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.

It was Berman’s birthday that day and Lahm said she assumed he was “on something.”

Berman then untied one of Lahm’s bikini strings. She took one hand off the wheel to hold the bikini top, yelling at Berman.

Lahm then leaned forward so the front-seat passenger could tie the top. At that point, Berman untied the second string. She said she took both hands off the wheel for “a split second” to grab the top.

She lost control of the vehicle. It hit the center guard rail, landing in the opposite lane, ending up on its roof. Berman died.

Pelletier filed a personal injury suit against Lahm and her father, who owned the car.

After Garvey instructed the jury on the emergency doctrine, it ruled in favor of Lahm. Pelletier asked to toss the verdict, but Garvey refused.

Pelletier appealed the judgment dismissing the complaint.

In its affirmance, the majority of the Second Department said “a fair interpretation of the evidence supported the jury’s determination” that Lahm was not negligent.

Turning to the appropriateness of using the emergency doctrine, the majority quoted case law saying trial courts had to “make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a qualifying emergency.”

Here, there was a “reasonable view of the evidence” that Lahm’s actions were sparked by “sudden and unexpected circumstance[s],” the majority said.

“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,” it added.

But Roman said there was “no reasonable view of the evidence that Brittany was confronted with a qualifying emergency.”

A “classic emergency situation” triggering the doctrine’s use has been the reaction to a vehicle crossing into oncoming traffic, she said.

But she said it has not been extended to cases where individuals “had reason to anticipate” a problem—such as cases where sun glare and worsening weather conditions were factors in accidents.

Roman also pointed to rulings saying the doctrine was applicable when the incident was “a question of seconds” but noted Lahm had an opportunity to weigh an alternative course of conduct—shown by her “corrective measures” like yelling at Berman and closing his window.

“The situation was neither sudden nor unexpected, and, in fact, could have been reasonably anticipated in light of the surrounding circumstances. 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,” said Roman.

Phyllis Ingram of Burke, Miele & Golden in Goshen represented Pelletier on appeal.

In an interview, she said a decision to appeal was being reviewed, but said an appeal was “a distinct possibility.” Ingram said application of the emergency doctrine “is not appropriate, given the facts of this case and the areas in which it had been applied previously.”

Matthew Zizzamia of Hannum Feretic Prendergast & Merlino who represented Lahm, declined to comment.