PJC General Negligence 2022

T RESPASS

PJC 11.5

Mutual Insurance Co. v. Delgado , 335 S.W.3d 689, 691 (Tex. App.—Amarillo 2011, pet. denied). But some cases will present predicate fact questions that a jury must answer before the trial court can answer this question of law. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–81; see also Schneider National Carriers, Inc. , 147 S.W.3d at 275, 281, 287. For those cases, the questions in PJC 11.5 should be used to determine the fact questions that need to be resolved by the jury before the trial court can determine the temporary– permanent question of law. When these questions are used, they should be predicated on a “Yes” answer to PJC 11.2. When used, these questions should be used together. Source of question. PJC 11.5 is derived from Gilbert Wheeler, Inc. , 449 S.W.3d at 479–81; see also Schneider National Carriers, Inc. , 147 S.W.3d at 272, 276–77. Effect of answers. The two questions in PJC 11.5 create four possible permuta tions of answers. If the jury answers “capable” to the first question and “2” to the sec ond question, the injury will ordinarily be classified as temporary. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–81. Under the other three permutations, the injury will ordinarily be classified as permanent. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–81. Regardless of the classification, however, the trial court may, in some circum stances, limit the claimant to the lesser measure of recovery. See Gilbert Wheeler, Inc. , 449 S.W.3d at 480–82 (the “economic feasibility exception” deems the injury to be permanent and limits recovery to the reduction in market value if the cost to repair is too disproportionate to the reduction in market value); see also Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004) (when plaintiff proved both a cost-to-restore and a diminution-in-market-value measure, plaintiff was limited to the lesser, cost-to-restore measure). No conditioning instruction. Given the four possible permutations of answers, the court should not include a conditioning instruction between the first question and the second question. That is, the jury should answer the second question regardless of its answer to the first one. Allowing the jury to answer both questions promotes judi cial economy, because even if an appellate court finds that the answer to one question is not legally supported, the answer to the other question might allow the appellate court to affirm or render judgment, rather than remanding for a new trial to obtain an answer to the other question. See, e.g. , Crown Life Insurance Co. v. Casteel , 22 S.W.3d 378, 389 (Tex. 2000). Burden of proof. The formulation of the questions in PJC 11.5 does not follow the normal rules allocating the burden of proof. Until the supreme court clarifies the burden of proof for these questions, the Committee believes that PJC 11.5 is a reason able way to submit the questions, under a recognition that the jury’s answers relate to a predicate legal question that the trial court must answer before determining the correct

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