author: BENCH, Judge:

text:
    2002 UT App 220
    ALVEY DEVELOPMENT CORP., Plaintiff, Appellee, and Cross-appellant, v. Van MACKELPRANG and Jamie Mackelprang, et al., Defendants, Appellants, and Cross-appellees.
    No. 20000946-CA.
    Court of Appeals of Utah.
    June 27, 2002.

      Van Mackelprang, Kanab, for Appellants.
    Colin R. Winchester, Judicial Conduct Commission, Salt Lake City, for Appellee.
    Before BENCH, GREENWOOD and THORNE, JJ.
   OPINION

BENCH, Judge:

¶ 1 Defendants Van and Jamie Rae Mack-elprang (Mackelprangs), appeal the trial court’s judgment finding a prescriptive easement in favor of Plaintiff Alvey Development Corporation (Alvey). Alvey cross appeals the trial court’s pretrial grant of partial summary judgment, rejecting its claim of an easement by reservation. Both parties also appeal the denial of their respective motions for a new trial. We affirm in part and reverse in part.

BACKGROUND

¶ 2 “ ‘On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.’ ” Johnson v. Higley, 1999 UT App 278, ¶ 2, 989 P.2d 61 (quoting Lake Philgas Serv. v. Valley Bank & Trust Co., 845 P.2d 951, 953 n. 1 (Utah Ct.App.1993)).

¶ 3 In 1986, Garkane Power Association (Garkane) acquired 50 acres of property in Kane County from Afton Jamison. This property is north of, and abuts Mackel-prangs’ property (Lot 32). The following year, Alvey acquired a portion of the 50 acres from Garkane. Alvey’s property from this purchase did not abut Lot 32. In 1997, after Alvey filed this suit, Garkane quitclaimed to Alvey an undivided one-half interest in a portion of the Garkane property that abuts Lot 32. Lot 32 is divided from the Garkane Alvey property by a fence with a gate that has been present since at least 1958. In July of 1998, Garkane disclaimed any interest it had in Lot 32 and was subsequently dismissed from the proceedings below.

¶4 Mackelprangs acquired Lot 32 in a foreclosure sale in 1990 through a trustee’s deed. Lot 32 was originally created when Kanab Creek Ranchos, Inc. (KCR) subdivided what we will refer to as the “southern property.” In 1977, KCR transferred Lot 32 to its original owners, the Weavers. Following the Weavers, several other parties prior to the Mackelprangs owned Lot 32; however, the transfer from KCR to the Weavers is central to the issues in this case. The warranty deed from this transaction stated that transfer to the Weavers was “[sjubject to a sixty (60) foot wide roadway easement along the West boundary.” KCR did not have any ownership interest in the property to the north at the time it transferred Lot 32; nor did KCR ever acquire any ownership interest in that property. This “northern property” (the property now owned collectively by Al-vey and Garkane) was, at the time of the 1977 Weaver transfer, owned by the Jami-sons. The Jamisons, and successive owners of Lot 32, knew about the clause in the Weavers’ warranty deed. However, the Ja-misons did not broaden or increase their actual use of the easement as might arguably have been allowed under the reservation clause. Instead, the Jamisons continued to use only the “pre-existing” roadway on the western portion of Lot 32. This roadway had previously been used for agricultural purposes and access to the northern property. Evidence at trial showed that this roadway had been used as early as the 1930s by those who had owmed the northern property prior to the Jamisons. In 1996, KCR transferred to Alvey via quitclaim deed, any rights it had in the 60-foot reservation easement mentioned in the 1977 warranty deed.

¶ 5 Alvey filed suit in 1996 to enforce the 60-foot easement across the westerly portion of Lot 32 and to establish an easement by prescription. The trial court ruled in a pretrial summary judgment proceeding that the reservation of the 60-foot easement was invalid, and that the transfer to Alvey was therefore ineffective. Thereafter, following a bench trial, the trial court found that Alvey had a 16.5-foot easement by prescription on the western portion of Lot 32. Mackel-prangs appeal the finding of a prescriptive easement and the denial of their motion for a new trial. Alvey cross-appeals the trial court’s grant of partial summary judgment as to the 60-foot easement and the denial of its motion for a new trial.

ISSUES AND STANDARDS OF REVIEW

¶ 6 At issue is the alleged existence of two different easements across Lot 32: a prescriptive easement originating from the use of an access road across Lot 32 dating back to the 1930s, and an easement allegedly created from the reservation clause in the Weavers’ warranty deed (reservation easement). In their appeal, Mackelprangs argue that the trial court erred in finding the prescriptive easement across Lot 32 still valid. In its cross appeal, Alvey contends that the trial court erred in granting partial summary judgment, ruling that there was no easement created by the reservation clause. Both parties also dispute the trial court’s denial of their respective motions for a new trial.

¶ 7 “[Tjhe question of whether or not an easement exists is a conclusion of law.” Potter v. Chadaz, 1999 UT App 95,¶ 7, 977 P.2d 533. However, the Utah Supreme Court has noted that

such a finding [of an easement] is “the type of highly fact-dependent question, with numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts. We therefore overturn the finding of an easement only if we find that the trial judge’s decision exceeded the broad discretion granted.”

Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998) (citation omitted).

¶ 8 Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(c). See Warburton v. Virginia Beach Fed. Sav. & Loan Ass’n, 899 P.2d 779, 781 (Utah Ct.App.1995). In reviewing a grant of summary judgment, we view the facts in the light most favorable to the losing party. See id.

¶ 9 Finally, rule 59 of the Utah Rules of Civil Procedure provides, in part, that “a new trial may be granted to all or any of the parties and on all or part of the issues.... ” Utah R. Civ. P. 59(a). When reviewing a trial court’s denial of a motion for a new trial, “we will not reverse a trial court’s decision absent [a] clear abuse of ... discretion.” State v. Harmon, 956 P.2d 262, 266 (Utah 1998).

I. PRESCRIPTIVE EASEMENT

¶ 10 “The requirements for establishing a prescriptive easement are open, notorious, adverse and continuous use of [the] property [of another] for a period of twenty years.” Homer v. Smith, 866 P.2d 622, 626 (Utah Ct.App.1993). An appurtenant easement is an easement that benefits a particular tract of land, where there is a dominant estate that receives a benefit and a servient estate that inures a burden. See Johnson, 1999 UT App 278 at ¶ 13, 989 P.2d 61; see also 25 Am.Jur.2d Easements and Licenses § 10 (1996).

¶ 11 The trial court found that, based on the evidence, there was access across Lot 32 to the Alvey property since as early as 1939, with evidence showing that the access road was “apparent on the ground” dating back to at least 1958. The trial court also found that such use was open, notorious, adverse, and for the benefit of the northern property. Mackelprangs do not dispute these findings, but contend that Alvey cannot have a prescriptive easement because its property does not abut Lot 32. Mackelprangs point to the 1987 transfer of land from Garkane to Alvey, in which Garkane retained all the property that abuts Lot 32. Mackelprangs argue that when Garkane partitioned the northern property by selling part of it to Alvey, the easement in regard to Alvey’s property ceased to exist. They contend that an appurtenant easement cannot benefit a parcel that does not abut the servient tenement (Lot 32) after the division of the dominant tenement (northern property). Mackelprangs point to three cases as support for their argument: Mawson v. J.G. Inv. Co., 23 Utah 2d 437, 464 P.2d 595 (1970), Farnsworth v. Soter’s Inc., 24 Utah 2d 199, 468 P.2d 372 (1970), and Wood v. Ashby, 122 Utah 580, 253 P.2d 351 (1952).

¶ 12 Wood involved an appeal concerning rights of way across a narrow strip of land. See 253 P.2d at 352. An ingress-egress easement had been reserved across an identifiable portion of land (strip) that was south of the dominant tenement. See id. at 352-53. Eventually, the defendants acquired the dominant tenement and planned to subdivide it. See id. The defendants sought to gain additional access across the strip relying upon the original reserved rights of way. See id. The Utah Supreme Court stated that

a right of way appurtenant to an estate is appurtenant to every part of it and inures to the benefit of the owners of every part. “Nevertheless, the partition of the dominant tenement cannot create a further or additional easement across a servient tene- • ment, and an easement of way does not inure to the benefit of the owner of a parcel which after the division does not abut on the way; and where the resulting use will increase the burden upon the ser-vient estate, the right to the easement will be extinguished.”

Id. at 354 (citation omitted) (emphasis added). In affirming the decision of the trial court, the Utah Supreme Court held that the defendants were not entitled to additional, separate access across the strip. See id. at 355. The supreme court’s reasoning in Wood follows the rule articulated in Rollo v. Nelson, 34 Utah 116, 96 P. 263 (1908):

[I]t is a well-recognized rule of law that, on a severance of an estate by. a sale of a part thereof, all easements of a permanent character, that have been created in favor of the land sold, and which are open and plain to be seen, and are reasonably necessary for its use and convenient enjoyment, unless expressly reserved by the grantees, pass as appurtenances to the land ... [as long as there is not] any additional burden upon the servient estate.

Id. 96 P. at 265 (internal citation omitted).

¶ 13 Accordingly, a “right of way, which is appurtenant to an estate, is appurtenant to every part of it” regardless of how many subdivisions take place. Id. Furthermore, an “easement is not extinguished by a division of the estate to which it is appurtenant” and passes as an appurtenance to the land unless the easement is expressly reserved by the grantee. Id.; see also Aspen Acres Ass’n v. Seven Assocs., Inc., 29 Utah 2d 303, 508 P.2d 1179, 1182 (1973). From our reading of the aforementioned cases, at least four basic requirements must be met for an appurtenant prescriptive easement to survive a division of the dominant tenement. First, after the division of the dominant tenement, an additional or further easement cannot be created across the servient tenement. See Wood, 253 P.2d at 354. Second, there cannot be any increase in the burden upon the servient tenement after the division. See Rollo, 96 P. at 265. Third, the easement must be reasonably necessary for use and convenient enjoyment of the dominant tenement. See id. Finally, upon the division of the dominant tenement, the newly created parcel must “abut on the way.” Wood, 253 P.2d at 354.

