Texas PJC Malpractice 2022

PJC 65.7

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.7

Unavoidable Accident

An occurrence may be an “unavoidable accident,” that is, an event not prox imately caused by the negligence of any party to the occurrence.

COMMENT When to use—given immediately after definition of “proximate cause.” Because “unavoidable accident” is an inferential rebuttal defense, it can be submitted only by instruction. See Tex. R. Civ. P. 277; Thota v. Young , 366 S.W.3d 678, 692 (Tex. 2012). It is appropriate to submit PJC 65.7 if there is evidence the occurrence in question was caused by some condition beyond the party’s control, typically (1)some physical condition or circumstance, such as fog, snow, sleet, wet or slick pavement, or obstruc tion of view, or (2)the conduct (e.g., darting into traffic) of a child too young to be considered negligent. Catholic Diocese of El Paso (San Lorenzo Church) v. Porter , 622 S.W.3d 824, 833 (Tex. 2021); Gunn v. McCoy , 554 S.W.3d 645, 675 (Tex. 2018); Reinhart v. Young , 906 S.W.2d 471, 472 (Tex. 1995); Yarborough v. Berner , 467 S.W.2d 188, 191 (Tex. 1971). The instruction’s use is not, however, limited to these circumstances. Porter , 622 S.W.3d at 833. Caveat. Instructions are proper only if they are raised by the pleadings and the evidence. Tex. R. Civ. P. 278. Submission of an instruction that is not supported by evidence may be reversible error. See Galvan v. Fedder , 678 S.W.2d 596, 598–99 (Tex. App.—Houston [14th Dist.] 1984, no writ). The refusal to give any inferential rebuttal instruction, even if properly requested and supported by the evidence, is not necessarily reversible error. “Unavoidable accident” is an inferential rebuttal instruction. See Thota , 366 S.W.3d at 684. The Texas Supreme Court has held that (1) trial courts have significant discre tion in determining which inferential rebuttal instructions to submit, Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); (2) even if an inferential rebuttal instruction is supported by the evidence, submitting it is not mandatory, Gunn , 554 S.W.3d at 676; (3) multiple inferential rebuttal instructions have “the potential to skew the jury’s anal ysis,” Dillard v. Texas Electric Cooperative , 157 S.W.3d 429, 433 (Tex. 2005); (4)courts should refrain from submitting an unavoidable accident instruction in other circumstances 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 negli gence, Hill v. Winn Dixie , 849 S.W.2d 802, 803 (Tex. 1992); and (5)the trial court’s decision regarding whether to submit an inferential rebuttal instruction is subject to a harmless error analysis. Gunn , 554 S.W.3d at 675–77.

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