(dissenting).
[¶ 26.] The concept of foreseeability is crucial to the majority opinion’s analysis. However, it fails to include the weather *538conditions of the days immediately preceding this accident as well as the day of the accident. The parties stipulated that the weather conditions were as follows:
1. On January 2, 1996, there was two inches of snow cover at the Rapid City Regional Airport and ⅛> of an inch of new snowfall. The maximum temperature was 21 degrees F and minimum temperature was 2 degrees F.
2. On January 3, 1996, four inches of snow fell at Rapid City Regional Airport. .
3. On January 4, 1996, there was five inches of snow cover at the airport and ¾ of an inch of new snowfall. The high temperature on that day was 16 degrees F and the low temperature was -1 degrees F.
4. On January 5, 1996, there was five inches of snow cover at the airport and no precipitation. The high temperature was 6 degrees F and the low temperature was -13 degrees F.
5. On January 6, 1996, there was five inches of snow cover at the airport and no precipitation, with a high temperature of 8 degrees F and a low temperature of -9 degrees F.
6. On January 7, 1996, there was five inches of snow cover at the airport, no additional precipitation, and a high temperature of 34 degrees F with a low temperature of -4 degrees F.
7. On January 8, 1996, there was four inches of snow cover at the airport, no precipitation, with a high temperature of 48 degrees F and a low temperature of 24 degrees F.
8. Temperatures on January 8,1996:
a. 1:53 a.m.: 36 degrees F
b. 4:52 a.m.: 34 degrees F
c. 7:52 a.m.: 36 degrees F
d. 10:53 a.m.: 48 degrees F
e. 1:53 p.m.: 47 degrees F
f. 7:54 p.m.: 36 degrees F
g. 10:53 p.m.: 26 degrees F
9. On January 9, 1996, there was 3 inches of snow cover at the airport and no precipitation. Sunrise was at 7:26 a.m. Temperatures on January 9, 1996:
a. 1:53 a.m.: 30 degrees F
b. 4:52 a.m.: 28 degrees F
c. 7:52 a.m.: 30 degrees F
d. 10:53 a.m.: 42 degrees F
10. Visibility on January 9, 1996: 10 miles
11. Wind velocity on January 9, 1996: 9 miles per hour
12. Cloud cover on January 9, 1996: no clouds.
Based on the above, it is obvious that from January 7 to January 9, two inches of snow melted in the area. However, the low temperatures ranged from -4 degrees to 24 degrees on these days.
[¶ 27.] The snow coordinator for Pennington County testified that this effect of repeated warming and freezing plays a significant role in sanding this area: after snow falls on Nemo Road and it later warms up, that snow melts and the road is wet. When the temperature drops down to 26 degrees, below freezing, the road will inevitably ice up. He further testified that Nemo Road “[h]as a tendency to ice up quite easily” and that people who live out on Nemo Road would be accustomed to the icy conditions. Meyers lived in this area for two and a half years prior to this accident.
[¶ 28.] This accident occurred around 7:15 a.m. on January 9. The temperature was between 28 and 30 degrees at this time. Having lived on Nemo Road for two and a half years, Meyers was familiar with the winter driving conditions in this area and was driving her four-wheel drive vehicle when she left her home for work in Rapid City. One mile from her home, she approached a curve in the road. There is a posted 30 mile an hour advisory speed limit for this curve, which is a suggested speed limit during normal weather conditions. Meyers, however, did not slow *539down and exceeded the advisory speed limit by five miles. She hit a patch of ice and lost control of her vehicle; i.e. weaving back and forth in the road and actually spinning completely around twice. She crossed the center line and, despite Artz’s efforts to avoid the accident, she collided with the front-end of a school bus driven by Artz.
[¶ 29.] This was not a minor impact. It caused an estimated $10,000 in property damage to Meyers’ vehicle and $5,000 in property damage to the school bus. Artz also sustained a complete rotator cuff tear on both shoulders which continues to cause him pain and prevents him from moving his arms up from his sides over his head.
[¶ 30.] Based on the circumstances of this case, it was error to provide the jury with a “legal excuse” instruction. The trial court allowed the excuse instruction based on the theory that Meyers was presented with an emergency not of her own making. However, such an instruction is “not appropriate where an occurrence is reasonably foreseeable.” Dartt v. Berghorst, 484 N.W.2d 891, 896 (S.D.1992) (citations omitted). Thus, the question becomes “whether the icy condition was foreseeable.” Id. (citing Bannon v. Pfiffner, 333 N.W.2d 464, 470 (Iowa 1983)).