¶ 14 The 1987 acquisition of property by Alvey fulfilled the first three of these requirements. However, at the time of the 1987 transfer, Alvey’s land did not abut on the way, therefore, Alvey’s “right to the easement ... [was] extinguished.” Id. The remaining question then is this: Did the 1997 conveyance from Garkane to Alvey of a one-half interest in land, which abuts both Lot 32 and Alvey’s 1987 parcel, fulfill the requirement found in Wood that a newly created parcel must “abut on the way” following a division of the dominant tenement? Id. We conclude that it did not.

¶ 15 We note at the outset that Utah appears to be in the minority of jurisdictions holding that an easement is extinguished when, after the division of the dominant tenement, a newly created parcel does not abut the servient tenement. Wood unequivocally states that “an easement of way does not inure to the benefit of the owner of a parcel which after the division does not abut the way,” and consequently, if it does not abut then “the right to the easement will be extinguished.” Id. The trial court found that Alvey’s land from the 1987 purchase did not abut Lot 32. Any rights Alvey could have potentially obtained from Garkane in an easement across Lot 32 were therefore “extinguished.”

¶ 16 The 1997 quitclaim transfer by Garkane, conveying to Alvey an undivided one-half interest in land that abutted Lot 32, did not revive any rights in the easement for the benefit of Alvey’s property. We have found no principle in Utah law that allows for the revival of a prescriptive easement after it has been extinguished. Indeed, in Utah “[t]here is an important interest for property owners to possess unencumbered titles ... [because] public policy [favors] certainty in title to real property, ... to protect bona fide purchasers and to avoid conflicts of ownership, which may engender needless litigation.” Potter, 1999 UT App at ¶ 13, 977 P.2d 533 (quotations and citations omitted). The only way Alvey could regain a prescriptive easement across Lot 32 would be to meet the normal requirements, namely: open, notorious, adverse, and continuous use of the easement for a period of twenty years after its extinguishment. See Homer, 866 P.2d at 626. We therefore reverse the trial court as to its finding of a prescriptive easement in favor of Alvey.

II. RESERVATION EASEMENT

¶ 17 In reviewing a grant of summary judgment, we view the facts in the light most favorable to the losing party. See Warburton, 899 P.2d at 781. The trial court ruled, as a matter of law, that the reservation clause did not create “an appurtenant easement, nor did it create an easement in gross, because [the easement] had nothing to attach and could not be utilized in any meaningful way.” Therefore, the trial court held that any subsequent transfer of rights in this reservation easement was ineffective. Alvey disputes this finding and argues that the trial court incorrectly ruled that this reservation did not create a valid easement. Alvey contends that the reservation clause in the 1977 warranty deed from KCR to the Weavers created an easement in gross.

¶ 18 Mackelprangs contend that Alvey failed to meet the requirements for an appeal found in rule 4(a) of the Utah Rules of Appellate Procedure. That rule, provides in part, that “[i]n a case in which an appeal is permitted ..., the notice of appeal ... shall be filed ... within 30 days after the date of entry of judgment or order appealed from.” Utah R.App. P. 4(a). According to Mackel-prangs, this court lacks jurisdiction to hear Alvey’s claim because Alvey did not file a notice of appeal within 30 days of the grant of partial summary judgment. We disagree. “[A] partial summary judgment is not generally a final judgment and hence it is not appealable....” South Shores Concession, Inc. v. State, 600 P.2d 550, 553 (Utah 1979) (emphasis omitted). A final order or judgment “ ‘ “must dispose of the case as to all the parties, and finally dispose of the subject-matter of the litigation on the merits of the case.”’” Bradbury v. Valencia, 2000 UT 50,¶ 9, 5 P.3d 649 (quoting Kennedy v. New Era Indus., 600 P.2d 534, 536 (Utah 1979) (citation omitted) (emphasis omitted)). The pretrial summary judgment was not a final order or judgment under this standard. Accordingly, we will consider the issue.

¶ 19 The trial court found that KCR did not have any ownership interest in the northern property at the time of the attempted reservation in the warranty deed, nor did it obtain any interest thereafter. Therefore, this attempted reservation was not for the benefit of -the northern property, but created a benefit solely for KCR’s principals to have a position of leverage against the northern property. “[A]n appurtenant easement, such as one for access [like that found in this case] ..., ‘inheres in the [grantee’s] land, concerns the premises, and pertains to its enjoyment. It is incapable of existence separate from the particular land to which it is annexed.’” Johnson, 1999 UT App 278 at ¶ 13, 989 P.2d 61 (quoting 25 Am.Jur.2d Easements and Licenses § 10 (1996) (citation omitted) (third alteration in original)). We agree with the trial court that the reservation easement had nothing to attach to; therefore, the reservation easement cannot be characterized as an appurtenant easement.

¶ 20 “An easement in gross is not tied to any particular piece of land, and ‘grants to the holder the right to enter and make use of the property of another for a particular purpose.’ ” Johnson, 1999 UT App 278 at ¶ 13, 989 P.2d 61 (quoting Warburton, 899 P.2d at 781). “ ‘An easement in gross is of a commercial character when the use authorized by it results primarily in economic benefit rather than personal satisfaction.’ ” Crane v. Crane, 683 P.2d 1062, 1067 (Utah 1984) (quoting Sandy Island Corp. v. Ragsdale, 246 S.C. 414, 422, 143 S.E.2d 803, 807 (1965)). Accordingly, an easement in gross for personal use is usually associated with “some personal satisfaction such as aesthetics, a hobby, or personal recreation.” Johnson, 1999 UT App 278 at ¶ 16, 989 P.2d 61. The trial court found that the reservation easement “could not be utilized in any meaningful way” and therefore was not an easement in gross. We agree. There was no economic benefit created from this reservation clause other than its use as a leveraging tool for the principals of KCR in ease they entered into negotiations to acquire the northern property. If KCR had used the reservation easement for some sort of commercial purpose, such as the installation of electric power lines or for the use of a pipeline across Lot 32, then perhaps this easement could be characterized as a commercial easement in gross. However, we find no facts in the record to indicate that KCR was involved in, nor undertook any such commercial activity. Cf. Crane, 683 P.2d at 1067 (concluding that the use of an easement to drive a herd of cattle to their summer range was a commercial use because the cattle were raised for profit and not for personal use). Although a commercial easement in gross does not require an ownership interest in adjacent property, see Johnson, 1999 UT App 278 at ¶¶ 13-15, 989 P.2d 61, we see nothing in the record to suggest that this was a commercial easement. Furthermore, the principals of KCR did not use the reservation easement to derive any personal satisfaction from aesthetic beauty, a hobby, or personal recreation. See id. at ¶ 16, 989 P.2d 61. Therefore, we agree that the reservation clause cannot be construed as an easement in gross and any subsequent transfer passed no rights because the easement was void. Accordingly, we affirm the summary judgment.

III. DENIAL OF NEW TRIAL

¶ 21 We have considered the issues raised by both parties in regard to their respective arguments for a new trial and find them to be without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) (permitting appellate courts to decline to analyze and address in writing every issue raised on appeal).

CONCLUSION

¶ 22 We, therefore, affirm the trial court’s order as to summary judgment concerning the 60-foot reservation easement, and reverse the trial court’s finding of a prescriptive easement in favor of Alvey. We remand for additional proceedings consistent with our decision.

¶ 23 WE CONCUR: PAMELA T. GREENWOOD, Judge and WILLIAM A. THORNE JR., Judge.

      . In Farnsworth v. Soter’s Inc., the Utah Supreme Court used similar reasoning in concluding that an easement or right of way ceased to exist because the landowners were not abutting owners. See 24 Utah 2d 199, 468 P.2d 372, 373 (1970). Similarly, in Mawson v. J.G. Inv. Co., a landowner’s right to use an easement across a roadway was held to be invalid for land acquired that was "beyond the ... roadway.” 23 Utah 2d 437, 464 P.2d 595, 596 (1970).

      . Termination of an appurtenant easement that does not abut the servient tenement after subdivision of the dominant tenement is not a potential problem in many jurisdictions, because there is no requirement that the divided parcel must abut on the way. See, e.g., C.B. Alling Realty Co. v. Olderman, 90 Conn. 241, 96 A. 944, 947 (1916) (concluding that a separation between a parcel and the easement by another lot created during a division of the dominant tenement, did not destroy the easement or deprive the owner from the benefit of the easement); Akers v. Baril, 300 Mich. 619, 2 N.W.2d 791, 794 (1942) (stating that "[a] right of way may be appurtenant where the servient tenement is not adjacent to the dominant, according to the rule established in the majority of jurisdictions.”); Crawford Realty Co. v. Ostraw, 89 R.I. 12, 150 A.2d 5, 9 (1959) (holding that where the dominant tenement was subdivided, the easement appurtenant to it became subdivided and attached to each part of the subdivided dominant tenement although the subdivision of the dominant tenement separated a parcel from the passageway); see also, 10 A.L.R. 960 (1966) (citing Wood v. Ashby, 122 Utah 580, 253 P.2d 351 (1952), as contrary authority to the majority position that property need not abut after the division of the dominant tenement).

      . "Extinguish” as defined in Black's Law Dictionary states, in part, "[t]o bring to an end; to put an end to, ... [t]o terminate or cancel.” Black's Law Dictionary 604 (7th ed.1999). Similarly, "extinguishment" is defined as "[t]he cessation or cancellation of some right or interest.” Id.


source: Caselaw Access Project

author: THORNE, Judge:

license: Public Domain

text:
    2002 UT App 223
    WEST VALLEY CITY, Plaintiff and Appellee, v. Roy HOSKINS, Defendant and Appellant.
    No. 20010589-CA.
    Court of Appeals of Utah.
    June 27, 2002.

      W. Andrew McCullough and Trenton K. Ricks, McCullough & Associates, Midvale, for Appellant.
    J. Richard Catten, West Valley City Attorney’s Office, West Valley City, for Appellee.
    Before JACKSON, P.J., and ORME and THORNE, JJ.
   OPINION

THORNE, Judge:

¶ 1 Defendant Roy Hoskins appeals from his conviction, following a bench trial, for Fleeing a Police Officer, a class B misdemeanor, in violation of West Valley City Utah Municipal Code § 21-6-107 (1999) (the Ordinance). We affirm.

BACKGROUND

¶ 2 We “review the facts in the record in the light most favorable to the verdict.” State v. Layman, 1999 UT 79,¶ 3, 985 P.2d 911.

