      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-07-00245-CV



                                    Shirley Harris, Appellant

                                                  v.

                                    Tomas Vazquez, Appellee


           FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
      NO. C-1-CV-05-287328, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Shirley Harris appeals from a take-nothing judgment in her suit for damages she

allegedly incurred in an automobile collision with Tomas Vazquez. The judgment was based on a

jury finding that Vazquez’s negligence had not been a proximate cause of the collision. Harris brings

two issues on appeal challenging the factual sufficiency of the evidence supporting the jury’s verdict

and the trial court’s submission of an “unavoidable accident” instruction with the negligence issue.

We will affirm the judgment.


                                         BACKGROUND

               The jury heard evidence that the collision occurred on Austin’s Oak Springs Road

near its intersection with Airport Boulevard. It is undisputed that Harris’s vehicle, while traveling

westbound on Oak Springs Road, struck Vazquez’s vehicle as Vazquez was exiting a restaurant
parking lot on the north side of Oak Springs Road and attempting to turn left so as to travel

eastbound. The collision occurred at approximately 11:00 on a Sunday morning.

               Both Harris and Vazquez testified at trial and provided conflicting accounts of how

the collision occurred. According to Harris, as she was driving westward on Oak Springs and

approaching the intersection with Airport Boulevard, “there was nothing in the road” blocking her

view. There were “no obstructions,” and the road was “smooth” and “flat.” Furthermore, Harris

testified that the weather was sunny and visibility was good. Harris estimated that she was traveling

between 20 to 25 miles per hour in a 30-miles-per-hour zone.

               Harris recounted that, as she was approaching the intersection,

       [T]here was a vehicle, a truck, pulling out of the restaurant [parking lot]. I could see
       him, because like I say, there was nothing blocking my view. . . . He was—he looked
       to his right. I was coming from his left. He did not turn and look to his left. So as
       he came out in front of me, my car—we collided on the—on the driver’s side. . . .


Harris added, “He was making his turn. He was making his left-hand turn in front of me, and that’s

when I jammed on my brakes. He was . . . turning left in front of me, and I hit his left bumper,

left—above his left tire.” Harris further testified that she was not aware of any other vehicles

trying to exit the parking lot. Harris also observed a male passenger in Vazquez’s truck. On

cross-examination, Harris testified that when the collision occurred, she was traveling on the “left”

of the westbound lane of Oak Springs Road.1



       1
           It is unclear from the record exactly where in the road Harris was located when the collision
occurred. Harris designated only a partial record for review, see Tex. R. App. P. 34.6(c), and most
of the trial exhibits, including photographs and diagrams of the road, were not included. The record
is also unclear as to whether Oak Springs Road at the accident site has two lanes, two lanes in each
direction, or two through lanes plus a turn lane.

                                                   2
               In contrast to Harris, Vazquez testified that when he was pulling out of the restaurant

parking lot, there were two cars behind his vehicle, and, to his left, “there was a big truck” parked

on the street that was obstructing his view. When asked to describe the truck that was obstructing

his view, Vazquez recounted, “It was a big truck. The ones that have—the one that has eight tires,

four in the back and [four] in the front.” When asked if he could recall the color of the parked

truck, Vazquez testified, “Well, no. It was kind of green. I just saw the big, you know, bulk.”

Vazquez did not see anyone inside the truck, and he testified that he assumed the truck’s owner was

inside the restaurant.

               Referring to a photograph of the location where the collision occurred, Vazquez

recounted:


       [M]y truck was right here, and I was pulling out slowly. And I was making the effort
       to see towards there. And then when I pulled just a little bit more like that, I saw the
       car coming. Behind me there was the other one, and then I just stayed thinking, well,
       I hope this one will stop so it won’t hit me. And that’s it.


Vazquez added:


       I was looking because I want to turn left, yes. But I was pulling out straight like this.
       I was pulling out very slowly because I wanted to see, because that truck was in my
       way, and I couldn’t see. And when I pull out just a little bit more, that’s when I saw
       the car coming.


               Vazquez denied Harris’s allegation that he did not look to his left when he was

pulling out. He added that he was wearing his glasses, was not eating or drinking anything, and was

not using his cell phone. He further explained that he was on his way home from the restaurant and



                                                  3
was “rested” and not in any type of hurry. Vazquez also testified, contrary to Harris’s testimony, that

he was alone in his truck.

