*1 BED, BEYOND, BATH &

INC., Petitioner, URISTA, Respondent.

Rafael

No. 04-0332.

Supreme Court of Texas.

Argued Sept.

Decided Dec. *2 Phillips, Evelyn Derring-

Michael Ailts Akers, P.C., ton, Phillips & Jonathan Kieschnick, Houston, for Christopher peti- tioner. Thurlow, Thomas N. Thur-

Thomas N. Norris, Associates, & E. low Steven Law Thurlow & Offices of Thomas N. Associ- ates, Jr., PC, Allen H. Kline Jonathan Pirtle, O’Quinn, Laminack & Stoger, Scott Houston, respondent. for P.C., Kelly, Kelly, Peter M. Moore & Choate, President, Houston, Guy D. Texas Association, Austin, Lawyers Trial for ami- cus curiae. opinion delivered

Justice GREEN HECHT, Court, in which Justice O’NEILL, Justice Justice WAINWRIGHT, BRISTER, Justice and Justice WILLETT Justice JOHNSON joined. an un- case we decide whether given

avoidable accident requires reversible error jury caused that because the trial. conclude new We finding that the record does of the instruction trial court’s submission of an im- the rendition probably 61.1(a), Tex.RApp. proper judgment, including the instruction any error in According- jury charge was harmless. judg- appeals’ court of ly, reverse the ment and remand the case to that court testimony Urista’s revealed that he had previously pain consideration of the been treated for back due remaining issues. prior injuries. work-related Urista’s physician although testified that *3 initially medical diagno- records showed a Bed, While shopping at a Bath & Be- injuries, later, sis of “work-related” he at (“BBB”) yond, store, Inc. Rafael Urista request attorney, changed of Urista’s he claims was hit on the head and knocked Urista’s medical records to reflect that the injuries were caused BBB by plastic

unconscious incident. trash cans that fell At the close of Urista’s BBB moved from a twelve-foot-high According shelf. verdict, for an instructed which was de- wife, to Urista’s a BBB employee on a nied. BBB calling any rested without wit- adjacent ladder in the aisle on the other nesses. side of the shelf attempting to retrieve

merchandise with a broom when the trash The trial court submitted the case to the jury in cans fell. a broad-form Although charge. liability the BBB The employee question asked: “Did trial, negligence, if testify was not called to at Bed, Bath, any, of Beyond, Inc. proxi- wife stated that employee came around mately cause the question?”1 occurrence in the aisle and observed the scene before objection, Over Urista’s the trial court also returning to assist his customer. After included two inferential rebuttal instruc- learning incident, store charge, tions including this “un- manager approached the Uristas and com- avoidable accident” instruction: “An occur- pleted an report. time, At that may accident,’ rence be an ‘unavoidable Urista declined manager’s offer of as- is, an event not proximately sistance report and did not being knocked the negligence any party to it.” In its unconscious that he injured. had been brief, BBB conceded that this instruction The Uristas shopping resumed before should not have been In submitted. a ten- leaving the store. verdict, to-two answered “NO” to later, liability Five weeks Urista sued BBB thus did not conditionally reach the claiming damages that the trash can submitted incident caused question.2 verdict, In him accordance with the injuries. severe back The BBB store the trial court take-nothing rendered a manager conceded during testimony his at judgment favor of BBB. trial employee working on the other side of probably the shelf caused the In a opinion, divided the First Court of fall, trash cans to but he believed the Appeals held on rehearing that the trial employee had acting in a safe manner court erred when it submitted the unavoid- when the incident occurred. able accident instruction and that it was jury charge addition, The charge defined as "the specified that "the act or care, is, ordinary failure to use failing complained omission of must be such that a person do that ordinary prudence which person using ordinary care would have fore- would have done under the same or similar event, event, seen that the or some similar doing person circumstances or that which a might reasonably result therefrom.” ordinary prudence would not have done under the same or similar circumstances.” damages question 2. The asked what sum of Proximate cause was defined as "that cause money fairly reasonably compen- would which, sequence, in a natural and continuous injuries, any, resulting sate Urista for his if event, produces an and without which cause from the occurrence. such event would not have occurred.” jury’s finding.” likely, although conclusively Recogniz- estab Id. lished, ing that submission should be broad-form erroneous instruction feasible, explained used when jury’s nega formed the basis sole granulated submission should be used liability question. tive answer to the 517, liability theory is uncertain. Id. at when (Tex.App.-Houston [1st later 390. We extended the Casteel hold- pet. granted). The court con Dist.] ing questions to broad-form that commin- cluded erroneous gle damage elements when an element “probably pre error that was reversible unsupported by sufficient legally evidence. presenting [ap Urista from vented Smith, County v. Harris peal].” (relying Id. Ins. Co. Crown Life *4 (Tex.2002). and 235 Under Casteel Harris Casteel, (Tex.2000)); 378, 22 v. 390 S.W.3d County, error presume Tex.R.App. we was 44.1(a)(2). P. The court accord harmful and reversible and a new trial ingly judgment reversed the trial court’s required cannot determine when we for a trial. remanded case new solely based verdict whether 132 court declined to S.W.3d 523. The theory invalid improperly submitted issues, including remaining reach Urista’s Id.; Casteel, 22 damage or element. negli whether failure find at 388. must now decide S.W.3d We gence against great weight again, whether to extend Casteel time preponderance of evidence. presume harmful in the submis- error sion of an erroneous unavoidable II instruction. in Assuming the unavoidable accident submitted, struction should have been specifically holdings limited our We submitting now we must consider whether County and Harris to submis Casteel harmful error.3 instruction constituted incorporat of a sion broad-form See, Quantum Corp. v. Toen e.g., Chem. ing liability multiple theories of or multiple nies, 473, (Tex.2001); 47 480 Tim S.W.3d damage County, 96 elements. Harris Cain, v. 972 Apartments, berwalk Inc. Casteel, 235; 22 at 388. S.W.3d at S.W.3d 749, (Tex.1998); v. 755 Reinhart presumed a harm never extended We (Tex.1995). 471, 473 Young, 906 S.W.2d rule to instructions on defensive theories accident, as and we de

