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DALLAS COUNTY
1/6/2014 1:24:39 PM
GARY FITZSIMMONS.
DISTRICT CLERK
Cause No. DC-12-07708
MAMERTO A. FRANDO, JR. § IN THE DISTRICT COURT OF
§
VS. § DALLAS COUNTY, TEXAS
§
TROY CROSSON § 101ST JUDICIAL DISTRICT
DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF
INFERENTIAL REBUTTAL INSTRUCTIONS
Defendant Troy Crosson submits the following briefing to the Court on the issue of the
submission of inferential rebuttals of unavoidable accident and sudden emergency.
I
Inferential rebuttals are defenses to a negligence claim by which a defendant seeks to
disprove an essential element of the plaintiff s case by proof of other facts. Dillard v. Texas
Elee. Coop., 157 $.W.3d 429. 430 (Tex. 2005); Select Ins. Co. v. Boucher, 561 S.W.2d 474,
477 (Tex. 1978). An inferential rebuttal is a contrary or inconsistent theory to the plaintiff's
claim. Select Ins., 561 S.W.2d at 477. Unavoidable accident and sudden emergency are among
the inferential rebuttals that may be submitted to the jury when raised by the facts presented at
trial. Dillard, 157 S.W.3d at 432. “The purpose of these instructions is to advise the jurors . . .
they do not have to place blame on a party to the suit if the evidence shows that conditions
beyond the party’s control caused the accident in question... .” Id; Jordan v. Sava, Inc., 222
S.W.3d 840, 847 (Tex. App. - Houston [1st Dist.] 2007). Although a trial court has
considerable latitude in determining instructions to be given to the jury. if a doctrine has been
plead, and there is some evidence of probative value to support its application, the trial court
has a duty to instruct the jury to assist it in reaching its verdict.” Jordan, 222 8.W.3d at 847
(emphasis added); see also Louisiana-Pacific Corp. v. Knighton, 976 S.W.2d 674, 676 (Tex.
1998)(explaining instruction properly given if there is any evidentiary support); TEX. R. CIv. P.
JEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS —PAGE 1
277 (“The court shall submit . . . instructions and definitions as shall be proper to enable the
jury to render a verdict.”); TEx. R. Civ. P. 278 (“The court shall submit ... instructions ...
raised by the written pleadings and evidence.); accord Union Pac. R.R. v. Williams, 85
S.W.3d 162, 166 (Tex. 2002)(holding “[a]n instruction is proper if it (1) assists the jury, (2)
accurately states the law, and (3) finds support in the pleadings and evidence.”).
I.
The purpose of the sudden emergency defensive theory is “to relieve a party from the
consequences of his conduct which might otherwise he considered negligent.” DeLeon y,
Pickens, 933 $.W.2d 286, 293 (Tex. App. - Corpus Christi 1996. writ denied). A sudden
emergency instruction allows the jury to conclude something or someone beyond the
defendant’s control caused the accident in question. E.g., Dillard, 157 S.W.3d at 432;
Jordan, 222 S.W.3d at 847. If there is conflicting evidence regarding the existence of a
sudden emergency, the trial court should submit a sudden emergency instruction. Jordan, 222
S.W.3d at 847; DeLeon. 933 S.W.2d at 288.
For an instruction on sudden emergency to be proper, the evidence must
support the elements of the sudden emergency defense; ie., that (1) an
emergency situation arose suddenly and unexpectedly; (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.
Jordan, 222 8.W.2d at 847; see also Dillard, 157 S.W.3d at 432 n.4.
This instruction is often given when an act of nature causes an accident. E.g.,
Louisiana-Pacific Corp., 976 S.W.2d at 676 (involving accident on wet street caused by
rain). However, an act of nature is not necessarily a pre-requisite to the submission of a
sudden emergency instruction. Actions taken by other vehicles may also give rise to a
IEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 2
sudden emergency. E.g. DeLeon, 933 S.W.2d at 288 (truck emerging from private drive and
darting across four lanes of traffic caused actions that resulted in collision). This instruction
is also proper where a driver happens upon another vehicle under sudden and unexpected
circumstances through no fault of his own. E.g., Jordan, 222 8.W.2d at 849 (finding no
error in submission of sudden emergency instruction where driver happened upon standstill
traffic on the blindside of an overpass); Bounds v Scurlock Oil Co., 730 S.W.2d 68, 71 (Tex.
App. -- Corpus Christi 1987, writ ref d n.t.e.)(finding no error in submission of sudden
emergency instruction where driver who struck car on shoulder was coming around a curve
and had been blinded by oncoming headlights immediately before the accident occurred).
Still other courts have concluded the submission of a sudden emergency instruction is proper
where the situation may not necessarily have come about suddenly, but the driver became
aware of the condition suddenly and prior to any negligent act or omission. E.g., Gonzales v.
Castillo, No. 04-99-00063-CV, 2000 WL 84537, at *3 (Tex. App. - San Antonio Jan. 26,
2000, no pet.)(not designated for publication)(finding emergency arose when driver applied his.
brakes upon seeing traffic decelerating abruptly and cars stopping on wet road).
