unavoidable accident instruction in Oklahoma

2005Athey v. Bingham, 1991 OK 82, ¶ 5 , 823 P.2d at 348 ; Ankney v. Hall, 1988 OK 101, ¶2 , 764 P.2d at 154 . ¶9 The giving of an unavoidable accident instruction without an evidentiary basis is “incorrect and misleading.” Huey v. Stephens, 1954 OK 222, ¶ 9 , 275 P.2d at 257 .

1991In recent decisions we have allowed it in Studebaker v. Cohen, 747 P.2d 274 (Okla.1987) (medical malpractice case where child suffered oxygen deprivation in birth canal — case reversed for inclusion of Act of God instruction), and disallowed it in Ankney v. Hall, 764 P.2d 153 (Okla.1988), (vehicle crossed center median in rain for no reason established at trial.) In Ankney we said: Such an instruction is appropriate only when evidence has been introduced “showing some factor over which the parties had no control, or could not, except by the exercise of exceptional foresight, have predicted.” I

2005The fact that a motor vehicle collision occurred does not necessarily raise the presumption that the defendant was following too close, driving too fast to bring the car to a stop, or driving too fast for highway conditions. [[Image here]] Thus, the mere fact of a collision does not show a violation of the above cited statutes, nor such a showing of negligence that an unavoidable accident instruction would be improper. 823 P.2d at 349 . ¶ 8 As the majority says, the general rule is that the “determination of the question of negligence, that is, what is or what is not negligence, in nearly ever

2005The fact that a motor vehicle collision occurred does not necessarily raise the presumption that the defendant was following too close, driving too fast to bring the car to a stop, or driving too fast for highway conditions. [[Image here]] Thus, the mere fact of a collision does not show a violation of the above cited statutes, nor such a showing of negligence that an unavoidable accident instruction would be improper. 823 P.2d at 349 . ¶ 8 As the majority says, the general rule is that the “determination of the question of negligence, that is, what is or what is not negligence, in nearly ever

2005Athey v. Bingham, 1991 OK 82, ¶ 5 , 823 P.2d at 348 ; Ankney v. Hall, 1988 OK 101, ¶2 , 764 P.2d at 154 . ¶9 The giving of an unavoidable accident instruction without an evidentiary basis is “incorrect and misleading.” Huey v. Stephens, 1954 OK 222, ¶ 9 , 275 P.2d at 257 .

2005Athey v. Bingham, 1991 OK 82, ¶ 5 , 823 P.2d at 348 ; Ankney v. Hall, 1988 OK 101, ¶2 , 764 P.2d at 154 . ¶9 The giving of an unavoidable accident instruction without an evidentiary basis is “incorrect and misleading.” Huey v. Stephens, 1954 OK 222, ¶ 9 , 275 P.2d at 257 .

2005In addition, [the insurer’s] investigation and evaluation of the claim had always indicated negligence on the part of one or both parties.” Id.

2005Huey v. Stephens, 1954 OK 222, ¶ 7, ¶ 8 , 275 P.2d 254, 256, 257 (emphasis added). ¶ 8 The giving of an unavoidable accident instruction has been upheld when a driver exercising reasonable prudence encounters (1) an unexpected obstruction, such as a car illegally parked on the roadway with no lights (Kraft Foods Co., v. Chadwell, 1952 OK 382 , 249 P.2d 1002, 1004 ); (2) latent mechanic problems that result in loss of control (Shoopman v. Travelers Ins.

2005Huey v. Stephens, 1954 OK 222, ¶ 7, ¶ 8 , 275 P.2d 254, 256, 257 (emphasis added). ¶ 8 The giving of an unavoidable accident instruction has been upheld when a driver exercising reasonable prudence encounters (1) an unexpected obstruction, such as a car illegally parked on the roadway with no lights (Kraft Foods Co., v. Chadwell, 1952 OK 382 , 249 P.2d 1002, 1004 ); (2) latent mechanic problems that result in loss of control (Shoopman v. Travelers Ins.

1991In Keiffer v. Strbac, 349 P.2d 6 (Okla. 1960), we allowed the use of an unavoidable accident instruction when an icy road was the agency over which the motorist had no control and the motorist was operating his vehicle in the manner of an ordinary prudent person.