¶ 3 On March 22, 2001, West Valley City Police Department officers responded to a report of a man with a gun at a park within city boundaries. As two of the officers approached the park, they noticed a man, Hos-kins, matching the description of the reported gunman, “confronting some males at the basketball court.” The officers then pulled over to the roadside and observed the situation while they waited for additional officers to arrive. When the additional officers arrived, the two officers who had first responded got out of their vehicle, approached Hos-kins, and one of them ordered him to stop. Upon hearing the officer, Hoskins turned and proceeded to walk toward his house. The officer ordered Hoskins to stop at least twice more as Hoskins proceeded across the street and into his house.

¶ 4 Shortly after entering the house, Hos-kins exited from either a back or side door, and “walked around the side of the house ... toward the front yard.” As Hoskins reached the front of the house, the officers confronted and arrested him. He was charged with fleeing from a police officer.

¶ 5 At trial, Hoskins testified that while he had heard an officer yelling “stop,” he had no reason to believe that the command was directed at him. Thus, he further testified, he had walked across the street, not hopped, jumped, or pranced, and went into the house to put his dogs in the backyard, as was his normal practice. He then testified that after he had let the dogs into the backyard, he had come back to the front of the house only to investigate his girlfriend’s yelling. After weighing the evidence, the trial court convicted Hoskins of fleeing from the officers. Hos-kins appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Hoskins argues that his alleged behavior does not rise to the level of “fleeing or evading” a police officer. We review questions of statutory interpretation for correctness, affording no particular deference to the trial court’s interpretation. See State v. Coleman, 2001 UT App 281,¶ 5, 34 P.3d 790.

¶ 7 Hoskins next argues that the evidence was insufficient to sustain his conviction for fleeing from a police officer. “In considering an insuffieiency-of-evidence claim, we review the evidence and all reasonable inferences that may be drawn from it in a light most favorable to the verdict.” State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).

ANALYSIS

I. Statutory Interpretation of West Valley City Utah Municipal Code § 21-6-107.

¶8 Hoskins argues that assuming he (1) heard the police officer yelling at him to stop, (2) acknowledged the officer’s request, and (3) ignored the request and continued into his house, these acts do not satisfy the statutory requirements. Specifically, Hoskins argues that because he was in his house for only a “few minutes” before exiting the house and returning to the front yard, he did not flee, evade, or escape from the officer, as the Ordinance requires.

¶ 9 “ ‘ “[W]here statutory language is plain and unambiguous, this Court will not look beyond the same to divine legislative intent. Rather, we are guided by the rule that a statute should generally be construed according to its plain language.” ’ ” Sorenson’s Ranch Sch. v. Oram, 2001 UT App 354,¶ 8, 36 P.3d 528 (quoting In re A.B., 936 P.2d 1091, 1097 (Utah Ct.App.1997) (citation omitted)).

¶ 10 In pertinent part, the Ordinance states: “It is a class ‘B’ misdemeanor for any person on foot ... to knowingly flee from, evade, [or] escape ... a police officer after ... receiving a reasonable visual or audible signal or command to remain or stop.” The American Heritage College Dictionary defines flee as “[t]o run away, as from trouble or danger.” American Heritage Coll. Dictionary 519 (3d ed.1997). Evade is defined as “[t]o escape or avoid by cleverness or deceit.” Id. at 474. Finally, escape is defined as “[t]o avoid capture, danger, or harm.” Id. at 467.

¶ 11 Here, the trial court concluded that Hoskins heard the officer when he told Hoskins to stop. Yet, Hoskins knowingly continued into his house despite the officer’s repeated commands to stop. By continuing into the house, if only for a short time, Hoskins clearly fled from, evaded, or escaped from the officer. The plain language of the statute is clearly satisfied where, as here, the individual received a simple command to stop and knowingly failed to heed the officer’s command. The duration of time Hoskins spent in the house before returning to the front yard is of no consequence. During that time, he could have been attempting to dispose ,of contraband or retrieve a weapon. In any event, by continuing into the house, Hos-kins impeded the officer’s investigation and jeopardized the safety of both himself and the officers responding to the reported disturbance. We therefore conclude that when he walked away from the officer and proceeded into the house, Hoskins violated section 21-6-107.

II. Sufficiency of Evidence

If 12 Hoskins next argues that the evidence was insufficient to sustain his conviction for fleeing from a police officer. Specifically, Hoskins contends that the trial court “clearly err[ed] when it found that [Hoskins] stated ‘the police were telling me or someone to stop, and thereby concluded that [Hoskins] had heard ... [the] police officer’s attempts to have [him] stop.”

¶ 13 A critical requirement of appellate advocacy is the duty to marshal the evidence when challenging the trial court’s finding of fact. See Moon v. Moon, 1999 UT App 12,¶24, 973 P.2d 431. In doing so,

the challenger must present, in comprehensive and fastidious .order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court’s finding resting upon the evidence is clearly erroneous.

West Valley City v. Majestic Inv. Co., 818 P.2d 1311,1315 (Utah Ct.App.1991).

¶ 14 In the present matter, we have already determined that the trial court properly concluded that Hoskins’s acts satisfied the requirements of the Ordinance. In reaching this conclusion, the trial court was presented with evidence from both the City and Hoskins, and was in the best position to assess the credibility of the witnesses and weigh the evidence. See State v. Pena, 869 P.2d 932, 936 (Utah 1994) (stating that the trial court judge is “in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record”).

¶ 15 Now, on appeal, Hoskins merely rear-gues his position at trial, a position already considered and rejected by the trial court. Hoskins has thus failed to show any “fatal flaw” in the trial court’s ruling that would make the ruling clearly erroneous. Majestic Inv., 818 P.2d at 1315. Hoskins’s sufficiency of the evidence claim therefore fails.

CONCLUSION

¶ 16 We conclude that by disregarding the officer’s repeated commands to stop and proceeding into his house, Hoskins violated West Valley City Utah Municipal Code § 21-6-107, fleeing a police officer. Further, we conclude that the evidence was sufficient to sustain Hoskins’s conviction.

¶ 17 The judgment of the trial court is affirmed..

¶ 18 WE CONCUR: NORMAN H. JACKSON, Presiding Judge and GREGORY K. ORME, Judge.

      . The officer actually testified that Hoskins "put his hands up in the air and started to dance around and he headed north across the street, going to the house on the northeast corner.” The officer also characterized the movement as "hopping up and down,” "jumping up and down,” and "prancing across the road.”


author: ORME, Judge:

text:
    2002 UT App 219
    STATE of Utah, Plaintiff and Appellee, v. Damon and Misty COMER, Defendant and Appellant.
    No. 20010323-CA.
    Court of Appeals of Utah.
    June 27, 2002.

      Dale M. Dorius and Justin C. Bond, Brigham City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and BILLINGS, Associate P.J., and ORME, J.
   OPINION

ORME, Judge:

¶ 1 This appeal addresses, inter alia, the issue of whether a report of domestic violence from an identified citizen informant triggers the emergency aid exception to the Fourth Amendment’s warrant requirement, permitting warrantless entry into a home even absent probable cause. We conclude it does not. However, we determine that the warrantless police entry into the residence in this case was nonetheless lawful because it was supported by probable cause and accompanied by exigent circumstances.

BACKGROUND

¶ 2 “We recite the facts in the ‘light most favorable to the trial court’s findings from the suppression hearing’ ” held in this case. State v. Giron, 943 P.2d 1114, 1115 (Utah Ct.App.1997) (citation omitted). On. July 5, 2000, three Brigham City police officers responded to a dispatch call based on a report from an identified citizen informant of a “family fight in progress” at Appellants’ residence. Once all three officers arrived, they knocked on the door of the residence. Appellant Misty Comer answered the door, first opening it only a few inches, and then stepping out onto the porch. The officers explained to Misty that they were there to investigate a reported family fight and asked if anyone else was inside the home. Misty stated that her husband was inside and then, without explanation “immediately turned and walked back inside the residence.”

¶3 The officers followed Misty into the home and down the hallway to a bedroom. Misty stuck her head inside the bedroom door and told her husband that the police were there. Appellant Damon Comer then emerged from the bedroom, and the officers followed the Comers back to the front room, where the Comers acknowledged they had been in an argument. Misty admitted that she had scratched Damon, and the officers observed that Damon had scratch marks on his chest, neck, and back.

¶ 4 The officers arrested Misty for domestic violence assault and, in the course of making that arrest, found drugs and drug paraphernalia. Damon and Misty were each charged with possession of a controlled substance in a drug-free zone, a second degree felony, in violation of Utah Code Ann. § 58-37-8 (Supp.2000), and with possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5 (1998). After a preliminary hearing, they were each bound over on both of the counts charged.

¶ 5 The Comers then filed a motion to suppress, and the trial court held a hearing on the motion. The hearing included testimony from two of the officers and argument from both sides. The trial court ultimately denied the Comers’ motion to suppress, concluding that the officers’ warrantless entry into the Comers’ home fell under the emergency aid doctrine. See Salt Lake City v. Davidson, 2000 UT App 12, ¶¶ 10-13, 994 P.2d 1283. The trial court stated:

The court finds the following. There’s no question that this involved a residence which creates a higher standard with regards to entry by the police without a warrant. In this case the defendants had a report of a domestic fight in progress ....
By itself that wouldn’t justify the officers entering the house because, as has been amply testified to, these reports run the whole range from simply having a verbal argument to severe violence. Often times they’re nothing more than an argument.
In this case the court finds that the requirements have been met for the following reason. The defendant, Misty Comer, according to the testimony, made a somewhat sudden and unexplained retreat into the house. In other words, without saying why. And during the middle of a conversation with the officers she heads back into the house. Under those circumstances it is reasonable that the officers followed her into the house. Now, had she stayed out on the porch you have an entirely different set of circumstances, but that’s not what occurred here.
So, the court finds that the motion to suppress is denied. The[ ] requirements have been met. The basis for the emergency was not only the call, but her behavior at that time and they followed her. There doesn’t appear to be any evidence that in following her they said, oh, let’s follow her in, maybe we can find drugs. There’s no suggestion of that. There does seem to be a reasonable basis that the emergency is associated with the area they searched. In other words, all they did was follow her in and stay on track with her. Sure enough, very shortly thereafter, an individual appears who appears to have been the victim of domestic violence. The indication was scratches on his neck and chest and back. At that point there’s the basis for an arrest to occur. So the court denies the motion to suppress.[]

¶ 6 During the suppression hearing, defense counsel attempted to impeach the credibility of one of the officers. The officer indicated on cross-examination that upon entering the Comers’ home he briefly scanned the room to see if there were any weapons, overturned furniture, or holes in the walls. Defense counsel asked the trial court for permission to retrieve from his car the videotape of the preliminary hearing and play it for the trial court to show that the same officer had testified at the preliminary hearing that upon entering the home he had not looked around the front room at all, but simply followed Misty down the hall. The trial court denied defense counsel’s request, stating that the alleged difference between the officer’s preliminary hearing testimony and his suppression hearing testimony

may have some limited relevance on credibility. On the other hand, this is an incident in the early morning hours, about six or seven months ago. Whether a person went straight in following somebody or as they went in glanced sideways, in the court’s view either one certainly could have occurred, but I’m not sure that’s a critical issue. I don’t think that shows that anybody is lying, if they did one or the other or did both.

