The Emergency or sudden peril doctrine.Under the emergency rule, an automobile driver, who by negligence of another, is suddenly placed in an emergency and compelled to act instantly to avoid collision or injury is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he did not make the wisest choice and one that would have been required in the exercise of ordinary care, but for the emergency. The reason for this is that a person who is confronted with a sudden emergency may be left with no time for thought and must make a speedy decision largely upon impulse or instinct, unlike one who has had an opportunity to reflect. But the emergency doctrine is applicable only where the emerging situation is sudden and unexpected, and is such as to deprive the actor of all opportunity for deliberation.

It obviously cannot serve to excuse the actor when the emergency has been created through his own negligence, since he is not permitted to shield himself behind an occurrence which resulted from his very own fault. A further qualification is that some emergencies must be anticipated, and the actor must be prepared to meet them when he engages in an activity from which they are unlikely to arise. If a person has knowledge that unusual consequesnces may result from the negligent act, he can be held liable for an injurious consequence of that kind of act.

The act of a motorist in attempting to pass a car in front of him at a moment when another vehicle is approaching constitute gross negligence and renders him liable for any damage resulting therefrom. The emergency rule canot be applied to exempt one from liability if there is a proof of negligence. An automobile driver cannot put himself in a position where, in order to save himself, he must injure someone else.

The rule that a person is not expected to exercise the same degree of care when he is compelled to act instinctively under sudden peril as when he has time for reflection cannot be invoked where the emergency rule was brought about by his own wrong or his failure to observe due care. One who negligently seeks a dangerous condition cannot escape liability for the natural and probable consequence thereof, although the act of a third person, or an act of God for which he is not responsible, intervenes to precipitate the loss.

One who chooses the most dangerous of the methods of doing an act which is equally available, is usually deemed negligent, in the absence of a showing of the existence of an emergency, sudden peril, or other circumstances justifying such choice.However one is not always chargeable with negligence eventhough he does not adopt the safest and best course to avoid injury, since the inquiry is not whether the 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.Application of Emergency Rule in Foreign Jurisprudence..According to the lawsuit, Philip Seaton, 61, went to have a circumcision last Octoberas part of treatment for a medical condition. Seaton said when he woke up from the procedure, he realized his penis had been amputated.

Seaton has suffered mental anguish, pain, and has lost the enjoyment of life, according to the lawsuit.

The lawsuit was filed in Shelby County court last week against Dr. John Patterson, who performed the procedure, Dr. Oliver James, who administered anesthesia, and Commonwealth Urology, PSC.

The lawsuit states that Patterson received consent to perform a circumcision and only a circumcision, and that Seaton did not consent to his penis being removed.

Kevin George, the plaintiff's attorney, said Patterson amputated the organ after finding cancer, but he only had consent to remove the foreskin.

"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.