[¶ 1] Todd and Ginger Harfield appeal from a judgment entered upon a jury verdict dismissing their negligence action against Jeremy Tate. We hold the trial court erred when it issued a jury instruction unsupported by the evidence and denied the Harfields’ motion for judgment as a matter of law. We reverse and remand to the trial court for further proceedings consistent with this opinion.
I
[¶ 2] On December 28, 1994, Tate rear-ended the Harfields’ car as he ascended the 19 th Avenue exit ramp on Interstate 29 in Fargo. A line of approximately four cars was stopped at the stop sign at the top of the exit ramp. The Harfields’ car was directly in front of Tate’s pick-up truck as Tate came to an initial stop. The vehicles were approximately 10 to 20 feet apart. At some point while the traffic was progressing, Tate heard a noise coming from the back of his truck which caused him to turn around and look into the back of the truck. The noise came from empty water jugs rolling around in the back of his truck. Tate had placed the jugs there that morning. When he looked ahead he was able to apply his brakes but unable to
[¶ 3] The Harfields sued Tate for negligence. Ginger Harfield claims to have suffered a soft tissue injury and incurred medical expenses of nearly $13,000.
[¶ 4] The relevant disputed facts at trial involved the speed of Tate’s truck at impact and the extent of damage to the Har-field car. Harfields’ expert, Mariusz Zie-jewski, Ph.D., opined the speed at impact was in excess of 7½ m.p.h. His opinion was based primarily on the structural damage to the vehicle’s frame and rear quarter panels. The defense’s accident reeonstruc-tionist, Myron Lofgren, testified the speed at impact was 5 ,m.p.h. Lofgren based his opinion on the lack of compression to the rear bumper’s shock absorbers on the Harfield vehicle. Lofgren claimed any frame damage to the Harfield vehicle could not have resulted from this accident because a frame cannot be bent without significant damage to the bumper’s shock absorbers.
[¶ 5] At the end of trial, the Harfields moved for judgment as a matter of law under N.D.R.Civ.P. 50(a) that Tate was negligent and that his negligence was the proximate cause of Ginger Harfield’s injuries. The court denied the motion. Over the Harfields’ objection, the trial court submitted to the jury the following instruction:
Distracting Circumstances — In determining whether the Defendant exercised due care in the operation of the Chevy truck, you may consider whether distracting circumstances existed and whether, under the circumstances, the distracting circumstances excuse the Defendant’s failure to see what is in plain sight.
The jury found Tate not negligent in the operation of his motor vehicle and judgment was entered dismissing with prejudice Harfields’ complaint. The Harfields timely appealed, arguing the trial court erred when it denied their motion for judgment as a matter of law and gave the jury the “distracting circumstances” instruction.
II
[¶ 6] We turn first to the issue of the jury instruction. In Dale v. Cronquist,
Jury instructions should fairly inform the jury of the law applicable to the case. They should also fairly cover the claims made by both sides of the case. Instructions on issues or matters not warranted by the evidence are erroneous, but constitute reversible error only when calculated to mislead the jury or, in other words, when they are prejudicial.
[[Image here]]
When a trial court has chosen a specific instruction, a reviewing court should not be quick to second-guess its choice, if there is evidence or inferences from the evidence to support it. The trial process is still more art than science. Only scant evidence may be needed to support a jury instruction. Where there is no evidence to support a particular theory, there should be no instruction on it; but if the evidence admits of more than one inference, an instruction is proper.
[¶ 7] The theory of “distracting circumstances” is most commonly associated with premises liability cases. In that context, the doctrine excuses a plaintiffs inattentiveness to open and obvious dangers on a business premises he otherwise would be duty-bound to be aware of in the absence of sufficient “distracting circumstances.” Distracting circumstances excusing a plaintiffs inattentiveness to obvious dangers often include store displays intended to attract the customer’s attention. See, e.g., Schuller v. Hy-Vee Food
[¶ 8] The doctrine was eventually adopted by some courts in automobile negligence cases to lessen the harsh effects of contributory negligence on plaintiff victims. This Court applied the doctrine several times in automobile negligence cases prior to our State’s adoption of comparative negligence. In all of these cases, the plaintiff driver claimed the existence of “distracting circumstances,” in order to avoid contributory negligence. See, e.g., Wisnewski v. Oster,
A
[¶ 9] The Harfields first argue because the doctrine of “distracting circumstances” is a former contributory negligence concept it is no longer viable in a comparative fault jurisdiction. We disagree.