such unavoidable A cline to so now. Unavoidable accident do theory liability argues, ap and the court of is not an alternative Urista “an issue that re peals agreed, holding that our Crown is inferential rebuttal Casteel, plaintiffs prove 22 the nonexistence v. S.W.3d quires Insurance Co. Life defense,” v. Mon (Tex.2000), case. of an affirmative Lemos controls this Cas- teel, tez, 798, (Tex.1984), single held: broad-form 680 S.W.2d we “When of an disprove the existence es liability question erroneously commingles “seeks to submitted in another is liability valid and invalid theories and sential element Boucher, sue,” timely and Ins. Co. appellant’s objection specific, Select is (Tex.1978). In this be is harmful when cannot error improperly sub the unavoidable accident determined whether the element given sole reference to causation formed the basis mitted theories "agrees” is Be- says the with S.W.3d at 761-62. This incorrect. 3. The dissent Court erroneously the instruction was im- court submit- cause BBB conceded BBB that trial question. proper, do not instruction. 211 reach ted the unavoidable accident 61.1(a). When, plaintiffs (Tex.1995); Tex.R.App. claim. P. To de- here, questions as the broad-form probably submit termine whether the instruction single liability ted a theory (negligence) to improper judgment, caused an we examine jury, multiple-liability-theory Casteel’s Apart- the entire record. Timberwalk Moreover, Partners, Cain, analysis apply. ments, does not when Inc. v. (Tex.1998). theory defensive through submitted instruction, inferential rebuttal Casteel’s A review the this case record solution departing from broad-form sub why reveals at least two reasons we cannot mission and employing granulated instead conclude that the unavoidable accident in apply. submission cannot Unlike alternate probably improper struction resulted in an elements, liability theories of damage First, judgment. explained as we in Dil inferential rebuttal issues cannot be sub lard Cooperative, v. Texas Electric jury charge separate mitted ques improper inclusion of an unavoidable acci tions and instead must be presented dent ordinarily instruction is harmless and through jury instructions. Tex.R. Civ. can an explanatory indeed serve role: Therefore, although harm can be *5 The standard broad-form is presumed when meaningful appellate re jury structured such that is not precluded view is because valid and invalid asked particular person whether liability theories or damage elements are negligent, negli- was but whether “the commingléd, we are persuaded not if gence, any,” particular persons of harm must presumed likewise be when proximately caused an occurrence. proper jury questions along are submitted at a potential implication There is least improper with inferential rebuttal instruc phraseology in this that the occurrence tions. by was caused negligence. someone’s Because we hold that Casteel harm in explaining We see no to the does not control this we need not jury through an in- inferential rebuttal undertake the analysis reversible error ap struction that no such implication is plied in presumed cases, harm which re tended. quires a determination of whether the er (Tex.2005) (citation 157 S.W.3d 433 ror “probably prevented petitioner omitted). is, The truth sometimes acci- from properly presenting the case to the fault, dents are no one’s and an unavoid- appellate courts.” County, Harris 96 instruction, able accident like the one Tex.R.App. 235; 61.1(b). at S.W.3d In case, simply explains jury this stead, apply we traditional harmless error they required are not to find at someone analysis and consider whether the instruc instance, In jury fault. re- was “probably tion caused the rendition of an possibili- minded that it could consider the improper judgment.” Tex.R.App. P. ty that the trash cans fell for reasons other 61.1(a); Quantum see Corp., Chem. negligence. than someone’s That kind of a S.W.3d at 480. jury by instruction does not itself amount harmful error. Id. B An jury Second, incorrect instruction re it is reasonable to con quires only reversal if it reasonably “was carry clude Urista failed to his burden probably calculated to and proof. did cause the BBB chose to defend this case rendition of an improper judgment.” by principally attacking Urista’s credibili Young, Reinhart v. ty. S.W.2d Urista and his wife were the his head been being differently likely witnesses to struck than would have Reinhart, by the trash cans. And while this claim without the instruction.4 See BBB, not directly challenged as at 473. would have been difficult to do so in the appeals The court relied witnesses, vigor- absence of other did Young un Reinhart v. to hold that ously challenge Urista’s claim have been avoidable accident instruction was harmful injured As we result of the incident. at case. noted, already trial the evidence at Reinhart, held of an that submission occurred, that after showed the incident accident instruction unavoidable manager’s of as- Urista declined offer when intro reversible error the defendant sistance and did not knocked report being ample duced evidence to support injured. had unconscious or he thus finding negligence, no Moreover, shopping he continued with his prompting a unanimous verdict ad- leaving before store. Urista also the defendant’s favor. pre-existing mitted that he back had factually Although 473-74. Reinhart injury, complain pain that he did not distinguishable from this case to the ex accident, immediately after that medi- tent that BBB did not introduce evidence cal tests after the did not taken incident of its own and verdict was back, any changes reveal in Urista’s unanimous, holding in still our Reinhart describing that Urista’s medical records compel does not us to conclude that injuries changed as work-related were accident in submission of unavoidable doctor, request at the of Uris- requires struction reversal. Because lawyer, say injuries ta’s were *6 disprov BBB did not bear the burden of by hearing the After BBB accident. can ing negligence, claim of we evidence, jury reasonably quite the could say BBB’s failure to introduce that that he testimony have disbelieved Urista’s the jury’s to de “ample” the cans actually by had been struck trash El short, fense verdict a new trial. See jury that fell the shelf. In the dictates off 306, Poole, Corp. could have concluded that Urista Chico S.W.2d simply (Tex.1987) (recognizing to the prove negligent failed that BBB was fundamental and, that the accordingly, negligence plaintiff the rule a bears burden answered negatively proving negligence to es question regard without the elements When, here, liability). in instruction. But tablish tort the unavoidable accident event, a provides conclude that the defendant’s cross-examination any we cannot discrediting plain- case to decided sufficient basis instruction caused the be implication jury only an- that occurrence must nec- 4. The dissent notes that the essarily by negli- have someone’s swered the related to causation Instructing gence. S.W.3d at 433. meaning question,” the "occurrence may possibility that jury that it consider cans, falling ques- trash and did not reach the something was the result of the occurrence injuries. Be- tion of Urista’s about causation negligence Id. In is not harmful. other than negligence cause that the dissent doubts addition, language jury of the based causing to played any part in the trash cans jury’s question, we cannot assume that the fall, that unavoid- the dissent concludes “the negative answer is the result instruction likely was sole able accident instruction jury could concluded that Uris- when the negligence jury’s basis for the answer negligent, ta failed to establish that was disagree question.” 211 at 764. We proximate such Dillard, occurrence, with conclusion. As held in or that Urista cause of the falling even struck trash cans. an instruction eliminates inferential rebuttal claims, jury’s tiffs supporting Though verdict courts have ad- numerous favor, instructions, in its we cannot accident conclude dressed unavoidable probably jury instruction caused the the court below and one other have an improper render verdict. Nor is in- held erroneous submission of the lack of a unanimous verdict in a case with struction constituted reversible error.6 Stores, Inc., erroneously submitted instruction al- See Hukill v. H.E.B. Food error, ways an indicator (Tex.App.-Corpus of harmful al- Christi though might pet.). be another case.5 no The Thirteenth Court of Appeals found that a note submitted Reinhart, reaching In our conclusion during foreman deliberations plaintiff we also observed that the failed to “clearly indicate[d] based its ver- object to another inferential rebuttal alluring improper theory dict on the struction was similar to unavoidable unavoidable accident.” Id. Without such (sudden accident emergency) and that the clear indication that the instruction affect- emphasize defendant did not the unavoid- decision, ed the every other Texas theory able accident during the trial. improperly court to consider an submitted contrast, appeals the court of in this case unavoidable accident instruction has found specifically objected noted that Urista Likewise, any error to be harmless.7 the inclusion of the unavoidable accident when considering the entire record instruction and that BBB’s counsel refer- provides which no clear indication enced the instruction in closing argument. the instruction probably caused the But we are still not persuaded that those verdict, improper rendition of an we must factual compel distinctions a harmful error conclude that the trial court’s submission Reinhart, conclusion. inAs the evidence of the instruction was harmless. in this case fails indicate “that the un- avoidable any way

