A driver who momentarily diverts attention from the road to adjust in-car controls (such as a CD player) while driving at a modest speed in a semi-rural area with no observable or foreseeable danger does not breach the duty of care, even if a collision results from an animal unexpectedly entering the roadway. A party who expressly eschews reliance on a legal argument at trial will not be permitted to raise it for the first time on appeal absent exceptional circumstances, particularly where the opposing party might have conducted the case differently had the point been raised.
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