S054837, Opinion — Bjorndal v. Weitman

470
Argued and submitted November 5, 2007, decision of Court of Appeals reversed;
j udgment of circuit court reversed, and case remanded to circuit court for further
proceedings May 8, 2008
Brenda BJORNDAL,
Petitioner on Review,
v.
Jay WEITMAN,
Respondent on Review.
(CC 031320; CA A131325; SC 8054837)
184 P3d 1 1 15

Cite as 344 Or 470 (2008) 471
CJS, Appeal and Error § 825.
En Banc
On review from the Court of Appeals.*
Stephen P. Riedlinger, Susak & Powell, P.C., Portland,
argued the cause and filed the briefs for petitioner on review.
Ralph C. Spooner, Spooner, Much, & Ammann, P.C.,
Salem, argued the cause and filed the briefs for respondent
on review. With him on the briefs were Melissa J. Ward,
Salem, and Tyler E. Staggs, Salem.
Meagan A Flynn, Portland, submitted a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.
BALMER, J.
The decision of the Court of Appeals is reversed. The judg
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
* Appeal from Linn County Circuit Court, Carol R. Bispham, Judge. 2 1 2 Or
App 143, 157 P3d 261 {2007l.

472 Bjorndal v. Weitman
BALMER, J.
In this personal injury action arising out of an auto
mobile accident, we consider-and, having done so, reject
the use of the so-called "emergency instruction" in such cases.
The trial court gave that jury instruction at defendant's
request and over plaintiffs obj ection, and the jury returned a
verdict in defendant's favor. Plaintiff appealed, arguing that
the evidence did not establish an "emergency" that would
support giving the instruction. Plaintiff also argued that the
emergency instruction is disfavored in Oregon and never
should be given. The Court of Appeals affirmed in a brief per
curiam decision, relying on its prior cases. Bjorndal v.
Weitman, 212 Or App 143, 157 P3d 261 (2007). We allowed
review and now hold that the emergency instruction, as used
in ordinary vehicle negligence cases, is an inaccurate and
confusing supplement to the instructions on the l aw of negli
gence and, therefore, should not be given. For that reason,
we reverse the rulings of the Court of Appeals and the trial
court and remand the case to the trial court for further
proceedings.
Plaintiff was driving east on Highway 22 in Linn
County and looking for her father, whose car had broken
down along the highway. Defendant had been following
plaintiff for approximately 20 minutes, and there was no evi
dence that defendant was following too closely during that
time. Plaintiff then spotted her father ahead on the right side
of the road. Defendant testified that he had watched plain
tiff's father, who was waving his hands and gesturing, for two
seconds and then, assuming "that there was some sort of
emergency situation, a hazard, or something that we needed
to be aware of and looked-I did glance to my left and I
scanned the horizon [for about a second) to try and identify
what this possible hazard or emergency was." Defendant tes
tified that, when he returned his eyes to the road ahead of
him, he noticed that plaintiff, who was driving a van, had
rapidly decelerated or was in the process of decelerating. He
estimated that plaintiff slowed from a speed of 50 miles per
hour to 10 miles per hour within one second. Defendant tes
tified that he then applied his brakes and, seeing that there
was no oncoming traffic, decided to steer to his left to pass