1991In Keiffer v. Strbac, 349 P.2d 6 (Okla. 1960), we allowed the use of an unavoidable accident instruction when an icy road was the agency over which the motorist had no control and the motorist was operating his vehicle in the manner of an ordinary prudent person.

1991In Long v. Hank, supra, the trial court’s use of an unavoidable accident instruction was proper because of the circumstances and driving conditions, i.e., rain.

1991Id. 457 F.2d at 43 .

1987The defendant hospital states the defense of unavoidable accident applies when there is evidence that neither party is negligent and all parties were using ordinary care, citing Wofford v. Lewis, 377 P.2d 37 (Okl.1963).

1987The defendant hospital states the defense of unavoidable accident applies when there is evidence that neither party is negligent and all parties were using ordinary care, citing Wofford v. Lewis, 377 P.2d 37 (Okl. 1963).

1975Co., Inc., Okl.App., 518 P.2d 902 , this court observed that an unavoidable accident instruction prescribes no duty of care or standard of conduct and that failure to give such an instruction has not heretofore been held to be reversible error.

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973To further instruct on unavoidable accident serves only to twice tell the jury that the plaintiff cannot recover unless he proves negligence.” Some other cases holding that an unavoidable accident instruction should not be given in any case, are: Schaub v. Linehan, 92 Idaho 332 , 442 P.2d 742 (1968); Hidden v. Malinoff, 174 Cal.App.2d 845 , 345 P.2d 499 (Calif.1959); and Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217 (1964).

1973In Wilson v. Roach, 101 Okl. 30 , 222 P. 1000 , this Court held: “An unavoidable accident is a casualty which occurs without negligence of either party and when all means which common prudence suggests have been used to prevent it.” The question to be answered in determining the propriety of the unavoidable accident instruction is whether the accident could have been prevented by Dupree if he had, and whether he had, exercised the care required of him as a reasonably prudent person under the existent facts of this case.

1973In Wilson v. Roach, 101 Okl. 30 , 222 P. 1000 , this Court held: “An unavoidable accident is a casualty which occurs without negligence of either party and when all means which common prudence suggests have been used to prevent it.” The question to be answered in determining the propriety of the unavoidable accident instruction is whether the accident could have been prevented by Dupree if he had, and whether he had, exercised the care required of him as a reasonably prudent person under the existent facts of this case.

1962In Keltch v. Strunk, Okl., 295 P.2d 785 , this court held: “Where, from portions of the evidence of both plaintiff and defendant when considered together, the jury might reasonably have concluded that neither the plaintiff nor the defendant were guilty of negligence proximately causing the accident, and that the accident could not have been prevented by either party exercising the care required of him as a reasonably prudent person, the issue of unavoidable accident is sufficiently presented that the trial court may properly submit the issue to the jury under an appropriate instruction.” See a

1962In Keltch v. Strunk, Okl., 295 P.2d 785 , this court held: “Where, from portions of the evidence of both plaintiff and defendant when considered together, the jury might reasonably have concluded that neither the plaintiff nor the defendant were guilty of negligence proximately causing the accident, and that the accident could not have been prevented by either party exercising the care required of him as a reasonably prudent person, the issue of unavoidable accident is sufficiently presented that the trial court may properly submit the issue to the jury under an appropriate instruction.” See a

1962In Keltch v. Strunk, Okl., 295 P.2d 785 , this court held: “Where, from portions of the evidence of both plaintiff and defendant when considered together, the jury might reasonably have concluded that neither the plaintiff nor the defendant were guilty of negligence proximately causing the accident, and that the accident could not have been prevented by either party exercising the care required of him as a reasonably prudent person, the issue of unavoidable accident is sufficiently presented that the trial court may properly submit the issue to the jury under an appropriate instruction.” See a

1942In the case of Hartman v. Dunn, 186 Okla. 9 , 95 P. 2d 897 , where plea of unavoidable accident almost identical with that made by the defendants in the case at bar was involved, this court said: “The defendant pleaded an unavoidable accident as a defense.

1942In the case of Hartman v. Dunn, 186 Okla. 9 , 95 P. 2d 897 , where plea of unavoidable accident almost identical with that made by the defendants in the case at bar was involved, this court said: “The defendant pleaded an unavoidable accident as a defense.