[¶ 10] Much like the “distracting circumstances” doctrine, the doctrine of “momentary forgetfulness” lessened the harsh effects of contributory negligence by excusing a plaintiffs negligence when he momentarily forgot known dangers to which he had voluntarily exposed himself. E.g., Pyke v. City of Jamestown,
[¶ 11] We have also retained under our comparative negligence system another analogous theory to the “distracting circumstances” doctrine — the “sudden emergency” doctrine. Under this doctrine, a tortfeasor’s negligence is excused or mitigated when confronted with circumstances constituting a sudden danger or emergency. E.g., Haider v. Finken,
carefully drafted instructions about a driver’s standard of ordinary care under the circumstances of an emergency, coupled with instructions about the driver’s standard of ordinary care before the emergency arose, give adequate guidance to the jury and latitude to the parties to argue that a sudden emergency may have been caused by the driver’s lack of prior care and should have been anticipated. Carefully drafted instructions about those situations direct a jury to assess fault for deviations from the negligence standard of ordinary care under emergency circumstances and are consistent with the assessment of fault under comparative negligence.
Ebach v. Ralston,
[¶ 12] While we recognize our adoption of comparative negligence has shifted the focus from “traditional, doctrinal labels to the singular, inclusive concept of ‘fault,’ ” Erickson,
B
[¶ 13] The Harfields argue even if a “distracting circumstances” instruction is appropriate under comparative fault, Tate should not be able to invoke the defense under the facts of this case. We agree.
[¶ 14] Previous decisions of this Court have applied the negligence doctrines of “sudden emergency” and “distracting circumstances” in the same case. See Bauer v. Kruger,
[¶ 15] Both doctrines are also premised on the notion a tortfeasor’s negligence cannot be excused or mitigated by distracting circumstances or sudden dangers of his own making. In Ebach,
[¶ 16] The “distracting circumstances” doctrine does not lower or minimize one’s expected standard of care. Under such circumstances the person invoking the doctrine is required to exercise that degree of care which an ordinarily prudent person would exercise under similar circumstances. See Ebach,
C
[¶ 17] We now consider whether the “distracting circumstances” instruction was sufficiently supported by the evidence presented in this case.
[¶ 18] At trial, Tate claimed the cause of the distraction was “something rolling around in the back of the pick-up, making noise.” He testified the noise came from empty water jugs rolling around in the back of his truck. Tate had loaded the jugs into the truck that morning so he could get them filled in Fargo that afternoon. The empty jugs remained in Tate’s truck all day, and because he forgot to get them filled, they were still rolling around in his pickup as he exited Interstate 29 in the early evening on the night of the accident.
[¶ 19] In a case factually similar to this one, the Minnesota Supreme Court held sufficient distracting circumstances did not exist to excuse a driver’s negligence. Souden v. Johnson,
[¶ 20] Under these circumstances, we conclude the noise of the water jugs rolling around in the back of Tate’s truck is not a “sudden and critical” event justifying the diversion of his attention from the road and the distraction was of his own making. Tate was not distracted because of the plaintiffs or a third party’s actions and an instruction is only proper where there is evidence tending to show the claimed distraction was not caused or contributed to by the driver seeking to invoke the doctrine. We, therefore, hold the trial court erred in instructing the jury on the doctrine of distracting circumstances.
Ill
21] Having determined the court erred in giving the “distracting circum-circuminstruction, we conclude there is no justification for Tate’s diversion of at-atfrom the road in front of him. The undisputed facts are such that no reason-reasonperson could reach any conclusion but that in the exercise of due care, Tate should have seen the Harfield car and
[¶ 22] The trial court may grant a motion for judgment as a matter of law against a litigant if there is no legally sufficient evidentiary basis for a reasonable jury to find for that party. N.D.R.Civ.P. 50(a)(1). We review a trial court’s decision on a Rule 50 motion for abuse of discretion. See Diversified Financial Systems Inc. v. Binstock,
[¶ 23] We conclude the trial court abused its discretion when it denied the Harfields’ motion for judgment as a matter of law, and therefore determine Tate was negligent as a matter of law. We reverse the judgment and remand to the trial court for a new trial on the issue of damages.
Notes
. While the "distracting circumstances” doctrine was most often applied to excuse a plaintiffs contributory negligence, this Court has instructed it is also appropriate to the determination of a defendant’s negligence. See Kelmis v. Cardinal Petroleum Co.,