Cite as 344 Or 4 70 473
plaintiff on her left. Plaintiff, however, had planned to turn
left because she had been told that there was a snowpark on
the left side of the highway where she could stop. As she
slowed to make the left turn, she signaled and steered to the
left. Defendant testified that he did not see plaintiffs left
turn signal until after the van started to move to the left and
at that point he was unable to avoid colliding with plaintiffs
van.
Plaintiff brought this negligence action against
defendant, seeking damages for her inj uries and medical
expenses arising out of the collision. The case was tried to a
jury. Defendant requested, and the trial court gave, the
"emergency instruction" as set forth in Oregon Uniform Civil
Jury Instruction 20.08:
"People who are suddenly placed in a position of peril
through no negligence of their own, and who are compelled
to act without opportunity for reflection, are not negligent if
they make a choice as a reasonably careful person placed in
such a position might make, even though they do not make
the wisest choice."
Plaintiff properly excepted to that instruction. The jury
returned a special verdict in which it found that defendant
had not been negligent in the operation of his motor vehicle.
Plaintiff appealed, arguing that the trial court had
erred in giving the emergency instruction. Plaintiff first
asserted that the instruction was improper because the evi
dence established that any "emergency" had been created by
defendant. Plaintiffs second argument was that it always is
error for a trial court to give an emergency instruction
because that instruction is an inaccurate statement of negli
gence law and constitutes an improper comment on the evi
dence. Bjorndal, 212 Or App at 144. The Court of Appeals
rejected the first argument. As to the second argument, the
Court of Appeals indicated that plaintiffs assertion that the
emergency instruction never should be given was better
addressed to this court than to the Court of Appeals. Id.
Plaintiff sought, and we granted, review to consider that sec
ond question.

474 Bjorndal v. Weitman
Plaintiffs argument, and that of amicus curiae
Oregon Trial Lawyers Association, can be summarized as fol
lows: Uniform Civil Jury Instruction 20.08, which embodies
the so-called "emergency instruction," repeats the standard
negligence instruction and, hence, is unnecessary. To the
extent that the emergency instruction does not merely reit
erate the negligence instruction, it incorrectly suggests that,
in an emergency, some standard of conduct lower than the
usual standard of reasonable care applies. Finally, the emer
gency instruction is an improper comment on the evidence
because it involves the trial court telling the j ury how one
aspect of the evidence should bear on the jury's determina
tion of negligence.
Plaintiff supports her argument with dicta from this
court's opinions that criticize the emergency instruction. In
Ballard v. Rickabaugh Orchards, Inc., 259 Or 200, 207, 485
P2d 1080 ( 1971), for example, this court stated that the emer
gency instruction "is unnecessary to give and should be
avoided * * *." This court has also stated that
"it would be a rare situation, indeed, where it would be
error to fail to give [the emergency instruction,] because the
usual instruction on negligence sufficiently covers what a
reasonably prudent person would do under all circum
stances, including those of sudden emergency."
Evans v. General Telephone, 257 Or 460, 467, 479 P2d 747
( 1971). Because it rarely will be error not to give the instruc
tion and because the instruction is "unnecessary" and
"should be avoided," plaintiff urges us to eliminate the
instruction altogether .1
Defendant responds that, despite this court's dicta
that the emergency instruction is rarely necessary, it does
not logically follow that giving the instruction always consti
tutes reversible error. Defendant argues that, in a "sudden
emergency," which the jury could have found existed here,
the instruction properly reminds the jury that determining
whether a person acted reasonably includes consideration of
t In Lane u. Brown , 328 Or 42, 45, 970 P2d 206 ( 1998), this court had allowed
review of a Court of Appeals decision to consider the "continuing validity" of the
emergency instruction. However, the court concluded that the issue was not prop
erly preserved and therefore did not decide it.

Cite as 344 Or 470 (2008) 475
all the circumstances in which the person was required to act,
including those that may have constituted the emergency.
We begin with a brief review of the origins of the
emergency instruction and then consider the parties' argu
ments for eliminating or retaining the instruction. We then
examine whether it was error to give the instruction in this
case and, if it was, whether that error requires reversal.
The reasons for the development of the emergency
instruction can be understood by examining several cases
where this court approved similar instructions. In Marshall
v. Olson, 102 Or 502, 202 P 736 (1922), the defendant in an
automobile accident case had turned to the left of the center
of an intersection in violation of a city ordinance. The plain
tiff argued at trial that the defendant's conduct was negli
gent, as a matter of law, because the defendant had violated
the ordinance, and the jury awarded damages to the plaintiff.
This court reversed, holding that the trial court had erred by,
among other things, not giving an instruction requested by
the defendant to the effect that his conduct was not a viola
tion of the ordinance if he was "acting in an emergency" and
"in order to avert an accident." 102 Or at 512. This court held
that it was error not to give the proposed instruction because,
notwithstanding the rule that violation of an ordinance was
negligence per se,
"it would be unreasonable to maintain that a man would be
culpably negligent under the circumstances, if he turned
either to the right or to the left to avoid imminent danger of
collision, when the peril could be escaped only by such
action, and that, too, without injury to any one else[.]"
Id. at 5 12-13. In other words, the instruction mitigated the
effect of the per se negligence rule that otherwise required the
jury to find the defendant negligent, even ifhe had acted with
reasonable care.
Another context in which the emergency instruction
often has been given is where a plaintiff had to act quickly
because of an emergency, and the defendant raised a defense
of contributory negligence. Because, at common law, any neg
ligence by the plaintiff would bar recovery from a negligent
defendant, courts used the emergency instruction to remind