[¶ 31.] The majority opinion notes that Meyers, who lived in the area for two and a half years; admitted that one should “always [be] cautious of ice” on Nemo Road. However, it goes on to indicate that “she had not seen any ice until she reached the curve.” What the majority fails to analyze is whether it was foreseeable that she encounter icy road conditions not whether she actually encountered ice immediately prior to the accident. One cannot be entitled to the legal excuse instruction simply because they claim they have not seen any ice on the road prior to the impact.
[¶ 32.] In the days prior to the accident,the Nemo area received snowfall and varying temperatures. At night, the temperatures were low, but were generally higher during the day. This caused the snow to melt during the day and water to accumulate on the road. The water would then freeze during the night. Therefore, it is entirely foreseeable to a reasonable person, especially one who lived in the area, that Nemo Road would have icy spots at 7:15 a.m. when the temperature the day before was 48 degrees and then dipped to 26 degrees overnight. In fact, snow plows were dispatched to Nemo Road on January 8 to sand icy roads.
[¶ 33.] Meyers also admitted she was driving five miles over the advisory speeding limit. The proper speed for this corner was posted at 30 miles per hour when the weather conditions were normal. A reasonable person could not expect the weather conditions to be normal on this particular morning. In this regard, we have stated:
[Wjhere a driver encounters a sudden patch of ice on a roadway, loses control and crosses the center line, his breach of the statute may be legally excused. It becomes a question for the jury whether the icy condition was foreseeable. Where, however, the road conditions are generally icy, the driver is deemed to be aware of the poor road conditions. If he fails to drive accordingly and then loses control on ice, breaching the statute, he cannot set up the icy condition as an emergency.
Dartt, 484 N.W.2d at 896 (internal citations omitted). Meyers stated that one should always be cautious of icy road conditions in the Nemo area. Thus, she was aware that the road conditions were generally icy. Despite this awareness, Meyers failed to act accordingly. She did not act with ordinary care, she failed to maintain control of her vehicle and she did not drive at a proper speed. In summation, she created her own “emergency.”
[¶ 34.] “[A] defendant has the burden of proving legal excuse.” Id. at 894. Based on the foregoing, Meyers did not meet her burden of proof to show that the giving of *540the legal excuse instruction was justified. The instruction cannot be used to excuse ordinary negligence. Under these circumstances, the correct and proper jury instructions according to the law are based on principles of ordinary negligence. As indicated, one cannot be entitled to the legal excuse instruction simply because they claim they have not seen any ice on the road prior to the impact. Meyers had a duty of due care to Artz and the jury should have been instructed accordingly. Therefore, it was reversible error to improperly instruct the jury that her negligent conduct could be legally excused.
[¶ 35.] Consequently, she was not entitled to the legal excuse instruction under circumstances where she created her own emergency.
[¶ 36.] The majority opinion is correct that this is a negligence case. It is not a sudden emergency case. It should have been decided on jury instructions on negligence only, not sudden emergency.
[¶ 37.] The majority opinion additionally states:
The jury voted 12-0 that there was no mistake. This [c]ourt should not second guess the jury in finding a mistake based upon this record. The .jury was given a general verdict form and we are unable to find if the jury found no negligence or whether they found Artz failed to prove damages were caused by this accident.... [T]his [c]ourt should not act as a thirteenth juror to overrule a jury’s unanimous verdict.
The majority opinion misses the point. The jury was erroneously instructed on sudden emergency. “It is ... presumed that a jury understands and follows the court’s instructions.” Mid-America Marketing Corp. v. Dakota Industries, Inc., 289 N.W.2d 797, 799 (S.D.1980) (citing Giltner v. Stark, 219 N.W.2d 700, 704 (Iowa 1974)), even erroneous instructions. If the jury had been properly instructed only on the negligence issues, the trial strategy and closing argument of Artz would have been different, producing a different verdict. Then, we would know whether or not the jury found that Meyers acted with ordinary care, maintained control of her vehicle or drove at a proper speed.
[¶ 38.] I vote to reverse and remand this case for a fair trial based upon correct and proper jury instructions according to the law.