¶ 7 Following the trial court’s denial of the motion to suppress, Misty pleaded guilty to the felony charge, and, pursuant to a plea agreement, the State dismissed the misdemeanor charge against her. Also as part of the agreement, Misty reserved the right to appeal the court’s ruling on the motion to suppress. Misty then timely appealed.

¶ 8 Damon entered into a plea in abeyance agreement on the felony charge, and the State dismissed the misdemeanor charge. His plea in abeyance agreement purported to provide, inter alia, that he also could appeal the trial court’s ruling on the motion to suppress. Damon filed a notice of appeal the day after entering into the plea in abeyance agreement.

¶ 9 Damon’s and Misty’s appeals are each based on the trial court’s refusal to view the videotape of the preliminary hearing and on the trial court’s denial of their joint motion to suppress evidence. We have consolidated the two appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 10 We first address a jurisdictional issue raised by the State, namely, whether this court has jurisdiction over Damon’s appeal. ‘Whether appellate jurisdiction exists is a question of law which we review for correctness, giving no deference to the decision below.” Pledger v. Gillespie, 1999 UT 54,¶ 16, 982 P.2d 572.

¶ 11 We next address the issue raised by the trial court’s refusal to view portions of the video tape of the preliminary hearing, as requested by the Comers, for the purpose of impeaching the testimony of one of the officers. “A trial court has broad discretion to admit or exclude evidence and its determination typically will only be disturbed if it constitutes an abuse of discretion. A trial court abuses its discretion if it acts unreasonably.” State v. Whittle, 1999 UT 96,¶20, 989 P.2d 52 (internal citation omitted).

¶ 12 Finally, we review the trial court’s denial of the Comers’ motion to suppress.

We review the factual findings underlying the trial court’s denial of defendant’s motion to suppress under a clearly erroneous standard. See State v. Anderson, 910 P.2d 1229,1232 (Utah 1996). We will determine there was clear error “only if the factual findings made by the trial court are not adequately supported by the record.” Id. By contrast, we review “the trial court’s conclusions of law based on such.facts under a correctness standard, according no deference to the trial court’s legal conclusions.” Id.

Salt Lake City v. Davidson, 2000 UT App 12, ¶ 8, 994 P.2d 1283.

JURISDICTION

¶ 13 Damon seeks to appeal from a plea in abeyance agreement. Under such an agreement, the court accepts a defendant’s guilty plea but does not enter judgment or impose sentence, and all time periods imposed by applicable law regarding the time for entry of judgment and imposition of sentence are waived. See Utah Code Ann. §§ 77-2a-l, -2 (1999). Entry of judgment and imposition of sentence are postponed pending the defendant’s successful 'completion of his obligations under the agreement. See id. Upon the defendant’s successful completion of his obligations under the agreement, and depending on the terms of the agreement, the defendant is allowed to withdraw his plea and the charges are dismissed, or judgment is entered and a sentence imposed for a lower degree of offense. See Utah Code Ann. § 77-2a-3(2) (1999).

¶ 14 The law is well-settled that, because there has been no final judgment, a direct appeal cannot be taken from a plea in abeyance agreement. See State v. Hunsaker, 933 P.2d 415, 416 (Utah Ct.App.1997) (per curiam); State v. Moss, 921 P.2d 1021, 1025 n. 7 (Utah Ct.App.1996). “In criminal cases, the sentence itself is the final judgment from which an appeal can be taken,” and “the plain language of [Utah Code Ann. § ] 77-2a-l ‘reveals that a plea in abeyance is not a final adjudication.’ ” Hunsaker, 933 P.2d at 416 (quoting Moss, 921 P.2d at 1025 n. 7). “Because [Damon] has not been sentenced, [his] appeal was not taken from a final order, and this court lacks jurisdiction to consider the appeal.” Id. We therefore dismiss Damon’s appeal, without prejudice to his appealing should judgment be, entered and sentence imposed. Because Misty appeals from a final appealable judgment, we have jurisdiction oyer her appeal.

PRELIMINARY HEARING TESTIMONY

¶ 15 Misty argues that “[t]he [t]rial [c]ourt erred in not allowing [her] to use the video tape of the preliminary hearing to cross-examine' the [ojfficers at the suppression hearing.” Before declining to view the preliminary hearing testimony, the trial court heard defense counsel’s proffer of what the preliminary hearing testimony would show. “ ‘[B]ecause it can be safely assumed that the trial court will be somewhat more discriminating in appraising both the competency and the effect properly to be given evidence, the- rulings on evidence are' looked upon with a greater degree of indulgence when’ ” the court itself is the finder of fact rather than a jury. State v. Featherson, 781 P.2d 424, 431 (Utah 1989) (quoting State v. Park, 17 Utah 2d 90, 404 P.2d 677, 679 (1965)). “In a bench trial or other proceeding in which the judge serves as fact finder, the court has considerable discretion to assign relative weight to the evidence before it. This discretion includes the right to minimize or even disregard certain evidence.” State v. Hodges, 798 P.2d 270, 274 (Utah Ct.App.1990). Accordingly, we see no abuse of discretion in the trial court’s determination to exclude the videotape, after having heard a proffer of the evidence defense counsel wished to present, given the court’s conclusion that the evidence would have no bearing on its determination of the credibility of the officers.

MOTION TO SUPPRESS

¶ 16 We now address Misty’s challenge to the trial court’s denial of her motion to suppress. The trial court denied Misty’s motion to suppress, holding that the officers’ warrantless entry into the Comers’ home was justified under the emergency aid, or medical emergency, exception to the warrant requirement of the Fourth Amendment. See Salt Lake City v. Davidson, 2000 UT App 12, ¶¶ 10-15, 994 P.2d 1283 (adopting and explaining the emergency aid doctrine).

Emergency Aid Doctrine

¶ 17 This court has observed that application of the emergency aid doctrine “should be ‘ “strictly circumscribed.” ’ ” Id. at ¶ 15, 994 P.2d 1283 (quoting Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (quoting Terry v. Ohio, 392 U.S. 1, 26, 88 S.Ct. 1868, 1882, 20 L.Ed.2d 889 (1968))). This is because of the significant departure the emergency aid doctrine takes from Fourth Amendment jurisprudence by requiring neither a warrant nor probable cause as prerequisites to a search. See id.

¶ 18 Accordingly, the first prong of the test for application of the emergency aid doctrine is that “ ‘[pjolice [must] have an objectively reasonable basis to believe that an emergency exists and believe there is an immediate need for their assistance for the protection of life.’ ” Id. at ¶ 12, 994 P.2d 1283 (citation omitted). In Davidson, immediately prior to adopting the three-prong test for application of the emergency aid doctrine, we explained:

The medical emergency exception will support a warrantless search of a person or personal effects when [a] person is found in an unconscious or semiconscious condition and the purpose of the search is to discover evidence of identification and other information that might enhance the prospect of administering appropriate medical assistance, and the rationale is that the need to protect life or avoid serious injury to another is paramount to the rights of privacy....
[Tracy A. Bateman, Annotation, Lawfulness of Search of Person or Personal Effects under Medical Emergency Exception to Warrant Requirement, 11 A.L.R. 5th 52, § 2[a] (1993)]. Several courts have also applied the emergency aid doctrine when a person is missing and feared to be injured or dead. See, e.g., People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976).

Davidson, 2000 UT App 12 at ¶ 10, 994 P.2d 1283.

¶ 19 Properly circumscribed, the emergency aid doctrine does not apply to the facts of this case because the information available to the police was insufficient to support an objectively reasonable belief that an unconscious, semi-conscious, or missing person feared injured or dead might be in the Comers’ home. On the contrary, the only information the officers had was a report of a family fight in progress, Misty’s indication her husband was home, and Misty’s “somewhat sudden and unexplained retreat into the house.”

¶ 20 We decline to adopt a rule whereby a reliable domestic disturbance report, by itself, would be viewed as supporting an objectively reasonable belief that a person has been seriously injured. Rather, we conclude there must be some reliable and specific indication of the probability that a person is suffering from a serious physical injury before application of the medical emergency doctrine is justified. Here, even in light of the “family fight in progress” report, Misty’s actions, although suspicious, did not reasonably suggest an immediate medical emergency of the degree necessary to trigger the emergency aid doctrine. Thus, the trial court misapplied the emergency aid doctrine in this case.

Probable Cause

¶ 21 We nonetheless conclude the officers’ entry into the Comers’ home was lawful because it was supported by probable cause and exigent circumstances. See State v. Yoder, 935 P.2d 534, 540 (Utah Ct.App.1997). With few exceptions, probable cause is the primary prerequisite to any police search of a residence. “Probable cause exists where ‘the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that’ an offense has been or is being committed.” State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949)). The facts and circumstances known to the officers in this case establish probable cause.

¶22 The officers received a report from an identified citizen informant of a “family fight in progress” at the Comers’ residence. As we have noted in analogous contexts, “ ‘[n]ot all tips are of equal value in establishing reasonable suspicion[,]’ ... [but] an identified ‘citizen informant’ is high on the reliability scale.” Kaysville City v. Mulcahy, 943 P.2d 231, 235 (Utah Ct.App.) (citation omitted), cert. denied, 953 P.2d 449 (1997). “The ordinary citizen-informant needs no ‘independent proof of reliability or veracity.’ ” Id. (quoting State v. Brown, 798 P.2d 284, 286 (Utah Ct.App.1990)). “We simply assume veracity when a citizen-informant provides information as a victim or witness of crime.” Id.

