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STATE OF MICHIGAN
COURT OF APPEALS


MARTY LIGGETT, Plaintiff-Appellant, v JEAN BUTTERFIELD, Defendant-Appellee.

UNPUBLISHED February 23, 2001

No. 221946 Cass Circuit Court LC No. 96-000078-NO

Before: Talbot, P.J., and Sawyer and Markey, JJ. PER CURIAM. In this negligence action, plaintiff appeals by of right from a judgment of no cause of action entered on a jury verdict. We reverse and remand for a new trial. I Plaintiff contends that the trial court erred by instructing the jury on the sudden emergency defense. We agree. The determination whether a jury instruction is applicable under the facts of a case and accurately states the law is within the discretion of the trial court. Bordeaux v Celotex Corp, 203 Mich App 158, 168-169; 511 NW2d 899 (1993). The court instructed the jury as to MCL 324.80145; MSA 13A.80145 as follows: [A] person operating or propelling a vessel upon the waters of this state shall operate it in a careful and prudent manner, and at such a rate of speed so as not to endanger unreasonably the life or property of any person. A person shall not operate any vessel at a rate of speed greater than will permit him or her in the exercise of reasonable care to bring the vessel to a stop within the assured clear distance ahead. A person shall not operate a vessel in a manner so as to interfere unreasonably with the lawful use by others of any waters. If you find that the defendant violated this statute before or at the time of the occurrence, you may infer that the defendant was negligent.

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The court then read SJI2d 12.02: However, if you find that the defendant used ordinary care and was still unable to avoid the violation because she was confronted by an emergency not due to her own misconduct, then her violation is excused. If you find that the defendant violated this statute, and that the violation was not excused, then you must decide whether such violation was a proximate cause of the occurrence. In order for a court to give a requested jury instruction, sufficient evidence must be presented to warrant the instruction. Wincher v Detroit, 144 Mich App 448, 456; 376 NW2d 125 (1985). This Court held in Dennis v Jakeway, 53 Mich App 68, 74; 218 NW2d 389 (1974), that a party seeking to invoke the sudden emergency doctrine must be aware that he is being confronted with a sudden emergency. In other words, the doctrine applies only in situations where a defendant is confronted with a "sudden emergency"--something "unusual or unsuspected"--and the situation is not of his own making, he actually observes the sudden emergency, comprehends that a sudden emergency is occurring and then uses ordinary care and is not able to avoid the collision . . . . [White, Michigan Torts (2d ed),

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