Kerry HILL, Petitioner, v. WINN DIXIE TEXAS, INC., Respondent, 849 S.W.2d 802

OPINION ON DENIAL OF APPLICATION FOR WRIT OF ERROR MAUZY, Justice. At issue is whether the submission of an unavoidable accident instruction was proper under the circumstances of this case. We hold that it was not, but that its submission did not constitute reversible error. Kerry Hill slipped and fell on a cookie while inside a Winn Dixie store. At the time of Hill’s fall, an employee of Winn Dixie was stocking shelves approximately six to eight feet from where Hill fell. The stocker remained in the area for fifteen to thirty minutes prior to the accident and saw no other customers walk up the aisle.

In addition, the assistant manager inspected the store at 6:00 p.m. and saw no cookie in the aisle. Thus, the cookie apparently fell on the floor after 6:00 p.m. and before 7:25 p.m. Hill sued Winn Dixie for negligence. The trial court submitted the following jury instruction: “An occurrence may be an ‘unavoidable accident,’ that is, an event not proximately caused by the negligence of any party to it.” The jury found that neither party’s negligence proximately caused the occurrence in question. As a result, the trial court rendered a take-nothing judgment against Hill.

The court of appeals affirmed, holding that the unavoidable accident instruction was proper. 824 S.W.2d 311, 312-13. An unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a nonhuman condition and not by the negligence of any party to the event. Yarborough v. Berner, 467 S.W.2d 188, 190-91 (Tex.1971). See also Hukill v. H.E.B. Food Stores Inc., 756 S.W.2d 840, 843 (Tex. App.—Corpus Christi 1988, no writ); Leatherwood Drilling v. TXL Oil Corp., 379 S.W.2d 693, 697 (Tex.Civ.App.—Dallas 1964, writ ref’d n.r.e.).

The instruction is ordinarily given in cases involving environmental conditions such as fog, snow, sleet, wet or slick pavement, or obstruction of view. Yarborough, 467 S.W.2d at 191. The instruction may also be proper when there is evidence indicating that a very young child, legally incapable of negligence, was the only human cause of the accident. Id. When there is no evidence that the accident was caused by some such peculiar circumstance, submission of the instruction is generally improper. See Hicks v.

Brown, 136 Tex. 399, 151 S.W.2d 790, 792 (1941) (approving an instruction defining “unavoidable accident” as “an unexpected catastrophe” and holding that “if the evidence does not raise the issue that something other than the negligence of one of the parties caused the injuries, then it does not raise the issue of unavoidable accident”); see also Hukill, 756 S.W.2d at 843-44.

Courts should refrain from submitting an unavoidable accident instruction in other circumstances 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. See W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 29 at 163-64 (5th ed. 1984).

In the case at bar, the evidence established the following: the cookie was on the floor for a maximum of an hour and a half and a minimum of fifteen minutes; Winn Dixie’s assistant manager did not see the cookie when he inspected the store at 6:00 p.m.; a stacker, working a few feet from Hill when he fell, failed to discover and remove the cookie; and, Hill did not see the cookie before he slipped on it and fell. Since there was no affirmative evidence of an extrinsic, unavoidable event, such as

an act of God, which caused Hill to slip and fall, the unavoidable accident instruction should not have been given. See Hukill, 756 S.W.2d at 844; see also 1 STATE BAR OF TEXAS, TEXAS PATTERN JURY CHARGES PJC § 3.05 (1987) (an occurrence is caused by

an act of God if it is caused directly and exclusively by the violence of nature, without human intervention or cause, and could not have been prevented by reasonable foresight or care). Nevertheless, we conclude that the instruction does not, under the circumstances of this case, constitute reversible error. An improper jury charge will result in reversible error if it “was reasonably calculated to cause, and probably did cause the rendition of an improper judgment.” Tex.R.App.P. 184(b).

Under the circumstances of this case, submission of the instruction probably did not cause the rendition of an improper judgment. Cf. Acord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984) (the circumstances of the case and the nature of the improper instruction determine whether the instruction constituted reversible error); see also Wisenbarger v. Gonzales Warm Springs Hosp., 789 S.W.2d 688, 694 (Tex.App.—Corpus Christi 1990, writ denied) (submission of an unavoidable accident instruction was improper but did not constitute reversible error under the circumstances).

Accordingly, though we disapprove of the submission of the unavoidable accident instruction under the circumstances of this case, we deny Hill’s application for writ of error. . "[JJury instructions on the unavoidable accident doctrine have been falling into disfavor in a growing number of jurisdictions. Such an instruction, it is argued, confuses and misleads the jury because it merely restates the principles of duty, negligence and proximate causation yet appears to inject a separate issue which tends to overemphasize and favor the defendant’s case.

Persuaded by arguments such as these, many courts have emphasized that the instruction should be reserved for exceptional situations where called for by the unique facts of a particular case, and some have more generally disapproved the unavoidable accident instruction for use in negligence cases altogether.” (Citations omitted.)