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Torts No. 01-02-00150-CV, 6/12/2003. Click here for the full text of this decision FACTS: Rafael Urista appeals a take-nothing jury verdict in his personal-injury suit against Bed, Bath, and Beyond Inc. On Sept. 19, 1998, while shopping at a BBB store, Urista was allegedly hit in the head and knocked unconscious by plastic trash cans that fell from atop a store shelf. Reginald Neal, a store employee, was attempting to remove items from the shelf when the trash cans fell. Upon learning of the accident, David Traxler, a general manager with the store, approached Urista and filled out an accident report. Urista did not report serious injury at that time. Five weeks later, Urista claimed injury and photographed the store in preparation for his personal-injury suit against BBB. Urista claimed that he suffered a degenerative back condition as a result of being hit by the trash cans. At trial, Urista adduced evidence showing that Neal negligently caused the trash cans to fall. The jury, however, found no negligence by answering “no” to the question, “Did the negligence, if any, of Bed, Bath, and Beyond Inc. proximately cause the occurrence in question?” In accordance with the jury’s verdict, the trial court entered a take-nothing judgment against Urista. HOLDING: Reversed and remanded. Urista contends that the trial court erred in submitting, over Urista’s objection, the following instruction in the jury charge: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” Urista contends that no evidence was presented to show that the trash cans fell because of a nonhuman environmental condition and that the evidence showed that the trash cans fell as a result of Neal’s negligence. An unavoidable accident is a nonhuman event not proximately caused by the negligence of any party to it. Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995). The only purpose of the instruction is to ensure that jurors will understand that they need not necessarily find that one or the other party to the suit was to blame for the occurrence. The instruction is most often used to 1. inquire about the causal effect of some physical or environmental condition or circumstance, such as fog, snow, sleet, wet or slick pavement, or obstruction of view; or 2. to resolve a case involving a very young child who is legally incapable of negligence. When there is no evidence that an accident was caused by this type of peculiar circumstance, submission of the instruction is improper. Hill v. Winn DixieTexas Inc., 849 S.W.2d 802 (Tex. 1992). As the supreme court stated in Reinhart, “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.” In this case, no evidence suggested that the trash cans fell because of a peculiar circumstance that would warrant an unavoidable-accident instruction. BBB tacitly admits as much on appeal, noting that Urista “may, ultimately, be correct” in asserting charge error. The court holds that the trial court erred in submitting the instruction. An incorrect jury instruction will not warrant reversal unless it probably caused the rendition of an improper judgment. Texas Rule of Appellate Procedure 44.1. Here, in contrast to the defendant in Reinhart, BBB did not introduce ample evidence to support the jury’s no-negligence finding. To the contrary, a close question exists as to whether the jury’s failure to find BBB negligent was against the great weight of the evidence. In further contrast to Reinhart, the trial court here did not submit a sudden-emergency instruction that reiterated the substance of the unavoidable-accident instruction. The unavoidable-accident instruction was submitted independent of any similar instruction and could only have served to mislead and confuse the jury regarding the issue of negligence. Moreover, in contrast to Reinhart, the record suggests that the jury may have based its verdict on the unavoidable-accident instruction. As the record demonstrates, BBB persistently injected its “accident theory” during trial. The jury’s consideration of this theory was likely to be influenced by the erroneous unavoidable-accident instruction in this highly contested case. Because the issue of negligence was highly contested throughout trial, and because BBB presented a theory that made “unavoidable accident” an attractive, but improper, alternative for the jury’s consideration, the court concludes that the erroneous submission of the instruction probably caused the rendition of an improper judgment. OPINION: Alcala, J.; Hedges, Jennings and Alcala, JJ.

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