PJC General Negligence 2024

P ERSONAL I NJURY D AMAGES

PJC 28.8

1988) (orig. proceeding). Thus, the tortfeasor is held responsible for all injuries caused by the occurrence in question, even if the plaintiff suffered from a preexisting but asymptomatic injury or condition before the occurrence in question and therefore suf fered a greater degree of injury than a person who did not have such a preexisting injury or condition would have suffered. Coates , 758 S.W.2d at 752; Driess v. Fred erich , 11 S.W. 493, 493–94 (Tex. 1889); Favalora , 476 S.W.3d at 591–92; Thompson v. Quarles , 297 S.W.2d 321, 329–30 (Tex. App.—Galveston 1956, writ ref’d n.r.e.). Cases involving subsequent injury. PJC 28.8D may be given if there is evidence that a subsequent event, which was not proximately caused by the negligence of the plaintiff, aggravates the harmful effects of the original injury. See Wal-Mart Stores, Inc. v. Morgan , No. 12-98-00093-CV, 1999 WL 33312264, at *2–3 (Tex. App.—Tyler June 30, 1999, pet. denied) (not designated for publication) (“[I]t has long been Texas law that a [plaintiff] has a right to recover at common law for subsequent aggravation of an injury caused by defendant’s negligence, even if the defendant did not cause the ‘aggravation’ of the original injury.”) (citing Hoke , 384 S.W.2d at 340; City of Port Arthur v. Wallace , 171 S.W.2d 480, 483 (Tex. 1943)). PJC 28.8D is appropriately sub mitted when medical treatment necessitated by the negligence of the original tortfea sor (1) makes the plaintiff’s injuries worse or (2) causes additional injuries. See Cannon v Pearson , 383 S.W.2d 565, 567 (Tex. 1964) (“It has long been accepted and established in this State that one who wrongfully injures another is liable in damages for the consequences of negligent treatment by a doctor or surgeon selected by the injured person in good faith and with ordinary care.”); but see ExxonMobil Corp. v. Pagayon , 467 S.W.3d 36, 56–57 (Tex. App.—Houston [14th Dist.] 2015), rev’d on other grounds , 536 S.W.3d 499 (Tex. 2017) (original tortfeasor rule as explained in Cannon would not preclude the submission of the responsibility of a properly desig nated responsible third party in a proportionate responsibility issue if the evidence warrants the submission). Cases involving both aggravation of preexisting symptomatic injury or condi tion and preexisting asymptomatic injury or condition. If there is both evidence of an aggravated symptomatic preexisting injury or condition and evidence of an asymptomatic preexisting injury or condition that enhanced the plaintiff’s susceptibil ity to injury, both PJC 28.8B and 28.8C may be submitted. See Morgan, 1999 WL 33312264, at * 2–3. Cases involving both preexisting condition and subsequent aggravation of injury. If there is both evidence of a preexisting injury or condition and evidence of subsequent aggravation of an injury, both PJC 28.8D and one or more of the instruc tions found in PJC 28.8A–28.8C may be submitted. See Morgan , 1999 WL 33312264, at *2–3.

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