Preview
048-258518-12 FILED
TARRANT COUNTY
6/4/2014 7:45:12 AM
THOMAS A. WILDER
CAUSE NO. 048-258518-12 DISTRICT CLERK
JAVIER LOPEZ § IN THE DISTRICT COURT
Plaintiff §
§
v. § 48th JUDICIAL DISTRICT
§
WILDCAT CRANES, INC. §
Defendant § TARRANT COUNTY, TEXAS
PLAINTIFF’S OBJECTION TO INSTRUCTION ON
UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY
COMES NOW, Plaintiff Javier Lopez and files this objection to the instruction on
“unavoidable accident” and “sudden emergency” and in support thereof, would show unto the Court
the following:
BACKGROUND LAW ON “UNAVOIDABLE ACCIDENT”
An "unavoidable accident" is a nonhuman event not proximately caused by the negligence
of any party to it. Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.1995); Ordonez v. M.W.
McCurdy & Co., Inc., 984 S.W.2d 264, 271 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The
sole purpose of an unavoidable-accident instruction is to ensure that jurors will understand that
they need not necessarily find that one or the other party to the suit was to blame for the
occurrence. Reinhart, 906 S.W.2d at 472; Ordonez, 984 S.W.2d at 271. The instruction is most
often used to (1) inquire about the causal effect of some physical or environmental condition or
circumstance, such as fog, snow, sleet, wet or slick pavement, or obstruction of view, or (2) to
resolve a case involving a very young child who is legally incapable of negligence. Reinhart, 906
S.W.2d at 472; Ordonez, 984 S.W.2d at 271. When there is no evidence that an accident was
caused by this type of peculiar circumstance, submission of the instruction is improper. Hill v.
PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ
PAGE 1
048-258518-12
Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex.1992). As the supreme court has stated, "
'courts should refrain from submitting an unavoidable accident instruction ... due to the risk that
the jury will be misled or confused by the perception that the instruction represents a separate
issue distinct from general principles of negligence.' " Reinhart, 906 S.W.2d at 472 (quoting Hill,
849 S.W.2d at 803).
A trial court need only submit an unavoidable-accident instruction to the jury if the
pleadings and evidence support the instruction. See TEX.R. CIV. P. 278("The court shall submit
the questions, instructions and definitions in the form provided by [r]ule 277, which are raised by
the written pleadings and the evidence.") (emphasis added); see also TEX.R. CIV. P. 277
BACKGROUND LAW ON “SUDDEN EMERGENCY” DOCTRINE
The instruction was in the form approved by the Texas Supreme Court. Thomas v.
Oldham, 895 S.W.2d 352, 360 (Tex. 1995). For an instruction on sudden emergency to be
proper, however, the evidence must support the elements of the sudden emergency defense: (1)
an emergency situation arose suddenly; (2) the emergency was unexpected; (2) the emergency
situation was not proximately caused by the negligent act or omission of the person whose
conduct is under inquiry; and (3) after an emergency situation arose that to a reasonable person
would have required immediate action without time for deliberation, the person acted as a person
of ordinary prudence would have acted under the same or similar circumstances. Evans, 111
S.W.3d at 286; Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995).; Priest v. Myers, 598
S.W.2d 359, 363 (Tex. App.—Houston [14th Dist.] 1980, no pet.); see also Dillard, 157 S.W.3d
at 432 n.4.
PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ
PAGE 2
048-258518-12
ARGUMENT
There is simply no evidence presented that supports the inclusion of either unavoidable
accident or sudden emergency.
Respectfully Submitted,
THE MARYE FIRM
/s/ Eric H. Marye
ERIC H. MARYE
State Bar of Texas No. 24004798
emarye@maryelaw.com
2619 Hibernia Street
Dallas, TX 75204
Phone (214) 987-8240
Fax (214) 987-8241
ATTORNEY FOR PLAINTIFF
PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ
PAGE 3
048-258518-12
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above document was delivered to the
parties listed below in accordance with the Texas Rules of Civil Procedure on the 4th day of June,
2014 in the following manner:
______ U.S. Mail-Certified, return receipt requested.
______ First Class Mail
X Electronic File
___X_ Hand Delivery
/s/ Eric H. Marye
Eric H. Marye
Bryan D. Wendt
Burt Barr & Associates, L.L.P.
