Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, 

and Agee, JJ., and Lacy, S.J.1

TOKTAM VAHDAT 

v. Record No. 061960 OPINION BY JUSTICE CYNTHIA D. KINSER 

 September 14, 2007 

ANTHONY WAYNE HOLLAND 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

William D. Hamblen, Judge 

 In this appeal, we once again address the sudden 

emergency doctrine and decide what, if anything, an 

instruction on that subject must include with regard to a 

defendant’s evidentiary burden. Because we conclude that 

the circuit court did not err by giving a sudden emergency 

instruction that contained no reference to the defendant’s 

evidentiary burden, we will affirm the judgment of the 

circuit court. 

 Toktam Vahdat filed an amended complaint in the 

circuit court against Anthony Wayne Holland, seeking 

damages for personal injuries she allegedly sustained as a 

result of an automobile accident. The case proceeded to a 

jury trial. Vahdat testified that, while driving her 

vehicle in the left, southbound lane of traffic, she 

noticed the vehicle operated by Holland following too 

 1

 Justice Lacy participated in the hearing and decision 

of this case prior to the effective date of her retirement 

on August 16, 2007. 
2

closely behind her vehicle. According to Vahdat’s 

testimony, Holland, while attempting to pass her by driving 

in the center turning lane, accelerated across the two 

northbound lanes of traffic and struck a utility pole. As 

a result, the utility pole toppled over, and the cables 

attached to the pole fell onto the hood of Vahdat’s 

vehicle, damaging it. 

 Testifying in his own defense, Holland claimed that, 

while accelerating after a traffic signal changed in favor 

of southbound traffic, he experienced a “blackout” from 

which he did not regain consciousness until after the 

accident. Holland denied tailgating Vahdat prior to losing 

consciousness. Holland testified that he was diagnosed 

with Type II diabetes in 1995, but that he had never 

experienced a “blackout” as a result of his condition 

either before or since the day of the motor vehicle 

accident at issue. Holland stated that, on the day of the 

accident, he followed his routine practice of checking his 

blood sugar level several times throughout the day. 

According to Holland, he noticed nothing unusual about his 

blood sugar level prior to the accident, but medical 

personnel attending to Holland after the collision 

administered glucose gel as a means of correcting his low 

blood sugar level. 
3

 At the conclusion of all the evidence, each party 

tendered jury instructions relating to the sudden emergency 

doctrine. The instruction submitted by Vahdat stated: 

 The defendant contends that he was 

confronted with a sudden emergency. A sudden 

emergency is an event or a combination of 

circumstances that calls for immediate action 

without giving time for the deliberate exercise 

of judgment. Foreseeable events do not give rise 

to a sudden emergency. 

 The defendant bears the burden of proving 

that, at the time of the accident, he had a 

diabetic blackout, and that he did not foresee 

such a blackout as a possibility. If you believe 

from the evidence that it is more likely than not 

that the defendant either did not have a diabetic 

blackout or had sufficient notice of an impending 

blackout so that he could have stopped the car 

prior to causing the accident complained of here, 

but did not stop the car, then the defendant was 

negligent. 

Holland’s version of the sudden emergency instruction read: 

 The defendant contends that he was 

confronted with a sudden emergency. A sudden 

emergency is an event or a combination of 

circumstances that calls for immediate action 

without giving time for the deliberate exercise 

of judgment. 

 If you believe from the evidence that the 

defendant, without negligence on his part, was 

confronted with a sudden emergency and acted as a 

reasonable person would have acted under the 

circumstances of this case, he was not negligent. 

Vahdat argued before the circuit court that the 

evidence did not support an instruction on the “sudden 

emergency” doctrine at all, but offered her own 
4

“precautionary instruction” on sudden emergency in case the 

circuit court decided one was merited. In support of her 

tendered instruction, Vahdat asserted that Holland, as the 

defendant, has the burden to prove a sudden emergency 

occurred at the time of the accident. 

The circuit court concluded that the evidence was 

sufficient to warrant an instruction on the sudden 

emergency doctrine. The court, however, refused Vahdat’s 

version of the sudden emergency instruction and, over 

Vahdat’s objection, granted the one submitted by Holland. 

