PJC General Negligence 2022

N EGLIGENCE P ER S E

PJC 5.5

vidual proximately caused the damages suffered. Lewis , 940 S.W.2d at 84–85; Smith , 858 S.W.2d at 355. Because section 2.02(b) requires a proximate cause connection between the recipi ent’s intoxication and the damages, an instruction is needed to ensure determination of that issue. See Borneman v. Steak & Ale, Inc. , 22 S.W.3d 411, 412–13 (Tex. 2000) (per curiam). Without such an instruction, common-law negligence and proximate cause findings against the recipient would not necessarily determine that the recipient’s intoxication was a proximate cause of the damages. Moreover, the only causation element expressed in section 2.02(b) regarding the provider is the proximate cause link between the recipient’s intoxication and the dam ages. Thus, there appears to be no necessity for a finding that the provider’s conduct was a proximate cause as defined by common law. But see Smith , 858 S.W.2d at 356: “A breach of that duty which proximately causes damage gives rise to a statutory cause of action.” Therefore, PJC 5.5 includes an instruction that the provider’s negligence is a proxi mate cause of the occurrence if the recipient’s intoxication was a proximate cause of the occurrence. This instruction is similar to the special proximate cause instruction in PJC 10.12 concerning negligent entrustment to a reckless driver. How to use. If Pete Provider is the only person whose conduct is submitted, the PJC 5.5 instruction should be given in lieu of the PJC 2.1 negligence definition. The PJC 5.5 proximate cause definition should be submitted in addition to the PJC 2.4 proximate cause definition. If common-law negligence is also submitted (regarding someone other than Pete Provider ), Pete Provider should be excluded from the PJC 2.1 negligence definition by beginning the definition: “With respect to Don Davis and/or Paul Payne , ‘negli gence’ means . . . ” Proportionate responsibility. Chapter 33 of the Texas Civil Practice and Reme dies Code applies to claims brought under the Dramshop Act and, thus, requires apportionment of responsibility as provided by PJC 4.3. See F.F.P. Operating Part ners, L.P. v. Duenez , 237 S.W.3d 680, 682 (Tex. 2007); Smith , 858 S.W.2d at 356. Substitution of terms. The statute imposes liability on a licensee who provides, sells, or serves alcoholic beverages. PJC 5.5 uses the most inclusive term, providing , but selling or serving may also be used if appropriate. The statute also applies to a nonlicensee, but only if there is a sale. In the case of a nonlicensee, the word selling should replace the phrase providing, under authority of a license , and the word seller should replace the word provider . Also, the phrase under authority of a license may be deleted in cases in which that element is undisputed. Social host liability. The supreme court has declined to recognize social host lia bility for serving intoxicated adult guests, Graff v. Beard , 858 S.W.2d 918, 921 (Tex.

75