caused the differently case to be decided appeals Because the court of misapplied than it would have been without it.” erroneously 906 Casteel and concluded that the S.W.2d at 473. trial court’s submission of the unavoidable *7 Co., 264, 5. The may McCurdy lack of unanimous verdict be a v. M.W. & 984 S.W.2d nez 1998, strong indicator of (Tex.App.-Houston reversible error when a 272 [1st Dist.] no Gonzales, 161252, trial allocating peremptory court’s error in pet.); Cortinas v. 1998 WL challenges resulted in Tex.App. (Tex.App.-San an unfair trial as a 1998 LEXIS 2064 An 1998, Lopez denied); Picketts, Paving, matter of law. See pet. Foremost tonio DeLeon v. Inc., 643, (Tex.1986); 286, 709 S.W.2d (Tex.App.-Corpus 644-45 933 S.W.2d 293 Christi Co., 1996, denied); Garcia v. Light Central Power & Wisenbarger 704 writ v. Gonzales 734, (Tex.1986); 688, 737 Springs Hosp., Patterson Dental Warm Rehab. 789 S.W.2d Dunn, 914, (Tex.1979). 1990, Co. v. 592 S.W.2d (Tex.App.-Corpus 921 694 de Christi writ nied). See, Reinhart, 473-74; e.g., 906 S.W.2d at Tex.,Inc., 802, Reinhart, 473-74; Hill, Hill v. Winn Dixie 849 S.W.2d 7.See 906 S.W.2d at (Tex.1993); Co., 803-04; Fethkenher, Kroger 803-04 Fethkenher v. at 849 S.W.2d 139 24, 2004, 34; Norman, 931152, (Tex.App.-Ft. 34 Worth S.W.3d at WL at 2001 Ctr., *8, 5571, *21; Gates, pet.); no Shepherd Tex.App. Norman v. Good Med. 2001 LEXIS at 931152, 417311, *2, Tex.App. 2001 WL 2001 TEXTS Tex.App. LEXIS 5571 1999 WL at 2001, (not 4631, *5; Ordonez, 272; (Tex.App.-Dallas pet.) designat no at 984 S.W.2d at Astroworld, Inc., Cortinas, *4, 161252, publication); ed for Gates v. 1998 WL at 1998 Tex. 417311, *11; DeLeon, Tex.App. App. WL LEXIS 4631 LEXIS at 293; (Tex.App.-Houston pet. Wisenbarger, [1st de Dist.] S.W.2d at 789 S.W.2d at nied) (not designated publication); for Ordo error, jurors intelligence. nudge Do we their accident instruction reversible listing the plaintiffs by toward a verdict appeals’ judgment. reverse court of every multi-party negli- ap- defendant remand case to court of We first ques- proportionate-responsibility or gence remain- peals for consideration Urista’s may tion? Jurors not know the secret ing issues. in- meaning of unavoidable-accident concurring a filed struction, Justice BRISTER they but are not who will cattle opinion, which Justice HECHT improper an verdict stampeded to be joined. Justice WILLETT something like this. event, agree I with the Court dissenting

