Hill v. Winn Dixie Texas, Inc.

ON MOTION FOR REHEARING

Motion for rehearing in application for writ of error overruled.

DISSENTING OPINION ON MOTION FOR REHEARING

HECHT, Justice.

Our dissenting opinion of December 16, 1992, is withdrawn and this dissenting opinion is substituted in its place.

The trial court’s instruction to the jury in this routine slip and fall case, that “[a]n occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it”, is unquestionably a correct statement of the law. On the evidence before the jury, the instruction was at least arguably proper. Hill slipped on a cookie which was lying on the floor. She did not put the cookie there and does not know who did. She concedes that no Winn Dixie employee put it there. Winn Dixie employees testified that they inspected the floors near the time of the accident and the cookie was not there. They saw no one drop a cookie and cannot explain how the cookie came to be on the floor. Assuming that all this evidence is true, and that the cookie did not simply materialize on the floor, one must infer either that an unknown person negligently caused the cookie to be on the floor, or that it fell there from a cart or bag without anyone’s negligence or knowledge.

In holding that the evidence does not warrant submission of an unavoidable accident instruction, the Court ignores this latter inference. As a rule, a jury instruction must be based upon evidence in the case, but inferences are evidence. For an unavoidable accident instruction, the Court creates a stricter rule: there must be “affirmative evidence”. There is, of course, none in this case, nor can there be, where no one saw the cookie fall to the floor.

The Court cites Hicks v. Brown, 136 .Tex. 399, 151 S.W.2d 790 (1941), for its new affirmative evidence standard and its conclusion that instructing the jury on unavoidable accident was error. But Hicks neither imposed an affirmative evidence requirement nor held that instructing on unavoidable accident was error; rather, it held that the defendant had a right to the instruction. Id., 151 S.W.2d at 793 . The Court also cites Prosser and Keeton’s treatise, which notes only that some courts have restricted the circumstances in which an unavoidable accident instruction is given, and then comments:

Probably a majority of jurisdictions still permit the instruction in appropriate cases, however, and the instruction is still stoutly defended as helpful in focusing the issues in proper cases. Neither the unavoidable accident doctrine nor instructions thereon should be expected to wither away completely any time soon because of the notion’s underlying logical simplicity and because such instructions, properly applied, may usefully serve to translate the arcane words and concepts of the law into a common sense perspective of everyday life and experience that jurors can readily understand.

W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 29, at 164 (5th ed. 1984) (footnotes omitted). It is precisely the “common sense perspective of everyday life and experience” that not all accidents are caused by negligence that the Court means to avoid.

Assuming, however, that the instruction was improper in this case — as one reason *805 ably could, even if it requires a slight change in the rule to do so — one cannot validly argue that the trial court abused its discretion in giving the instruction. The Court attempts no such argument. Yet “[t]he standard for review of the charge is abuse of discretion, and abuse of discretion occurs only when the trial court acts without reference to any guiding principle.” Texas Dep’t of Human Serv. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The Court does not mention this standard although it controls the disposition of this case. Tacitly, however, it must conclude that the trial court acted without reference to any guiding principle. The conclusion is tacit and not express because even the Court is reluctant to say that the trial court gave an unavoidable accident instruction without reference to any guiding principle.

If what the trial court did constituted an abuse of discretion, then that discretion is very small indeed. Fashioning a jury charge cannot be so tightly circumscribed, not only as a matter of law, but as a matter of sheer practicality. The Court’s opinion should not, however, be read as a general limitation on the trial court’s discretion. The decision in this case is based not on a cramped concept of the scope of that discretion generally but on the Court’s animosity toward the unavoidable accident instruction in particular. The point is not that a trial court should have less leeway in preparing its charge to the jury, but merely that it had better think twice before instructing a jury about unavoidable accident.

The Court’s concern that an unavoidable accident instruction will mislead or confuse the jury is misplaced, both as a matter of this record and as a matter of jurisprudence. It is difficult to understand how an instruction that an accident can happen without negligence will mislead or confuse a jury in deciding whether it did. The instruction is misleading only if one assumes that one or both parties must have been negligent, which is perhaps the Court’s point. That assumption is not valid, either generally or in this particular case. It should not be error to tell the jury what the law recognizes — that some accidents occur without anyone’s negligence.

Accordingly, I dissent.

CORNYN and ENOCH, JJ., join in this dissenting opinion.