The court reasoned that a defendant does not have the 

burden to prove the occurrence of a sudden emergency. The 

jury returned a verdict in favor of Holland, upon which the 

circuit court entered final judgment. We awarded Vahdat 

this appeal limited to the question whether the circuit 

court erred by granting an instruction on the sudden 

emergency doctrine that did not include language “imposing 

a burden of proof, production, or persuasion” on Holland 

“to substantiate that defense.”2

 2

 Whether the circuit court erred by giving any jury 

instruction on the sudden emergency doctrine is not before 

us. Nonetheless, we reiterate, “the grant of a sudden 

emergency instruction is rarely appropriate.” Jones v. 

Ford Motor Co., 263 Va. 237, 263, 559 S.E.2d 592, 605 

(2002); accord Herr v. Wheeler, 272 Va. 310, 315, 634 

S.E.2d 317, 320 (2006). 
5

The sudden emergency doctrine provides that “[w]hen 

the driver of an automobile, without prior negligence on 

his part, is confronted with a sudden emergency and acts as 

an ordinarily prudent person would have done under the same 

or similar circumstances, he is not guilty of negligence.” 

Pickett v. Cooper, 202 Va. 60, 63, 116 S.E.2d 48, 51 (1960) 

(citing Southern Passenger Motor Lines, Inc. v. Burks, 187 

Va. 53, 60, 46 S.E.2d 26, 30 (1948)); accord Velocity 

Express Mid-Atlantic, Inc. v. Hugen, 266 Va. 188, 193, 585 

S.E.2d 557, 560 (2003). Although Vahdat does not contend 

that the doctrine of sudden emergency is an affirmative 

defense, she asserts that, based on our prior case law, a 

defendant has the burden to prove by a preponderance of the 

evidence the existence of a sudden emergency. Thus, 

according to Vahdat, the circuit court erred by failing to 

properly instruct the jury that Holland, in relying on the 

defense of sudden emergency, had this burden. We do not 

agree. 

In Daniels v. C.I. Whitten Transfer Co., 196 Va. 537, 

84 S.E.2d 528 (1954), the Court rejected an argument 

virtually identical to the one advanced by Vahdat in this 

appeal. Id. at 545, 84 S.E.2d at 533. In doing so, the 

Court held that the sudden emergency doctrine “does not 

constitute an affirmative defense shifting the burden of 
6

proof in the case.” Id. (citing Southern Passenger Motor 

Lines, 187 Va. at 59, 46 S.E.2d at 29); but see Monahan v. 

Obici Med. Mgmt. Servs., Inc., 271 Va. 621, 632, 628 S.E.2d 

330, 336 (2006) (holding that mitigation of damages is an 

affirmative defense, and “[c]onsequently, the defendant 

bears the burden of proving that the plaintiff failed to 

mitigate his damages”) (citations omitted). We explained 

that, when a plaintiff presents a prima facie case of 

negligence, a defendant, relying on the defense of sudden 

emergency, must then make “a reasonable explanation, such 

an explanation as the jury could accept, showing that what 

happened was due to something other than the negligence of 

[the defendant].” Daniels, 196 Va. at 546, 84 S.E.2d at 

533–34. But, we emphasized, “[n]otwithstanding this burden 

of producing evidence in explanation, the ultimate burden 

remained on the plaintiff to prove her case, that is, to 

show by a preponderance of the evidence that her injuries 

were caused by the negligence of the defendants.” Id., 84 

S.E.2d at 534. We also noted that, if the plaintiff in 

Daniels had desired, she could have requested the trial 

court to grant an instruction regarding the defendants’ 

duty to make a reasonable explanation for their actions. 

Id. at 547, 84 S.E.2d at 534. 
7

Vahdat, however, claims that our opinion in Daniels 

was ambiguous as to whether the requirement of producing 

evidence in explanation in order to rebut a plaintiff’s 

prima facie case of negligence imposed on a defendant a 

burden of persuasion or a burden of production as to the 

existence of a claimed sudden emergency. Conversely, she 

asserts that our decisions in Gaines v. Campbell, 159 Va. 

504, 166 S.E. 704 (1932), Carolina Coach Co. v. Starchia, 

219 Va. 135, 244 S.E.2d 788 (1978), and Pickett demonstrate 

that a defendant who relies on the doctrine of sudden 

emergency has the burden of showing the existence of such 

an emergency by a preponderance of the evidence. None of 

these cases, however, stands for that proposition. 

In Gaines, the trial court instructed the jury 

“that[,] in order to excuse the defendant, [it] must 

believe from a preponderance of the evidence that [a] 

sudden emergency did, in fact, exist, and that the 

emergency was brought about through no fault of the 

defendant himself.” 159 Va. at 524, 166 S.E. at 711. This 

Court found no error either in that instruction or in other 

instructions that were challenged on appeal. It is 

evident, however, from the Court’s opinion that the 

question now before us was not at issue in Gaines. 

