Reinhart v. Young

Justice HIGHTOWER

delivered a dissenting opinion,

joined by Justice CORNYN and Justice GAMMAGE.

The issue we address is whether the trial court committed reversible error by including an instruction regarding the doctrine of unavoidable accident in its charge to the jury. Because we hold that the trial court’s *472 error, if any, was harmless, we affirm the judgment of the court of appeals. 874 S.W.2d 773.

I.

Sallye Treme was driving her car on Highway 59 near Houston at about fifty miles per hour during the morning of March 17, 1989. The weather was good, and traffic was generally light. After Treme drove over an overpass, she came to an abrupt stop when a car cutting across the highway caused the traffic in front of her to halt. About four seconds later, a pickup truck driven by William Carl Young crashed into the rear end of Treme’s car, allegedly injuring her and a passenger, Thelma Reinhart.

Alleging common-law negligence, Treme and Reinhart sued Young. In his First Amended Original Answer, Young asserted, inter alia, that the collision “was an unavoidable accident,” and that “he was confronted by an emergency arising suddenly and unexpectedly which was not proximately caused by any negligence on his part and ... required immediate action without time for deliberation and that he used ordinary care after such emergency arose.”

The parties disagreed about the exact location of the accident. Treme claimed that the collision occurred away from the overpass, close to a bridge that crosses Highway 59. Young testified that he was traveling about one-eighth to one-fourth of a mile behind Treme and contended that the collision took place on the crest of the overpass.

Based solely on its conclusion that the incline or elevation of the overpass constituted a non-human event which proximately caused the accident, the trial court submitted an instruction to the jury in the charge of the court concerning the doctrine of unavoidable accident. The instruction stated: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” After the jury unanimously found that he was not negligent in rear-ending the automobile carrying Treme and Reinhart, the trial court rendered judgment in Young’s favor. A divided court of appeals affirmed, holding that the instruction was proper because the overpass constituted an obstruction of view. 874 S.W.2d at 774.

II.

An unavoidable accident is “an event not proximately caused by the negligence of any party to it.” Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385 (1952). The only purpose of the instruction is to ensure that the jury will understand that “they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.” Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex.1971). The instruction is most often used to inquire about the causal effect of some physical condition or circumstance such as fog, snow, sleet, wet or slick pavement, or obstruction of view, or to resolve a case involving a very young child who is legally incapable of negligence. Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802 (Tex.1992). Here, for example, Young argues that an obstruction of view caused the accident.

Just two terms ago, we noted that, except in certain types of cases, “courts should refrain from submitting an unavoidable accident instruction ... due to the risk that the jury will be misled or confused by the perception that the instruction represents a separate issue distinct from general principles of negligence.” Id. at 803 (citing Keeton et al„ PROSSER AND KEETON ON THE LAW OF TORTS § 29 at 163-64 (5th ed. 1984)). We are not alone in this concern. At least eighteen of our sister states, agreeing that the instruction confuses and misleads the jury, have prohibited its use in negligence cases.1 Ten *473 other jurisdictions have severely limited the circumstances under which trial courts may instruct juries regarding unavoidable accident.2 And among the states that still retain the instruction, many courts have expressed concerns about its applicability in routine negligence cases.3 We share these reservations.

III.

Nevertheless, we did not in Hill reverse the judgment of the court of appeals since we concluded, based on the record as a whole, that the error was harmless. 849 S.W.2d at 803-04. We find nothing in the record before us today to suggest a different result.

Error in the jury charge is reversible only if, in the light of the entire record, it was reasonably calculated to and probably did cause the rendition of an improper judgment. See Tex.R.App.P. 81(b)(1). No evidence in this case even remotely suggests that the unavoidable accident instruction in any way caused the case to be decided differently than it would have been without it.

First, Young introduced ample evidence at trial to support the jury’s failure to find him negligent. Tony Pullings, Jr., the Texas Department of Public Safety officer who investigated the accident, agreed with Young’s attorney that “by looking at the length of the skid marks [from Young’s car], it was pretty obvious ... that ... Young was not exceeding the speed limit when he applied his brakes.” Furthermore, Treme herself testified that she did not notice Young following her too closely, nor did she hear his tires squeal prior to the collision. This was not a close case, where a superfluous instruction would be more likely to influence the jury improperly. See Hukill v. H.E.B. Food Stores, Inc., 756 S.W.2d 840, 844 (Tex.App.—Corpus Christi 1988, no writ). To the contrary, it was a case in which the defendant produced strong evidence and secured a unanimous jury verdict of no liability. See *474 Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984).

Second, and even more important, the charge contained an instruction concerning the doctrine of sudden emergency. That instruction stated:

When a person is confronted by an “emergency” arising suddenly and unexpectedly, which was not proximately caused by negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care if, after such emergency arises, he acts as a person of ordinary prudence would have acted under the same or similar circumstances.

Plaintiffs made no objection whatsoever to this instruction, even though it reiterates much of the unavoidable accident instruction. See Keeton et al., supra, § 29 at 162 n. 1 (“The unavoidable accident doctrine logically subsumes the narrower ... [doctrine] of ... sudden emergency.”). It is difficult to attribute an improper verdict, if any, to the unavoidable accident instruction when the charge also included without objection this instruction regarding sudden emergency.