Ii.
An unavoidable accident is “an event not proximately caused by the negligence of any
party to it.” Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379 (Tex. 1952); DeLeon. 933
S.W.2d at 292. This defensive theory acknowledges that some accidents are simply fortuitous.
E.g. Hicks v. Brown, 128 S.W.2d 884, 890 (Tex. Civ. App. -- Amarillo 1939, modified on
other grounds, 151 S.W.2d 790 (Tex. Comm’n App. 1941, op. adopted)(explaining “the
principle element involved in the term ‘unavoidable accident’ is fate, that is, the event is the
result of the intervention of fatalistic elements and is one for which fate alone is responsible.”);
DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS
PAGE 3
McWilliams vy. Masterson, 112 S.W.3d 314 (Tex. App. - Amarillo 2003, pet. denied)(explaining
“the concept of unavoidable accident recognizes the truism that some events or injuries may not
be proximately caused by the negligence of anyone. That is, they may result from fate.”) The
purpose of the unavoidable accident instruction is “to ensure that the jury will understand that
they do not necessarily have to find that one or the other parties to the suit was to blame for the
occurrence complained of.” Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971); Dillard,
157 S.W.3d at 433 (“the instruction merely informs the jury- that it may consider causes of the
occurrence other than the negligence of the parties.”).
This instruction is commonly given to determine the causal effect of a physical or non-
human condition or circumstance like adverse weather conditions (rain, sleet, snow and fog), wet
or slick pavement or obstruction of view. Dillard 157 S.W.3d at 430. However, the instruction
is not limited to those situations. Jd. at 433 (“Although we have previously said that this
instruction ordinarily applies to causes such as ‘fog, snow, sleet, wet or slick pavement, or
obstruction of view’ . . the instruction’s language is not so limiting. The instruction merely
informs the jury that it may consider causes of the occurrence other than the negligence of the
parties.””)
Respestflly sul HH
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Ch
Mb
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TESsice Fr STE’ TTLE
State Bar No. 19178600
HOAGLAND, FARISH & PALMAROZZI
433 Ey Las Colinas Blvd., Suite 700
Irving, TX 75039
(817) 640-0465 - Metro
(214) 496-0235 ~ Fax
ATTORNEYS FOR DEFENDANT
JEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 4
CERTIFICATE OF SERVICE
J hereby certify a true and correct copy of this document has been served on counsel of
record via hand delivery on this___6th _ day of January, 2014 as follows:
Lucas S. Lafitte
Ben Abbott, P.C.
1934 Pendleton Drive
Garland, TX 75041 ALAyf
L. Oph. [py
JESSICA F STETTLER
}
uv
DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 5
Preview
l DALLAS COUNTY 1/6/2014 1:24:39 PM GARY FITZSIMMONS. DISTRICT CLERK Cause No. DC-12-07708 MAMERTO A. FRANDO, JR. § IN THE DISTRICT COURT OF § VS. § DALLAS COUNTY, TEXAS § TROY CROSSON § 101ST JUDICIAL DISTRICT DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERENTIAL REBUTTAL INSTRUCTIONS Defendant Troy Crosson submits the following briefing to the Court on the issue of the submission of inferential rebuttals of unavoidable accident and sudden emergency. I Inferential rebuttals are defenses to a negligence claim by which a defendant seeks to disprove an essential element of the plaintiff s case by proof of other facts. Dillard v. Texas Elee. Coop., 157 $.W.3d 429. 430 (Tex. 2005); Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978). An inferential rebuttal is a contrary or inconsistent theory to the plaintiff's claim. Select Ins., 561 S.W.2d at 477. Unavoidable accident and sudden emergency are among the inferential rebuttals that may be submitted to the jury when raised by the facts presented at trial. Dillard, 157 S.W.3d at 432. “The purpose of these instructions is to advise the jurors . . . they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the party’s control caused the accident in question... .” Id; Jordan v. Sava, Inc., 222 S.W.3d 840, 847 (Tex. App. - Houston [1st Dist.] 2007). Although a trial court has considerable latitude in determining instructions to be given to the jury. if a doctrine has been plead, and there is some evidence of probative value to support its application, the trial court has a duty to instruct the jury to assist it in reaching its verdict.” Jordan, 222 8.W.3d at 847 (emphasis added); see also Louisiana-Pacific Corp. v. Knighton, 976 S.W.2d 674, 676 (Tex. 1998)(explaining instruction properly given if there is any evidentiary support); TEX. R. CIv. P. JEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS —PAGE 1 277 (“The court shall submit . . . instructions and definitions as shall be proper to enable the jury to render a verdict.”); TEx. R. Civ. P. 278 (“The court shall submit ... instructions ... raised by the written pleadings and evidence.); accord Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002)(holding “[a]n instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.”). I. The purpose of the sudden emergency defensive theory is “to relieve a party from the consequences of his conduct which might otherwise he considered negligent.” DeLeon y, Pickens, 933 $.W.2d 286, 293 (Tex. App. - Corpus Christi 1996. writ denied). A sudden emergency instruction allows the jury to conclude something or someone beyond the defendant’s control caused the accident in question. E.g., Dillard, 157 S.W.3d at 432; Jordan, 222 S.W.3d at 847. If there is conflicting evidence regarding the existence of a sudden emergency, the trial court should submit a sudden emergency instruction. Jordan, 222 S.W.3d at 847; DeLeon. 