¶ 23 Furthermore, when the officers arrived at the Comers’ residence and told Misty of the report they had received and asked if anyone else was home, rather than provide any information that might dispel the suspicions raised by the report, Misty simply

stated that her husband was home and then retreated inside. Even if one could possibly conceive of a scenario in which such an abrupt withdrawal in the middle of an encounter with police may not appear highly suspicious, “[s]eemingly innocent conduct may become suspicious in light of the initial tip[, and a]n officer’s experience may also be considered in determining probable cause.” Hopkins v. City of Sierra Vista, 931 F.2d 524, 528 (9th Cir.1991) (internal citation omitted). See State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (“Police officers by virtue of their experience and training can sometimes recognize illegal activity where ordinary citizens would not. Some recognition should appropriately be given to that experience and training where there are objective facts to justify the ultimate conclusion.”). One of the officers testified: “I[t] appeared to me that she may have been trying to — I don’t know, either conceal or just prevent us from seeing inside the residence.” Accordingly, we conclude that the reliable tip by an identified citizen informant of a family fight in progress, accompanied by Misty’s unexplained retreat into the home in which she acknowledged her husband was present, establish probable cause to believe that one of the legislatively defined domestic violence crimes, see Utah Code Ann. § 77-36-1 (1999), had been or was being committed inside the home.

Exigent Circumstances

¶ 24 “[Pjrobable cause alone is never enough to search ... and seize ... without a warrant. If it were, the protection of the Fourth Amendment would be rendered a nullity and probable cause alone would make all warrantless searches per se reasonable.” State v. Harris, 671 P.2d 175, 179 (Utah 1983). However, “[a] warrantless search of a residence is constitutionally permissible where probable cause and exigent circumstances are proven.” State v. Yoder, 935 P.2d 534, 540 (Utah Ct.App.1997). “Exigent circumstances are those ‘“that would cause a reasonable person to believe that entry ... was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” ’ ” Id. at 540 n. 2 (quoting State v. Beavers, 859 P.2d 9, 18 (Utah Ct.App.1993) (quoting United States v. McConney, 728 F.2d 1195,1199 (9th Cir.) (en bane), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984))). Additionally, exigent circumstances “analysis requires an objective determination; that is, ‘[w]hile “exigent circumstances” have multiple characteristics, the guiding principle is reasonableness, and each ease must be examined in the light of facts known to officers at the time they acted.’ ” City of Orem v. Henrie, 868 P.2d 1384, 1391 (Utah Ct.App.1994) (quoting State v. Hert, 220 Neb. 447, 370 N.W.2d 166, 170 (1985)). See State v. Aragon, 123 N.M. 803, 945 P.2d 1021, 1024 (Ct.App.1997).

¶ 25 While this is admittedly a close ease, we conclude that the facts known to the officers at the time they entered the Comers’ residence establish exigent circumstances. We have concluded that the officers had probable cause to believe a domestic violence offense had been, or was being, committed in the Comers’ home, and we have previously acknowledged that “a domestic violence complaint” is “one of the most potentially dangerous, volatile arrest situations confronting police.” State v. Richards, 779 P.2d 689, 691 (Utah Ct.App.1989).

¶26 In light of the officers’ reasonable belief that a domestic violence offense had been, or was being, committed, and the “combustible nature of domestic disputes,” Tierney v. Davidson, 133 F.3d 189, 197 (2d Cir.1998), Misty’s “somewhat sudden and unexplained retreat into the house” could reasonably have indicated to the officers that any of a number of scenarios might be about to occur, each of which would cause an officer to reasonably believe there was no time to get a warrant and/or that his presence was necessary to prevent physical harm to persons or the destruction of evidence. Namely, the officers could reasonably have feared that Misty retreated into the home (1) because of an immediately prior threat against her by her husband; (2) to immediately resume the altercation reported by the citizen informant; or (3) to cover up evidence of already-perpetrated domestic violence. We therefore conclude that exigent circumstances existed, justifying the officers’ warrantless entry into the Comers’ home.

¶27 Because we conclude the officers’ entry into the Comers’ home was supported by probable cause and exigent dr-cumstances, there was no error in the trial court’s denial of Misty’s motion to suppress.

CONCLUSION

¶28 Although, as a practical matter, the result of his appeal would be the same as Misty’s if we reached the merits, we lack jurisdiction to consider Damon’s appeal. The trial court did not abuse its discretion in failing to view the videotape of preliminary hearing testimony. Finally, the officers’ warrantless entry into the Comers’ home, while not justified under the emergency aid doctrine, was lawful because it was supported by probable cause and accompanied by exigent circumstances.

¶ 29 Affirmed.

¶ 30 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, and JUDITH M. BILLINGS, Associate Presiding Judge.

      . [A] warrantless search is lawful under the emergency aid doctrine if the following requirements are met:
      (1) Police have an objectively reasonable basis to believe that an emergency exists and believe there is an immediate need for their assistance for the protection of life.
      (2) The search is not primarily motivated by intent to arrest and seize evidence.
      (3)There is some reasonable basis to associate the emergency with the area or place to be searched. That is, there must be a connection with the area to be searched and the emergency.

        Salt Lake City v. Davidson, 2000 UT App 12, ¶ 12, 994 P.2d 1283.

      . The trial court made no separate written findings following the hearing on the motion to suppress.

      . At oral argument before this court, the Comers' appointed counsel informed us that the trial court would not allow creation of a written transcript of the preliminary hearing at state expense.

      . We note that because Damon’s plea in abeyance agreement purports to preserve Damon’s right to appeal, it appears Damon might have been erroneously led to believe he could appeal directly from his plea in abeyance agreement. However, Damon sustains no actual prejudice if he was misled, because the outcome of his appeal, were we able to reach it, would be precisely the same as Misty’s.

      . Practically speaking, however, given the rule of horizontal stare decisis, see State v. Menzies, 889 P.2d 393, 399 n. 3 (Utah 1994), and the identical facts of Misty's and Damon's cases, this opinion will be dispositive of any later appeal by Damon raising the same issues.

      . Even defense counsel acknowledges that the trial court’s decision not to view the videotape is "not a major point in the present appeal.” Nonetheless, it became clear at oral argument that counsel’s primary concern was with the trial court's routine refusal to allow, in the case of an indigent defendant, the creation of a transcript of the preliminary hearing at state expense. We share defense counsel's concern.
      A criminal defendant has the "right to conduct a meaningful cross-examination,” State v. Volberding, 30 Utah 2d 257, 516 P.2d 359, 360 (1973), which not uncommonly entails impeachment through use of a witness's prior inconsistent testimony. To require indigent defendants to prepare for cross-examination by reviewing the recordings of prior proceedings and taking detailed notes of the witnesses' prior testimony seems an undue burden on appointed counsel. And if the witness refuses to acknowledge the apparent discrepancy between his prior and present testimony, recessing to locate a television and videotape machine, set up the equipment, and cue the tape to the relevant testimony, seems rather impractical. Thus, we believe the better practice is for trial courts to allow preparation of transcripts of prior proceedings at state expense when a proper request has been made by appointed counsel.

      . We believe there is a distinction between the usually understood definition of probable cause and the "reasonable basis” referred to in the third prong of the emergency aid doctrine. [■See Note 1 in the instant opinion.] "In general, Tp]robable cause means a "fair probability that contraband or evidence of a crime will be found.” ' ” The third prong of the emergency aid doctrine, on the other hand, "asks whether there was some reasonable basis to associate the place searched with the emergency.”

        Salt Lake City v. Davidson, 2000 UT App 12, ¶ 15, 994 P.2d 1283 (citations omitted).

      . "It is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record.” State v. Finlay son, 2000 UT 10, ¶31, 994 P.2d 1243.
      Because the trial court did not conduct a probable cause and exigent circumstances analysis, it made no specific findings that probable cause and exigent circumstances existed to justify the officers’ warrantless entry into the Comers' home. (It did, however, find that Misty’s retreat back into the home was both sudden and unexplained.) "Normally, when factual issues are involved in deciding a motion to suppress, trial courts are required to make detailed findings sufficient to enable appellate courts to adequately review the trial court’s decision. However, in the instant case, the facts relevant to [probable cause and] exigent circumstances are not in dispute. As such, we need not remand for entry of factual findings.” City of Orem v. Henrie, 868 P.2d 1384, 1388 n. 7 (Utah Ct.App.1994) (internal citation omitted).

      . See, e.g., Davidson, 2000 UT App 12 at ¶¶ 12-15, 994 P.2d 1283 (emergency aid doctrine); State v. Velasquez, 672 P.2d 1254 (Utah 1983) (parole officer searches of parolees' residences).

      . Misty's behavior should not be viewed in a vacuum, but rather against the background of how one would expect an innocent person to behave under all the circumstances. Misty was greeted at the door by three uniformed police officers who informed her they had received a report of a "family fight in progress" at her home and asked if anyone else was in the home. An ordinary person engaged only in lawful activity would not, under those circumstances, simply state her husband was in the home and then suddenly retreat inside without explanation. Rather, one would expect a response akin to any of the following, should the person choose to speak: "My husband and I did get into a spat earlier, but all we did was argue, and we’re both fine. Would you like to wait here while I go get him?”; "Did that pesky neighbor of ours call in again? We can't even barbecue in the backyard without her reporting us for something.”; or, "Yes, officers, our son and his girlfriend got into a fight here earlier, but they made up and left in her car not long before you arrived.” In contrast, Misty's curious behavior tends to confirm, rather than dispel, suspicion.

