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Click here for the full text of this decision FACTS:Maria Kerr’s 6-year-old son Derek D’eVonn Sanders (D’eVonn) died as a result of injuries he sustained when a Chevrolet Suburban operated by Leesa Hartsell Brown drove over him in a Lubbock store parking lot. The incident happened just before 9:30 p.m. on a February night as Kerr, her three children and Kerr’s friend Katherine Williams left the store. D’eVonn’s fatal injury, Kerr testified, occurred when D’eVonn dropped a toy in the crosswalk and stopped to pick it up. The toy was stuck to the ground, requiring more than one attempt to retrieve it. Kerr was one or more steps ahead of D’eVonn and called to him to hurry. Brown drove into the crosswalk without seeing D’eVonn. With Kerr on the driver’s side of the Suburban, Brown turned left down a parking aisle, striking D’eVonn with the passenger side of the vehicle and continuing over him with both right tires. Kerr banged on the side of the truck to get Brown’s attention, causing her to stop after continuing several more feet. James Phillips, a customer leaving the store, offered a different sequence of events in his testimony. He described Kerr’s children as running around inside the store and the parking lot. Just before the accident, he saw D’eVonn “jump out and ‘curve’ around until he ‘disappeared in front of the Suburban.’ ” He did not see any adults with the children until after the accident. Brown’s third amended answer alleged that the event was an unavoidable accident and not caused by the negligence of any party. Kerr objected when the proposed jury charge included an unavoidable-accident instruction, arguing it was improper because D’eVonn, at 6 years old, was capable of negligence. The trial court overruled the objection and instructed the jury: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” Brown was the only person whose possible negligence was submitted to the jury. The jury unanimously answered “no” to the question that asked whether her negligence, if any, proximately caused the occurrence. On appeal, Kerr argued that the court erred in submitting the unavoidable accident instruction. HOLDING:Affirmed. Unavoidable accident, the court stated, is among the inferential rebuttal jury instructions recognized by Texas courts. The instruction ordinarily applies, the court stated, when there is evidence an occurrence was caused by a factor such as adverse weather conditions, wet or slick pavement, obstruction of view or to resolve a case involving a very young child who is legally incapable of negligence. Kerr did not contend that no evidence supported Brown’s theory that the accident was a result of D’eVonn’s running into the crosswalk. Rather, Kerr argued that a child under 5 is incapable of negligence, but a 5- or 6-year-old is not too young to be capable of negligence, and therefore D’eVonn’s conduct thus could not give rise to an unavoidable accident instruction. Kerr’s argument, the court stated, effectively characterized the Texas Supreme Court’s 1971 holding in Yarborough v. Berner as substituting a bright line at 5 years old for the common-law rule that limited the capability for negligent conduct to children over 7 years old. But the court disagreed that Yarborough and other opinions established such a bright-line rule. OPINION:Campbell, J.; Boyd, C.J. (retired), and Campbell and Reavis (retired), J.J.

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