Line 13 of the record
How Does the Sudden Emergency Doctrine Function as an Affirmative Defense in Georgia and What Must a Defendant Prove to Invoke It?
Georgia courts call it “the defense of emergency”, but it works through a jury instruction: when the evidence supports it, the judge tells the jury that a driver suddenly placed in an emergency is not negligent for choosing as a prudent person might, even if not the wisest choice. The driver needs evidence of a sudden peril the driver did not help create, no time to think, and a choice between reasonable courses of action.
The test the courts apply
The Court of Appeals set out the test in Thomas v. Stairs (1994), quoting its earlier decisions:
- “The defense of emergency is not available unless the evidence shows that there has been a sudden peril caused by circumstances in which the defendant did not participate and which offered him a choice of conduct without time for thought so that negligence in his choice might be attributable not to lack of care but to lack of time to assess the situation.”
- The doctrine “requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable.”
| Element | What it means on the road |
|---|---|
| Sudden peril | A danger that appears without the warning a careful driver would have had |
| The driver did not participate in creating it | Speeding, following too closely, or looking away beforehand defeats this element |
| No time for thought | The mistake comes from lack of time, not lack of care |
| A choice of conduct | More than one reasonable response was available, such as swerving left, swerving right, or braking |
“Affirmative defense” or jury charge?
The heading of this question calls the doctrine an affirmative defense. Georgia decisions describe it as “the defense of emergency”, and in 2026 the Court of Appeals referred to a driver’s “affirmative defense of sudden emergency” (Pepper v. Thelen), but what a driver obtains is a charge to the jury, available only when “the evidence shows” its elements. The charge approved in Thomas read: “an automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury is not guilty of negligence if he makes such choice as a person of ordinary prudence placed in such position might make, even though he did not make the wisest choice.”
The consequences are these. The driver who wants the charge must point to evidence of each element. If that evidence is missing, giving the charge is error that can reverse a verdict. If the charge is given, the jury still decides whether the emergency was real and whether the driver’s choice was one a prudent person might make.
When the charge is wrong: Thomas v. Stairs
A driver going about 20 to 30 miles per hour in traffic noticed a car approaching fast from behind and looked back at it two or three times. When he looked forward again, traffic ahead had stopped suddenly. He braked, thought he would stop in time, and hit the car in front, which hit the plaintiff’s car. He testified that he was responsible and had been cited for following too closely. The jury, charged on sudden emergency, returned a defense verdict.
The Court of Appeals reversed. The facts did not show “a true emergency”: the driver had time to look back several times, did not appear to think the situation was particularly perilous, and did not testify that he considered any course except braking. The charge “gave the defendant a defense to which he was not entitled, and the error was therefore not harmless.”
A 2026 example: no choice, no charge
In Pepper v. Thelen (2026), a pickup driver was going between 83.3 and 85 miles per hour in a 65 mile-per-hour zone five seconds before he hit a disabled car on Interstate 75 at night. He testified that he “just couldn’t do anything”. The Court of Appeals held that the evidence did not authorize the sudden emergency charge, because the doctrine requires a choice of conduct, and that the error was harmful “as it provided Thelen a defense to which he was not entitled”. It reversed the defense verdict and ordered a new trial.
How the doctrine fits with comparative fault
The doctrine is not immunity. When it is charged, it shapes how the jury measures the driver’s conduct; the jury still assigns percentages of fault to everyone who contributed, and a plaintiff at 50 percent or more recovers nothing (O.C.G.A. § 51-12-33). A driver whose own earlier negligence helped create the danger falls outside the doctrine and is judged by the ordinary standard. See how Georgia’s modified comparative negligence standard works.
Medical events behind the wheel
A driver who blacks out or has a seizure may argue that the event was sudden and unforeseeable. The same elements govern: the event must be one the driver did not help create. Evidence that the driver knew of the condition, had been warned, skipped prescribed medication, or kept driving after warning symptoms goes to whether the driver “did not participate” in creating the peril. Whether a particular medical event supports the charge depends on that evidence, which comes from medical records, prescriptions, and the driver’s own history.
Evidence that answers the defense
- Timing. Vehicle event data, video, and reconstruction show how much time the driver had.
- Earlier conduct. Speed, following distance, phone use, and where the driver was looking before the danger appeared.
- Alternatives. Whether the driver testified to, or the scene shows, any choice besides the one made.
- Citations. A ticket for following too closely or another violation bears on whether the driver participated in creating the peril; see negligence per se and traffic violations in Georgia.
Sources
- Thomas v. Stairs, 215 Ga. App. 288 (1994), quoting Thomas v. Shahan (1994) and Barlow v. Veber (1983).
- Pepper v. Thelen, No. A26A0817 (Ga. Ct. App. May 26, 2026)
- O.C.G.A. § 51-12-33 (text as published in March 2024).
This page describes Georgia law as of October 2026 for general information. It is not legal advice and does not create an attorney-client relationship.