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The Pennsylvania Supreme Court has agreed to hear arguments on the "sudden emergency doctrine" and its applicability in the case of a pedestrian struck by a car at night.

The justices granted allocatur in Graham v. Check on Sept. 30 and are set to tackle a single question: "When the Superior Court affirmed the trial court's jury instruction concerning the sudden emergency doctrine, did the court erroneously relieve the defendant motorist of his legal duty to a visible pedestrian in a crosswalk?"

Previously, the Superior Court upheld a judgment against Larry Check, who struck pedestrian Francis Graham with his vehicle at a Pittsburgh intersection.

According to Superior Court Judge Eugene Strassburger's March 19 opinion, the light was red when Graham walked into the intersection. It was dark with little ambient light and Graham wore dark clothing.

"Meanwhile, Check was driving a vehicle traveling on Route 30 eastbound. The headlights of Check's vehicle were on, Check was not on his cell phone or otherwise being unattentive, and he was traveling below the speed limit," Strassburger said. "Check testified he was approaching the intersection when the light turned to green, but he could not see Graham because it was dark and another vehicle driven by Joseph Millach obstructed his view."

Check braked but could not avoid hitting Graham. The pedestrian subsequently sued, but the jury found that Check was not negligent.

Graham argued on appeal that the trial court erroneously instructed the jury on the sudden emergency doctrine, which "is available as a defense to a party who suddenly and unexpectedly finds him or herself confronted with a perilous situation which permits little or no opportunity to apprehend the situation and act accordingly," according to Strassburger.

Check argued that he was unable to act in time to avoid the accident and that he otherwise responded reasonably, so he was shielded by the doctrine. Graham countered that the doctrine didn't apply because he was in a crosswalk and Check was familiar with the roads. He argued that Check should have anticipated someone crossing the street.

Strassburger said Check drove those roads for 30 years to and from work and rarely saw anyone crossing the street. Both Check and Millach testified that it was dark and visibility was poor.

"As soon as he saw Graham, who by then was approaching his lane, Check slammed on his brakes," Strassburger said. "Graham was clearly not stationary in the cross walk. Although Graham argues Check was inattentive, Check's unrebutted testimony established that the headlights of his vehicle were on, and he was not on his cell phone or otherwise preoccupied. Even Graham's own testimony indicated that Check was traveling well below the speed limit."

He continued, "Thus, there were sufficient facts in the record to support the trial court's decision to instruct the jury regarding the sudden emergency doctrine, leaving it to the jury to decide whether or not Graham's presence in the crosswalk presented a sudden emergency to Check."

Elizabeth Jenkins of John A. Caputo & Associates represents Graham and did not return a call seeking comment. Robert Loch of Robb Leonard Mulvihill represents Check and also did not return a call seeking comment.