Justice MEDINA filed The this instruction was harmless. opinion, which Chief Justice supporting the was not evidence verdict joined. JEFFERSON weak,” con- “exceedingly as dissent BRISTER, concurring, in which Justice no direct evidence of cludes. There was HECHT and Justice Justice WILLETT plaintiffs claim—there joined. and the eyewitnesses employee no were even happen. Accidents Sometimes As the evidence was issue never testified. negligent. circumstantial, up was the entirely when no one is That it was to all to from it.3 verdict here. As there is to what infer choose hap- agree anything conclusion and the not They did have more, indeed, claimed; nothing instruction told them pened the Uristas presume they the ver- appeals setting court of erred verdict us requires their judg- jurors join aside. all rejected dict Court’s of it reasonable So ment. could.4 jurors did must con- Perhaps

But I trial court reasonable would add did fall it- nothing It is true the unavoidable- this wastebasket not wrong. clude teetering historically may has been But have been accident instruction self. time, long could defendants who blame the shelf associated with (as weather, rather dislodged by we noted another customer children manager’s All it recently) says.1 employee. what The store that is not than nobody’s binding about what occurred was not says may is that accidents be belief jury; party one hesitates legal “fault” in sense. I would on the prevent jurors the other a liar does such a truism erroneous. call presume doing so. from simple that such a assumption The *8 that an jurors if the inferred jurors a de- And even “nudge” will toward struction wastebasket, they pushed the very employee of opinion a low fense verdict reflects Wilson, City 168 S.W.3d See Keller Co-op., Elec. 3. See Dillard v. Texas 1. of (Tex.2005). (Tex.2005). parties' As briefs Dillard, it is all we issued were filed before anticipate surprising they did our ("But every in circumstance 4. See id. in- But opinion in that case. whether con- jurors could resolve which reasonable was at all might not be erroneous struction way, reviewing flicting courts evidence either extensively argument. at discussed oral presume they did so in of favor must conflicting disregard party, and prevailing See, e.g., Jury Tex., Texas Pattern State Bar review.”). legal sufficiency their Charges Negligence 4.4 4.1, 4.3, —General PJC (2003). negligence. did not have to infer I dispute, appeal. doubt it would not matter to this What matters here is whether the using a broom to fetch merchandise is BBB, exoneration of when all the evidence OSHA-approved. But question case it occur- indicates caused the persons ordinary whether prudence rence, was influenced the trial court’s (like ourselves, spouses, teenage our or our inferential rebuttal instruction. children) something very ever do much like it. We could hold a it as matter of law Traxler, David a district for manager way, trial, was not the safest that it even was BBB representative agreed and its mistake; Neal, that had employee, Reggie but the BBB’s doing job day solely properly jury. for the Urista would not have been jurors required Reasonable are not jured. manager Traxler was store negligent find someone every time there is day on that responsible and was for inves- stop saying accident. would it is tigating the incident. He confirmed error to tell something them we all know is neither nor Urista other customer had true interpretation only because of secret caused the trash cans to fall. agreed He lawyers know it has. likely the most cause was the inatten- employee, tion of BBB’s which he charac- MEDINA, Justice dissenting, in which “simply terized as a case of human error” Chief joined. Justice JEFFERSON rather than negligence.2 Merchandise not ordinarily does fall was, trial, This in part, BBB’s defense at Bed, from the Beyond shelves of Bath and arguing that happen accidents can without (“BBB”) for no reason. But on September fault. But offering instead of evidence to 19, 1998, trash atop cans stored a twelve- defense, support this no-fault BBB asked shelf, high foot along with other merchan- for, obtained, two inferential rebuttal dise, fell into the aisle where Rafael Urista instructions, unavoidable accident and new and his wife shopping. argues were BBB cause, independent though even there fault; just was no one’s happened. It was no evidence to support the submission undisputed that some of this merchan- of either instruction. now concedes Urista,1 dise struck but even if this were agrees4 was error.3 The Court Q. Now, Q. incident, day on the nobody of this And we’ve established that else we, dispute, this, don’t have a causing do cans trash was involved in Mr. Urista to head, fell and hit Mr. get top Urista on the do we? hit on of the head and knockfed] ground Reggie; except is that correct? things A. Trash cans did fall. Other were Right. A. knocked down as exactly well. I'm not sure what hit Mr. Urista. It could have been a Q. up dealing If he's there with those