      . We note that at least Washington and Arizona have adopted approaches different than the one we follow here for analyzing warrantless police entry into a private residence after receipt of a report of domestic violence at that residence. Washington allows a corroborated anonymous report of a domestic dispute to trigger the emergency aid doctrine and allow warrantless entry without a showing of probable cause, see State v. Menz, 75 Wash.App. 351, 880 P.2d 48; 49-50 (1994), an approach we reject above. Arizona, on the other hand, appears to hold that a report of domestic violence alone amounts, per se, to exigent circumstances, and that the "exigency ... allow[s][an] officer to enter a dwelling if no circumstance indicates that entry is unnecessary.” State v. Greene, 162 Ariz. 431, 784 P.2d 257, 259 (1989). This approach omits an express analysis of probable cause, or at least seems to collapse the probable cause and exigent circumstances determinations into one.
      As exemplified by this case, we believe police who have probable cause to believe domestic violence is in process or has just occurred can effectively address the volatility of domestic disputes through the existing exigent circumstances exception to the warrant requirement. See State V. Aragon, 123 N.M. 803, 945 P.2d 1021, 1024-25 (Ct.App.1997). Additionally, although not directly applicable in the instant case, we believe it is worth noting that an "officer's entry into [a home] could also be justified under an implied consent theory if it were clear that the call to the police was made by [the victim of domestic violence from his or her home] or [by] someone acting at [his or] her behest.” Greene, 784 P.2d at 259 n. 1.


author: GOLDEN, Justice. SPANGLER, District Judge, Retired,

text:
    2002 WY 115
    Robert H. ROBERTS and Cinta Roberts, Appellants (Plaintiffs), v. The ESTATE OF Steven Charles RANDALL, deceased, Appellee (Defendant).
    No. 00-77.
    Supreme Court of Wyoming.
    July 26, 2002.

      Mel C. Orchard, III, of Meyer and Williams, P.C., Jackson, Wyoming, Representing Appellant.
    S.B. Freeman, III, of Bormuth Freeman & Stinson, LC, Cody, Wyoming, Representing Appellee.
    Before LEHMAN  and GOLDEN, JJ., and SPANGLER, D.J.

       This case was originally assigned to Justice Thomas on November 17, 2000, for the rendering of a proffered majority opinion. The case was reassigned to Justice Golden on February 5, 2001.

       Chief Justice at time of oral argument.

       Justice Kite recused herself from this case following oral argument

   GOLDEN, Justice.

[¶ 1] This appeal primarily presents the issue whether a jury properly considered violations of certain motor vehicle statutes as evidence of negligence by persons operating snowmobiles. After the snowmobiles operated by Appellant Robert H. Roberts and Steven Charles Randall collided, killing Randall and partially paralyzing Roberts, Roberts and his wife Cinta (the Robertses) brought suit against Randall’s estate (Estate). At trial, the district court instructed the jury that various statutes from Wyo. Stat. Ann. §§ 31-5-101 through 31-5-1507, Wyoming’s Uniform Act Regulating Traffic on Highways (Chapter Five), were applicable in determining the negligence, if any, of the two snowmobile operators. The jury returned a verdict finding that Roberts was seventy-four percent at fault and Randall was twenty-six percent at fault. The Robertses contend that motor vehicle statutes are not applicable to snowmobile operation and the jury instructions constituted errors entitling them to a new trial. The Robertses also contend that they were entitled to a jury instruction on the sudden emergency doctrine and the trial court’s refusal to provide that instruction was error.

[¶ 2] We hold that Wyo. Stat. Ann. §§ 31-5-101 through 1507 (Chapter Five) do apply, and the district court’s jury instructions properly instructed on the applicable law. We hold that the sudden emergency doctrine survived enactment of the comparative negligence statutes but did not apply based on the evidence. We affirm the order of judgment on the verdict.

ISSUES

[¶ 3] The Robertses presents these issues for our review:

A. The trial court improperly instructed the jury regarding the use of vehicles on Wyoming highways in a case involving snowmobiles being operated on a snowmobile trail.
B. The trial court failed to instruct the jury on the sudden emergency doctrine in the face of its decision to instruct the jury regarding the application of Wyoming statutes.
C. The trial court failed to instruct the jury on Appellants’ “theory of the case” and “concurrent cause,” and then proceeded to give an inference of negligence instruction based upon Appellee’s assertions that Appellants violated the Motor Vehicle Regulations, while continuing to refuse to instruct the jury on sudden emergency which would have justified Appellants’ conduct even if such conduct violated the Motor Vehicle Regulations.
D.The trial court abused its discretion when it refused to grant Appellants’ motion for new trial or in the alternative, refused to amend the jury’s apportionment of fault to reflect that the Appellant was not negligent as a matter of law.

The Estate states that the issues are:

1. Whether this Court lacks jurisdiction due to an untimely filing of a notice of appeal by the Appellants?
2. Whether the trial court properly denied Appellants’ “Motion for a New Trial, for Judgment as a Matter of Law, or, in the Alternative for Amendment of the Jury Verdict”?
3. Whether the trial court properly refused to give the Appellants’ theory of the case instruction?
4. Whether the trial court properly refused to give the Appellants’ concurrent cause instruction?

FACTS

[¶ 4] The Greys River area on the Wyoming Range in western Wyoming is a popular recreational area. Greys River Road in the Bridger-Teton National Forest is a national forest service road (No. 10138) that is accessible for wheeled traffic in the summer but closed to that traffic during winter. Although Greys River Road is not plowed during winter, it is groomed for a snowmobile trail and frequently used by snowmobilers.

[¶ 5] On February 7, 1998, two different parties of snowmobilers departed east from Alpine, Wyoming, to snowmobile on Greys River Road. The Randall party, a group of five men, left Alpine about ten o’clock that morning and began returning towards Alpine that afternoon. The Roberts party left Alpine later that day and traveled away from Alpine. The Roberts party included Roberts, his wife and their two children, and Shane Brown, Brown’s wife and Brown’s two children. Each person had his or her own snowmobile. Roberts cautioned everyone in his party that because they were getting a late start, other riders would be coming out, and because the weather was not ideal, other riders would not be expecting people coming up the trail that late in the day. The wives and children departed first, and Roberts and Brown followed them up the trail.

[¶ 6] Soon, however, Roberts and Brown took the lead and raced each other. At the time of the accident, Randall and Roberts were traveling towards each other. Roberts was closely following Brown, who was positioned to the right of the trail. Roberts testified that he was positioned fifty feet' behind and to the left of Brown’s snowmobile because it was spraying snow in a roostertail behind it. Brown testified that at the crest of a hill an oncoming Randall passed dangerously close to him. Roberts testified that he saw Randall on Roberts’ side of the trail and Roberts swerved to his own left; however, Randall also veered in that direction, and the two snowmobiles collided. Each was thrown off, and the two collided in mid-air. Randall was killed; Roberts was seriously injured.

[¶ 7] The trial focused on disputed evidence of each snowmobile’s position immediately before the collision with each claiming that the other had not safely stayed to the right of the center of the trail. Roberts claimed that although he was close to the trail’s center, he was proceeding to his right of the trail’s center until Randall’s position left of center forced him to swerve left. He explained that he moved left instead of right because he had just noted on his right a steep drop-off down an embankment to a river. The Estate claimed that Roberts was left of center the entire time despite cresting a hill and this position caused him to collide with Randall. Evidence at trial established that an ungroomed turnout was immediately to Roberts’ right, but Roberts failed to see it.

[¶ 8] At trial, jury instructions numbered twelve and thirteen instructed the jury that every person operating a vehicle upon a roadway should do so with reasonable control and while keeping a proper lookout for other persons using the roadway. Instruction number fourteen advised that violation of a statute is evidence of negligence. The jury was then instructed based upon Chapter Five. In this regard, instructions numbered fifteen through eighteen stated:

Jury Instruction No. 15

YOU ARE INSTRUCTED that Wyoming Statute § 31-5-202[] provides that: “Drivers of vehicles proceeding in oppose [sic] directions shall pass each other to the right and upon roadways having width for not more than one (1) line of traffic in each direction each driver shall give to the other at lease [sic] one-half (1/2) of the main-traveled portion of the roadway as nearly as possible.”

Jury Instruction No. 16
YOU ARE INSTRUCTED that Wyoming Statute § 31-5-205[] provides in part that no vehicle shall be driven on the left side of the roadway when approaching or upon the crest of a grade or a curve in the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.
Jury Instruction No. 17

YOU ARE INSTRUCTED that Wyoming Statute § 31-5-210 [] provides in part that the driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.

Jury Instruction No. 18
YOU ARE INSTRUCTED that Wyoming Statute § 31-5-301[] provides in part that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

[¶ 9] The Robertses and the Estate each submitted a proposed jury instruction on the sudden emergency doctrine. At the jury instruction conference, the district court rejected both of those instructions, deciding that both misstated the applicable rule of law. At that time, the attorney for the Rob-ertses stated that he withdrew his proposed instruction on the sudden emergency doctrine.

[¶ 10] The district court acknowledged that it had a duty to draft a proper instruction if both the law and the evidence required it, but upon consideration, found that the sudden emergency doctrine is no longer viable under Wyoming’s comparative negligence statutes. The jury returned a verdict generally in favor of the Estate. The Robertses filed motions for a new trial that were denied, and this appeal followed.

DISCUSSION

Standard of Review

[¶ 11] The issues presented require that we determine whether Chapter Five applies to snowmobile operation and whether enactment of the comparative negligence statutes precludes application of the sudden emergency doctrine. Statutory interpretation is a question of law; therefore, our standard of review is de novo. Sellers v. Dooley Oil Transport, 2001 WY 44, ¶ 10, 22 P.3d 307, ¶ 10 (Wyo.2001). If the conclusion of law is in accordance with the law, we affirm it; if it is not, we correct it. We-try to interpret statutes in accordance with the legislature’s intent. We begin by making an. inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia. Id. Statutes should be construed in pari materia with other statutes to which they relate, and courts should strive to give meaningful effect to the purpose of these statutes. Corkill v. Knowles, 955 P.2d 438, 445 (Wyo.1998).

Chapter Five

[¶ 12] The Act governing motor vehicles, Title 31, consists of eighteen chapters. In the first article of Chapter One, the words “this act” are defined to mean Wyo. Stat. Ann. §§ 31-1-101 through 31-4-104. Wyo. Stat. Ann. § 31-l-101(a)(xxii) (LexisNexis 2001). Accordingly, the definitions in § 31-1-101 apply only to Chapters One through Four of Title 31, but not to Chapter Five. Title 31, Chapter Five contains fifteen arti-cíes and states the short title of “this act” to be “Uniform Act Regulating Traffic on Highways.” Wyo. Stat. Ann. § 31-5-101 (Lexis-Nexis 2001). The meaning of “this act” is defined as ‘W.S. § 31-5-101 through 31-5-1507.” Wyo. Stat. Ann. § 31-5-102(a)(lix) (LexisNexis 2001).