Finally, nothing suggests that the jury in any way based its verdict on the unavoidable accident instruction. None of the witnesses referred to this term in their testimony. Furthermore, Young’s attorney made little mention of it in his closing argument. In thirty minutes and fifty-three transcribed pages of argument, his only comment to the jury regarding the instruction was that Young “couldn’t see ... [Treme’s car] until he got ... on top of the hill, and there she was. And that makes it an unavoidable accident.” By contrast, he spoke at much greater length about the doctrine of sudden emergency. After reading to the jurors the entire definition of a sudden emergency as stated in the charge, Young’s attorney urged them

to think about that particular definition when you are in there during your deliberations. If you will recall Mrs. Treme’s testimony that she was stopped in the fast lane of the freeway in response to something that had happened ahead of her. And, folks, in light traffic on the freeway that is [a] ... sudden [and] unexpected event that Mr. Young came upon. And we’re going to talk more about that, but I want you to keep that definition in mind.

Returning from briefly addressing other issues, he again implored the jury that Young had faced a sudden emergency, stating: “Folks, I think that this case meets the definition that the court gave you of a sudden emergency. Mrs. Treme either stopped or going real slow in the fast lane of traffic created a sudden emergency for Mr. Young.”

In light of the statement of facts and the instruction regarding sudden emergency, we fail to see how the unavoidable accident instruction could have confused or misled the jury. Moreover, this case was tried months before Hill on a charge whose elements had, at the time, never been questioned by this Court. The trial court committed no error which would justify a reversal under our well-settled principles of harmful error. Accordingly, we affirm the judgment of the court of appeals.

. See Alaska Brick Co. v. McCoy, 400 P.2d 454, 456 (Alaska 1965); City of Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115, 120-21 (1965); Butigan v. Yellow Cab Co., 49 Cal.2d 652, 320 P.2d 500, 505 (1958); Lewis v. Buckskin Joe's, Inc., 156 Colo. 46, 396 P.2d 933, 941-42 (1964); Tolbert v. Duckworth, 262 Ga. 622, 423 S.E.2d 229, 230 (1992); Schaub v. Linchan, 92 Idaho 332, 442 P.2d 742, 744-46 (1968); White v. Evansville Am. Legion Home Ass'n, 247 Ind. 69, 210 N.E.2d 845, 846 (1965); Roll v. Manatt's Transp. Co., 253 N.W.2d 265, 269 (Iowa 1977); George v. Guerette, 306 A.2d 138, 144 (Me.1973); Stover v. Patrick, 459 S.W.2d 393, 396 (Mo.1970); Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263, 273 (1967); Dyer v. Herb Prout & Co., 126 N.H. *473 763, 498 A.2d 715, 717 (1985); Vespe v. Di Marco, 43 NJ. 430, 204 A.2d 874, 880-82 (1964); Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778, 780-81 (1973); Fenton v. Aleshire, 238 Or. 24, 393 P.2d 217, 220 (1964); Camaras v. Moran, 100 R.I. 717, 219 A.2d 487, 489 (1966); Randle v. Allen, 862 P.2d 1329, 1335 (1993); Hunter v. Johnson, 178 W.Va. 383, 359 S.E.2d 611, 613 (1987).

. See Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872, 875 (1965) (holding that instruction should only be used in the most exceptional circumstances such as an unanticipated heart attack); Sadorus v. Wood, 230 A.2d 478, 481 (D.C.1967) ("[W]hile we are not prepared to rule that the unavoidable accident instruction shall not be applied in any case ... we are impressed by the logic of those cases recognizing the prejudice inherent to the plaintiff when the instruction is given_”); Guanzon v. Kalamau, 48 Haw. 330, 402 P.2d 289, 297 (1965) (prohibiting instruction except under extraordinary circumstances such as mechanical failure due to a latent defect); Wooten v. Legate, 519 S.W.2d 385, 386 (Ky.1974) (eliminating use of instruction in automobile collision cases); Holten v. Parker, 302 Minn. 167, 224 N.W.2d 139, 143 (1974) (‘‘[W]e have not precluded the giving of [an unavoidable accident instruction] ... although we reiterate that the utmost caution is to be exercised in the use of this instruction.”); Kale v. Daugherty, 8 N.C.App. 417, 174 S.E.2d 846, 849 (1970) (noting proper instructions on negligence, burden of proof and proximate cause will usually render unavoidable accident instruction unnecessary); Athey v. Bingham, 823 P.2d 347, 350 (Okla.1991) (noting that in most negligence cases the instruction "clearly should not be given”); Howard v. Sanborn, 483 N.W.2d 796, 799 (S.D.1992) (holding that instruction was intended to have restricted use and is not recommended); Whitaker v. Harmon, 879 S.W.2d 865, 870 (Tenn.Ct.App.1994) (noting that an adequate instruction on negligence alone is sufficient in all but the most unusual circumstances); Galbraith v. Fleming, 245 Va. 173, 427 S.E.2d 187, 189 (1993) (holding that it is rarely permissible to give the instruction in automobile cases).

. See Chambers v. Culver, 289 Ala. 724, 272 So.2d 236, 237 (1973) (noting that the better practice is to refuse to give unavoidable accident charge); Tomczukv. Alvarez, 184 Conn. 182, 439 A.2d 935, 940 (1981) (holding that use of charge is within discretion of trial judge but expressing strong disapproval of charge and noting that it serves no useful purpose and confuses and distracts jury); Kline v. Emmele, 204 Kan. 629, 465 P.2d 970, 972 (1970) (noting that the trend has been to disapprove unavoidable accident instructions because negligence, burden of proof and proximate cause have already been properly defined in the instructions); Lober v. Sklar, 357 Mich. 166, 97 N.W.2d 617, 619 (1959) (noting that in most negligence cases the instruction is a false and immaterial issue); Wanner v. Getter, 466 N.W.2d 833, 838 (N.D.1991) (holding that it was not reversible error for trial judge to refuse to give instruction since proximate cause and negligence instructions render it superfluous and confusing).