PJC General Negligence 2022

N UISANCE

PJC 12.4

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 12.4 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 nuisance finding. When used, these questions should be used together. Source of question. PJC 12.4 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 12.4 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). See also PJC 12.5 and 12.6 for a discus sion of the economic feasibility exception. 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 12.4 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 12.4 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 measure of damages. Practitioners should consider whether the burden-of-proof instructions in PJC 1.3 should be modified in relation to PJC 12.4.

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