Bikini 'Emergency' Averts Liability for Fatal Crash

, New York Law Journal

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A driver who lost control of her car when an unruly passenger suddenly unlaced her bikini top has been excused of liability in the fatal accident that immediately followed.

"Brittany [Lahm]'s general awareness that Brandon Berman, a passenger in her vehicle, had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that Brittany did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed," a 3-1 majority of the Appellate Division, Second Department, concluded in Pelletier v. Lahm, 2011-09038,

The unsigned opinion backed Rockland County Supreme Court Justice Margaret Garvey's (See Profile) decision to charge the jury with the emergency doctrine, which exempts individuals from an ordinary standard of care in the face of "sudden and unexpected circumstances." Garvey refused to set aside a jury verdict for Lahm.

Justices Reinaldo Rivera (See Profile), Plummer Lott (See Profile) and Sandra Sgroi (See Profile) joined the majority. Justice Sheri Roman (See Profile) dissented, saying that, given Berman's horseplay prior to the act precipitated the accident, the emergency doctrine did not apply and a new trial was justified.

"Although the culminating act of pulling the second bikini string perhaps caused Brittany to instinctively remove her hands from the steering wheel to cover her breasts, nonetheless, the conduct was preceded by a series of incidents perpetrated by Brandon, of which Brittany was aware, which similarly interfered with Brittany's ability to safely operate the vehicle," Roman said. "That Brandon would ultimately commit an act which would cause Brittany to lose control of the vehicle, under the circumstances of this case, cannot be deemed sudden or unexpected."

The panel heard arguments on Jan. 8.

On July 12, 2008, Lahm, Jason Pelletier, Berman and a fourth passenger, all 19, were returning from the New Jersey Shore on the New York State Thruway.

As Lahm drove at a speed of about 65 mph, Berman sat in the rear passenger seat. He spat chewing tobacco out the window, opened an umbrella in the car and then leaned halfway out the car to clean the tobacco off the car exterior with the umbrella.

Lahm yelled at him to get back in, electronically rolled up his window and told him stop acting like an "idiot." However, Roman said that she did not slow down.

Berman, laughing, then stuck his feet over the center console into Lahm's face. She again told him to stop.

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