476 Bjorndal v. Weitman
the jury that the plaintifi's conduct had to be viewed in light
of the emergency circumstances that the defendant may have
created. See Hatch u. Daniels, 96 Vt 89, 1 17 A 105, 108 ( 1922)
("When one, without his own fault but through the negli
gence of another, is so situated, he is not ordinarily, if ever,
chargeable, as a matter oflaw, with contributory negligence,
if, in attempting to escape the danger, he makes a mistake in
the method adopted."). In Durnford u. Worden, 242 Or 536,
410 P2d 1020 ( 1966), an automobile accident case, the j ury
returned a verdict for the defendant, and the trial court
granted the plaintiffs motion for a new trial, concluding that
it had erred in not giving an emergency instruction. This
court agreed, because the instruction would have told the
jurors that if they found that " 'either of the parties to this
case was suddenly placed in a position of peril, through no
negligence of his own * * * he would not be guilty of negli
gence even though he did not take the wisest action * * * .' "
242 Or at 538 (quoting the instruction) . 2 See Jeffrey F. Ghent,
Annotation, Modern Status of Sudden Emergency Doctrine,
10 ALR 5th 680, 689, 694 ( 1991) (mitigation of harsh effect of
contributory negligence one basis for emergency instruction);
Caristo u. Sanzone, 96 NY2d 172, 750 NE2d 36 (2001) (same;
but declining to abolish doctrine).
The cases just discussed suggest that the emergency
instruction originated as a means to allow the jury to avoid
the harsh result of finding that a defendant was negligent
per se for violating a statute or ordinance, as in Marshall, or
that a plaintiff was contributorily negligent and therefore
barred from recovering damages against a negligent defen
dant, as in Durnford. In recent decades, courts in some states
have abolished the emergency instruction because the tort
doctrines that it was intended to ameliorate have themselves
been changed. See Jeffrey F. Ghent, 10 ALR 5th 680 (collect
ing cases eliminating and retaining emergency instruction).
2 Similarly, in one of the earliest emergency instruction cases, the United
States Supreme Court affirmed a jury verdict for a plaintiff who had been injured
in a stage coach accident caused by an intoxicated driver. Stokes v. Saltonstall, 38
US 181, 10 L Ed 1 15 ( 1839). The Court approved a variation of the emergency
instruction that allowed the j ury to excuse the plaintiffs contributory negligence if
the jury found that the plaintiffs actions resulted from the plaintiffbeing placed in
a position of "certain peril" by defendant's conduct. 38 US at 193.