933 S.W.2d at 288. For an instruction on sudden emergency to be proper, the evidence must support the elements of the sudden emergency defense; ie., that (1) an emergency situation arose suddenly and unexpectedly; (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. Jordan, 222 8.W.2d at 847; see also Dillard, 157 S.W.3d at 432 n.4. This instruction is often given when an act of nature causes an accident. E.g., Louisiana-Pacific Corp., 976 S.W.2d at 676 (involving accident on wet street caused by rain). However, an act of nature is not necessarily a pre-requisite to the submission of a sudden emergency instruction. Actions taken by other vehicles may also give rise to a IEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 2 sudden emergency. E.g. DeLeon, 933 S.W.2d at 288 (truck emerging from private drive and darting across four lanes of traffic caused actions that resulted in collision). This instruction is also proper where a driver happens upon another vehicle under sudden and unexpected circumstances through no fault of his own. E.g., Jordan, 222 8.W.2d at 849 (finding no error in submission of sudden emergency instruction where driver happened upon standstill traffic on the blindside of an overpass); Bounds v Scurlock Oil Co., 730 S.W.2d 68, 71 (Tex. App. -- Corpus Christi 1987, writ ref d n.t.e.)(finding no error in submission of sudden emergency instruction where driver who struck car on shoulder was coming around a curve and had been blinded by oncoming headlights immediately before the accident occurred). Still other courts have concluded the submission of a sudden emergency instruction is proper where the situation may not necessarily have come about suddenly, but the driver became aware of the condition suddenly and prior to any negligent act or omission. E.g., Gonzales v. Castillo, No. 04-99-00063-CV, 2000 WL 84537, at *3 (Tex. App. - San Antonio Jan. 26, 2000, no pet.)(not designated for publication)(finding emergency arose when driver applied his. brakes upon seeing traffic decelerating abruptly and cars stopping on wet road). Ii. An unavoidable accident is “an event not proximately caused by the negligence of any party to it.” Dallas Ry. & Terminal Co. v. Bailey, 250 S.W.2d 379 (Tex. 1952); DeLeon. 933 S.W.2d at 292. This defensive theory acknowledges that some accidents are simply fortuitous. E.g. Hicks v. Brown, 128 S.W.2d 884, 890 (Tex. Civ. App. -- Amarillo 1939, modified on other grounds, 151 S.W.2d 790 (Tex. Comm’n App. 1941, op. adopted)(explaining “the principle element involved in the term ‘unavoidable accident’ is fate, that is, the event is the result of the intervention of fatalistic elements and is one for which fate alone is responsible.”); DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS PAGE 3 McWilliams vy. Masterson, 112 S.W.3d 314 (Tex. App. - Amarillo 2003, pet. denied)(explaining “the concept of unavoidable accident recognizes the truism that some events or injuries may not be proximately caused by the negligence of anyone. That is, they may result from fate.”) The purpose of the unavoidable accident instruction is “to ensure that the jury will understand that they do not necessarily have to find that one or the other parties to the suit was to blame for the occurrence complained of.” Yarborough v. Berner, 467 S.W.2d 188, 192 (Tex. 1971); Dillard, 157 S.W.3d at 433 (“the instruction merely informs the jury- that it may consider causes of the occurrence other than the negligence of the parties.”). This instruction is commonly given to determine the causal effect of a physical or non- human condition or circumstance like adverse weather conditions (rain, sleet, snow and fog), wet or slick pavement or obstruction of view. Dillard 157 S.W.3d at 430. However, the instruction is not limited to those situations. Jd. at 433 (“Although we have previously said that this instruction ordinarily applies to causes such as ‘fog, snow, sleet, wet or slick pavement, or obstruction of view’ . . the instruction’s language is not so limiting. The instruction merely informs the jury that it may consider causes of the occurrence other than the negligence of the parties.””) Respestflly sul HH n f Ch Mb be fy Af £ TESsice Fr STE’ TTLE State Bar No. 19178600 HOAGLAND, FARISH & PALMAROZZI 433 Ey Las Colinas Blvd., Suite 700 Irving, TX 75039 (817) 640-0465 - Metro (214) 496-0235 ~ Fax ATTORNEYS FOR DEFENDANT JEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 4 CERTIFICATE OF SERVICE J hereby certify a true and correct copy of this document has been served on counsel of record via hand delivery on this___6th _ day of January, 2014 as follows: Lucas S. Lafitte Ben Abbott, P.C. 1934 Pendleton Drive Garland, TX 75041 ALAyf L. Oph. [py JESSICA F STETTLER } uv DEFENDANT’S TRIAL BRIEF ON THE SUBMISSION OF INFERRENTIAL REBUTTAL INSTRUCTIONS—PAGE 5