Brown v. Kerr
Facts
Six-year-old D'eVonn Sanders died after Brown's Suburban ran over him in a store parking lot crosswalk at night. The evidence conflicted: Kerr and a witness said D'eVonn was in the crosswalk with Kerr when Brown drove into it and turned, while another witness and a police report supported Brown's theory that D'eVonn jumped or darted into the vehicle's path. Brown testified she never saw D'eVonn before impact. Over Kerr's objection that D'eVonn was old enough to be capable of negligence, the trial court instructed the jury on unavoidable accident.
Issue
Did the trial court abuse its discretion by submitting an unavoidable accident instruction where the child involved was about six years and three months old? More specifically, was the instruction improper because a child of that age is not, as a matter of law, too young to be capable of negligence?
Rule
A trial court does not abuse its discretion in submitting a jury instruction if there is any support in the evidence for it. Unavoidable accident is a recognized inferential rebuttal instruction, ordinarily applicable when the occurrence may have been caused by non-negligent factors or in cases involving a very young child legally incapable of negligence. Texas law does not establish a bright-line rule that a five- or six-year-old is necessarily capable of negligence; a young child's civil irresponsibility depends on all applicable circumstances, not age alone.
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If Nora objects only that the instruction should not be given because her evidence is stronger and more credible, how should the trial court rule?