                Vazquez further testified that, as Harris’s car came toward him, he had wanted to

back up but was unable “because there were two other cars right behind me. I couldn’t move back.”

On cross-examination, Vazquez testified that he had pulled out in the road only to the extent that his

front tires were in the street, and no further. According to Vazquez, his vehicle was completely

stopped when Harris’s vehicle collided with it.

                Vazquez also testified that because Harris applied her brakes when she saw him, the

collision occurred “very slowly” and “hardly did any damage” to his truck, bending a portion of

his front bumper near the wheel on the driver’s side of his vehicle but not damaging his tires

or alignment.     Vazquez agreed with his counsel’s characterization of the collision as a

“minor accident.” In fact, there was evidence that the approximate amount of damage to Vazquez’s

vehicle was $300, while the approximate amount of damage to Harris’s vehicle was $800. Both

vehicles were driveable after the collision.

                After Vazquez testified, Harris was recalled to the stand. Harris “took issue” with

“everything that Mr. Vazquez said.” In particular, she explained:


       I’m going westbound. I’m in the center lane. If Mr. Vazquez was pulling out of that
       parking lot, like he stated, and he stopped, there is no way that I could have gone
       from the center lane to my right lane to hit his vehicle. . . . There was no way that he
       couldn’t have seen me coming westbound, had he looked to his left. This is
       absolutely ridiculous.




                                                  4
               There was also a dispute during trial as to the location of damage to Harris’s vehicle.

No photographs had been taken of Harris’s vehicle following the collision. Instead, the parties used

what counsel termed “rudimentary” drawings to depict the damage. Harris testified that the damage

was on the driver’s side of her vehicle, while Vazquez testified that he recalled the damage to

Harris’s vehicle being on the passenger’s side. On cross-examination, Vazquez questioned Harris

extensively as to how only the driver’s side of her vehicle could have been damaged when Vazquez’s

vehicle had pulled out from her passenger’s side. Harris explained that Vazquez’s vehicle had been

in the process of making a left turn in front of Harris and was not impacted until it had cleared her

passenger side.

               At the conclusion of trial, the trial court submitted an issue inquiring as to whether

the negligence, if any, of Vazquez or Harris had been a proximate cause of the occurrence. It also

conditionally submitted issues on comparative fault and damages. The trial court provided the jury

definitions of negligence, ordinary care, and proximate cause, as well as an “unavoidable accident”

instruction—“an occurrence may be an ‘unavoidable accident,’ that is, an event not proximately

caused by the negligence of any party to it.”2 The jury found that neither Harris’s nor Vazquez’s

negligence had been a proximate cause of the occurrence, and did not reach the remaining issues.

The trial court rendered judgment on the jury’s verdict and ordered that Harris take nothing. Harris

filed a motion for new trial, which the trial court denied. This appeal followed.




       2
         This instruction tracks the unavoidable accident instruction in the Texas Pattern Jury
Charges. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury
Charges—General Negligence & Intentional Personal Torts PJC 3.4 (2003).

                                                 5
                                             DISCUSSION

                Harris’s two issues on appeal are closely related. What she terms “the gravamen of

this appeal” is her contention that “[t]he only evidence in this case tends to establish that one or the

other party to the collision was negligent (or both), but not neither.” Harris urges that the

unavoidable accident instruction “invited this error.”


Charge error

                We will first address Harris’s issue complaining of the unavoidable accident

instruction. We review a trial court’s decision to submit or refuse a particular instruction under an

abuse of discretion standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). When

submitting the jury charge, a trial court is afforded more discretion when submitting instructions than

when submitting questions. Bryan v. Watumull, 230 S.W.3d 503, 508 (Tex. App.—Dallas 2007,

pet. denied). A trial court does not abuse its discretion in submitting an instruction if there is

any support in the evidence for it.            Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d

674, 676 (Tex. 1998); Banks v. Columbia Hosp. at Medical City Dallas Subsidiary, L.P.,

233 S.W.3d 64, 70 (Tex. App.—Dallas 2007, pet. denied).

                An unavoidable accident is “an event not proximately caused by the negligence of any

party to it.” Reinhart v. Young, 906 S.W.2d 471, 472 (Tex. 1995). “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.” Id. (emphasis added). “Unavoidable accident is not an

alternative theory of liability but is ‘an inferential rebuttal issue that requires plaintiffs to prove the

                                                    6
nonexistence of an affirmative defense’ or ‘seeks to disprove the existence of an essential element

submitted in another issue.’” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 756 (Tex. 2006)

(internal citations omitted).

