PJC Malpractice 2024

PJC 66.4

P REMISES L IABILITY —T HEORIES OF R ECOVERY

sider submitting alternative liability theories to avoid potential reversal. For general preservation of error rules, see PJC 86.1. Warning as inadequate substitute. In Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 771 n.32 (Tex. 2010), the Texas Supreme Court observed that “in some circumstances no warning can adequately substitute for taking reasonably prudent steps to make the premises safe.” The jury charge in Del Lago used the PJC language in element 3, and the court noted that “[t]he jury could have construed the charge to mean, and could have made the factual finding, that ordinary care under the circum stances required something other than a warning.” Del Lago Partners, Inc. , 307 S.W.3d at 771 n.32. The court, however, did not offer guidance on whether a trial court may modify element 3 or the definition of “ordinary care” in cases where the evidence shows that no warning can adequately substitute for making the condition of the prem ises safe. Use of “injury” or “occurrence.” See PJC 66.1. Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Accompanying question. In cases against a general contractor for premises defects created by an independent contractor’s work activity, PJC 66.3 should immedi ately precede this question if there is a dispute about the general contractor’s right to control the manner in which the work was performed. See Saenz v. David & David Construction Co. , 52 S.W.3d 807, 813 (Tex. App.—San Antonio 2001, pet. denied). Accompanying definitions and instructions. PJC 66.4 is designed to be accom panied by the appropriate definitions of the standard of care and “proximate cause” set out in PJC 65.2–65.4. PJC 65.2 should be used when the conduct of a contributorily negligent plaintiff or a defendant who is not an owner or occupier of a premises is also to be considered by the jury. PJC 65.3 should be used for a child’s standard of care. If the evidence raises “new and independent cause,” the definitions in PJC 65.5 should be used in lieu of the definition of “proximate cause” in PJC 65.4. Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s name ( Paul Payne ) should not be included in the above question. In a case in which the plaintiff’s negligence is in issue, or in any case including more than one defendant, a proportionate responsibility question should follow PJC 66.4. Tex. Civ. Prac. & Rem. Code §§ 33.001–.017. See PJC 66.11 and 66.13. Necessary-use exception. Generally, a premises owner “has no duty to protect or warn an invitee against unreasonable dangers that are open and obvious or otherwise known to the invitee.” Austin v. Kroger Texas, L.P. , 465 S.W.3d 193, 207 (Tex. 2015).

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