Legal Notices

"Unavoidable Accident" is Out; "Sudden Emergency" Barely Survives

In Hancock-Underwood v. Knight, 277 Va. 127 (2009), the Supreme Court of Virginia held that it is now error to grant an unavoidable accident instruction. The Court concluded that it would adopt the rationale of the 20 states and the District of Columbia which do not permit an unavoidable accident instruction under any circumstances – such an instruction "merely re-states the law of negligence, serves no useful purpose, overemphasizes the defendant's case, and is apt to confuse and mislead the jury."

Thus, counsel can no longer argue that the defendant was confronted with an "unavoidable accident." Rather, counsel will have to revise that argument to contend that the defendant was free from negligence.

In this same case, the defense of sudden emergency survived, but the Court once again strongly cautioned trial courts about giving this instruction. Under the facts of the case before it, the Court affirmed the trial court's decision to refuse the sudden emergency instruction. In making that ruling, the Court reiterated that granting a sudden emergency instruction is "rarely appropriate." The Court cited previous decisions in which the Court rejected the sudden emergency instruction – it is foreseeable and not unexpected that a car in a line of traffic will stop suddenly; standing water on a roadway during a heavy rainstorm is not an unexpected event justifying the instruction; and the defense may not be raised by one who creates or contributes to the alleged emergency by his or her own negligence.