concurring.
I agree with the majority’s decision to affirm the judgment of the trial court. I am persuaded that, under the Supreme Court’s case law, the trial court did not commit *39reversible error in delivering an “emergency” instruction. I am also convinced, however, that the court’s cases are difficult to reconcile and deserve careful, critical scrutiny. Were that my only concern, I would not presume to write separately. The problem is that, in attempting to deal with the internal inconsistencies of the Supreme Court’s case law, our own decisions have become somewhat incongruous as well, and the majority’s decision in this case cannot be reconciled with those decisions. I would overrule our inconsistent cases, affirm the trial court and hope that the Supreme Court, in this or some other appropriate case, straightens out the case law by simply condemning the use of the instruction outright.
I begin by observing that the Supreme Court has repeatedly questioned the propriety of an emergency instruction. The court has characterized it as “ ‘treacherous’ and one not to be often given.” Rankin v. White, 258 Or 252, 256, 482 P2d 530 (1971). It is “unnecessary to give,” Ballard v. Rickabaugh Orchards, Inc., 259 Or 200, 207, 485 P2d 1080 (1971), and “should be avoided.” Harkins v. Doyle, 271 Or 664, 667, 533 P2d 785 (1975).
The court’s professed antipathy for the instruction is warranted. The instruction’s message already is included in any general negligence instruction. The court itself has noted that
“[the] usual instructions on negligence sufficiently cover ‘what a reasonably prudent person would do under all the circumstances, including those of sudden emergency.’ ”
Jones v. Mitchell Bros., 266 Or 513, 526-27, 511 P2d 347, 514 P2d 350 (1973) (quoting Evans v. General Telephone, 257 Or 460, 467, 479 P2d 747 (1971)). Even assuming that the instruction simply restates the general standard of care, that repetition is not harmless. As Justice Tongue complained:
‘ ‘The vice of the emergency instruction is that it gives a party (whether plaintiff or defendant) a ‘double shot’ on the issue of whether his conduct was such, considering all of the circumstances, as to satisfy his duty to exercise reasonable care.”
Weitzel v. Wingard, 274 Or 185, 211, 546 P2d 121 (1976) (Tongue, J., dissenting). The instruction also is an unnecessary and improper judicial comment on the evidence and is *40likely to affect a jury’s determination of negligence. Through the delivery of the emergency instruction, a trial court selects an aspect of the evidence — namely, an emergency situation or perilous position —and suggests to the jury how that particular evidence should bear on its determination of a defendant’s negligence. The emergency instruction is likewise confusing. Theoretically, the instruction applies only to decisions made once an emergency is encountered. In all likelihood, however, juries are inclined to excuse or disregard negligent acts that take place before the emergency is encountered on the basis of sympathy evoked through the instruction’s emphasis on actions taken in circumstances under which a party supposedly has little or no control.
For those and other reasons, the emergency instruction has been subject to scholarly criticism, see, e.g., Douglas J. Gunn, Torts — Negligence —The Sudden Emergency Doctrine is Abolished in Mississippi, 51 Miss LJ 301,307-09 & nn 42-47 (1980); William G. Hollingsworth, The Sudden Emergency Doctrine in Florida, 21U Fla L Rev 667, 675-82 (1969); Richard C. Kirby, Justice v. Harrison: The Emergency Doctrine, 3 Okla City Univ L Rev 723, 729-31 (1979); E. Wayne Thode, Imminent Peril and Emergency in Texas, 40 Tex L Rev 459, 461 (1962); Lloyd L. Wiehl, Instructing a Jury in Washington, 36 Wash L Rev 378, 383 (1961), and has been rejected outright in a number of jurisdictions, see, e.g., McClymont v. Morgan, 238 Neb 390, 393-94, 470 NW2d 768, 772 (1991); Knapp v. Stanford, 392 So 2d 196, 199 (Miss 1980); Simonson v. White, 220 Mont 14, 25, 713 P2d 983, 989-90 (1986); see also DiCenzo v. Izawa, 68 Haw 528, 543, 723 P2d 171, 178-81 (1986).
Notwithstanding its admonition that the instruction should be avoided, and the good reasons for saying so, the Supreme Court has refused to jettison the instruction entirely. Durnford v. Worden, 242 Or 536, 540, 410 P2d 1020 (1966); see also Tuite v. Union Pacific Stages, Inc., 204 Or 565, 595, 284 P2d 333 (1955). Indeed, the court regards the question of the appropriateness of giving the instruction as dependent upon questions of fact, which the jury must determine. Swanson v. Hale, 273 Or 138, 140-41, 539 P2d 1073 (1975); Jaeger v. Estep, 235 Or 212, 222, 384 P2d 175 (1963). As long as the record contains any evidence that a driver was *41faced with a sudden danger that was not the result of his or her own negligence and required “quick action * * * as to which course to follow,” it is not reversible error to give the instruction. Swanson, 273 Or at 140-41. Not surprisingly, under that standard of review, there are few reported Supreme Court decisions holding that it was error to deliver the emergency instruction. Thus, although the court urges that the instruction rarely, if ever, should be given, the court also holds that it rarely, if ever, is error to give it.
In response to that inherent contradiction in the Supreme Court’s case law, this court has attempted to provide some reasonable limitations on the use of the emergency instruction. Notably, in Templeton v. Smith, 88 Or App 266, 744 P2d 1325 (1987), rev den 305 Or 45 (1988), this court held that, to warrant the use of an emergency instruction, there must be evidence not just of any emergency but of an “extraordinary” one. Explicitly relying on qualifications of the emergency rule suggested in Prosser and Keeton on The Law of Torts § 33, 196-97 (5th ed 1984), this court held that emergencies that arise in the ordinary course of driving a motor vehicle do not justify giving an emergency instruction. Other emergencies, defined as “extraordinary circumstances” that are not reasonably to be anticipated in the circumstances of ordinary driving, do justify giving the instruction. Id. at 269. See also Scott v. Iverson, 120 Or App 538, 541-42, 853 P2d 302 (1992), rev den 317 Or 486 (1993).
The majority does not explain, and I do not understand, how its decision can be squared with Templeton. The evidence shows that defendant was driving near Government Camp, on Mount Hood, in mid-November, when he encountered a “slick and icy” road. I find nothing particularly extraordinary about encountering ice on a mountain pass in November. Ice at Mount Hood is nothing more than a road condition that reasonably should be anticipated under the circumstances of ordinary driving. Therefore, if Templeton accurately states the law, the trial court erred in giving the emergency instruction in this case.
The problem is that Templeton does not accurately state the law. It conflicts with the Supreme Court’s cases, *42none of which draws a distinction between ordinary emergencies and extraordinary emergencies.1 Under those cases, the primary inquiry is whether the driver was faced with a sudden danger that was not the result of his or her own negligenceandrequired“quickaction* * * as to which course to follow.” Swanson, 273 Or at 140. Applying that standard, it was not reversible error for the trial court to have given the emergency instruction in this case. I would affirm on that basis. But I would not leave the bench and bar to wonder how the decision can be reconciled with Templeton and whether that case remains good law. I would overrule it, and leave it to the Supreme Court to impose limitations on the emergency doctrine or, better yet, abandon it altogether.
Riggs and De Muniz, JJ., join in this opinion.Templeton has, in fact, been characterized as virtually abolishing the emergency doctrine in Oregon. Jeffrey F. Ghent, Modem Status of Sudden Emergency Doctrine, 10 ALR 5th 681, 690 (1991).