PJC General Negligence 2022

PJC 4.1

B ASIC N EGLIGENCE Q UESTIONS

Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code § 71.002(b); see also Kramer v. Lewisville Memorial Hospital , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word death may be substituted for the word injury in the negligence ques tion. Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s name ( Paul Payne ) should not be included in the above question. In a case in which the plaintiff’s negligence is in issue, or in any case including more than one defendant, a proportionate responsibility question should follow PJC 4.1. Tex. Civ. Prac. & Rem. Code §§ 33.001–.017. See PJC 4.3 and 4.4. Use of “injury” or “occurrence.” “Injury” should ordinarily be used in this question, as well as in PJC 4.3, particularly if there is evidence of the plaintiff’s preoc currence negligence that is “injury causing” but not “occurrence causing,” such as the failure to wear a seat belt. Nabors Well Services, Ltd. v. Romero , 456 S.W.3d 553, 563– 64 (Tex. 2015); see also Tex. Civ. Prac. & Rem. Code § 33.011(4) (defining “per centage of responsibility” in terms of “causing or contributing to cause in any way . . . the personal injury , property damage, death, or other harm for which recovery of dam ages is sought”) (emphasis added). However, a plaintiff’s preoccurrence, injury-causing conduct is distinct from the plaintiff’s postoccurrence failure to mitigate damages, which is submitted as an exclu sionary instruction to the damages questions. See PJC 28.9. See Nabors , 456 S.W.3d at 564. In cases with no allegations of injury-causing negligence by a plaintiff, or in cases of injuries to multiple plaintiffs arising out of a single occurrence, it may be appropri ate to use “occurrence” in this question and in PJC 4.3. However, the concerns expressed in Nabors should be considered carefully. In a case involving a death, the word “death” may be used instead of “injury.” Failure to mitigate. If “injury” is used and there is a claim that the plaintiff failed to mitigate damages after the occurrence, the following additional instruction should be included: In answering this question, do not consider Paul Payne ’s failure, if any, to exercise ordinary care in caring for or treating his injury, if any. When not to submit exclusionary instruction. If PJC 4.1 is submitted with the term injury , the exclusionary instruction in PJC 28.8 should not be submitted. Settling person. If the case includes a settling person ( Sam Settlor ), that person’s responsibility should be determined by the trier of fact. Tex. Civ. Prac. & Rem. Code §§33.003, 33.011(5). Thus, the settling person’s name must be included in the basic

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