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Torts Click here for the full text of this decision FACTS: Kendall McWilliams (McWilliams), administrator of the estate of LaWanda McWilliams, deceased, and as next friend of Keith McWilliams, a minor, and Seth Andrew McWilliams, a minor, and Tom Neil Ferguson and Virginia Lee Ferguson have appealed from a judgment denying them recovery against Robert John Masterson, Werner Enterprises Inc., Drivers Management Inc., Paul Gabel and Kent Gabel (collectively referred to as Masterson). Through a single issue, McWilliams and the other appellants contend that the trial court erred by instructing the jury on the theories of unavoidable accident and act of God. HOLDING: Affirmed. As previously mentioned, McWilliams and the other appellants initially question the trial court’s decision to instruct the jury on the theory of unavoidable accident. Their attack is twofold. First, they allege that the theory is no longer viable given the Texas Supreme Court’s opinion in Reinhart v. Young, 906 S.W.2d 471 (Tex. 1995). Then, they aver that the evidence did not warrant its submission. First, it is true that various members of the Texas Supreme Court criticized the doctrine in Reinhart. Indeed, it has been the subject of comment for quite some time. Yet, a majority of the court has not reached any consensus on whether its submission should be discontinued. Nor has a majority held the instruction improper in cases involving injury arising from adverse environmental conditions, despite the reservations expressed. So, until a majority of the Texas Supreme Court expressly directs otherwise, the court holds that the doctrine of unavoidable accident remains a viable theory of law upon which a jury may be instructed, especially when the record contains evidence indicating that the loss occurred as a result of adverse weather conditions. Next, the concept of unavoidable accident recognizes the truism that some events or injuries may not be proximately caused by the negligence of anyone. That is, they may result from fate. And, via an instruction on unavoidable accident, the jury is so informed. Consequently, its submission is proper when there is evidence that the event was proximately caused by a nonhuman condition as opposed to the negligence of any party to the event. Those nonhuman conditions include acts of Mother Nature ( e.g. snow, ice, sleet, fog, and the like) which cause hazardous conditions or obstruct one’s view or when someone incapable of negligence due to age causes the harm. When there is no evidence that the occurrence was caused by such a condition, instructing the jury on the matter is generally improper. Conversely, when there is evidence of that ilk, then the trial court may properly submit the instruction. Some evidence at bar illustrates that the cattle which McWilliams encountered were originally within a fenced pasture abutting the highway. Several witnesses testified that the fencing and gates were built in a manner capable of retaining cattle and were in good repair prior to the time the bovine escaped. They apparently escaped by trampling upon a gate. Furthermore, it is undisputed that a winter storm front had moved into the area prior to the accident. With it came near freezing temperatures, blowing wind, rain, snow, mist, and possibly ice. And, it was through these conditions that McWilliams and Masterson drove their respective vehicles. Other evidence illustrates that the same wintry conditions induced the Gabels’ cattle to move about in an attempt to escape the chill. This is instinctive on their part, according to a witness. Next, evidence appears of record illustrating that upon hitting the cattle, McWilliams’ vehicle ventured into the right-hand lane in which Masterson drove. Masterson had begun to apply his brakes when he first saw the cattle. And, upon seeing the McWilliams’ vehicle enter his lane, he also attempted to steer his rig to the right. An expert estimated that the range of time that lapsed between McWilliams first hitting the cattle and Masterson striking McWilliams’ vehicle was from 3.8 to 7.5 seconds. So too did he opine that if the incident occurred within the 3.8 second range, then Masterson could not have avoided the McWilliams vehicle. If it occurred closer to the 7.5 second range then “probably, yes” he could have avoided the accident. When asked about another expert’s conclusion that Masterson could have prevented the collision, the witness also stated that “I don’t believe its possible to make conclusions that absolutely that Mr. Masterson could have avoided the collision.” Counsel also asked the witness if he had an opinion as to the cause of the accident. The witness answered that he did. He believed the cause of the accident was the cattle on the highway. That the fences and gates were in good repair and capable of holding cattle, that a winter storm had swallowed the area for some time, that cattle instinctively attempt to escape such storms by moving with the storm, that the highway lay in the path of the storm, that little can hold cattle when they opt to escape, that the conditions at the time of the collision were dark and wintry, that the cattle were on the highway due to the storm and their instinctive reaction to it, that the cattle could well have escaped regardless of any precautions which could have been undertaken by the Gabels, that both McWilliams and Masterson were operating their respective vehicles within applicable traffic regulations, that McWilliams struck a cow while lawfully attempting to pass Masterson, that seconds lapsed before Masterson’s eighteen wheeler hit McWilliams’ vehicle, and that Masterson may not have been able to avoid the collision depending upon how many seconds lapsed is evidence from which a reasonable jury could deduce that the collision was a trick of fate and not the result of any human being’s negligence. It is some evidence of “a theory under which the accident could have happened, notwithstanding [that] all the parties to the transaction . . . exercised the degree of care required by law.” Kuykendall v. Doose, 260 S.W.2d at 436. And, though there was evidence to the contrary, that does not matter. Again, the standard of review obligates the court to view the evidence in a light most favorable to the submission of the issue. So, evidence that may urge against submission of the issue is irrelevant. In sum, the trial court’s decision to submit the issue enjoyed support in the evidence. Thus, it did not abuse its discretion when it did so. OPINION: Quinn, J; Quinn and Reavis, JJ and Boyd S.J. Boyd, S.J. sitting by assignment.

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