The opinion
GRANT, Justice,
dissenting.
The trial court erred in submitting an instruction on unavoidable accident.
Unavoidable accident is present when an event occurs which was not proximately caused by the negligence of any party to the event 2 Yarborough v. Berner, 467 *314 S.W.2d 188 (Tex.1971). This should not be confused with any party to the lawsuit. This would include such nonhuman things as fog, snow, sleet, wet or slick pavement, or obstruction of the view. Yarborough, 467 S.W.2d 188 . Unavoidable accident can also come into play when one of the parties to the event is incapable of negligence. Yarborough, 467 S.W.2d 188 . In the present case, there is no evidence that the occurrence was caused by a nonhuman condition or by a party incapable of negligence under the law.
The instruction used in the present case was as follows: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” (emphasis added).
The jury instruction uses the language “of any party to it.” The antecedent of the pronoun it is event. This charge was taken verbatim from 1 State Bar of Texas, Texas PatteRn JURY Charges PJC 3.04 (1987). The comment in the Texas Pattern Jury Charge under Section 3.04 contains the following language:
When to use ... PJC 3.04 should be given immediately after the definition of “proximate cause” in PJC 2.04 when there is evidence that the occurrence was caused by unforeseeable nonhuman conditions.
(Emphasis added.)
This definition has been approved by the Supreme Court since its ruling in Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359 , 250 S.W.2d 379 (1952). Lemos v. Montez, 680 S.W.2d 798 (Tex.1984). In the Bailey case, the court dealt directly with the contention that the occurrence might have been caused by a third party. The court said the theory of a new and independent cause is not an affirmative defense, but it is an element to be considered by the jury in determining the existence or nonexistence of proximate cause. Bailey, 250 S.W.2d at 383 . On motion for rehearing, the court in Bailey said if it is the position of a defendant in any case that he is entitled to be absolved of liability because the event was caused by the negligence of a co-defendant or of a party to the event who is not a party to the suit, the defendant may protect himself through pleadings, proof, and findings that the negligence of such person was a sole proximate cause of the event.
The majority opinion bases its ruling on unavoidable accident on evidence presented by the defendant that its employees did not see the object which caused the plaintiff’s fall. This was a part of what the plaintiff contended was the defendant’s negligence, i.e. that the employees should have known of the existence of the dangerous condition created by the debris on the floor. In effect, the allegation of the plaintiff is that the defendant’s employees did not keep a proper lookout for dangers that might cause a customer to slip and fall. The mere fact that the employees did not see the cookie on the occasion in question does not prove that the cookie was not there. The defendant has not denied that the plaintiff slipped on a cookie that was in the aisle. The defendant offered evidence to prove that its employees overlooked the cookie: the employee checked the aisle and did not see anything; the employee said no customers went down the aisle after he checked it; and, there was a cookie in the aisle upon which the plaintiff later slipped. The employee admitted in his testimony that he was not paying much attention to the aisle floor. The testimony that the employee did not see the cookie upon which *315 plaintiff slipped in no way invokes the need for a charge on unavoidable accident.
This evidence does not absolve the defendant of its duty of care to remove debris from the floor that might cause injury to a customer. But even if there were some evidence that another customer dropped the cookie, this would not authorize the submission of an unavoidable accident instruction.
The majority opinion relies upon the case of Wisenbarger v. Gonzales Warm Springs Rehabilitation Hospital, 789 S.W.2d 688 (Tex.App.-Corpus Christi 1990, writ denied), for a justification for submitting the unavoidable accident instruction. In the Wisenbarger case, there was expert testimony that an ulcer that was the basis of the malpractice suit was caused by physical circumstances, namely the initial road burn and its location on Wisenbarger’s back, Wisenbarger’s advanced age, and his paraplegia. In the present case, there is no evidence of any other nonhuman cause of the accident or that it was caused by a party incapable of negligence under the law.
Unavoidable accident is a matter of avoidance or affirmative defense that must be pled 3 and raised by the evidence. There must be some evidence to support an instruction on unavoidable accident. Brown v. Goldstein, 685 S.W.2d 640, 643 (Tex. 1985); Lemos v. Montez, 680 S.W.2d 798, 800 . The majority points to no evidence of a cause of this occurrence other than the negligence of the parties. The concurring opinion suggests that vibrations caused the M & M chocolate chip cookie to fall off the shelf. A search of the record shows that there is no evidence of any vibrations. The concurring opinion also points to an absence of evidence on how the cookie got on the floor. An absence of evidence does not justify an instruction on unavoidable accident; neither should this instruction be given on the basis of speculation, surmise, or speciousness.
Since neither side presented any evidence that a nonhuman factor or a person incapable of negligence proximately caused the incident, nor could such a theory be inferred from the evidence, the trial court erred by submitting the instruction.
I respectfully dissent.
. The following Texas cases support the proposition that an unavoidable accident exists only when there is evidence that something other than negligence of one of the parties to the event causes the injury:
(One of the parties to the event) Fulton v. Shaw, 321 F.2d 545 (5th Cir.1963);
(Any party to it) Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359 , 250 S.W.2d 379 (1952); (All parties to transaction) International-Great Northern R. Co. v. Lucas, 128 Tex. 480 , 99 S.W.2d 297 (1936), corrected, 128 Tex. 480 , 100 S.W.2d 97 (1937);
(Of any party to the event) Hyatt Cheek Builders-Engineers Co. v. Board of Regents Of the University Of Texas System, 607 S.W.2d 258 (Tex.Civ.App.—Texarkana 1980, writ dism’d); (Or any party to it) Clark v. Cotten, 573 S.W.2d 886 (Tex.Civ.App.-Beaumont 1978, writ ref'd n.r.e.);
(A party to the event) McLeroy v. Stocker, 505 S.W.2d 615 (Tex.Civ.App.-Houston [1st Dist.] 1974, no writ);
*314 (Of any party to it) Schiller v. Lewis, 451 S.W.2d 544 (Tex.Civ.App.-Houston [1st Dist.] 1970, no writ);
(By all parties to the transaction) Haynes v. Martinez, 260 S.W.2d 369 (Tex.Civ.App.-Amarillo 1953, writ ref'd n.r.e.);
(All parties to the transaction) Mohan v. Safeway Stores, 237 S.W.2d 813 (Tex.Civ.App.Waco 1951, no writ);
(Of the intervention of fatalistic element for which fate alone is responsible) (Of anyone contributing to its occurrence) Hicks v. Brown, 128 S.W.2d 884 (Tex.Civ.App.-Amarillo 1939), modified, 136 Tex. 399 , 151 S.W.2d 790 (1941);
(Of parties participating in the occurrence) Dallas Ry. & Terminal Co. v. Little, 109 S.W.2d 289 (Tex.Civ.App.-Dallas 1937, writ dism’d); (Parties to the event) Wisenbarger v. Gonzales Warm Springs Rehabilitation Hospital, 789 S.W.2d 688 (Tex.App.-Corpus Christi 1990, writ denied).
. Great Atlantic & Pacific Tea Co. v. Garner, 170 S.W.2d 502 (Tex.Civ.App.-Dallas 1943, writ ref'd w.o.m.) No objection was made in the present case to the failure of the defendant to plead unavoidable accident.