JOSEPH GERTLER, APPELLANT,
v.
ALFRED E. PETERSON, APPELLEE
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Joseph Gertler appealed a summary judgment in a personal injury case arising from an automobile accident. The trial court ruled Gertler was contributorily negligent as a matter of law for failing to avoid colliding with a car that suddenly changed lanes in front of him. The appellate court reversed, holding that the existence of a sudden emergency is a factual question for the jury, not a matter of law.
A summary judgment based on contributory negligence cannot be sustained where the existence of a sudden, non-foreseeable emergency is disputed. The question of whether such an emergency situation existed is a factual question for the jury to decide. Similarly, whether the defendant's emergency reaction caused negligence is also a question of fact, not law.
“It is not an absolute rule of liability. It is subject to proof that it does not apply in a particular situation. A sudden emergency which is not ordinarily foreseeable may be such a situation and the existence or nonexistence of the emergency situation is a question of fact for the jury.”
Establishes that the general rule requiring a following driver to avoid collisions is not absolute and that a sudden, non-foreseeable emergency is a factual question for the jury.
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Join FLexlaw to unlock all legal intelligenceOn January 14, 1958, near the intersection of N.E. 12th Avenue and 163rd Street in Miami, an accident occurred. Defendant Peterson was traveling west …
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Joseph Gertler, plaintiff in a personal injury action, appeals from a summary final judgment based upon a complaint, answer and his deposition. The complaint *779alleged that on or about January 14, 1958, at or near N.E. 12th Avenue and 163rd Street in Miami, Dade County, Florida, the defendant, Peterson, so negligently, carelessly and recklessly drove, operated or maintained a vehicle owned by him so as to cause the automobile accident out of which this action arose. The answer in general terms admitted the ownership and operation of the vehicle and denied negligence; it further alleged the affirmative defense that the plaintiff had been guilty of negligence which proximately contributed to his own injuries. We must look, therefore, to the deposition of the plaintiff for all of the facts upon which the summary judgment was based. This deposition reveals that the accident occurred near the intersection of N.E. 12th Avenue and 163rd Street. One Hundred Sixty Third Street is comprised of two westbound and two eastbound lanes with traffic islands separating them; both Gertler and Peterson were headed west. Peterson was traveling in the center lane 15' to 20' ahead of Gertler who was in the outside lane. Gertler testified upon deposition that as he approached the intersection a car approaching in the opposite direction, headed east, turned left and cut in front of Peterson in his lane. Peterson, although having plenty of time to stop in his lane, swerved and came into the lane upon which Gertler was proceeding, without giving Gertler a sufficient distance within which to stop. The collision took place 6(7 or 70' from the intersection. Upon the foregoing facts the lower court ruled that the plaintiff, Gertler, was guilty of contributory negligence as a matter of law, by failing to avoid striking a car in front of him and failing to keep his car under control.
The controlling question is whether or not Gertler’s action when confronted with the emergency caused by Peterson changing lanes constituted contributory negligence as a matter of law. It has been pointed out that where one so operates his own car that he is not able to stop before running into another vehicle in his lane of traffic, the operator of the following car will be presumed to be guilty o£ negligence. Bellere v. Madsen, Fla.1959, 114 So.2d 619; Kimenker v. Greater Miami Car Rental, Inc., Fla.App.1959, 115 So.2d 191; McNulty v. Cusack, Fla.App.1958, 104 So.2d 785. This rule is a necessary corollary to the duty of a following driver to have his vehicle under such control that he can avoid a collision from any ordinary avoidable situation. However, it is not an absolute rule of liability. It is subject to proof that it does not apply in a particular situation. A sudden emergency which is not ordinarily foreseeable may be such a situation and the existence or nonexistence of the emergency situation is a question of fact for the jury. Therefore the summary judgment may not be supported by the proposition that the plaintiff, Gertler, was guilty of contributory negligence as a matter of law.
There is of course the possible defense that the defendant, Peterson, was not guilty of negligence because his reaction to an emergency situation necessitated his sudden changing of lanes. The deposition of the plaintiff, which is uncon-tradicted, reveals that the plaintiff did not see an emergency situation which would require the defendant to suddenly change lanes. A sudden changing of lanes is negligence when it puts another in a position of peril. Cf. Clark v. Summer, Fla.1954, 72 So.2d 375. This proposition is subject to the qualification that the action of the person changing lanes may be in response to a sudden emergency caused by the negligence of a third person.
The deposition of the plaintiff does not demonstrate as a matter of law the absence of negligence on the part of the defendant or the existence of negligence or contributory negligence on the part of plaintiff. The summary judgment must therefore be reversed.
Reversed.
HORTON, C. J., and CARROLL, CHAS., J., concur.
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Cent. Truck Lines, Inc. v. Rogers, 140 So. 2d 130 (Fla. 1st DCA 1962)…red to meet the exigencies of an emergency within reason and consistent with reasonable care and caution. Nelson v. Ziegler, Fla. 1956, 89 So. 2d 780; King v. Griner, Fla.1952, 60 So. 2d 177.” To the same effect see: Gertler v. Peterson (Fla.App.), 116 So. 2d 778; Southern Farm Bureau Casualty Insurance Company v. Caldwell (La.App.), Ill So. 2d 842; Faircloth v. Hill (Fla.), 85 So. 2d 870; Mississippi Power and Light Company v. Bradley, 220 Miss. 304, 70 So. 2d 611; Macasphalt Corporation v. Murphy (Fla.), 6…
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Nancy Holmes and her husband v. Surfus, 194 So. 2d 283 (Fla. 2d DCA 1967)…Haislet v. Crowley, 170 So. 2d 88 (D.C.A.Fla.1964). A sudden changing of lanes is negligence when it puts another in a position of peril unless it is in response to a sudden emergency caused by the negligence of a third person. Gertler v. Peterson, 116 So. 2d 778 (D.C.A.Fla.1960). The instruction quoted above was-erroneously given for two reasons. First, while the driver of a following vehicle has-a general duty to be aware of the traffic-ahead, we are unable to find any authority-for the proposition that h…
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Jackson v. Harrell, 171 So. 2d 633 (Fla. 1st DCA 1965)…, was promulgated as an aid to evidence in an action between the immediate parties to such a collison and is not in any sense a rule of liability. Indeed, it has no application whatever to the issues in this cause. As said in Gertler v. Peterson, 116 So. 2d 778, 779 (Fla.App.1960): "It is subject to proof that it [the presumption] does not apply in a particular situation. A sudden emergency which is not ordinarily foreseeable may be such a situation and the existence or nonexistence of the emergency situat…1 / 2
Authorities Cited
- McNULTY v. Cusack, 104 So. 2d 785 (Fla. 2d DCA 1958)
- Bellere v. Einar Madsen, 114 So. 2d 619 (Fla. 1959)
- Clark v. Sumner, 72 So. 2d 375 (Fla. 1954)
- Kimenker v. Greater Miami CAR Rental, Inc., 115 So. 2d 191 (Fla. 3d DCA 1959)