dissenting:
I conclude that the court’s instruction to the jury on sudden emergency was erroneous and prejudicial as applied to the facts of this case. Furthermore, I would disapprove of the use of this instruction for the future because it is unnecessary, confusing, and places undue emphasis on only a portion of the relevant facts in a negligence action. Accordingly, I respectfully dissent.
I recognize that we have approved the use of sudden emergency instructions on many occasions in the past. See, e.g., Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Bartlett v. Bryant, 166 Colo. 113, 442 P.2d 425 (1968) (brake failure); Daigle v. Prather, 152 Colo. 115, 380 P.2d 670 (1963) (brake failure); Stewart v. Stout, 143 Colo. 70, 351 P.2d 847 (1960) (icy patch on road); Ridley v. Young, 127 Colo. 46, 253 P.2d 433 (1953) (tire exploded). In recent times, however, some courts have determined that such an instruction has little utility but significant potential for prejudice and have withdrawn their approval of such instructions. I believe that a fresh consideration of special emergency instructions in the context of the present case demonstrates the wisdom of the course chosen by those courts that have discontinued or severely limited the use of such instructions.
Properly understood, the sudden emergency instruction describes the reasonably careful person standard which governs negligence actions. The Colorado sudden emergency pattern jury instruction, which was given in this case, explains: “A person who, through no fault of his or her own, is placed in a sudden emergency, is not chargeable with negligence if the person exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.” CJI-Civ.2d 9:10. Emergency circumstances are merely one of several factors to consider in determining whether a person acted with the degree of care that would have been exercised by a reasonably careful person. See W. Keeton, W. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 33 at 196-97 (5th ed.1984) (hereinafter Prosser). The sudden emergency doctrine is simply a specific application of the reasonably careful person standard.
This instruction provides little guidance beyond that offered by other standard jury instructions. The instructions on both negligence, CJI-Civ.2d 9:4, and reasonable *370care, CJI-Civ.2d 9:6, each of which was given in this case, also direct the jury to compare the party’s conduct against that of a reasonably careful person acting under the same or similar circumstances. The general negligence and reasonable care instructions provide sufficient guidance for the jury to apply the reasonably careful person standard. Furthermore, counsel, in closing argument, can discuss the standard and explain the application of that standard under the evidence presented in a particular case. The sudden emergency instruction merely restates the reasonably careful person standard. The instruction, therefore, has minimal utility.
Several states have reconsidered the sudden emergency instruction and have abolished or severely restricted its use. In Knapp v. Stanford, 392 So.2d 196 (Miss. 1980), the Mississippi Supreme Court prospectively abolished the sudden emergency doctrine. The court recognized the doctrine’s “tendency to elevate its principles above what is required to be proven in a negligence action.” Id. at 198. Although the same standard of care applies in all negligence actions, “[e]ven the wording of a well-drawn [sudden emergency] instruction intimates that ordinary rules of negligence do not apply to the circumstances constituting the claimed ‘sudden emergency.’ ” Id. Applying uniform principles of negligence under all circumstances would be the best procedure. Id. at 199. In Simonson v. White, 713 P.2d 983 (Mont. 1986), the Montana Supreme Court banned the sudden emergency instruction in all automobile accident cases. The instruction adds nothing to standard negligence law but leaves the impression that an emergency excuses the duty of ordinary care. Id. at 989. Similarly, the Hawaii Supreme Court discourages the use of the sudden emergency instruction. DiCenzo v. Izawa, 723 P.2d 171,181 (Haw.1986). I agree that the prejudice and confusion engendered by the instruction outweigh its utility.
A serious flaw in the instruction is its failure to apprise the jury that it must resolve certain factual prerequisites before applying the sudden emergency doctrine. In the present case, the evidence creates issues about the existence of an emergency and whether Clark was at fault in creating it.
The accident occurred on a stretch of Highway 36 on which construction was being performed. Clark observed a truck with lighted arrows indicating that traffic was to merge right. The alleged emergency was an unidentified car merging into traffic, a potential hazard that Clark was warned about. Arguably, drivers exercising ordinary care should anticipate that such traffic conditions are likely to arise.1 See Prosser § 33 at 197. The Youngs also argued that Clark’s inattentiveness to traffic conditions caused her to collide with the Youngs. Clark turned her head — to look at the construction and then to see if she could merge right — for an indefinite time before looking ahead to see the unidentified car merging. A jury could have determined that Clark was at fault in engendering the alleged emergency, which would have prevented her from invoking the sudden emergency doctrine. See CJI-Civ.2d 9:10; Restatement (Second) of Torts § 296(2) (1977). The jury was required to decide these questions of fact concerning the existence of an emergency and whether Clark was at fault in causing it before the sudden emergency doctrine could be applied. Whether an emergency actually existed is a question of fact for the jury to decide. Davis, 177 Colo, at 208, 493 P.2d at 364.
The jurors, however, were not instructed that they must decide the existence of an emergency and Clark’s responsibility for *371creating the emergency. The majority contends that the sudden emergency instruction is explicitly conditioned on a finding that the actor was placed in a perilous predicament through no fault of her own. Maj. op. at 367. The existence of an emergency and Clark’s responsibility for it, however, are not posed as factual prerequisites for jury determination. Rather, reference to those matters in the sudden emergency instruction appears to explain to the jurors why they must consider the emergency circumstances when evaluating Clark’s conduct. The sudden emergency instruction abstractly discusses the standard of care applicable to emergency circumstances. The instruction can be easily interpreted as an instruction by the court that an emergency existed, that Clark was without fault in creating it, and that a special standard of care for that situation is to be applied. The jurors, believing that they have heard the court instruct that an emergency existed and that Clark was without fault in its creation, may therefore apply the doctrine even though they did not address its factual prerequisites as the law requires. I conclude that this acute potential for misinterpretation, coupled with the absence of an instruction that the jury must determine whether an emergency existed and whether Clark was at fault for creating it, caused prejudicial error.
