dissenting.
T36 By abolishing the sudden emergency instruction in Colorado, the majority finishes what it started in Kendrick v. Pippin, 252 P.3d 1052 (Colo.2011), which substantially limited the scope of the sudden emergency doctrine. Id. at 1071 (Eid, J., dissenting). Because the instruction simply repeats the standard negligence formulation that the jury is to determine whether the defendant's conduct was reasonable under the cireum-stances, including cireumstances that would amount to a sudden emergency, and because the trial court did not abuse its discretion in concluding that there was sufficient evidence of an emergency in this case to warrant the instruction, I respectfully dissent from the majority's opinion.
37 The majority sets forth three different grounds for its decision, none of which I find persuasive. First, the majority suggests that the sudden emergency doctrine has no place in this case because there was no evidence that Johnson took a particular action in response to the emergency. Maj. op. at 1% 11-13; but. see dis. op. at 151 (Boatright, J.) (stating that there was evidence that Johnson attempted to correct his course after losing control). But a defendant can be deemed negligent for failing to take an action that she should have taken, just as she can be deemed negligent for taking an action that she should not have taken. In this instance, as the majority points out, "[the evidence here showed that Johnson lost control of his vehicle upon encountering the snow patch." Maj. op. at 118; see also id. at 18 ("An investigation of the scene revealed that Johnson lost control of his vehicle when he hit an icy patch of snow on the road."). Thus, the question is whether Johnson acted reasonably-either in taking or failing to take action-after he hit the ice patch and lost control of the vehicle See, eg., Kendrick, 252 P.3d at 1059 (holding that the jury must determine "whether the party's conduct was reasonable" under the cireumstances). The Jury said yes.
{88 Second, the majority also suggests that an instruction was inappropriate here because Johnson was aware of the possibility that there might be snow on the road, just as the driver in Kendrick was aware of wintery driving conditions. Maj. op. at 118. But the majority omits the fact from its factual recitation that the weather was good and the roads were otherwise clear on the morning of the accident. The facts here are plainly distinguishable from those in Kendrick, where the court found that the emergency could not be sudden or unexpected because the driver started out in wintery driving conditions and placed her vehicle in four-wheel-drive in recognition of such conditions. 252 P.3d at 1060. Thus, the fact that the defendant in this case was "aware of the possibility that snow and ice might be on the road in the vicinity of the snow patch," maj. op. at 18, does not preclude a sudden emergency instruction. See Kendrick, 252 P.3d at 1060 (explaining that general awareness of road conditions does not preclude instruction); id. at 1070 (Eid, J., dissenting) (same).
*9321 39 Finally, the majority suggests that the sudden emergency instruction could have misled the jury in this case into ignoring whether Johnson caused the accident by his conduct that occurred prior to hitting the ice patch. Maj. op. at TT14, 80. Given the record in this case, it is difficult to see how this could have happened. The theory of Bedor's case was that the Johnson brought the accident about in the first place, either by driving while intoxicated, or by speeding. The bulk of evidence during the three days of testimony was devoted to this issue, and included testimony by numerous experts. Given the focus of the trial and Bedor's theory of the case, it is highly unlikely that the jury would conclude that it should ignore Johnson's pre-ice patch conduct.
40 Moreover, the jury was expressly instructed that "[al person who, through no foult of hs or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care that a reasonably careful person would have exercised under the same or similar circumstances." (Emphasis added). Thus, the jury's attention was expressly drawn to the fact that Johnson must have been placed in the emergency "through no fault of his or her own," and then must have acted reasonably under the cireamstances. As the majority recognizes in this case, the evidence regarding Johnson's pre-ice patch conduct amounted to "some evidence" of negligence that was "inconclusive." Id. Here, resolution of the issue was properly left to the jury.
{41 I have written elsewhere that the sudden emergency doctrine simply repeats the negligence formulation-that is, that the jury should consider whether the defendant acted reasonably under the cireumstances, including cireumstances that amount to a sudden emergency. Kendrick, 252 P.3d at 1071 (Eid, J., dissenting). Given this understanding, I would affirm the court of appeals' conclusion that Johnson presented sufficient evidence to warrant a sudden emergency instruction and therefore the trial court did not abuse its discretion in giving the instruction in this case. Accordingly, I respectfully dissent from the majority's opinion.