[¶ 13] In part, Chapter Five addresses the statutory traffic code and “rules of the road.” See Johnston v. Wortham Machinery Co., 60 Wyo. 301, 309, 151 P.2d 89, 91 (Wyo.1944). it defines motor vehicle as “every vehicle which is self-propelled except vehicles moved solely by human power and golf carts .... ” Wyo. Stat. Ann. § 31-5-102(a)(xxiv) (LexisNexis 2001). A snowmobile is defined as “any mechanically driven vehicle of a type which utilizes sleet type runners, or skis or any endless belt tread or combination of these, designed primarily for operation over snow.” Wyo. Stat. Ann. § 31-5-102(a)(xlv) (LexisNexis 2001) (emphasis added). Chapter Five provides that “[t]he provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways” subject to certain exceptions not applicable here. Wyo. Stat. Ann. § 31-5-103 (LexisNexis 2001). Chapter Five’s many definitions do not provide a single definition of highway, but define “controlled access highways,” “laned roadway,” “roadway,” “street or highway” and “through highway.” Wyo. Stat. Ann. §§ 31 — 5—102(a)(vii); (xviii); (xl); (xlix); (li) (LexisNexis 2001). Article Two of Chapter Five provides generally for the operation of vehicles. Wyo. Stat. Ann. §§ 31-5-201 through 235 (LexisNexis 2001). Specific regulations for certain types of conveyances and drivers have been provided and state that those persons riding bicycles, animals or driving animal-drawn vehicles are granted all the rights and are subject to all of the duties applicable to the driver of a vehicle by the act except as to those provisions which by them very nature can have no application. Wyo. Stat. Ann. §§ 31-5-107, -702 (LexisNexis 2001). Other provisions supply special regulations for the operation of public vehicles, emergency vehicles, motorcycles, pedestrian vehicles, off-road recreational ve-hides when operated on public streets or highways, and bicycles. Wyo. Stat. Ann. §§ 31-5-105, -106, -115,124, -701-06 (Lexis-Nexis 2001).

[¶ 14] Article Eight applies to snowmobiles and contains only one provision, § 31-5-801. The subsections of § 801 govern snowmobile operations upon Wyoming roads and highways. That statute provides:

(a) Snowmobiles may be operated upon the highways of Wyoming subject to the following conditions:
(i) Snowmobiles may be operated within the right-of-way but not on the main traveled roadway except as provided hereafter;
(ii) Crossings of main-traveled roadways shall be made at right angles to the roadway or as nearly so as practicable, but in any case yielding the right-of-way to all traffic in the main-traveled roadway;
(iii) Snowmobiles may be operated on the highways within the cities and towns pursuant to ordinance;
(iv) Snowmobiles may be operated on the main-traveled roadway when the highway is closed to wheeled vehicular traffic or subject to approval of the state highway department, upon a designated and posted portion of a state roadway within the boundaries of a national park;
(v) If allowed by the county commissioners, snowmobiles may be operated on a designated and posted portion of a county roadway.

Wyo. Stat. Ann. § 31-5-801 (LexisNexis 2001) (emphasis added).

[¶ 15] Under subsection (a)(iv) permitting snowmobile operation on highways closed to wheeled vehicular traffic, Wyoming, through its Department of State Parks and Cultural Resourees/Division of State Parks and Historic Sites and through cooperation agreements with the U.S. Forest Service, has developed extensive snowmobile trails across the state and divided the state into eleven snowmobile areas. The Wyoming Range snowmobile area covers the southwest area of the state and to its north are snowmobile areas in the Continental Divide Region, the Grand Teton National Park, and the Yellowstone National Park. When not closed during winter, Greys River Road is also known as Forest Service Road 10138; however, during winter it is closed to wheeled traffic and is a trail in the Wyoming Range snowmobile area. Generally, the Greys River Road snowmobile trail travels east of Alpine for some distance and then diverts southerly. The Wyoming Range trail system is maintained through efforts of the Wyoming Department of State Parks and Cultural Resources/Division of State Parks and Historic Sites, the U.S. Forest Service, and local snowmobile clubs.

[¶ 16] The Robertses contend that the Legislature did not intend that Chapter Five’s rules of the road should apply to a groomed snowmobile trail. They base their assertion on the definitions found in § 31 — 1— 101 which, as we have already discussed, differ from the definitions found in § 31-5-102. Because the definitions of § 31-1-101 apply only to Chapters One through Four, the legislative intent concerning snowmobiles is ascertainable by the Legislature’s express inclusion of snowmobiles in Chapter Five’s definitions and the specific reference to snowmobiles in Article Eight. § 31-5-■102(a)(xlv); § 31-5-801. Plainly, the Legislature considered snowmobiles a vehicle for purposes of Chapter Five and its articles, including Article Two. This trial presented the issue whether the snowmobiles had been operated negligently. The trial court determined that Article Two’s provisions generally governing the operation of a vehicle were applicable and instructed the jury accordingly. We agree with the trial court’s determination that Article Two’s “rules of the road” provisions apply to snowmobile operations as well as other articles of Chapter Five. Accordingly, we hold that Chapter Five, Article Eight, authorizes the State to allow snowmobile operation on the Greys River Road snowmobile trail, and further, those snowmobiles operating on the snowmobile trail are subject to the applicable statutory provisions of Chapter Five.

Sudden Emergency Doctrine

[¶ 17] Both parties submitted instructions on the sudden emergency doctrine that were rejected by the trial court for misstating the law. The trial court acknowledged that it had a duty to fashion its own instruction if necessary, but decided that because of the enactment of comparative fault, the sudden emergency doctrine is no longer viable in Wyoming. The Estate does not cross-appeal, and although the Robertses eventually withdrew the instruction, they challenge the trial court’s legal ruling on appeal. We have previously held that withdrawal of an instruction fails to preserve that issue for appeal and review must be for plain error. Triton Coal Co., Inc. v. Mobil Coal Producing, Inc., 800 P.2d 505, 511 (Wyo.1990). We consider four factors before ap plying the plain error doctrine: whether (1) the record reflects clear and unequivocally the fact complained of; (2) the facts prove a transgression of a clear rule of law; (3) the error affects a substantial right of the accused; and (4) the defendant has been materially prejudiced by that violation. Dellapenta v. Dellapenta, 838 P.2d 1153, 1164 (Wyo.1992).

[¶ 18] We have ruled that the comparative fault statutes have eliminated certain rules absolutely barring recovery upon a finding that the plaintiff had been negligent. Stephenson v. Pacific Power & Light Co., 779 P.2d 1169, 1180 (Wyo.1989) (“Gone are the days when a scintilla of negligence by the plaintiff will bar recovery.”). Before the enactment of the comparative negligence statute, Wyo. Stat. Ann. § 1-1-109, contributory negligence, assumption of risk, and the obvious danger rule operated as absolute defenses to a negligence action. Id. at 1179; Barnette v. Doyle, 622 P.2d 1349, 1361 (Wyo.1981); Brittain v. Booth, 601 P.2d 532, 534 (Wyo.1979). With the advent of comparative negligence legislation, however, these contributory negligence rules became a basis for an apportionment of fault and no longer operated as a complete bar to recovery. Stephenson at 1179; Barnette at 1361; Brittain at 534. “Thus, if appellant was negligent, it was for the jury to measure the relative degrees of fault.” Stephenson at 1179.

[¶ 19] In contrast, we have recognized that the existence of an emergency is not an affirmative defense, but it is one of the circumstances to be considered by the finder of fact in determining whether a party has acted negligently. Sannes v. Olds, 458 P.2d 729, 731 (Wyo.1969). “[W]hen one must act suddenly in the face of imminent danger he is not required to use the same degree of care as at other times, but this rule is applicable only when the person claiming its advantage has been placed in a position of sudden peril without his own fault.” Id. at 732. The emergency rule does not mean that any different standard is to be applied: the conduct required is still that of a reasonable person under the circumstances as they would appear to one who was using proper care, and the emergency is only one of the circumstances. Eslinger v. Ringsby Truck Lines, Inc., 195 Mont. 292, 636 P.2d 254, 259 (1981). Although the Montana Supreme Court disfavors the instruction, it continued to permit a trial court’s giving an emergency instruction after the adoption of the comparative negligence standard. Id. at 260. That court has long held, however, that some “emergencies” must be anticipated and the actor must be prepared to meet them when he engages in an activity in which they are likely to arise. Kudrna v. Comet Corp., 175 Mont. 29, 572 P.2d 183, 191 (1977). After adopting comparative negligence principles, the Montana Supreme Court continued its cautious application of the sudden emergency doctrine, ruling its use in the ordinary automobile accident case would be unnecessary and confusing, and the ordinary rules of negligence are applicable and afford a sufficient gauge by which to appraise conduct. Eslinger at 260. The Montana Court developed the following test to determine if sufficient evidence warrants the instruction:

1) the claimed emergency actually or ap- • parently existed;
2) the perilous situation was not created or contributed to by the person confronted;
3) alternative courses of action in meeting the emergency were open to such person or there was an opportunity to take some action to avert the threatened casualty; and
4) the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or similar situation.

Id. at 259. Giving the instruction when the evidence did not support giving it would be a comment on the evidence that would confuse and potentially prejudice the jury. Ewing v. Esterholt, 210 Mont. 367, 684 P.2d 1053, 1059 (1984).

[¶ 20] For our part, we have considered issues arising from this doctrine both before enactment of the comparative negligence statutes and after, reviewing it most recently in Haderlie v. Sondgeroth, 866 P.2d 703, 718 (Wyo.1993). Although comparative negligence principles applied at trial, our Hader-lie opinion did not consider whether the doctrine was viable in a comparative negligence action. In Haderlie, we considered the following “sudden emergency” instruction:

Where a person finds himself or herself confronted with a sudden emergency, which was not brought on about his or her own negligence or want of care, such person has a legal right to do what appears to him or her at the time he or she should do, so long as he or she acts in a reasonable manner as any other person would have done under like or similar circumstances, to avoid an injury; and if he or she does so act, he or she will not be deemed to have been negligent even though it might after-wards be apparent that some other course of action would have been safer.

