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Contents 1 General Statement 2 Text of OUJI Instruction approved by Oklahoma Supreme Court, with notes. Use Instruction with caution. 2.1 Unavoidable Accident Instructions are not limited to automobile accident cases. 2.1.1 Approved for use in medical malpractice case. 2.2 Cases where unavoidable accident instruction was approved. 2.2.1 Athey v. Bingham, 1991 OK 82, 823 P.2d 347. 2.2.2 Keiffer v Strbac, 1960 OK 14, 349 P.2d 6. 2.2.3 Duncan v United States, 98 F.Supp. 483 (E.D.Ok., 1951). 2.2.4 Long v Hank, 457 F.2d 40 (10th Cir., Ok., 1972). 2.2.5 Gwinn v Payne, 1970 OK 145, 477 P.2d 680. 2.2.6 Studebaker v Cohen, 1987 OK 100, 747 P.2d 274. 2.2.7 Kraft Foods Co., v Chadwell, 1952 OK 382, 249 P.2d 1002 2.2.8 Shoopman v Travelers Ins., 1952 OK 382, 249 P.2d 1002. 2.2.9 Graybeal v Martin Sand & Gravel, 2008 OK CIV APP 28, 179 P.3d 1278. 2.3 Cases where unavoidable accident instruction was not approved. 2.3.1 Ankney v Hall, 1988 OK 101, 764 P.2d 153. 2.3.2 Huey v Stephens, 1954 OK 222, 275 P.2d 254 2.3.3 Newport v. USAA, 2000 OK 59, 11 P.3d 191. 2.3.4 Rose v City of Tulsa, 2005 OK CIV APP 30, 114 P.3d 462. 2.4 Jury can decide that neither party caused accident, even if Defendant fails to plead "unavoidable accident."

General Statement

¶4 In Hartman v. Dunn, 186 Okl. 9, 95 P.2d 897 (1939), we said that "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." Id. 95 P.2d at 901. In Huey v. Stephens, 275 P.2d 254 (1954), (overruled in part on other grounds, Hayward v. Ginn, 306 P.2d 320, 324 [Okla. 1957]), we said that an unavoidable accident "is brought about by some `agency' over which the motorist has no control and is rendered `inevitable' thereby, while using the customary modes of controlling his car." Id. 275 P.2d at 256. The question before us is whether the facts here would permit a finding of some agency causing the collision in the presence of both motorists driving prudently. In Huey we found that an unavoidable accident instruction was improperly given, and our discussion of such included the observation that ". . . and there was no evidence that the road was wet, slick or slippery." Id. 275 P.2d at 256.

Athey v. Bingham, 1991 OK 82, 823 P.2d 347

Text of OUJI Instruction approved by Oklahoma Supreme Court, with notes. Use Instruction with caution.

Instruction No. 10.9

UNAVOIDABLE ACCIDENT

An unavoidable accident is one which occurs without negligence on the part of either party. If you find from the weight of the evidence that the accident was unavoidable, then your verdict should be for [Defendant].

Notes on Use

This Instruction should not be given in most cases, and the general instructions on negligence will be sufficient. Athey v. Bingham, 823 P.2d 347, 350 (Okla. 1991) ("In most negligence cases the instruction clearly should not be given."). In reversing a defense judgment on account of the giving of an unavoidable accident instruction, the Oklahoma Supreme Court emphasized:

Great caution should be exercised in submitting a case to a jury on an unavoidable accident instruction. It should rarely be given. Its use should be restricted to those instances where the evidence indicates the occurrence was caused by unforeseen circumstances or conditions and not by the negligence of either party. In the absence of a showing of some factor over which the parties had no control or could not have predicted, a requested instruction on unavoidable accident should be firmly rejected.

Ankney v. Hall, 764 P.2d 153, 156 (Okla. 1988). Nevertheless, this Instruction would be appropriate if there was a showing that an accident had been caused by something over which the parties had no control, or could not have predicted, except through the exercise of extraordinary foresight. Id. at 154. A showing of adverse road conditions or a latent mechanical defect in an automobile might warrant the giving of this Instruction. See Athey v. Bingham, 823 P.2d 347, 350 (Okla. 1991) (evidence was sufficient to support the giving of an unavoidable accident instruction).

Unavoidable Accident Instructions are not limited to automobile accident cases.

Approved for use in medical malpractice case.

