PJC Malpractice 2024

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.4

The Texas Supreme Court, however, has recognized an exception to this general rule, which applies when “the facts demonstrate that (1) it was necessary that the invitee use the unreasonably dangerous premises and (2)the landowner should have anticipated that the invitee was unable to avoid the unreasonably dangerous risks despite the invi tee’s awareness of them.” Austin , 465 S.W.3d at 207. In cases in which a premises’s unreasonably dangerous condition is determined as a matter of law to be open and obvious or otherwise known to the invitee, but the facts give rise to this “necessary-use exception” as described in Austin , PJC 66.4 may need to be modified to encompass the elements of this exception. Although the Austin court did not offer guidance on the wording of such a question, the Committee suggests the following: QUESTION ______ Did the negligence, if any, of those named below proximately cause the [ injury ] [ occurrence ] in question? With respect to the condition of the premises, Don Davis was neg ligent if— 1. the condition posed an unreasonable risk of harm, and 2. Don Davis knew or reasonably should have known of the danger, and 3. Paul Payne necessarily had to use the premises, and 4. Don Davis should have anticipated that Paul Payne was unable to avoid the unreasonable risk of harm despite Paul Payne ’s awareness of that risk, and 5. Don Davis failed to exercise ordinary care to protect Paul Payne from the danger, by both failing to adequately warn Paul Payne of the condition and failing to make that condition reason ably safe. “Ordinary care,” when used with respect to the conduct of Don Davis as an owner or occupier of a premises, means that degree of care that would be used by an owner or occupier of ordinary pru

dence under the same or similar circumstances. Answer “Yes” or “No” for each of the following:

1. Don Davis 2. Paul Payne 3. Sam Settlor

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