               Although inferential rebuttal instructions “do not always further the jury’s

understanding of the defense or conform to current broad-form practices,” the supreme court has

explained that “they do serve a legitimate purpose”:


       The standard broad-form question is structured such that the jury is not asked
       whether any particular person was negligent, but whether ‘the negligence, if any,’ of
       particular persons proximately caused an occurrence. There is at least a potential
       implication in this phraseology that the occurrence was caused by someone’s
       negligence. We see no harm in explaining to the jury through an inferential rebuttal
       instruction that no such implication is intended.


Dillard v. Texas Elec. Coop., 157 S.W.3d 429, 433 (Tex. 2005) (internal citation omitted). More

recently, the supreme court observed, “The truth is, sometimes accidents are no one’s fault, and an

unavoidable accident instruction, like the one in this case, simply explains to the jury that they are

not required to find someone at fault.” Bed, Bath & Beyond, Inc., 211 S.W.3d at 757.

               Harris contends that, as a matter of public policy, the unavoidable accident instruction

should be applied only with regard to “nonhuman” conditions that are “sudden” or “unexpected,”

not “commonly encountered circumstances” such as a parked vehicle. In the past, the unavoidable

accident instruction has been associated with “nonhuman” or environmental conditions, acts of

very young children legally incapable of negligence, or other “peculiar” circumstances. See Hill

v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992); see also Reinhart, 906 S.W.2d at 472-73

(sharing the “reservations” of courts in other jurisdictions that had either prohibited or “severely

                                                  7
limited the circumstances” under which unavoidable accident instruction may be given). More

recently, however, the supreme court has explained that “the instruction’s language is not so limiting.

The instruction merely informs the jury that it may consider causes of the occurrence other than the

negligence of the parties.” Dillard, 157 S.W.3d at 433; see also Bed, Bath & Beyond, Inc.,

211 S.W.3d at 760 (Brister, J., concurring) (“It is true the unavoidable-accident instruction has

historically been associated only with defendants who blame children or the weather, but (as we

noted recently) that is not what it says. All it says is that accidents may be nobody’s ‘fault’ in the

legal sense.” (citing Dillard, 157 S.W.3d at 433)). Following recent supreme court guidance, we

reject Harris’s narrow view regarding the unavoidable accident instruction.

               In this case, Vazquez testified that his view of oncoming traffic was obstructed by

a truck that was parked on the side of the street. Because the evidence shows that neither Vazquez

nor Harris were responsible for this obstruction, Vazquez’s testimony is at least some evidence that

the collision was “an event not proximately caused by the negligence of any party to it.” See

Reinhart, 906 S.W.2d at 472. Again, a trial court does not abuse its discretion in submitting a

jury instruction if there is “any support” in the evidence for it. Knighten, 976 S.W.2d at 676.

On this record, we hold that the trial court did not abuse its discretion in submitting an unavoidable

accident instruction.

               Alternatively, any error in submitting the instruction was harmless. An incorrect jury

instruction requires reversal only if it “was reasonably calculated to and probably did cause the

rendition of an improper judgment.” Bed, Bath & Beyond, Inc., 211 S.W.3d at 757 (quoting

Reinhart, 906 S.W.2d at 473). On this record, we cannot conclude that the unavoidable accident



                                                  8
instruction probably caused an improper judgment, for reasons similar to the reasons discussed by

the supreme court in Bed, Bath & Beyond, Inc. First, the instruction simply reminded the jury that

it could consider the possibility that the vehicles collided for reasons other than Harris’s or

Vazquez’s negligence (for example, the negligence of the owner of the truck allegedly parked on the

side of the street). “That kind of a jury instruction does not by itself amount to harmful error.” Id.