See Studebaker v Cohen, 1987 OK 100, 747 P.2d 274. The Supreme Court approved the use of an unavoidable accident instruction under the facts present in this case. However, the Court noted that it would not approve an "act of God" instruction in cases not involving weather or natural disasters. Studebaker is cited with approval by Athey v. Bingham, 1991 OK 82, ¶12, 823 P.2d 347.

Cases where unavoidable accident instruction was approved.

Athey v. Bingham, 1991 OK 82, 823 P.2d 347.

Auto accident on ice covered road. Defendant traveling at the same rate as surrounding traffic. Fact that Defendant "rear ended" Plaintiff did not raise a presumption of negligence.

Keiffer v Strbac, 1960 OK 14, 349 P.2d 6.

Auto accident on ice covered road. No evidence vehicle being operated improperly. Icy spot on overpass was unexpected.

¶8 The sudden and unexpected skidding of an automobile is one of the natural hazards of driving cars on icy roads, and it may happen to the best of operators. It has also been said to be universally recognized that a motor vehicle may begin to skid and get beyond the control of the driver, although prior to the skidding the vehicle may have been operated with due and proper care. Peters v. United Electric R. Co., 53 R.I. 251, 165 A. 773; 113 A.L.R. 1007.

Duncan v United States, 98 F.Supp. 483 (E.D.Ok., 1951).

Slippery road.

Long v Hank, 457 F.2d 40 (10th Cir., Ok., 1972).

Rain.

Gwinn v Payne, 1970 OK 145, 477 P.2d 680.

Clay surfaced road made slick by rain.

Studebaker v Cohen, 1987 OK 100, 747 P.2d 274.

Medical malpractice case.

Kraft Foods Co., v Chadwell, 1952 OK 382, 249 P.2d 1002

Unexpected obstruction. Car illegally parked on the roadway with no lights.

Shoopman v Travelers Ins., 1952 OK 382, 249 P.2d 1002.

Latent mechanical problems that result in loss of control.

Graybeal v Martin Sand & Gravel, 2008 OK CIV APP 28, 179 P.3d 1278.

Tar deposits and gravel on road caused Defendant to lose control.

Cases where unavoidable accident instruction was not approved.

Ankney v Hall, 1988 OK 101, 764 P.2d 153.

Vehicle crossed center median in rain for no reason established at trial.

Huey v Stephens, 1954 OK 222, 275 P.2d 254

Vehicle came around curve and dropped wheel off pavement into rut and went out of control.

Newport v. USAA, 2000 OK 59, 11 P.3d 191.

Roads were visibly icy during a sleet storm.

Rose v City of Tulsa, 2005 OK CIV APP 30, 114 P.3d 462.

Defendant knew that roads were wet, yet traveled at normal posted speeds. Defendant's brakes had no effect on hill and Defendant rear ended stopped Plaintiff at 100 mph. [Dissent noted that Defendant was only going 25 mph (the posted limit) and that a jury could have found that the Defendant's vehicle hydroplaned on the wet pavement, thus creating an unavoidable accident.]

Jury can decide that neither party caused accident, even if Defendant fails to plead "unavoidable accident."

¶14 Because Capshaw urges the blank verdict form is fundamentally (manifestly) flawed - a claim that may be presented absent a preserved trial-court exception - we proceed to review the verdict form in contest. We find it not fatally defective on its face. It is neither inconsistent nor incapable of translation into a final jury resolution fit as a legal judgment. Capshaw's assertion - the aggregate of the parties' negligence must total one hundred percent is mistakenly absent from the form - is incorrect. The form provides that negligence, if any, which is to be apportioned among the parties must total either zero or one hundred percent. This is no misstatement of law. The mere happening of an accident is not indicative of negligence. The jury is the trier of fact. In any negligence case the jury is free to find that none of the parties was negligent. Its freedom to make this choice does not depend on the plead defense of unavoidable accident. Finding no negligence on the part of any party is the jury's prerogative, not an aberration. The jury here was at liberty to assess negligence among the parties in any percentage (equaling zero or one hundred percent) expressive of its findings. The form simply combines the rules of law that pertain to negligence into a single statement. It provides the jury the full panoply of available legal options pressed for by the litigants: negligence, no negligence or contributory negligence. Apportioning one hundred percent negligence among the parties is an option embodied within the form's parameters. The jury did not in this case choose to make this finding.

CAPSHAW v. GULF INSURANCE COMPANY, 2005 OK 5, 107 P.3d 595