The Bikini Defense

It is a strange day when a court rules that an untied bikini is an emergency sufficient to excuse all liability for an automobile accident which resulted in a death. That is exactly what a New York Court of Appeals ruled 3-1 this week.

In July of 2008, Brittany Lahm, then 19, was driving back to New York from a trip to New Jersey shores. Her passengers were three 19-year-old boys, including Brandon Berman and Jason Pelletier. The car was going 65 miles per hour. Berman was goofing around, opening an umbrella inside the car and sticking his feet in Lahm’s face. At some point, Berman untied Lahm’s bathing suit as she drove. That turned out to be a fatal mistake.

The teenagers would later argue about whether it took Lahm twenty seconds or one second to cover her breasts. Regardless, Lahm took her hands off the steering wheel for a moment. A moment was enough. The car veered off course, hit a guardrail, flipped multiple times in the air, crossed over into southbound lanes, and crashed upside down on its roof in the middle of traffic. Everyone inside sustained multiple injuries. Berman, who had untied Lahm’s bikini, was the only fatality.

Jason Pelletier, whose injuries delayed his football career at Yale, sued Lahm for the accident. Pelletier’s argument was that Lahm should have pulled over to cover herself after Berman untied her bikini rather than take her hands off the wheel as she drove the vehicle. However, the jury found Lahm not liable. The Court of Appeals affirmed the jury in a 3-1 decision, under New York’s emergency doctrine.

Applying the Emergency Doctrine
Some people may agree that Lahm is faultless because the accident was entirely Berman’s doing. Although that might be true, blaming Berman was, at best, unhelpful in Lahm’s case. First, Berman’s estate didn’t bring the lawsuit, the still living Pelletier did. Although Pelletier could have stopped Berman, it is questionable whether Pelletier had the legal responsibility to stop him. Second, New York is a pure comparative negligence state. This means that if the jury finds any liability for the defendant, even one percent, the defendant has to pay that one percent. The emergency doctrine, in contrast, is a complete defense: Lahm does not have to pay Pelletier a penny if the jury found in Lahm’s favor, which the jury did.

With that question out of the way, let’s talk about the emergency doctrine. The idea is that if the defendant is faced with a sudden and unexpected situation, a situation not created by the defendant herself, the defendant is not liable for any accidents. It doesn’t matter if Lahm could have pulled over after her bikini came off: any and all alternatives have the benefit of hindsight and thus don’t matter.

So what’s the problem with using the emergency doctrine when a young woman’s bikini falls off as she’s driving? The lone dissent on the appeals court believed that the bikini incident was entirely foreseeable, like a road condition such as an icy road, and thus not an emergency. Berman, who also put his feet in Lahm’s face while she was driving, had been acting like an idiot the entire trip. According to the dissent, Lahm could have predicted that Berman would have done something similarly stupid like untie her top.

Was the Court’s Decision Correct?
I don’t think society should expect a 19-year-old girl to predict that a boy her age would try to take her bikini off while she is driving. At the same time, calling an untied bikini an “emergency” seems extremely odd in comparison to other cases where the emergency doctrine was used.

Typically, the emergency doctrine is applied to cases where a child runs out into the street from between two vehicles or where a motorcyclist is suddenly thrown off his bike and into the path of an oncoming car. It’s even an emergency if a drunken man wanders onto a railroad and a train is forced to make a sudden brake. Compared to cases involving life or death, an untied bikini seems insignificant.

The Court of Appeals, and the jury, believed that the situation was more than a case of exposed cleavage. Lahm had her breasts exposed while in an enclosed environment with three young males. This portrayal of Berman’s death works extremely well given that “emergency” doesn’t include “imminent threat to life,” but compared to other cases involving emergencies, it should.

Although it is possible to view the tragedy as sexual assault, I think it’s long past due that society acknowledges that there are some things more important than sexual arousal. Here, a person is dead. Even if Berman contributed to his own demise, indecent exposure should not have warranted the man a death sentence. Of course, personal injury is about assigning blame (and giving money) after the fact, but that doesn’t mean the law has to be mutilated to preserve chastity. Instead, the law should have been decided on comparative negligence so that all sides would be assigned their rightful amount of responsibility.

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