P.O. Box 223667
Dallas, Texas 75222
ATTORNEY FOR DEFENDANT
WILDCAT CRANES, INC.
PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ
PAGE 4
Preview
048-258518-12 FILED TARRANT COUNTY 6/4/2014 7:45:12 AM THOMAS A. WILDER CAUSE NO. 048-258518-12 DISTRICT CLERK JAVIER LOPEZ § IN THE DISTRICT COURT Plaintiff § § v. § 48th JUDICIAL DISTRICT § WILDCAT CRANES, INC. § Defendant § TARRANT COUNTY, TEXAS PLAINTIFF’S OBJECTION TO INSTRUCTION ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY COMES NOW, Plaintiff Javier Lopez and files this objection to the instruction on “unavoidable accident” and “sudden emergency” and in support thereof, would show unto the Court the following: BACKGROUND LAW ON “UNAVOIDABLE ACCIDENT” An "unavoidable accident" is a nonhuman event not proximately caused by the negligence of any party to it. Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.1995); Ordonez v. M.W. McCurdy & Co., Inc., 984 S.W.2d 264, 271 (Tex.App.-Houston [1st Dist.] 1998, no pet.). The sole purpose of an unavoidable-accident instruction is to ensure that jurors will understand that they need not necessarily find that one or the other party to the suit was to blame for the occurrence. Reinhart, 906 S.W.2d at 472; Ordonez, 984 S.W.2d at 271. The instruction is most often used to (1) inquire about the causal effect of some physical or environmental condition or circumstance, such as fog, snow, sleet, wet or slick pavement, or obstruction of view, or (2) to resolve a case involving a very young child who is legally incapable of negligence. Reinhart, 906 S.W.2d at 472; Ordonez, 984 S.W.2d at 271. When there is no evidence that an accident was caused by this type of peculiar circumstance, submission of the instruction is improper. Hill v. PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ PAGE 1 048-258518-12 Winn Dixie Tex., Inc., 849 S.W.2d 802, 803 (Tex.1992). As the supreme court has stated, " 'courts should refrain from submitting an unavoidable accident instruction ... due to the risk that the jury will be misled or confused by the perception that the instruction represents a separate issue distinct from general principles of negligence.' " Reinhart, 906 S.W.2d at 472 (quoting Hill, 849 S.W.2d at 803). A trial court need only submit an unavoidable-accident instruction to the jury if the pleadings and evidence support the instruction. See TEX.R. CIV. P. 278("The court shall submit the questions, instructions and definitions in the form provided by [r]ule 277, which are raised by the written pleadings and the evidence.") (emphasis added); see also TEX.R. CIV. P. 277 BACKGROUND LAW ON “SUDDEN EMERGENCY” DOCTRINE The instruction was in the form approved by the Texas Supreme Court. Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995). For an instruction on sudden emergency to be proper, however, the evidence must support the elements of the sudden emergency defense: (1) an emergency situation arose suddenly; (2) the emergency was unexpected; (2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and (3) after an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances. Evans, 111 S.W.3d at 286; Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995).; Priest v. Myers, 598 S.W.2d 359, 363 (Tex. App.—Houston [14th Dist.] 1980, no pet.); see also Dillard, 157 S.W.3d at 432 n.4. PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ PAGE 2 048-258518-12 ARGUMENT There is simply no evidence presented that supports the inclusion of either unavoidable accident or sudden emergency. Respectfully Submitted, THE MARYE FIRM /s/ Eric H. Marye ERIC H. MARYE State Bar of Texas No. 24004798 emarye@maryelaw.com 2619 Hibernia Street Dallas, TX 75204 Phone (214) 987-8240 Fax (214) 987-8241 ATTORNEY FOR PLAINTIFF PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ PAGE 3 048-258518-12 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above document was delivered to the parties listed below in accordance with the Texas Rules of Civil Procedure on the 4th day of June, 2014 in the following manner: ______ U.S. Mail-Certified, return receipt requested. ______ First Class Mail X Electronic File ___X_ Hand Delivery /s/ Eric H. Marye Eric H. Marye Bryan D. Wendt Burt Barr & Associates, L.L.P. P.O. Box 223667 Dallas, Texas 75222 ATTORNEY FOR DEFENDANT WILDCAT CRANES, INC. PLAINTIFF’S BRIEF ON UNAVOIDABLE ACCIDENT AND SUDDEN EMERGENCY – LOPEZ PAGE 4