PJC General Negligence 2022

A NIMAL I NJURY

PJC 13.1

PJC 13.1

Owner or Possessor of Animal

QUESTION ______ On the occasion in question, did Don Davis own or possess [ describe ani mal in question ]? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 13.1 should be submitted if there is a dispute about whether the defendant had control over the animal in question. A defendant may be liable for injuries caused by an animal owned or possessed by the defendant at the time of the occasion in question. See Marshall v. Ranne , 511 S.W.2d 255, 259 (Tex. 1974) (identi fying status as owner or possessor of animal as first element of negligence claim); see also Allen v. Albin , 97 S.W.3d 655, 659 (Tex. App.—Waco 2002, no pet.) (setting forth elements for strict liability and negligence claims and including status as owner or possessor of animal as first element of each claim). Domesticated or wild animal. If the defendant owned or possessed the animal in question on the occasion in question, the court must determine whether the animal is domesticated or wild. See, e.g., Powers v. Palacios , 794 S.W.2d 493, 497 (Tex. App.— Corpus Christi–Edinburg 1990), rev’d on other grounds , 813 S.W.2d 489 (Tex. 1991); Pate v. Yeager , 552 S.W.2d 513, 515–17 (Tex. App.—Corpus Christi–Edinburg 1977, writ ref’d n.r.e.). An animal is wild if it belongs to a category that has not been gener ally domesticated and that is likely, unless restrained, to cause personal injury. See Pate , 552 S.W.2d at 515; see also Restatement (Third) of Torts §22(b) (2010). If the court determines that the animal is domesticated, PJC 13.2 should be submitted; if it finds the animal wild, PJC 13.5 should be submitted. The Committee recognizes that the determination whether an animal is domesticated or wild could give rise to a fact issue. Although the court is to resolve the issue, it might be proper to submit an advi sory question to the jury. See, e.g., Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 227–32 (Tex. 2010) (party has right to submit jury question on reason ableness and necessity of claimant’s attorney’s fees when fact question exists, despite statutory language providing that court “shall apportion and award” fees). Premises liability. Additional consideration should be given to whether a prem ises liability standard might apply based on the location and circumstances of the underlying incident. See, e.g., Labaj v. Vanhouten , 322 S.W.3d 416 (Tex. App.—Ama rillo 2010, pet. denied). A party might also choose to submit the case on several theo ries of liability, including premises liability. See, e.g., Pfeffer v. Simon , No. 05-02-

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