The instruction’s redundant recital of the reasonably careful person standard, while adding little to the jury’s understanding of that standard, creates potential confusion. As the third reference to the importance of the circumstances — supplementing the instructions on negligence and reasonable care — the instruction overly emphasizes this aspect of the case. “[I]t is error to give two instructions, virtually the same, which would tend to confuse the jury by overly emphasizing a defense.” Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 680 (Colo.1985) (part of negligence per se instruction overly emphasized the statutory presumption of negligence when court had already instructed on that presumption); Norden v. Henry, 167 Colo. 274, 279, 447 P.2d 212, 214 (1968) (two assumption of risk instructions overly emphasized that defense). As we said in a similar context, the instruction “serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Lewis v. Buckskin Joe’s, Inc., 156 Colo. 46, 61, 396 P.2d 933, 941 (1964) (abolishing the unavoidable accident instruction).
The instruction also implies that a sudden emergency invokes a different standard of care. A separate instruction2 for sudden emergencies suggests to the jury that sudden emergencies give rise to different standards of conduct; otherwise there would be no need for a separate instruction. The instruction can readily be understood by jurors to connote that a sudden emergency excuses ordinary negligence instead of simply being one of the circumstances to be considered in determining whether the person confronted with an emergency acted as a reasonably careful person would. See DiCenzo v. Izawa, 723 P.2d 171, 181 (Haw.1986) (“wiser course of action would be to withhold sudden emergency instructions”); Knapp v. Stanford, 392 So.2d 196, 198 (Miss.1980) (abolishing sudden emergency instruction prospectively); Simonson v. White, 713 P.2d 983, 989 (Mont.1986) (abolishing sudden emergency instruction for automobile accidents). The instruction is fairly susceptible to misinterpretation.
Moreover, the emphasis on the emergency tends to focus the jury on the party’s conduct during and after the emergency rather than examining the conduct before, during and after the emergency. “[Wjhere there is definite evidence of negligence on the part of the defendant, the weight of such evidence might be entirely destroyed by an instruction on sudden emergency. Such an instruction might well cause the jury to lose sight of the negligence which *372caused the emergency. Kline v. Emmele, 204 Kan. 629, 465 P.2d 970, 973 (1970) (quoted in Mesecher v. Cropp, 213 Kan. 695, 518 P.2d 504, 511 (1974)) (approving trial court’s refusal to give sudden emergency instruction). In the present case, the jury’s attention is channeled to focus on Clark’s actions after the unidentified car attempted to merge back into traffic and to ignore the evidence that Clark may have been inattentive or otherwise negligent before the alleged emergency arose. Yet, the entirety of Clark’s conduct, before, during, and after the unidentified car merged into traffic must be considered in determining whether Clark was negligent.
These problems illustrate the serious danger of misapplication of the sudden emergency instruction. The instruction has only marginal utility but creates serious risk of misapplication and confusion. The instruction does not inform the jurors that they must decide whether an emergency exists and the party’s role in causing it. In addition, the instruction suggests a different standard for emergency situations and gives undue prominence to the emergency circumstances. These problems have led other state courts to abolish or severely restrict the use of the instruction. See, e.g., Knapp, 392 So.2d at 196; see also Prosser § 33 at 197 & n. 40 (model jury instructions in Illinois, Florida, Kansas, and Missouri recommend against the instruction). Rather than leave the matter for the trial court’s discretion to permit use of the instruction in those circumstances where it might have some limited value, I would abolish it.3
If I were persuaded that the instruction did not prejudice the plaintiff, I would concur in the majority’s judgment but express the view that the instruction should be disapproved for future use. The difficult factual issues concerning whether an emergency existed and if so whether it came about through no fault of Clark, coupled with the absence of an instruction that these issues are to be determined by the jury and the implication instead that the court had already resolved them, convince me that the instruction was highly prejudicial. Accordingly, I dissent and would remand the case for a new trial.
Justice ERICKSON joins in this dissent.. For this reason, some courts have held it error to instruct on the sudden emergency doctrine in ordinary automobile accident cases, see Simon-son v. White, 713 P.2d 983, 989 (Mont.1986) (banning sudden emergency instruction in automobile accident cases), or because the specific traffic hazard should have been anticipated, see Chodorov v. Eley, 239 Va. 528, 391 S.E.2d 68, 70 (1990) (sudden stops in traffic do not warrant sudden emergency instruction) (citing Gamot v. Johnson, 239 Va. 81, 387 S.E.2d 473, 476 (1990)). See also Paiva v. Pfeiffer, 229 N.J.Super. 276, 551 A.2d 201, 204-05 (App.Div.1988) (instruction in error, apparently as applied, because argumentative and serving to emphasize unduly one aspect of the proofs).
. The existence of a separate instruction on sudden emergency results from the sudden emergency doctrine’s origin as an escape from the contributory negligence bar. See Note, Torts— Negligence — The Sudden Emergency Doctrine is Abolished in Mississippi 51 Miss. L.J. 301, 302-03 (1980); see, e.g., Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972).
. In Knapp, 392 So.2d at 198, the Mississippi Supreme Court observed that during the prior twenty-five years it had considered approximately twenty-seven cases involving the sudden emergency instruction and had reversed twenty because the instruction was erroneous in its language or application.