February 2, 2019

Your Argument Can Create Prejudice that Does Not Otherwise Exist; Yates v. Hites

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A trial court gives an erroneous jury instruction requested by the defendant and the jury returns a defense verdict. Courts have said that there is generally no prejudice if this instruction is given. Therefore, a win for the defendant? Not so fast, says the Court of Appeals.

On January 31, 2014, Smith’s car broke down and he called his friend, Hites, to pick him up. While traveling to Smith, Hites suddenly lost control of her vehicle, swerved across the centerline, and struck Yates’s vehicle, injuring Yates.

Yates sued Hites and the matter proceeded to trial. Before trial, Hites asked for a special jury instruction regarding sudden emergency. Yates moved in limine to exclude testimony, evidence, or argument that Hites was confronted with a sudden emergency or that “black ice” caused the accident. The trial court granted the motion in limine and rejected the proposed instruction.

At trial, Hites testified about the weather conditions generally in January, but testified that conditions “for the most part were clear” when she was driving. She was driving 30 mph in a 50 mph zone, was paying attention to the road, and did not see any black ice. According to Hites, she suddenly lost control of the vehicle as the rear end slid left. As she corrected, she hit Yates’s vehicle.

A state trooper who arrived at the scene after the accident testified that there were long stretches of black ice on the road that morning.

Hites renewed her request for a jury instruction on sudden emergency, and the trial court agreed. The jury returned a defense verdict and Yates appealed, arguing that the evidence did not support giving the sudden emergency doctrine.

On appeal, the Court held that a court must determine what the sudden emergency was before giving such an instruction, and it held that there was insufficient evidence to support such an instruction in this case.

Hites’s sudden emergency defense is based entirely upon her theory that she suddenly came upon black ice that was not visible, and that driving on the black ice caused her to lose control of her vehicle. However, the record is completely devoid of evidence that Hites’s vehicle drove over black ice. Hites herself never testified that she drove over black ice. Rather, she testified that the roads were not icy that day and that she never saw any ice. And when she was asked by her lawyer whether she even experienced the sensation of hitting a patch of ice, she replied only: “I remember down – all the way up and to that point from my home until the point of the accident. And not having an issue. And then all of sudden my rear-end goes left, so.”

The only evidence regarding the existence of black ice is Trooper Leatherman’s testimony that “there were quite long stretches of U.S. 20 that were covered in ice that morning,” and the ice was “black” so that “you wouldn’t know it until … your vehicle came upon it.” However, Trooper Leatherman testified that he did not witness the accident. Moreover, he never testified that Hites did, in fact, drive over black ice, nor did he express a belief that black ice is what caused the accident. Rather, he testified that, following his investigation, he concluded that Hites had been driving at a speed too fast for the existing weather conditions that day.

The Court found that Hites’s belief that the black ice created a sudden emergency was “pure speculation.” But that did not mean that the verdict was reversible.

The Court used a prejudicial error analysis to see whether the verdict should be affirmed. And when doing so, the Court noted that “an erroneously given but properly worded sudden emergency instruction ‘has rarely been considered reversible error’ in the absence of other, additional errors.” And in this case it found that the instruction, by itself, was not prejudicial. But counsel’s arguments were another thing entirely.

Here, as in Baker and Taylor, the erroneously-given sudden emergency instruction, together with the instruction on negligence, would not have precluded the jury from considering whether Hites’s actions leading up to the alleged emergency were negligent and caused the alleged emergency; therefore, the giving of the instruction, alone, would not have been prejudicial to Yates. However, unlike in Baker and Taylor, the record here discloses that, in closing arguments, Hites’s lawyer extensively argued the application of the sudden emergency doctrine to justify Hites’s presence in Yates’s traffic lane and thereby avoid liability. Therefore, even though the jury should have found the sudden emergency instruction inapplicable due to a lack of evidence to support it and therefore disregarded that instruction, it is much more likely that the jury did improperly consider and rely upon the sudden emergency instruction in reaching its verdict, thereby causing prejudice to Yates.

Judgment reversed.

We should all take a lesson from this case—while it may be wise to incorporate the jury instructions into your closing argument, you must be judicious regarding the weight you place on any disputed instructions. Relying on these disputed instructions too heavily may create prejudice where it otherwise does not exist.


  1. A litigant is not entitled to a sudden emergency instruction if they are only speculating that they encountered a condition which caused a sudden emergency.
  2. The fact that a sudden emergency instruction was given does not by itself demonstrate prejudice.
  3. Counsel’s closing argument may create prejudice if that argument relies heavily on an erroneously given instruction.