Id. In Haderlie, appellee James Sondgeroth sought to recover personal injury damages resulting from his automobile striking a horse that had earlier been struck and killed by appellant Haderlie. Id. at 706-07. The trial court refused the sudden emergency instruction and reasoned that:

This Court does not deem that there has been any evidence of a sudden emergency. That’s more applicable to a driver’s suddenly finding someone in his own lane, or a spot of ice that he’s onto, or something very immediate. In this case, there was an attenuation of approximately ten minutes of time from the time that Mr. Hader-lie struck the horse until the Plaintiff struck the horse; and the Court does not deem that to be a sudden emergency.

Id. at 718. We determined that the instruction was properly refused as unsupported by the evidence. Id. When evidence of an emergency has existed, we have said that it was the province of the finder-of-fact to determine from all the circumstances disclosed by the record whether the emergency had been created by the person claiming the benefit of the rule, and by reasonable implication we held the existence or nonexistence of an emergency to be thus determined. Sannes, 458 P.2d at 732.

[¶ 21] We discussed similar sudden-emergency instructions in Holly Sugar Corp. v. Perez, 508 P.2d 595, 601 (Wyo.1973), and Gerdom v. Gerdom, 444 P.2d 34, 35-36 (Wyo.1968), in light of the particular facts of each. In Perez, we found that without evidence demonstrating that some unknown and sudden condition caused an accident, it was proper to refuse an instruction on sudden emergency. 508 P.2d at 601. However, in Gerdom, we determined that the instruction was proper where a jury could determine that a driver pulling a trailer was confronted with a sudden emergency when he hit 1000 feet of ice causing the trailer to begin sliding, and the jury also might have found this condition was unforeseen and without negligence on the part of that driver. 444 P.2d at 36.

[¶ 22] We have addressed facts involving moving left of center instead of to the right to avoid a head-on collision in Dallason v. Buckmeier, 74 Wyo. 125, 284 P.2d 386 (1955). There, we recognized that the general principle states:

Statutes, ordinances or other regulations or rules requiring motor vehicles to be driven on the right-hand side of the highway or street are not intended to and do not, prohibit a motorist from driving to the left of the center of the highway or street in trying, in an emergency, to avoid an accident. In case of an emergency it may be not only excusable but perfectly proper for an automobilist to turn to the left side of the road in order to escape from danger or avoid injuring others.

Id. at 135, 284 P.2d at 390 (quoting 60 C.J.S., Motor Vehicles, § 282, at 660). We also recognized that generally the law permits traveling on the wrong side of the road; however, if visibility is poor, special care is required to stay on the right side of the road. Thus, we noted:

“Where there is a clear view, it is not negligence to drive in the center of the highway, or even on the opposite side; but, in rounding a curve or approaching the summit of a hill, where the view is shortened, it is the driver’s duty to keep on the right side.” The Annotation in 57 A.L.R. cites cases from seven jurisdictions in which the foregoing rule was applied when the parties involved were rounding a curve. In fact the rule is attempted to be prescribed by § 60-505, W.C.S.1945, stating that a traveler must turn to the right “when approaching the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed.”

Id. at 132, 284 P.2d at 388 (quoting partially from Bloom v. Bailey, 292 Pa. 348, 141 A. 150, 152 (Pa 1928)). Following a detailed discussion of the circumstances of the collision, we affirmed the trial court’s judgment that a tanker truck rounding a curve partially in the wrong lane proximately caused the collision with another vehicle that moved left of center to avoid the tanker. Id. at 136, 284 P.2d at 390.

[¶ 23] This review of past decisions reveals that, like the Montana courts, we have long considered an emergency as one of the circumstances to be considered when determining whether a party used proper care. Both at trial and on appeal, our courts have reviewed the sufficiency of the evidence to determine if the instruction is warranted. Before enactment of the comparative negligence statutes, we did not consider it a form of contributory negligence the existence of which would bar recovery, but rather a special circumstance relevant to determining negligence. Now that comparative negligence standards apply, we continue to see that such circumstances are relevant to a jury’s proper apportionment of fault and hold that comparative negligence statutes have not eliminated the necessity of the sudden emergency doctrine.

[¶24] We do agree, however, with the Montana Supreme Court that this doctrine is not relevant in ordinary motor vehicle accident cases and, consequently, we think it may not be relevant in this particular snowmobile collision case. We further agree that we should be cautious in applying the doctrine and should recognize “that some ‘emergencies’ must be anticipated, and the actor must be prepared to meet them when he engages in an activity in which they are likely to arise.” Kudrna, 572 P.2d at 191. The Montana four-part test may be helpful to trial courts in determining whether the evidence supports giving the instruction; however, trial courts should be careful to leave to the jury those questions that juries must decide while refusing to submit the instruction when doing so would result in an improper comment on the evidence and confuse the jury.

[¶ 25] Reviewing all of the evidence in this ease, we see that Roberts testified that an emergency situation was created by Randall’s presence in his lane of travel. This testimony might be sufficient to permit the instruction if the evidence, viewed in Roberts’ favor, established that the emergency was created or contributed to through no negligence on the part of Roberts. Roberts testified that he was approaching the crest of a hill close to the center of a snowmobile trail when Randall came over the hill in Roberts’ lane of travel after having safely passed Brown who had stayed to his far right on the trail. The centers of snowmobile trails are not marked, of course, and a reasonably prudent snowmobile operator should always anticipate that another operator may also be traveling close to the center of the trail, and take appropriate action which in this case would have been to travel on the far right side of the trail. Under no circumstances could it ever be proper to ascend a hill at the center of the trail when vision of what might be coming from the other side is obscured. In other words, it appears to us that this very emergency was one that Roberts should have anticipated and should have prepared to meet when he engaged in snowmobiling activity in an area where it was likely to arise. Kudrna, 572 P.2d at 191.

[¶ 26] Unmistakably, Roberts did not do that. By his own testimony, despite warning his party beforehand of the particular dangers presented by other riders to them because of their late start, Roberts was at least close to the center of the trail and not to its far right. Reasonable minds could not have decided that Roberts was using proper care when faced with a sudden emergency. The trial court properly allowed this case to proceed to the jury upon instructions proper in an ordinary motor vehicle accident case. The judgment of the court is affirmed.

SPANGLER, D.J., filed a specially concurring opinion.

SPANGLER, District Judge, Retired,

concurring.

[¶ 27] I agree with the majority opinion except in its discussion of the sudden emergency doctrine and the obvious danger rule. I would discard both concepts. The sudden emergency instruction contradicts itself. It begins by stating that one who must act suddenly in the face of imminent danger is not required to use the same degree of care as at other times. But in the next breath, it says that the emergency rule does not mean that any different standard is to be applied. In any event, the instruction is unnecessary. The conduct required is still that of a reasonable person under the circumstances. Trial judges are left in the dark as to when this instruction should be used.

[¶ 28] The majority opinion indicates that the obvious danger rule is no longer an absolute defense. This is contrary to the holding in the case of Valance v. VI-Doug, Inc., 2002 WY 113, 50 P.3d 697 (Wyo.2002). In my concurring and dissenting opinion in that case, I proposed that the obvious danger rule should be eliminated for all purposes.

      . § 31-5-202. Passing of vehicle approaching from opposite direction.
      Drivers of vehicles proceeding in opposite directions shall pass each other to the right and upon roadways having width for not more than one (1) line of traffic in each direction each driver shall give to the other at least one-half (1/2) of the main-traveled portion of the roadway as nearly as possible.

      . § 31-5-205. Additional limitations on driving on the left; exceptions.
      (a) No vehicle shall be driven on the left side of the roadway under the following conditions:
      (i)When approaching or upon the crest of a grade or a curve in the highway where the driver's view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;
      (ii) When approaching within one hundred (100) feel of or traversing any intersection or railroad grade crossing unless otherwise indicated by official traffic-control devices;
      (iii) When the view is obstructed upon approaching within one hundred (100) feet of any bridge, viaduct or tunnel.
      (b) Subsection (a) of this section does not apply:
      (i) Upon a one-way roadway;
      (ii) Under the conditions described in W.S. 31-5-20 l(a)(ii);
      (iii) To the driver of a vehicle turning left into or from an alley, private road or driveway.

      . § 31-5-210. Following too closely.
      (a) The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway.
      (b) The driver of any vehicle when traveling upon a roadway outside of a business or residence district, and which is following another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy the space without danger.
      (c) Motor vehicles being driven upon any roadway outside of a business or residence district in a caravan or motorcade whether or not towing other vehicles shall be so operated as to allow sufficient space between each vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This provision shall not apply to funeral processions.

      . § 31-5-301. Maximum speed limits.
      (a)No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hillcrest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.
      (b) Except when a special hazard exists that requires lower speed for compliance with subsection (a) of this section, the limits specified in this subsection or established as otherwise authorized shall be maximum lawful speeds and no person shall drive a vehicle on a highway at a speed in excess of maximum limits:
      (i) Twenty (20) miles per hour when passing a school building, or the grounds thereof, or a school crossing if appropriate signs giving notice of that limit are erected;
      (ii) Thirty (30) miles per hour in any urban district;
      (iii) Seventy-five (75) miles per hour on interstate highways. Nothing in this paragraph shall be construed to:
      (A) Affect the authority of the superintendent to otherwise designate lower maximum speed limits on interstate highways in accordance with other laws; or
      (B) Authorize noncompliance with posted speed limits on interstate highways.
      (iv) Sixty-five (65) miles per hour in other locations;
      (v) Repealed by Laws 1997, ch. 61, § 2.
      (c) The maximum speed limits set forth in this section may be altered as authorized in W.S. 31-5-302 and 31-5-303.
      (d) Speeding violations of up to eighty (80) miles per hour under W.S. 31 —5 —301 (b)(iii) or up to seventy (70) miles per hour under W.S. 31 — 5— 301(b)(iv), except violations received while operating a commercial motor vehicle as defined by W.S. 31-7-102(a)(viii), shall not be made a part of the abstracts or records kept by the department of transportation pursuant to W.S. 31-5-1214 or 31-7-120.

      . Unless otherwise indicated, the statutes in effect at the time of the accident have not been amended.