1 John T. Boyd, Chief Justice (Ret.) and Don H. R eavis, Ju stice (Re t.), Seven th Court of A ppeals, sitting b y assign ment.

2 The Cou rt is foll owing th e spelli ng of Der ek D’eVo nn Sande rs as it a ppears in the Certifica te of Dea th. NO. 07-05-0043-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL E FEBRUARY 28, 2007

______________________________ MARIA KE RR, INDIV IDUALLY AND AS REPRES ENTATIV E OF DEREK D’EVONN SANDERS, D ECEASED, AND AS NEXT F RIEND OF AVERY SANDERS AND L ANCE SANDERS, APPELLANT V. LEESA HARTSELL BROWN, APPELL EE

_________________________________ FROM THE 99 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2004- 525,094; HONORAB LE MACKE Y K. HAN COCK, JU DGE

_______________________________ Before CAMPBELL, J., and BOYD and REAVIS, S.JJ. 1
OPINION
Maria Kerr brings this appeal from a take-nothi ng judgment in her suit against appellee Leesa H artsell B rown brou ght after the death of Kerr’s son Derek D’eVonn 22

Sandersin a traffic accident. She presents a single issue assigning error to the submission of an una voidabl e accide nt instru ction in the jury c harge. Weaffirm. Six-yea r-o ld D’eVonn died as a result of injuries he sustained wh en the Chevrolet Suburban operated by appel lee Brow n drove o ver him i n a Lubb ock storeparking lot. The incidenthappened just before 9:30 p.m. on a February night as K err, her three c h ildren, Avery, age 10, Lance, age 8, D’eVonn, and Kerr’s friend Katherine Williams left the store. The jury heard different versions of the events leading up to the accident. Kerr testified she
was holding D’eVonn’s hand as they f ollowe d Williams, Avery and Lance across the crosswalk

in frontof the store. D’eVonn dropped a toy in the crosswalk and stopped to pick itup. The toy was stuck to the gro und, requ iring mor e than on e attempt to retriev e it. Ker r was one or mo re steps ahead of D’eVonn and called to him to hurry. Brown drove into the crosswalk

without seeing D ’eVonn. With Ker r on the driver’s side of the Suburban, Brown turned left down a parking aisle, striking D’eV onn with the passen ger side of the vehicle and continuing over him with both right tires. Kerr ban ged o n the side of the truck to get Brown’s attention, causing her to stop after continuing several more feet. T his version of events was supported by the testimony of Andre Wright who witnessed the e vents from the store side of the crosswalk. He not iced the Suburban before he entered the crosswalk. He waited to see which way the driver wo uld go bec au se she had stopped and “was looking both way

s.” Accor

ding to W right, Ke rr, Willi ams and th e childr en exite d the stor

e aboutthe same time he did and “the y kind of went ahe ad and stepped in to the cro sswalk.”
Another version of eventswas presented through the testimony of James Phillips. He w as al so a customer leaving the store. Brown’s Suburban passed in front of Phillips3 Kerr’s attorney described the defense as applicable when “you are going 40 miles

an hour and a kid darts out right i n front of you and you hit the child, then that’s an unavoidable accident because there’s no human way possi ble to see the child and stop in time to miss th e child. ” Brown’ s attorney informed the jury d uring vo ir dire the court would instruct t hem on un avoidab le accid ents. 3 and was to his right when the accidentoccurred. He described Kerr’s children as runnin g around inside the store and the parking lot. Jus t before t he accid ent, he saw D’eVo nn jump outand “curve” around until he “disa ppeared in front of the Sub urban.” He did not see any adults with the children until after the accident. This version was supported by the police incidentreport and deposition testimony of Lubbock police officer Anthony Armour based
on his inte rview wi th Kerr. He reported that Kerr told him D’eVonn “darted into street and
was run o ver.” Ker r denied making t his statem ent.
Brown testified she never saw D’eVonn before she struck him with he r vehicle. Her third amended answer alleged the event was a n unavoidable accident and not caused by the negligence of

any party. The defense of unavoidable acci dent was discussed by both sides during voir dire and open ing state ments without objection. 3 But Kerr objected when the proposed jury charge included an unavoidabl e acciden t instruction, arguing it was imp roper because D’eVonn, at six years old, was beyond the “age of innocen ce” an d capable of negligence. The trial court overruled the objection and instructed the jury: “An
occurrence may be an ‘unavoidable accident,’ that i s, an event not proximately caused by the negligence of any

party to i t.” See Comm. on Patte rn Jury Ch arges, State Bar of Tex., Texas Patter n Jury Ch arges – Ge neral Ne gligence & Inten tional P ersonal Torts PJC 3.4 (2003). Brown was the only person whose possible negligence was submitte d to the jury.4

The jury unan imously answered “no” to the question asking whether her negligence, if any, proximately caus ed the oc currence.
Kerr now pres ents a s ingle issue assigning error to the submission of the unavoidable accident instruction. We review a trial court’s decisi o n to subm it a jury instruction for abuse

of discre tion. Mc Wi

lliams v. Masterson , 112 S.W.3d 314, 317 (Tex.App.–Amarillo 2003, pet. denied). A trial cou rt does not abuse its discretion in submitting an instruction if there is any support in theevidenc e fo r it. Louisiana-Pacific Corp. v. Knighten , 976 S.W. 2d 674, 6 76 (Tex. 1998); T ex. R. C iv. P. 27 7, 278.
Unavoidable accidentis among the inferential rebuttal jury instructions recognized by Texas courts. Dillard v. Tex. Elec. Coop. , 157 S.W.3d 429, 432 (Tex. 200 5 ); Yarborough v. Berner