plate, for all I know. pulls trash cans in such a manner that it them Q. been, your— Could have off, Bed, over and knocks them it would be too, A. Could have been a trash can defi- Beyond’s position you &Bath weren’t nitely. negligent day? Traxler, Testimony manager of David district again, speculate A. I think I would he— Bed, Beyond. Bath & because I wasn’t there. But I believe he *9 caused the accident. I don’t believe was his it Q. Reggie doing job 2. If had been his the manner, acting intent or in an unsafe it was way supposed doing day, he was to be it that simply a case of human error that he knocked paying during day, and attention that Mr. a trash can over. injured, Urista would not have been would he? argues 3.BBB concedes error but it "is that so, important recognize A. I believe don't no. to here that errone- the fall, question error harmless. To to and second concludes the was the asks conclusion, falling reach this the turns a whether the trash cans caused Court Uris- ta eye injury pay.6 to and how much BBB should blind the conditional submission jury question The did not the jury charge the and on answer focuses “injuries, any,” if actual about Urista’s because is irrelevant ver- was an affirmative dict: conditioned on answer question. to the first jury given The was two inferential re- Court, however, instructions,5 despite The concludes that the pro- buttal Urista’s test, erroneous, following and then the unavoidable accident instruc- asked two by assuming tion was that had questions: harmless jury the question, answered the second Question No. 1: would have concluded that was not Urista Bed, negligence, any, Did the if injured by falling Only by the trash cans. Bath, Beyond, proximately and Inc. these issues one mixing together two —the in question? the occurrence cause jury jury the and the the did answered one “No” Answer “Yes” or justify not—can the possibly Court its re- Answer: NO sult in this case. Question you have answered No. If rely- The Court that instead explains 2; Question “Yes” answer No. other- ing accident instruction unavoidable wise, Question do not answer No. reasonably the jury could concluded have Question No. 2: carry his burden of “that Urista failed money, paid sum of if What now i.e., that he was proof’; prove failed to cash, fairly reasonably would and com- injured by falling trash struck and injuries, pensate Rafael Urista if cans. 211 at 757-58. When S.W.3d any, resulting from the occurrence in as explanation parts, Court’s is divided question? charge, was the court’s the error becomes _ Answer: apparent. For the to have disbe- added). struck, (emphasis it would first question The first asks lieved that Urista was reject and BBB’s negligence if the trash cans both BBB’s caused connection, destroys any, causal if ous submission of an unavoidable accident instruction, here, inquired does or omission about submitted not between act thereby equate and the occurrence to automatic harm or automatic rever- cause such oc- becomes immediate sal.” currence. may be ac- occurrence an “unavoidable An Inc., Texas, v. Dixie In Hill Winn cident,” is, proximately event 1992) (Tex. that "[a]n said any party by negligence of to it. proper is unavoidable accident when there is evidence that event Corp., Morgan Compugraphic 6.See proximately caused con- nonhuman (Tex.1984)(explaining 731 n. party and not dition question in proximate while a cause added). (emphasis event.” quires liable for the whether the defendant is event, inquires whether damages question following given 5. The instruc- the event and there is a causal link between independent cause un- tions on new and plaintiff's injuries); see also Comment avoidable accident: Jury (explaining Charge 8.2 Pattern injury disputed of a independent of the existence "New and cause” means issue damages question, which separate indepen- under a act or of a subsumed omission foreseeable, any”). phrase “if agency, reasonably includes the dent *10 testimony subject. on the might As the record sonable risk of harm. BBB While stands, BBB had no for its appel- reasonably expect a stack of feather late assertion that the feet, trash cans fell injure pillows, falling from twelve to a (which absence of fault is at the heart of below, shopping expect customer it should instruction). the unavoidable accident Ur- Moreover, it from a stack of trash cans. fell, they ista testified that and BBB testi- that BBB training Traxler testified had fied that “[Reggie] caused the accident” as employees “showing] very videos for its a result of “human If error.” the Court is Showing] similar accidents. people put- right any jury, time, any may ig- ting up dropping stuff and it on the other nore uncontested fault on an clearly po- side.” BBB was aware of the happen” theory, “accidents then verdicts problem. Assuming tential then that this will cease to be tethered to the evidence care, duty goes contention I have presented at trial. difficulty no imposing duty on BBB to exercise reasonable care not to turn their however,

