
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


M E M O R A N D U M   O P I N I O N

		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)
		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
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.

		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.


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
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
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
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.



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
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.

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
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.   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).
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).

