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Woman Cleared After Bikini Slip Caused Crash

BROOKLYN, N.Y. (CN) - A woman who took her hands off the wheel because one of her passengers untied her bikini top is not liable for the ensuing fatal car crash, a New York appeals court ruled.

The crash occurred on July 12, 2008, while Brittany Lahm and four passengers, all 19, drove home from the Jersey Shore.

While traveling northbound on the New York State Thruway, Brandon Berman, who was seated in a rear passenger seat, playfully pulled the strings of Lahm's bikini top.

As her top came down suddenly exposing her breasts, Lahm took her hands of the wheel for a split second to cover herself. It was enough to cost Lahm control of the car, which then careened over the guardrail and flipped onto the southbound lanes.

Berman died in the crash, and another of Lahm's passengers who was injured filed suit.

Jason Pelletier claimed that Lahm had been negligent, but a jury in the Rockland County Supreme Court found for the defendants after a trial in 2011.

A panel of the Appellate Division's Second Judicial Department agreed 3-1 on Wednesday that there is no basis to order a new trial.

"A fair interpretation of the evidence supported the jury's determination that the defendant Brittany Lahm was not negligent in the operation of her vehicle," the unsigned majority decision states.

Pelletier had argued that the trial court improperly charged the jury on the emergency doctrine, but the appellate panel found no error with the charge.

Precdent dictates that "the emergency instruction is, therefore, properly charged where the evidence supports a finding that the party requesting the charge was confronted by a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration,'" according to the ruling.

"Here, 'viewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury,' based upon Brittany's testimony, there is a reasonable view of the evidence that her conduct was the product of a 'sudden and unexpected circumstance,'" the judges continued. "Contrary to our dissenting colleague's determination, Brittany'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. It was for the jury to find whether Brittany was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person.

Writing in dissent, Judge Sheri Roman said Lahm was not confronted with a "qualifying emergency."

Evidence from the trial established that Berman had been distracting Lahm in the car well before he untied her bikini, Roman noted. In addition to spitting chewing tobacco outside the window, the teenager opened an umbrella inside the car, leaned out the window and stuck his feet in Lahm's face, the dissent states.

Roman also highlighted that Lahm had kept one hand on the wheel after Berman untied the bikini string around her neck. She took both hands off the wheel only after Berman untied the second string around Lahm's back, according to the dissent.

"Viewing Brandon's conduct in totality, the situation was neither sudden nor unexpected, and, in fact, could have been reasonably anticipated in light of the surrounding circumstances," Roman wrote. "Brittany was aware of Brandon's inappropriate, distracting, and dangerous behavior, yet chose to maintain her speed at 65 miles per hour rather than take appropriate measures to ensure the safe operation of the vehicle. The foregoing does not present a situation envisioned by the emergency doctrine."

Since Lahm had been driving for 15 to 20 minutes on the highway before the Berman untied her bikini, she "had a full opportunity to reflect on the ongoing situation," Roman added.

"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."

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