, 467 S.W. 2d 188, 1 91 (Tex. 1971); Galveston , H. & S.A. Ry. Co. v. Washington , 63 S.W. 5 34, 537, 94 Tex. 510 (Tex . 1901). Our supreme court has said the instruction ordinarily applies when there is evid ence an occurrence was caused by a factor such as adverse weather conditions, wet or slick p av ement, or obstructi on of view, or to resolve a case involving a very young chil d who is lega lly inca pable of neglige nce. Dillard, 157 S.W.3 d at 430; Yarborough , 467 S.W. 2d at 191

. Kerr does not contend there was a complete absence o f evidence supporting Br own’s theory

that the accident was a result of D’eVonn’s running into the crosswalk. Rel ying on Yarborough , she takes the position the instruction was appropriate o nl y i f D’eVonn was legally incapable of negli gence and, because he was about six y ears and three mon ths of age , he was not too yo ung to becapableof negli gence.4 The court said “In [ Quisenbe rry ] it was held that a jury question waspresented as to wheth er

a five-year-old child was too young to unde rstand and avoid a danger in an attractive nuisance case.” 467 S.W.2 d at 190, citing 97 S.W.2d 166. Kerr describes that statement as holding a five-year -old c hild is capable of negligence. In its context, the statement accurately describes Quisenbe rry as holding a child of that age might be capable of negligence, dependin g on t he characteristics of the child and the risks involved in the child’s conduct . In Quisenb erry , the court was reviewing a directed verdict for the defendantin a sui t for inju ries sustained by a child playing on oilfi eld equi pment. In concluding the caseshould have bee n sent to the jury, i t c ommented the plaintiff should recover if the defendant was negligent and the chil d was not contributorily negligent “if we concede that a five year old child was capabl e of appreciating the danger involved.” 97 S.W.2d at 168. The court cited the view expressed in Mexican Cent. R. Co. v. Rodriguez , 133 S.W. 690 (Tex .Civ.App .–El Pas o 1911, w rit ref’d) , that a child of five “certainly” could notbe charg ed with contributo rynegligence without evidence of his“realization of danger as would indicate that the child was conscious of the cons equences

of its co nduct.” Id. at 692. Quisenb erry

’s discu ssion of the issue is consi stent wit h the hol ding of Sorrentino

. Cf

. 97 S.W.2d at 168 with Sorrentino , 122 S.W.2d at 725. 5 In Yarborough , a child four years, ten months old was struck by a car on a beach. 467 S.W.2d at 189. There was evidence he “dar ted out” i n front of

the car. Id. Concluding the child was incapable of exercisi ng the qualiti es neces sary to perceive the risk, the court found the trial court

properly denied special issues on the child’s contributory negligence , butdid err in refusing to give an unavoidable acciden t instruct ion. Id. at 190-9 1. The co urt noted the common-law rule that a child under the age of seven was, as a matter of law, incapable of negligence was modified byS orrentino v. McNeill , 122 S.W.2d 723 (Tex.Civ.App.–Galveston 1938, writ ref’d). Di scussing the result in Sorrentino , the cour t also noted the contributory negligence of the injured six-year-old in that case “was held to be a jury issue.” 467 S.W.2d at 190. Based on that statement and the court’s description of the result in Gulf Prod

uction Co. v. Quis enberry , 128 Tex. 347, 97 S.W.2d 166 (193 6), 4 Kerr conclud es that achild under five is incapable of n egligence, but a five- or six-year-old is not too young to be capable of ne gligence, and his conduct thus cannot properly be6

made the subject of an unavoidable a ccident in struction. Kerr‘s argument effectively characterizes the hold ing of Yarborough as sub stituting a bright line at five years for the common-lawrule that limited the ca pabil ity for negligent conduct to children over seven. We cannot agree with Kerr’s conclusion the opi nions in Quisenbe rr y , Sorrentino , and Yarborough establi sh such abright l ine rule

. The Sorrentino opinion summarize d Texaslaw to h old that “the civi l irrespo nsibili ty of a young child is not regarded as an invariable concomitant of a certain age – excep t it be little if any beyond swaddling clothes – to be arbitrarily fixed upon such ag e alone, but is to be determined as existing or not, from all theapplicable circumstances, like any other question of fact.” 122 S.W.2d at 725. We think Yarborough makes clear that the same considerations are applicable to a trial court’s decision whether to include an unavoidable accidentinstruction in the charge when a child’s con duct is involved. 467 S.W.2d at 190- 91. Assumin g that Ke rr is corre ct that the unavoid able acc ident in struction was app ropriate in this case only

if D’eVonn was incapable of negl igence, we cannot agree the instruction
was precluded simply

becausethe chil d was si x. We overrule appellant’s sole issue and affirm thetrial co urt’s judg ment. James T. Campbell Justice