I suspect, driving stores into hard-hat retrieving areas when force behind Court’s decision has more merchandise that BBB has chosen to store to do with part explana- the second of its above its customers’ heads rather than in tion—that Urista failed to prove that he stock rooms or warehouses. injured, by falling I trash cans. agree that BBB persuasive made a case cans, items, BBB stored trash and other injured” Urista was “not by falling uppermost shelves of its merchan- cans; therefore, trash had the displays, dise stacking these cans inside Question 2, reached a “No” answer would one to space. another conserve The rec- have been difficult for Urista to overcome. ord further day establishes that on the credibility, Urista’s ap- undermined alleged injury, employee a BBB parent exaggeration of damages, may well attempting was on a ladder retrieve explain jury’s Question answer to trash can for another customer. Urista disposition the Court’s here. But we and his wife testified that Urista was in- jurors ask decide questions jured employee when that caused the trash asked, without regard to the effect their cans and other items to fall on him. BBB answers. The trial court in this case sanc- employee conceded that was careless tioned the deciding “who should but characterized his conduct as human (without evidence) win” regard to error than negligence. rather submitting an unavoidable accident struction, distinguishes am certain what hu- today the Court stamps its instance, man error from in this imprimatur practice.7 on that but I do testimony’s understand the rele- The Court’s conclusion that Urista failed vance to the unavoidable accident instruc- carry proof thinly his burden of rea- closing argument tion and to BBB’s which soned, incorporating argu- none of BBB’s emphasized the erroneous instruction to subject. ments on the For example, following: argues that Urista’s grossly evidence “was lacking” see, because it failed to show that You all of these facts preponderate BBB had actual or constructive knowl- happen the accident did not like edge posed they that the trash cans say. importantly, unrea- And more ("You 7. See Tex.R. Civ. questions, 226a must not de- answer do not discuss nor you try cide yourselves your who think should win and then concern with the effect of answers.”). questions accordingly. Simply answer the *11 764 (Brister, by Bed, Beyond’s concurring). & at 760 J.

