearance
of danger must have been so imminent as to leave no time for deliberation, or the
exercise of judgment or discretion. While the emergency rule exculpates one of
contributory negligence, it does not apply where he acts without knowing whether
he is confronted with an emergency or not.
Before a plaintiff can invoke the emergency or sudden peril doctrine to avoid an
imputation of contributory negligence, it must appear that the emergency or peril
was solely caused by the negligence of the defendant. If the plaintiffs negligence
led him into an emergency peril he cannot benefit from the rule. The doctrine does
not excuse plaintiffs contributory negligence if the emergency was caused or
contributed to by plaintiffs negligence, or was occasioned by the concurrent
negligence of the plaintiff and the defendant. If the plaintiff is responsible for the
peril, he is not entitled to urge it as ground for recovery.
Emergency Rule one who suddenly finds himself in a place danger, and is
required to act without time to consider the best means that may be adopted to
avoid the impending danger, is not guilty of negligence, if he fails not to adopt what
subsequently and upon reflection may appear to be the better method, unless the
emergency in which he finds himself is brought about by his own negligence.
"Sometimes you have an emergency and you have to do this, but he could very
easily closed him up and said, 'Here are your options. You have cancer,' and the
family would have said, 'We want a second opinion. This is a big deal,'" George said.
The lawsuit also claims the plaintiff did not consent to general anesthesia.
WLKY attempted to contact the doctors, but have not been able to reach them.
The Seatons are seeking punitive damages against both doctors and the medical
practice. Attorneys for the defendants will now have a chance to respond to the suit.