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Click here for the full text of this decision FACTS:While shopping at a Bed, Bath & Beyond Inc. (BBB) store, Rafael Urista claims he was hit on the head and knocked unconscious by plastic trash cans that fell from a 12-foot-high shelf. According to Urista’s wife, a BBB employee on a ladder in the adjacent aisle on the other side of the shelf was attempting to retrieve merchandise with a broom when the trash cans fell. After learning of the incident, the BBB store manager approached the Uristas and completed an accident report. At that time, Urista declined the manager’s offer of assistance and did not report being knocked unconscious or that he had been injured. The Uristas resumed shopping before leaving the store. Five weeks later, Urista sued BBB claiming that the trash can incident caused him severe back injuries. The BBB store manager conceded during his testimony at trial that the employee working on the other side of the shelf probably caused the trash cans to fall, but he believed the employee had been acting in a safe manner when the incident occurred. Urista’s testimony revealed that he had previously been treated for back pain due to prior work-related injuries. Urista’s physician testified that although Urista’s medical records initially showed a diagnosis of work-related injuries, he later, at the request of Urista’s attorney, changed Urista’s medical records to reflect that the injuries were caused by the BBB incident. At the close of Urista’s case, BBB moved for an instructed verdict, which was denied. BBB rested without calling any witnesses. The trial court submitted the case to the jury in a broad-form charge. The liability question asked: “Did the negligence, if any, of Bed, Bath, and Beyond Inc. proximately cause the occurrence in question?” Over Urista’s objection, the trial court also included two inferential rebuttal instructions in the charge, including this “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.” In its brief, BBB conceded that this instruction should not have been submitted. In a 10-to-two verdict, the jury answered “NO” to the liability question and thus did not reach the conditionally submitted damages question. In accordance with the verdict, the trial court rendered a take-nothing judgment in favor of BBB. In a divided opinion, the 1st Court of Appeals held on rehearing that the trial court erred when it submitted the unavoidable accident instruction and that it was likely, although not conclusively established, that the erroneous instruction formed the sole basis for the jury’s negative answer to the liability question. The court concluded that the erroneous instruction probably was reversible error that prevented Urista from presenting his appeal. The court accordingly reversed the trial court’s judgment and remanded the case for a new trial. HOLDING:Reversed and remanded to the 1st Court of Appeals. Assuming the unavoidable accident instruction should not have been submitted, the Texas Supreme Court then examined whether submitting the instruction constituted harmful error. The court applied traditional harmless error analysis and considered whether the instruction probably caused the rendition of an improper judgment. A review of the record, the court stated, reveals at least two reasons why the unavoidable accident instruction probably did not result in an improper judgment. First, the court stated, the inclusion of an improper unavoidable accident instruction is ordinarily harmless and simply explains to the jury that they are not required to find someone at fault. Second, the court stated, it is reasonable to conclude that Urista failed to carry his burden of proof to prove by a preponderance of the evidence that BBB was negligent. For example, Urista and his wife were the only witnesses to his being struck in the head by the trash cans, the court stated, and Urista declined the manager’s offer of assistance and at the time did not report being knocked unconscious or that he had been injured. Moreover, the court stated, he continued with his shopping before leaving the store. In short, the court found that the jury could simply have concluded that Urista failed to prove that BBB was negligent and, accordingly, answered the negligence question negatively without regard to the unavoidable accident instruction. The court also stated it could not conclude that the instruction caused the case to be decided differently than it likely would have been without the instruction. OPINION:Green, J., delivered the opinion of the court, in which Hecht, O’Neill, Wainwright, Brister, Johnson and Willett, J.J. joined. CONCURRENCE:Brister, J., filed a concurring opinion, in which Hecht and Willett, J.J. joined. “[T]he trial court did nothing wrong . . . . The assumption that such a simple instruction will”nudge’ jurors toward a defense verdict reflects a very low opinion of their intelligence.” DISSENT:Medina, J., filed a dissenting opinion, in which Jefferson, C.J., joined. “The great weight, if not all, of the evidence is contrary to the jury’s actual verdict of no negligence. I therefore cannot agree that the erroneous instruction here was harmless.”

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