LawyersUSA

Giving an "emergency" instruction in an ordinary negligence case improperly confuses the jury by misstating the negligence standard, the Oregon Supreme Court has ruled in reversing a verdict for the defendant.

The defendant struck the plaintiff's vehicle while trying to pass her on the left after deciding her slowing to a near stop meant she would not turn left.

The plaintiff filed a negligence claim which went to a jury.

The trial judge gave a standard instruction to the jury on the definition of negligence.

But then the judge also gave an "emergency" instruction, which suggests that in an emergency, some standard of conduct lower than the usual standard of reasonable care applies.

The jury found that the defendant was not negligent.

The plaintiff argued that the emergency instruction confused the jury because it improperly stated negligence law.

The court agreed.

"[The emergency] 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,'" the court said.

"The addition of those new, otherwise-undefined concepts to the standard of reasonable care in light of all the circumstances injects a likely source of juror confusion as to the legal standard to be applied. …

"[T]he emergency instruction, at least as used in vehicle accident cases, misstates the law of negligence 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 circumstances. Because the instruction misstates the law, it should not be given."

Oregon Supreme Court. Bjorndal v. Weitman, No. SC S05487. May 8, 2008. Lawyers USA No. 9939860. Click here for the full text of this opinion.