                                  NO. 12-08-00411-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

TODD BAKER,                                   §             APPEAL FROM THE 3RD
APPELLANT

V.                                           §              JUDICIAL DISTRICT COURT

JOHN JOSEPH MAST,
APPELLEE                                     §              HOUSTON COUNTY, TEXAS


                                    MEMORANDUM OPINION
       Todd Baker appeals the trial court’s judgment in a lawsuit brought by him against John
Joseph Mast. In two issues, Baker asserts that the trial court reversibly erred by charging the
jury with a sudden emergency instruction and an unavoidable accident instruction. We affirm.


                                         BACKGROUND
       Baker filed a lawsuit against Mast for injuries he sustained during a hunting trip. Baker
alleged that, during this trip, Mast acted negligently by backing a vehicle into him, resulting in
his injury. The parties tried their case before a jury. The jury found that “the occurrence in
question” was not proximately caused by “the negligence, if any,” of Mast. The trial court
subsequently entered a take nothing judgment. This appeal followed.


                                     SUDDEN EMERGENCY
       In his first issue, Baker asserts that the trial court “erred in submitting the sudden
emergency instruction under the circumstances, which constituted harmful error.” Baker does
not contend that the language of the instruction was improper. Instead, he asserts that the
evidence before the trial court did not warrant a sudden emergency instruction.


Standard of Review
       A trial court’s decision to include an instruction in its charge is reviewed under an abuse
of discretion standard of review. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000). A trial
court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to
any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.
2000). The mere fact that a trial judge may decide a matter within his discretionary authority in
a different manner than an appellate judge in a similar circumstance does not demonstrate that an
abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985). However, a trial court has no discretion in determining what the law is or applying
the law to the facts. Spitzer v. Berry, 247 S.W.3d 747, 750 (Tex. App.–Tyler 2008, pet. denied).
A trial court has “great latitude and considerable discretion” to determine necessary and proper
jury instructions. La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). “If an
instruction might aid the jury in answering the issues presented to them, or if there is any support
in the evidence for an instruction, the instruction is proper.” Id.
       A sudden emergency instruction is an inferential rebuttal instruction. Dillard v. Tex.
Elec. Coop., 157 S.W.3d 429, 432-34 (Tex. 2005). An inferential rebuttal defense operates to
rebut an essential element of the plaintiff’s case by proof of other facts. Id. at 430. An
inferential rebuttal instruction serves to inform the jury about such a defense. See id. The
purpose of a sudden emergency inferential rebuttal instruction is to advise the jurors, in the
appropriate case, that they do not have to place blame on a party to the suit if the evidence shows
that conditions beyond the party’s control caused the accident in question or that the conduct of
some person not a party to the litigation caused it. Id. at 432.
       To warrant the submission of an instruction on sudden emergency, there must be
evidence that (1) an emergency situation arose suddenly and unexpectedly, (2) the emergency
situation was not caused by the defendant’s negligence, (3) the emergency situation reasonably
required immediate action without time for deliberation, and (4) after the emergency situation
arose, the defendant acted as a person of ordinary prudence would have acted. Thomas v.
Oldham, 895 S.W.2d 352, 360 (Tex. 1995); see Dillard, 157 S.W.3d at 432 n.4.
Discussion
       Mast testified at trial about the alleged sudden emergency in the case. According to
Mast, he did not believe the accident was “anybody’s fault” and he did not “accept
responsibility” for Baker’s injuries. He testified that, shortly before the accident, he entered into
an unexpected diabetic episode. He blamed this episode for his driving into his friend and
testified that he was in a partially unconscious state during the accident.1
       Mast stated this episode was the result of his failure to immediately eat breakfast that
morning, allowing his blood sugar level to reach a dangerous low. However, according to Mast,
such a failure had not previously caused blood sugar problems and it was his practice to eat a late
breakfast. Further, he had not been advised by his doctor that an immediate breakfast was

