dissenting.
I agree with the majority's conclusion that the district court properly refused to instruct the jury on res ipsa loquitur and properly denied Kendrick's motion for a new trial based on jury misconduct. But I disagree with its ultimate conclusion that Kendrick should be given a new trial on the ground that the district court improperly instructed the jury on the sudden emergency doctrine. The majority reasons that because Pippin was generally aware that the roads could be iey on the morning in question, she could not be confronted with a sudden emergency *1070when she actually confronted ice in the intersection in question. But a general awareness that an emergency could occur does not negate the existence of the emergency when it does in fact occur. Because we properly rejected the majority's "general awareness" rationale in Young v. Clark, 814 P.2d 364, 366 (Colo.1991), I respectfully dissent from the majority's opinion.
The majority finds that "[blecause Pippin's testimony shows that she anticipated the roads would likely be slick and icy ... [she] failed to present competent evidence that she was confronted with sudden or unexpected road conditions." Maj. op. at 1060. Essentially, the majority reasons that because Pippin generally anticipated that there could be slick road conditions on the morning of February 10, 2006, the specific conditions that she actually encountered at the intersection could not qualify as a sudden emer-geney. Id. But we expressly rejected this sort of general awareness argument in Young, 814 P.2d at 366. In that case, the plaintiff argued that "because ... the sudden emergency confronting [the defendant] arose from a common, and thus foreseeable, traffic problem"-a driver swerving in front of the defendant-the facts could not support a sudden emergency instruction. Id. We disagreed with that argument, holding that a sudden emergency instruction was properly given under the cireumstances of the case. Id. at 366-67.
Similarly, in this case, even though Pippin generally anticipated that there could be icy road conditions on the morning of the accident, she presented sufficient evidence that she was confronted with a sudden emergency at the intersection under the specific circumstances of the case. As the majority points out, she testified that she knew that the roads could be icy that morning. Maj. op. at 1060. Indeed, she testified that, out of an abundance of caution, she drove below the speed limit and placed her vehicle in four-wheel drive. Id. These facts demonstrate that she was aware that the driving conditions could be affected by the weather that morning and she took appropriate precautionary steps-and that therefore she "was not placed in a perilous predicament through any fault of his or her own." Young, 814 P.2d at 367.
The majority's error is to turn this general awareness of the possibility of poor driving conditions (and subsequent adjustments to conditions) into a per se bar to the appearance of a sudden emergency. Id. at 1060 ("Pippin's testimony demonstrates both that she specifically expected icy roads and intersections that morning and that she modified her driving in anticipation of encountering slick and icy conditions. Having so testified, the evidence does not support Pippin's claim that [she encountered a sudden emergency at the intersection in question]") (emphasis added). Pippin testified that she had traveled through a number of intersections without incident, and that she "hadn't had any problems up to thle] point" of reaching the intersection in question. Upon reaching that intersection, however, she found "that particular intersection" to be more "slick" than the others. Her testimony suggests that while she was generally aware of conditions that morning, and adjusted her driving accordingly, she confronted unexpectedly slick conditions at the intersection. Stated differently, although slick road conditions could generally be anticipated that morning, she actually confronted such conditions only when she entered the intersection in question. Such testimony, in my view, is more than "sufficient" to support a sudden emergency instruction, and it was for the jury to decide whether Pippin was in fact confronted with such an emergency. Young, 814 P.2d at 866-67; see also Hesse v. McClintic, 176 P.3d 759, 764 (Colo.2008) ("We have long held that whether there was an emergency and whether the course of conduct chosen under the cireum-stances was reasonable are questions of fact to be determined by the trier of fact.").
We were correct to reject the majority's general awareness rationale in Young, and should do so again in this case. It is virtually always the case that a driver is generally aware of the possibility that an emergency situation could arise. For example, undoubtedly the drivers in Stewart v. Stout, 148 Colo. 70, 72, 351 P.2d 847, 848 (1960) (cited at maj. op. at 1059), were generally aware that an ice patch could appear on a mountain highway, even though neither had seen an ice patch up *1071to that point. Similarly, as the plaintiff argued in Young, the defendant driver must have been generally aware that drivers could swerve in his lane of traffic. See also Davis v. Cline, 177 Colo. 204, 208-209, 493 P.2d 362, 364 (1972) (A school bus unexpectedly moving into an adjacent travel lane could justify a finding of emergency when another driver swerves to avoid a collision); Cudney v. Moore, 168 Colo. 30, 32, 428 P.2d 81, 82 (1967) (sudden emergency instruction proper when mechanical failure precedes collision). Indeed, if a general awareness that a cireum-stance could arise forecloses the possibility of a sudden emergency when the cireumstance does indeed arise, the sudden emergency instruction would never be given. After today, it is difficult to see what is left of the doe-trine, at least with regard to icy driving conditions-a constant in Colorado of which drivers are generally aware.
Compounding the majority's general awareness error is the fact that it orders a new trial in this case on the ground that a sudden emergency instruction was given, even though it finds that the district court properly refused to instruct the jury on res ipsa loquitur and properly denied Kendrick's motion for a new trial based on juror misconduct. As the majority itself points out, however, a sudden emergency instruction merely informs the jury that it should consider the existence of an emergency when evaluating the defendant's conduct. Maj. op. at 1059. In other words, such an instruction simply repeats the negligence formulation-namely, that the jury should consider the defendant's conduct in light of the cireumstances, including whatever cireumstances the defendant claims to have suddenly confronted. As such, the jury in this case would have properly considered Pippin's testimony that she confronted unexpected icy conditions at the intersection even had the sudden emergency instruction not been given. In fact, the jury in this case was told in two separate instructions that the question was whether the defendant acted reasonably under the cireum-stances.1 As we held in Young, a sudden emergency instruction "merely serves as an explanatory instruction, offered for the purposes of clarification for the jury's benefit," that it is to apply the reasonable person standard to the cireumstances of the case. 814 P.2d at 368. It is difficult to see how such an "explanatory instruction"-even if erroneously given-could have such an impact on the jury such that a new trial should be ordered as a matter of course, as the majority suggests.
It may be that the majority believes that the instruction is more than an explanatory instruction. See Young, 814 P.2d at 372 (Lohr, J., dissenting) (arguing for the abolition of the doctrine). If that is indeed the case, the majority should simply abolish the doctrine altogether, rather than leave the doctrine in place but on uncertain footing. Id. at 872 n. 8. Because I would affirm the decision of the court of appeals in all respects, including its determination that the district court did not abuse its discretion in finding sufficient evidence to warrant a sudden emergency instruction, and would therefore not order a new trial in this case, I respectfully dissent from the majority's opinion.
. - Instruction Number 19 instructed the jury that: "Negligence means a failure to do an act which a reasonably careful person would do, or the doing of an act which a reasonably careful person would not do, under the same or similar circumstances, to protect oneself or others from bodily injury." (Emphasis added.) Instruction Number 20 instructed the jury that: ''Reasonable care is that degree of care which a reasonably careful person would use under the same or similar circumstances." - (Emphasis added.)