               Second, on this record, it is reasonable to conclude that the jury simply found that

Harris had failed to carry her burden of proof. Like the defendant in Bed, Bath & Beyond, Inc.,

Vazquez defended this case largely by attacking Harris’s credibility. See id. at 757-58. Vazquez

extensively attempted to cast doubt upon Harris’s recollection of how the collision occurred and how

her vehicle was damaged. The nature, extent, and cause of Harris’s injuries were also vigorously

contested during trial. For these and other reasons, the jury could have simply rejected Harris’s

version of the facts. Especially where Harris’s claim rested largely on her own testimony, the jury

could have found, without regard to the unavoidable accident instruction, that Harris failed to prove

by a preponderance of the evidence that Vazquez’s negligence was a proximate cause of the

collision. Harris has not made a showing that, without the unavoidable accident instruction, the

verdict would have been in her favor. We conclude that the evidence in this case fails to indicate

that “the unavoidable accident instruction in any way caused the case to be decided differently than

it would have been without it.” Id. (quoting Reinhart, 906 S.W.2d at 473).

               We overrule Harris’s second issue.




                                                  9
Factual sufficiency

               In her first issue, Harris asserts that the jury’s verdict is against the great weight and

preponderance of the evidence. As noted, Harris contends that there is insufficient evidence that

neither Vazquez nor Harris were negligent. The great weight and preponderance of the evidence,

according to Harris, established that either Vazquez or Harris were negligent. However, it is the

jury’s finding that Vazquez, the defendant, was not negligent on which the trial court’s judgment

rests. We will construe Harris’s issue to be a challenge to the factual sufficiency of the evidence

supporting the jury’s failure to find that Vazquez was negligent.

               When a party attacks the factual sufficiency of an adverse finding on an issue on

which it has the burden of proof, it must demonstrate on appeal that the adverse finding is against

the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d

237, 242 (Tex. 2001); Texas Dep’t of Assistive & Rehabilitative Servs. v. Howard, 182 S.W.3d

393, 407 (Tex. App.—Austin 2005, pet. denied). We consider all of the evidence and will set aside

the verdict only if the evidence is so weak or the finding so against the great weight and

preponderance of the evidence as to be clearly wrong and unjust. Dow Chem. Co., 46 S.W.3d at 243.

The jury remains the sole judge of witnesses’ credibility and the weight to be given their testimony.

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

               Harris points to her testimony that Vazquez did not look to his left before entering

the street from the parking lot.3 Vazquez testified that he looked in both directions before he pulled


       3
          See County of Dallas v. Poston, 104 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.)
(citing Tex. Transp. Code Ann. § 545.256(3) (West 1999)) (explaining duty to yield right-of-way
to oncoming vehicles when entering roadway).

                                                  10
out. It was the jury’s province to assess the credibility of each witness and resolve this and

other conflicts in the evidence.     See McDonald v. Dankworth, 212 S.W.3d 336, 345-46

(Tex. App.—Austin 2006, no pet.). Vazquez recounted that there was a truck obstructing his view

of oncoming traffic, recounting details about its appearance, including that it had eight wheels and

was “big,” “bulk[y],” and “kind of green.” Vazquez testified that he pulled out of the parking lot

“very slowly.” When he saw Harris’s vehicle approaching, Vazquez explained that he was unable

to back up because there were two cars immediately behind him. Vazquez added that he had been

“rested” and not in a hurry, was wearing his glasses, was not on his cell phone, was alone in his

vehicle, and was not eating or drinking anything while driving. On this record, we cannot say that

the jury’s failure to find that Vazquez’s negligence was a proximate cause of the collision was so

against the great weight and preponderance of the evidence as to be clearly wrong and manifestly

unjust. See Waring v. Wommack, 945 S.W.2d 889, 894-95 (Tex. App.—Austin 1997, no writ)

(affirming jury’s finding that defendant was not negligent in case involving collision

between plaintiff bicyclist and defendant motorist attempting left turn); Gomez v. Adame,

940 S.W.2d 249, 252 (Tex. App.—San Antonio 1997, no writ) (affirming jury’s

finding that defendant was not negligent in case involving allegation that defendant failed

to maintain proper lookout prior to entering roadway); Madara v. Marshall, 578 S.W.2d

787, 791 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.) (affirming jury’s finding that

defendant was not negligent in case involving collision between plaintiff motorist traveling

westbound and defendant motorist attempting left turn).

               We overrule Harris’s first issue.



                                                   11
                                        CONCLUSION

              Having overruled Harris’s issues on appeal, we affirm the judgment of the trial court.




                                             ____________________________________________

                                             Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: June 5, 2008




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