This section contains the nature of the case and procedural background.

D was driving when Magnusson entered 43rd Avenue from a shopping center driveway and headed in D's lane right towards D. Seeing Magnusson's car in his lane, D accelerated and swerved left, avoiding an impending head-on collision. D crossed the double yellow line into oncoming traffic and collided with P's pickup. A police officer who saw the accident stopped Magnusson a short distance away and asked her to return to the scene. P sued D and Magnusson. Magnusson settled and P proceeded to trial against D. The just instructed the jury under the sudden emergency doctrine: In determining whether a person acted with reasonable care under the circumstances, you may consider whether such conduct was affected by an emergency. An 'emergency' is defined as a sudden and unexpected encounter with a danger which is either real or reasonably seems to be real. If a person, without negligence on his or her part, encountered such an emergency and acted reasonably to avoid harm to self or others, you may find that the person was not negligent. This is so even though, in hindsight, you find that under normal conditions, some other or better course of conduct could and should have been followed. D was found, not liable. P appealed, arguing that the sudden emergency doctrine is inconsistent with Arizona's adoption of comparative negligence and should thus be abandoned. Alternatively, they urged that the trial judge erred in giving the instruction under the facts of the case and that it constituted an impermissible comment on the evidence. The Appeals court affirmed, and P appealed.

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