Cite as 344 Or 	477
Those doctrines have changed in Oregon as well. As
to the negligence per se rule, trial courts now instruct juries,
when appropriate, that that rule does not apply if "the defen
dant proves by a preponderance of the evidence that the
defendant was acting as a reasonably careful person in the
circumstances." UCJI 20.03; see Barnum u. Williams, 264 Or
7 1 , 78- 79, 504 P2d 122 ( 1972) ("[l] f a party is in violation of a
motor vehicle statute, such a party is negligent as a matter of
law unless such party introduces evidence from which the
trier of fact could find that the party was acting as a rea
sonably prudent person under the circumstances."). With
respect to contributory negligence, the Oregon legislature in
197 1 eliminated the common-law doctrine that contributory
negligence barred a plaintiff from recovery and substituted
a negligence rule that requires comparison of the fault
of the different parties. ORS 3 1 .600. Thus, both rationales
described above for the emergency instruction have been
superseded by other changes to the law. And, as we shall
explain, we are s atisfied that, under the current principles of
negligence law, concerns over the relative negligence of
plaintiffs and defendants safely may be left to general negli
gence instructions.
Even if the historical underpinnings of the emer
gency instruction have now gone by the wayside, however,
that does not mean that the trial court necessarily committed
reversible error-or any error at all-in giving the instruc
tion. An instruction that is merely repetitious of another
instruction is not necessarily grounds for reversal. See, e.g. ,
Searcy u. Bend Garage Co., 286 Or 1 1 , 18, 592 P2d 5 58 ( 1979)
("The instruction was unnecessary and somewhat repeti
tious; however, so instructing is not prejudicial error."). As
noted, however, plaintiff argues that the emergency instruc
tion not only is redundant, but also is an incorrect statement
of negligence law and an improper comment on the evidence.
We turn to those issues.
Plaintiff first argues that the emergency instruction
misstates Oregon negligence law. The trial court here, before
giving the emergency instruction quoted above, gave the
standard negligence instruction set out in Uniform Civil Jury
Instruction 20.02:

478 Bjorndal v. Weitman
"The law requires every person to use reasonable care to
avoid harming others. Reasonable care is the degree of care
and judgment used by reasonably careful people in the
management of their own affairs to avoid harming them
selves or others.
"In deciding whether a party used reasonable care, con
sider the dangers apparent or reasonably forseeable when
the events occurred. Do not judge the party's conduct in
light of subsequent events; instead, consider what the party
knew or should have known at the time.
"A person is negligent, therefore, when that person does
some act that a reasonably careful person would not do, or
fails to do something that a reasonably careful person
would do under similar circumstances."
Plaintiff asserts that the foregoing general negli
gence instruction correctly states that a person is negligent if
the person fails to use reasonable care and that it then elab
orates on some of the considerations relevant to determining
"reasonable care. " But pl aintiff points out that the emergency
instruction, in contrast, tells the jury that a person is "not
negligent" if the person "make [s] such a choice as a reason
ably careful person placed in such a position might make,
even though [the person did] not make the wisest choice."
(Emphases added.) As we explain below, that instruction
appears to modify the general standard of care as described
in the negligence instruction by making negligence turn, in
part, on whether a person makes one of many choices a
reasonably careful person "might" make, by introducing the
concept of "wisest choice," and by attempting to define the
legal standard for negligence in part by describing what is
"not negligent. "
A person i s negligent i f the person fails t o exercise
reasonable care, a standard that "is measured by what a
reasonable person of ordinary prudence would, or would not,
do in the same or similar circumstances." Woolston v. Wells,
297 Or 548, 557, 687 P2d 144 ( 1984). See also Kirby v.
Sanville, 286 Or 339, 345 n 1, 594 P2d 818 ( 1979) ("The stan
dard of care is 'reasonable care' or that care which persons of
ordinary prudence exercise in all of their activities in order to
avoid injury to others (or themselves for that matter) ."). The

