Bjorndal v. Weitman

184 P.3d 1115 (Or. 2008)

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Nature of the Case

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Facts

P was driving and looking for her father, whose car had broken down along the highway. D had been following P for approximately 20 minutes, and there was no evidence that defendant was following too closely during that time. P then spotted her father ahead on the right side of the road. D watched P's father, who was waving his hands and gesturing, for two seconds and then, assuming that there was some sort of emergency situation ahead. D began to look around and failed to notice P's rapid deceleration. D applied his brakes and decided to steer to his left to pass P on her left. P had planned to turn left because she had been told that there was a place on the left side of the highway where she could stop. D testified that he did not see P's left turn signal until after the van started to move to the left and at that point, he was unable to avoid colliding with P's van. P sued D, seeking damages for her injuries and medical expenses arising out of the collision. The case was tried to a jury. The trial court gave, the 'emergency instruction:' '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.' P excepted to that instruction. D got the verdict. P appealed, arguing that the trial court had erred in giving the emergency instruction. The appeals court affirmed, and P appealed. P contends that the emergency instruction does not merely reiterate the negligence instruction, it incorrectly suggests that, in an emergency, some standard of conduct lower than the usual standard of reasonable care applies. D 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 all the circumstances in which the person was required to act, including those that may have constituted the emergency.