PJC General Negligence 2022

PJC 18.1

W ORKERS ’ C OMPENSATION —D EFENSES AND E XCEPTIONS

QUESTION 2 Was Paul Payne not injured in the course and scope of his employment? [Insert PJC 18.1A instruction on “greater hazard.”] Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 18.1 should be used if the evidence raises the issue of injury resulting from an “act of God.” See Transport Insurance Co. v. Liggins , 625 S.W.2d 780, 783 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.); Texas Workers’ Compensa tion Appeal Nos. 950020 (Feb. 17, 1995); 950034 (Feb. 17, 1995). For “act of God” as an inferential rebuttal to “proximate cause” in a negligence case, see PJC 3.5. Burden of proof. The burden of proof should be placed appropriately in accor dance with the decision of the appeals panel. See PJC 15.1. Source of question. Under Tex. Lab. Code § 406.032(1)(E), a carrier is not liable for compensation if the injury arose out of an act of God unless the employment exposes the employee to a greater risk of injury from an act of God than ordinarily applies to the general public. The act of God exception to compensability stands on a different footing than the inferential rebuttal instruction for act of God. Compare PJC 3.5. Specific force or condition. Because there may be an evidentiary question whether a particular force or condition constitutes an act of God, the Committee rec ommends that the specific force or condition not be specified in the jury instructions. See Mid-Continent Casualty Co. v. Whatley , 742 S.W.2d 475, 478–79 (Tex. App.— Dallas 1987, no writ). Extreme weather temperature. The courts treat injuries caused by excessive heat (e.g., heatstroke, sunstroke, heat exhaustion) as an “act of God” in that the employee must establish that he was engaged in duties that subjected him to a greater hazard from heat “than ordinarily applies to the general public.” Tex. Lab. Code § 406.032(1)(E); see Weicher v. Insurance Co. of North America , 434 S.W.2d 104, 106–07 (Tex. 1968); Commercial Standard Insurance Co. v. Allred , 413 S.W.2d 910, 914 (Tex. 1967); Traders & General Insurance Co. v. Ross , 263 S.W.2d 673, 675 (Tex. App.—Galveston 1953, writ ref’d n.r.e.). See also Texas Workers’ Compensation Appeal Nos. 950020 (Feb. 17, 1995); 002641 (Dec. 22, 2000). The same reasoning should apply to injuries caused by excessive cold (e.g., frostbite).

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