Edeler v. O'Brien

In Edeler v. O'Brien, 38 Wis. 2d 691, 158 N.W.2d 301 (1968), adopted a three-prong test to apply before giving the emergency instruction: (1) The party seeking its benefits must be free from the negligence which contributed to the creation of the emergency; (2) the time element in which action is required must be short enough to preclude the deliberate and intelligent choice of action; and (3) the element of negligence inquired into must concern management and control. (38 Wis. 2d at 697-698, 158 N.W.2d at 304.) In Edeler, the Court established that a time span of less than five seconds, while not creating an emergency as a matter of law, did require the question to be decided by the jury. See 38 Wis. 2d at 698-699, 158 N.W.2d at 305.