Cite as 344 Or 470 479
emergency instruction, however, tells the jurors that, not
withstanding the instruction that a person must exercise
reasonable care, if there was an emergency, they neverthe
less may conclude that the person whose actions are at issue
was "not negligent" ( emphasis added), even if the person
made a choice that is not the "wisest choice," as long as it was
a choice a "reasonably careful person" in those circumstances
"might" make. Jurors would understandably view that
instruction as permitting them to find a defendant "not neg
ligent," even when the defendant makes an "unwise" choice.
To be sure, the reasonable care standard does not always
require a defendant to make the "wisest choice." But neither
does it mean that a defendant was "not negligent" simply
because the defendant's "unwise choice" was made in the con
text of an emergency.
Given the wide range of factual settings in vehicle
negligence cases, there certainly are circumstances in which
a reasonable jury could conclude that any choice other than
the "wisest choice" was not a reasonably prudent choice and
therefore was negligent. The emergency instruction is erro
neous because it introduces into the liability determination
additional concepts that are not part of the ordinary negli
gence standard-whether the person had a "choice," whether
the person made a "choice" that a reasonable person "might"
make, and whether the person made the "wisest" choice or
not. The addition of those new , otherwise-undefined concepts
to the standard of reasonable care in light of all the circum
stances injects a likely source of juror confusion as to the
legal standard to be applied. See Rogers v. Meridian Park
Hospital, 307 Or 612, 616, 772 P2d 929 ( 1989) (rejecting use
of a confusing jury instruction and stating, "Instructions
which mislead or confuse are ground for a reversal or a new
trial." (Internal quotations, citation, and footnote omitted. )).
Parties may of course introduce evidence, and may
argue about, the "emergency" nature of the circumstances in
which the parties acted and whether or not various "choices"
of conduct, wise or not, were available. The existence of
"emergency" circumstances in vehicle accident cases
sudden actions by other drivers, unexpected weather events,
roadway hazards-is indisputably appropriate for a jury to

480 Bjorndal v. Weitman
consider in determining whether a person has used reason
able care in attempting to avoid harming others. See 3 Fowler
V. Harper, Fleming James, Jr. , and Oscar S. Gray, Harper,
James and Gray on Torts § 16. 1 1 (3d ed 2007) (describing role
of emergency circumstances in determination of reasonable
care). But this court has never articulated the legal standard
of negligence as turning on those considerations. Rather, the
negligence standard focuses on whether a person acted with
reasonable care to avoid harm to others, in light of all the cir
cumstances, including any "emergency." Thus, the general
negligence standard embodied in Uniform Civil Jury Instruc
tion 20.02 encompasses any legitimate concerns about "emer
gency" circumstances, without introducing misleading con
cepts of the extent to which a "choice" available to the person
was "unwise," "wise," "wiser," or "wisest." Moreover, the neg
ligence instruction already refers to facts that may create an
emergency situation when it speaks of the "dangers apparent
or reasonably forseeable when the events occurred" and the
"circumstances" that are to be considered in determining
whether a person used reasonable care. UCJI 20.02.3 As we
stated in Evans v. General Telephone, "the usual instruction
on negligence sufficiently covers what a reasonably prudent
person would do under all circumstances, including those of
sudden emergency." 257 Or 460, 467, 479 P2d 747 ( 1971).
We therefore conclude that the emergency instruc
tion incorrectly stated the law and was likely to confuse the
jury as to the correct legal standard to apply. When an
instruction gives "the jury the wrong legal rule to apply [,] "
and thus permits the jury to reach a legally incorrect result,
this court consistently has held that the error substantially
affects a party's rights. Wallach v. Allstate Ins. Co. , 344 Or
3 14, 322, 180 P3d 19 (2008). That is the case here. The erro
neous jury instruction substantially affected plaintiffs
rights, and the judgment must be reversed.4
3 In citing the uniform negligence instruction, we do not mean to suggest that
that instruction is the best of all possible negligence instructions. A trial judge may
craft a more specific instruction on negligence that is appropriate in a particular
case, as long as it accurately states the law.
4 Plaintiff also argues that the emergency instruction given in this case was an
improper comment by the trialjudge on the evidence, and, indeed, improperly fore
closed an argument that was supported by the evidence, namely, that there was no
emergency. Because we reverse the judgment on the ground that the emergency

Cite as 344 Or 470 48 1
To summarize: the emergency instruction, at least
as used in vehicle accident cases,5 misstates the law of negli
gence by introducing an inquiry respecting whether a person
has made the "wisest choice," rather than focusing on
whether the person used reasonable care, given all the cir
cumstances. Because the instruction misstates the law, it
should not be given. The trial court here erred in giving the
emergency instruction.
The decision of the Court ofAppeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
-·--··---
instruction incorrectly stated the law, we do not consider plaintiffs alternative
argument that the instruction was an improper comment on the evidence.
We confine our ruling to vehicle negligence cases because that is the context
of this case. In cases outside that context, trial courts should take into account our
comments here in deciding whether an emergency instruction is j ustified.