       1
           Specifically, Mast testified that he “was like a mummy behind a steering wheel.”

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required. This was because Mast’s previous blood sugar problems had been related to high
blood sugar levels, not low levels.2
         Mast admitted suffering from feelings of weakness as his blood sugar decreased and that
such feelings would alert him to consume food to counteract the decrease. However, he reported
that this must not have occurred on the day in question because he would have done something
about it if it had. He testified that he had no memory of any feelings of weakness on the morning
in question. He also testified that his doctor had never restricted him from driving.
         A fellow hunter and witness to the accident, Randall Henry, also testified. His testimony
corroborated Mast’s and was evidence that, at the time of the accident, Mast was in a less than
fully conscious state. According to Henry, Mast was suffering from some form of reduced
consciousness during the drive leading up to the accident, the accident itself, the subsequent trip
to the hospital, and some period at the hospital.3
         We hold that the evidence before the trial court provided support for the proposition that
Mast suffered from an unexpected episode of unconsciousness while driving. This episode
began shortly after the hunting party left Mast’s home. The episode was of a sufficiently
unexpected and sudden onset that Mast was unable to anticipate it and act to counter it. Because
of this, Mast was not negligent in failing to prevent it. This episode did not afford Mast an
opportunity to engage in deliberation because he was partially unconscious and unable to
deliberate. And, because he was driving, it could be concluded that immediate action was
required. Further, it could also be concluded that Mast acted with ordinary prudence because his
unconscious state could have rendered him unable to act with any normal level of driving
prudence. Based upon the evidence before the trial court, we hold that the trial court did not
abuse its discretion by including a sudden emergency instruction in the jury charge. 4 See
Thomas, 895 S.W.2d at 360; see also Dillard, 157 S.W.3d at 432 n.4. We overrule Baker’s first
issue.


                                              UNAVOIDABLE ACCIDENT
         In his second issue, Baker claims that the trial court “erred in instructing the jury with
regard to unavoidable accident, which constituted harmful error.”                            Again, Baker does not


         2
          Mast admitted to having had one other serious diabetic episode. However, that episode occurred in the
evening and was unrelated to his eating habits.
         3
             Baker also testified. He testified that Mast appeared “out of it” after the accident.
         4
           We note that some of the testimony in question was challenged by Baker. However, “if there is any
support in the evidence for an instruction, the instruction is proper.” La.-Pac. Corp., 976 S.W.2d at 676.

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contend that the language of the instruction was improper. Instead, he asserts that the evidence
before the trial court did not warrant an unavoidable accident instruction.
Standard of Review
       As stated above, a trial court’s decision to include an instruction in its charge is reviewed
under an abuse of discretion standard of review. See V.L.K., 24 S.W.3d at 341. A trial court has
“great latitude and considerable discretion” to determine necessary and proper jury instructions.
La.-Pac. Corp., 976 S.W.2d at 676. “If an instruction might aid the jury in answering the issues
presented to them, or if there is any support in the evidence for an instruction, the instruction is
proper.” Id.
       Like sudden emergency instructions, an unavoidable accident instruction is an inferential
rebuttal instruction.   Dillard, 157 S.W.3d at 432-34.         To warrant the submission of an
unavoidable accident instruction, there must be evidence that the accident in question was not
proximately caused by the negligence of any party to it. See Yarborough v. Berner, 467 S.W.2d
188, 190-91 (Tex. 1971); see also Dillard, 157 S.W.3d at 432 n.2. Although this instruction has
often been understood to be improper absent causation by a nonhuman condition, see, e.g., Hill
v. Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex. 1992), “the instruction’s language is not so
limiting.” Dillard, 157 S.W.3d at 433. Instead, “[t]he instruction merely informs the jury that it
may consider causes of the occurrence other than the negligence of the parties.” Id.




Discussion
       Based upon the evidence outlined in our discussion of Baker’s first issue, we conclude
that an unavoidable accident instruction was applicable to the case. In short, the evidence
supported Mast’s position that the accident in question was not proximately caused by the
negligence of any party to it. See Yarborough, 467 S.W.2d at 190-91; see also Dillard, 157
S.W.3d at 432 n.2. However, because the trial court also issued a sudden emergency instruction,
we must consider whether the inclusion of two inferential rebuttal instructions constituted an
abuse of discretion. See Dillard, 157 S.W.3d at 432-34. This is because multiple inferential
rebuttal instructions have “the potential to skew the jury’s analysis.” Id. at 433.
       We have already determined that the trial court did not abuse its discretion by including a
sudden emergency instruction in the jury charge. The unavoidable accident doctrine logically
subsumes the narrower doctrine of sudden emergency. See Reinhart v. Young, 906 S.W.2d 471,
474 (Tex. 1995) (plurality op.). “It is difficult to attribute an improper verdict, if any, to the
unavoidable accident instruction when the charge also included . . . this instruction regarding
sudden emergency.” See id. In light of the evidence before the trial court, and the inclusion of
                                              4
an instruction regarding sudden emergency, an unavoidable accident instruction was unlikely to
confuse or mislead the jury. See id. Therefore, we hold that the trial court did not abuse its
discretion by including the instruction. Cf. id. (holding inclusion harmless). We overrule
Baker’s second issue.


                                                    DISPOSITION
         We affirm the judgment of the trial court.
                                                                  SAM GRIFFITH
                                                                      Justice


Opinion delivered April 7, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)




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