Furthermore, the instruction did not actually state that 
8

the defendant bore the burden of proving the existence of a 

sudden emergency by a preponderance of the evidence. 

 Similarly, in Carolina Coach, the defendant tendered 

an instruction with almost identical language as the 

instruction in Gaines. In relevant part, the instruction 

stated that the defendant could not be held liable if the 

jury “believe[d] from a preponderance of the evidence that 

the defendant . . . was confronted with a sudden 

emergency.” 219 Va. at 141 n.2, 244 S.E.2d at 792 n.2. 

The only question before the Court relating to the sudden 

emergency doctrine was whether the trial court erred in 

refusing to give any instruction to the jury on that issue. 

Id. at 141, 244 S.E.2d at 792. Thus, as in Gaines, the 

actual language of the instruction was not at issue. In 

other words, neither in Gaines nor in Carolina Coach did we 

express any opinion about whether the respective 

instructions were correct statements of law. 

Finally, in Pickett, we held that the trial court 

erred by instructing the jury “that if [it] believed from 

the evidence that ‘it is as likely as not that the left 

rear tire blew out,’ producing without defendant’s fault a 

sudden emergency in which he operated his car as a 

reasonable person would have done under the same or similar 

circumstances, they should find for the defendant.” 202 
9

Va. at 63, 116 S.E.2d at 51. We stated that the phrase “as 

likely as not” was “inapt and incorrect in an instruction 

on the burden of proof” because “it placed the burden on 

the wrong party and in effect required the plaintiff to 

prove that the tire did not blow out.” Id. We then 

articulated the defendant’s evidentiary burden when relying 

on the sudden emergency defense: 

 It was the defendant’s burden to explain the 

presence of his automobile on the wrong side of 

the road. The fact that it was there made a 

prima facie case of negligence for the plaintiff. 

The burden was then on the defendant to produce 

evidence to show why it was there. His evidence 

was that his tire blew out, creating an emergency 

and causing him to lose control. If the jury 

could reasonably believe from his evidence that 

the tire did blow out and create the emergency 

claimed by the defendant, the burden then was on 

the plaintiff to show by a preponderance of the 

whole evidence that there was negligence on the 

part of the defendant which was a proximate cause 

of her injuries. 

Id. This holding, like that in Daniels, requires a 

defendant only to produce evidence of a reasonable 

explanation. 

 Thus, we conclude that, based on our prior cases, a 

defendant does not have the burden of proving the existence 

of a sudden emergency by a preponderance of the evidence. 

A defendant relying on that doctrine needs only to produce 

evidence explaining that the accident was due to something 

other than the defendant’s negligence. Daniels, 196 Va. at 
10

546, 84 S.E.2d at 533–34. The burden of producing such 

evidence (also referred to as the burden of going forward) 

shifts to a defendant when a plaintiff makes out a prima 

facie case of negligence. Garnot v. Johnson, 239 Va. 81, 

84, 387 S.E.2d 473, 475 (1990); Watford v. Morse, 202 Va. 

605, 607, 118 S.E.2d 681, 683 (1961). The burden of 

producing evidence may frequently shift from party to party 

during the course of a trial. Riggsby v. Tritton, 143 Va. 

903, 918, 129 S.E. 493, 498 (1925). A plaintiff, however, 

always has the burden of persuasion (also referred to as 

the burden of proof) on the issue of primary negligence; it 

never shifts. Garnot, 239 Va. at 84, 387 S.E.2d at 475. 

 Accordingly, we hold that the circuit court did not 

err in giving the sudden emergency instruction tendered by 

Holland. Since Holland did not have the burden of proving 

the existence of a sudden emergency by a preponderance of 

the evidence, Vahdat’s tendered instruction was not a 

correct statement of law. Furthermore, an instruction on 

the sudden emergency doctrine does not need to include any 

reference to a defendant’s burden to produce evidence of a 

reasonable explanation because the question of sudden 

emergency would not be properly submitted to a jury if a 

defendant did not produce sufficient evidence to support an 

instruction on the subject. See Pollins v. Jones, 263 Va. 
11

25, 28, 557 S.E.2d 713, 714 (2002) (“A jury instruction may 

be given only if there is evidence to support the 

instruction.”). 

 For these reasons, we will affirm the judgment of the 

circuit court. 

Affirmed.