PJC General Negligence 2022

PJC 10.11

A GENCY AND S PECIAL R ELATIONSHIPS

Keeton on the Law of Torts §72, at 517 (5th ed. 1984). Shoemaker relied heavily on Prosser and Keeton , which distinguishes joint enterprise from joint venture and explains joint enterprise as follows: Except in comparatively rare instances, its application has been in the field of automobile law, where it has meant that the negligence of the driver of the vehicle is to be imputed to a passenger riding in it. In relatively few cases, the passenger has been charged with liability as a defendant to a third person . . . . “Joint enterprise” is thus of importance chiefly as a defendant’s doctrine, imputing the negligence of another to the plaintiff. Shoemaker , 513 S.W.2d at 14. More recent cases, however, have expanded the use of joint enterprise beyond auto motive law. See Able , 35 S.W.3d 608; Blount v. Bordens, Inc. , 910 S.W.2d 931 (Tex. 1995); Triplex Communications, Inc. v. Riley , 900 S.W.2d 716 (Tex. 1995). Element (3) revised. In 2002, the Supreme Court of Texas held (among other things) in a plurality opinion that (1) the third element in earlier versions of PJC 10.11 was incomplete and erroneous; (2) since Shoemaker , the third element is and has been whether there is a “community of pecuniary interest in [the common purpose of the enterprise], among the members [of the group]”; (3) a “common business or pecuniary interest” does not have the same meaning; (4) a community of pecuniary interest means an interest shared “without special or distinguishing characteristics” (repeat edly citing Ely v. General Motors Corp. , 927 S.W.2d 774, 779 (Tex. App.—Texarkana 1996, writ denied)); and (5) because St. Joseph properly objected to the charge, suffi ciency of the evidence should be reviewed under the Restatement definition of “joint enterprise” adopted in Shoemaker . St. Joseph Hospital v. Wolff , 94 S.W.3d 513, 525– 34 (Tex. 2002), rev’g 999 S.W.2d 579 (Tex. App.—Austin 1999). Distinguished from joint venture. Joint enterprise differs from the relationship contemplated under “joint venture” law. A joint venture is contractual and “must be based upon an agreement, either express or implied.” Coastal Plains Development Corp. v. Micrea, Inc. , 572 S.W.2d 285, 287 (Tex. 1978). A joint venture must be based on an agreement that has all the following elements: 1. a community of interest in the venture, 2. an agreement to share profits, 3. an express agreement to share losses, and 4. a mutual right of control or management of the venture. Ayco Development Corp. v. G.E.T. Service Co. , 616 S.W.2d 184, 186 (Tex. 1981); Coastal Plains , 572 S.W.2d at 287; Taylor v. GWR Operating Co. , 820 S.W.2d 908, 911 (Tex. App.—Houston [1st Dist.] 1991, writ denied). The absence of any one of these elements precludes a finding of a joint venture as a matter of law. State v. Hous-

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