PJC General Negligence 2022

PJC 3.2

I NFERENTIAL R EBUTTAL I NSTRUCTIONS

is supported by the evidence, submitting it is not mandatory, Gunn v. McCoy , 554 S.W.3d 645, 676 (Tex. 2018); (3) multiple inferential rebuttal instructions have “the potential to skew the jury’s analysis,” Dillard , 157 S.W.3d at 433; and (4) the trial court’s decision regarding whether to submit an inferential rebuttal instruction is sub ject to a harmless error analysis. Gunn , 554 S.W.3d at 676; Thota , 366 S.W.3d at 687. Nonsubscribing employer actions. An employer that does not subscribe to the Texas workers’ compensation insurance program forgoes certain defenses. See Tex. Lab. Code §406.033. However, a nonsubscribing employer is entitled to the defense that the actions of its employee were the sole proximate cause of the employee’s injury. Kroger Co. v. Keng , 23 S.W.3d 347, 352 (Tex. 2000) (citing Brookshire Bros. v. Wagnon , 979 S.W.2d 343, 347 (Tex. App.—Tyler 1998, pet. denied) (submitting employee’s fault improper unless submission is on sole proximate cause)); Najera v. Great Atlantic & Pacific Tea Co. , 207 S.W.2d 365, 367 (Tex. 1948) (in nonsubscriber case, finding against injured worker on sole proximate cause issue would have pre vented recovery). The above language for sole proximate cause, however, does not properly apply to a nonsubscriber case when there is evidence that the actions of the employee were the sole proximate cause of the employee’s injury. In such cases, the following instruction should be used: There may be more than one proximate cause of an [ injury ] [ occurrence ], but if an act or omission of the employee was the “sole proximate cause” of an [ injury ] [ occurrence ], then no act or omission of any party could have been a proximate cause. See Hall v. Timmons , 987 S.W.2d 248, 255 (Tex. App.—Beaumont 1999, no pet.) (nonsubscribing employer may defend on ground that employee was responsible for some act that was sole proximate cause of her injury).

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