wasn’t caused Bath course, this, negligent is, the of conduct. Because court of no evidence There thing you is, tells that there is such a as an what such as BBB’s evidence there I’m not saying unavoidable accident. the investigation, its conclusions about BB and might that & B wasn’t around occurrence,8 are discounted mere belief. it, they have caused that doesn’t mean Id. negligent, and the court tells that were I, however, agree the concurrence with you. to happen no that accidents when sometimes every that People have to understand Conversely, one negligent. is accidents by negligence. accident is caused happen negli- times someone is when in this There’s a lot of accidents world concurring in the gent. spirit And that That’s are unavoidable accidents. opinion, I that latter is speculate would the It’s says you. only what to the Court more the This often the case than former. say, every plaintiffs lawyers who time instructions are why is inferential rebuttal somebody there’s has to be norm, the than the exception rather they what responsible because that’s why instruction is an unavoidable accident to that of They type want. want create only is that proper when there evidence litigation. by a proximately caused event was And stuff ... it happens. sometimes beyond the con- condition or circumstance just happen, wasn’t intended to did. v. any party trol event. Hill of to the See Although BBB contends there Inc., Texas, Winn Dixie 849 S.W.2d ample falling trash cans evidence (Tex.1992). injury, not the cause of Urista’s back

were fall, did not argue it cannot the cans however, sug- concurring opinion, The played that negligence and its contention gests that the unavoidable accident part causing them fall is exceed- no inclusion struction is a truism and that its fact, I ingly agree weak. with court charge can be harmful error. never jury’s appeals’ that the ver- suggestion of But in those potentially it is true probably against great weight dict was and there- cases in which there is evidence and that the unavoidable conditions question fore a about whether likely accident instruction was sole ba- the acci- beyond party’s control caused answer to jury’s sis Coop., Elec. dent. See Dillard v. Tex. 522, 523. question. 132 S.W.3d at I have (Tex.2005) (“The purpose explanation jury’s no for the found other ju- instructions is to advise these Question answer rors, they do appropriate in the party on a no blame concurring opinion says place The there is have that conditions suit the evidence shows explain evidence to refusal to if acci- caused the beyond party’s control negligent, explain find but it does Instead, the conduct dent in might what evidence be. litigation “may party not a person can some speculates that trash it.”) added); also time, (emphasis see long teetering on the shelf for 471, Young, dislodged and could have been another Reinhart (Tex.1995) (Unavoidable accident “instruc- than employee.” customer rather Urista falling trash cans had hit testimony repre- BBB's cited that the In addition to the trial, report prepared sentative at incident in the head. unequivocally re- at the of the accident time *12 inquire previously tion is most often used to about the at 430. We have re S.W.3d quired causal of the evi physical effect some condition or such instruction when snow, sleet, dence raises a fact on new and fog, circumstance such as wet view, Ry. & Termi pavement, independent or slick or cause. Dallas obstruction 359, Bailey, 151 Tex. 250 involving very young or to resolve a case nal Co. v. S.W.2d 379, (1952); legally Young Massey, child who 384 v. 128 incapable negli- (1937). Al Tex. 810 gence.”). concurring jus- The views of the S.W.2d its simply though support tice cannot be reconciled with what there was evidence Dillard, in previously said in submission same evidence Reinhart: supported also the instruction on unavoid [Ejxcept types cases, in certain overlap this able accident. Because of submitting “courts should refrain from un jury because the was instructed on an unavoidable accident instruction ... accident, avoidable we concluded that due to the risk that will be give failure to an additional by misled or perception confused independent new and cause was not re represents that the instruction a sepa- quired and therefore harmless. See Dil general princi- rate issue distinct from lard, 157 at (citations omitted). 433-34. ples of negligence.” We are not alone in At this concern. Young Reinhart v. involved the converse states, eighteen least of our agree- sister (Tex.1995). In situation. 906 ing that the instruction confuses and given two instruc- jury, misleads the prohibited tions, emergency one on sudden and an- cases, (footnote use in omit- plain- other on accident. The unavoidable ted). jurisdictions Ten other have se- objected only tiff to the latter instruction. verely limited the circumstances under This Court concluded that the instruction which may juries trial courts instruct (1) was harmless error three reasons: accident, (foot- regarding unavoidable ample the defendant introduced evidence omitted). note among And the states at trial to failure to find instruction, that still many retain the (2) negligent; him plaintiff failed expressed courts have concerns about its object emergency to the sudden instruc- cases, in applicability routine negligence tion which reiterated much of the unavoid- (footnote omitted). share res- We these (3) instruction; able none of accident ervations. referred to the the witnesses counsel Id. at 472-73. during term “unavoidable accident” the tri- al. Id. at 473-74.

