PJC General Negligence 2022

PJC 11.5

T RESPASS

PJC 11.5

Permanent vs. Temporary Injury (Frequency and Duration)—Questions

If you answered “Yes” to Question [ applicable liability question ], then answer the following question. Otherwise, do not answer the following ques tion. QUESTION Is the property capable or incapable of being repaired, fixed, or restored? Answer “Capable” or Incapable.” Answer: _______________ QUESTION ______ Is the injury— 1. substantially certain to recur repeatedly, continually, and regularly; or 2. such than any anticipated recurrence would be only occasional, irregular, intermittent, and not reasonably predictable? Answer “1” or “2.” Answer: _______________ COMMENT When to use. The supreme court has ruled that whether an injury to land is tem porary or permanent is a question of law. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P. , 449 S.W.3d 474, 481 (Tex. 2014). Thus, PJC 11.5 will only be neces sary if there is a factual dispute regarding the frequency, extent, and duration of the injury. Such a factual dispute may develop if a plaintiff asserts alternative claims or if a defending party asserts that a different damages measure or accrual point for statute of limitations applies. In essence, this legal determination is a question that the trial court must answer before deciding what the correct measure of damages is under the facts of the case. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–81; Schneider National Carriers, Inc. v. Bates , 147 S.W.3d 264, 281 (Tex. 2004). This is consistent with the rule that determin ing the correct measure of damages is a question of law. See, e.g ., Progressive County

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