Finally, justifies the Court its result in noting case that erroneous instruc- recog Although apparently the Court tions are almost never found to be revers- in nizes that the facts and circumstances agree ible error. While such cases completely Reinhart are at odds with rare, are there are a number reasons for here, those it nevertheless concludes that Often, this. the evidence or other instruc- thé result should be the same: “As tions the case render the error harm- Reinhart, case does less, or the harm is addressed other indicate ‘that the unavoidable issues. any way instruction in caused the case to Dillard, For example, appellant differently be decided than it would have ” complained that the trial court had erred been without it.’ 211 S.W.3d at 473). Reinhart, in not submitting (quoting an instruction on new Dillard, Thus, matter that independent apparently cause. See it does not (1) ruling Reinhart on the simply sufficiency defendant introduced am- factual ple issue, negligent, evidence that instead the court diverted its was; while BBB virtually admitted to the Casteel See Crown attention issue. (2) plaintiff object the Reinhart failed to Casteel, Ins. Co. S.W.3d 378 Life overlapping one of two inferential rebuttal (Tex.2000). *13 instructions, both, objected while Urista subject, agree I On that with the Court and the evidence not did the sub- apply that should under the Casteel instruction; (3) mission of either the Casteel, In presented circumstances here. Reinhart defendant did not mention the we concluded that it to submit a was error offending instruction on unavoidable acci- liability question which com- broad-form trial, during the dent while unavoidable mingled of liabili- valid and invalid theories significant accident was one of two ty. Id. at 388-89. We found the error to defense, emphasized in BBB’s themes9 Appellate be harmful under Texas Rule of again by in attorney closing its re- “affirmatively 61.1 it Procedure because marks. isolating prevented appellant from the Why then does the Court conclude that appeal.” error case on presenting its the instruction here was harmless? It can Smith, County Harris v. that only be Court does believe (Tex.2002) (citing and applying Casteel injury rationale). Casteel, In this unlike at BBB jury occurrence and that theory, negli- single liability we have a have so would found had answered the gence, coupled with an acci- unavoidable second, conditionally question. submitted dent not have should been speculation beyond pur But such part court’s charge. view of this Court. See Const. art. V Tex. 22.225(a); 6;§ § Code, Choate Tex. Gov’t charge in Casteel Whereas the error Co., Ry. & A.P. San Antonio Tex. deter- prevented appellate an court from (1898). great The weight, S.W. mining might the jury’s whether verdict all, contrary if not of the evidence is to the legal have premised an invalid negligence. actual verdict of no theory, mystery is no there similar therefore cannot that the erroneous agree Casteel, 22 case. at 388. The See instruction here was harmless. that it jury trial court instructed the would however, disregard is a the court’s in- rarity,

This case because be misconduct structions, ordinarily charge reasonably error and it is clear that issue of will be appeals’ under anal- therefore considered unavoidable subsumed the court ysis sufficiency other of the factual of the evi- accident and the instructions when negligence. analysis, deciding question of BBB’s dence. Under court jury failed apparent the entire It is that the must likewise consider record also proxi- find BBB’s was a all the evidence to determine whether question. granted. Any a new trial should be addi- mate cause of occurrence Casteel, the complaints charge charge error ei- Unlike error tional are meaning or redundant. case did not obscure the verdict’s ther collateral that review Thus, presenting nor Urista from appeals prevent the court of this case did ap- error to the judgment consequences the same might rendered reach the conditional 9. The other theme was that Urista because of defensive cans, falling injured trash was not submission. previously did not as mentioned Casteel, 22 pellate courts. See (citing prong of harmless error second Tex.R.App. 44.1(a)); 61.1,

standard (same). County,

Harris 96 S.W.3d at 233 short, uncertainty there is no

jury’s verdict. The issue then is not prevented error “probably

whether the

appellant properly presenting from but rather as appellate

ease to the courts” says “proba- whether the error

the Court

bly improper caused the rendition of Tex.R.App. *14 61.1;

judgment.” P. also see

Tex.R.App. 44.1(a)(1). I

Although disagree charge that the er- presents problem

ror this case a Casteel presentation ap-

which affected the agree court of

peal, nevertheless with the

appeals’ judgment remanding the case for trial. The error in case charge new

obviously jury. ap- confused the This is

parent from its verdict and a review of the

whole record which rebuts the an-

swer to the considered.

Because this Court does not confine its actually

review the verdict rendered or the supporting case

verdict, I respectfully dissent. parte

Ex Dean Charles

HOOD, Applicant.

No. AP-75370. Appeals of Texas.

Court Criminal

Jan.