PJC General Negligence 2022

PJC 4.3

B ASIC N EGLIGENCE Q UESTIONS

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: Do not include any amount in the percentage attributable to Paul Payne for any further injury resulting from the failure, if any, of Paul Payne to exercise reasonable care in caring for or treating his injury, if any. Use of “responsibility” or “negligence.” Chapter 33 of the Civil Practice and Remedies Code applies not only to negligence but also to any cause of action based on tort or any action brought under the DTPA. Tex. Civ. Prac. & Rem. Code §33.002(a)(1), (a)(2). For this reason, and because section 33.011 expressly calls for the comparison of “responsibility,” that is the term the Committee suggests. Tex. Civ. Prac. & Rem. Code §33.011(4). However, when negligence is the only theory by which any of the submitted persons could be found liable, an alternative submission might be as follows: For each person you found caused or contributed to cause the [ injury ] [ occurrence ], find the percentage of negligence attributable to each: 1. Don Davis % 2. Paul Payne % 3. Sam Settlor % 4. Responsible Ray % Total 100 % Settling person. Upon showing of sufficient evidence to support the submission, the responsibility of a settling person shall be compared to the responsibility of the plaintiff and of the defendant. Tex. Civ. Prac. & Rem. Code § 33.003. If there is no set tling person ( Sam Settlor ), then no such submission is required. Responsible third parties. In 2003 the legislature changed responsible third party practice from one of joinder to one of designation. See Tex. Civ. Prac. & Rem. Code § 33.004. The legislature also expanded the category of responsible third parties. Tex. Civ. Prac. & Rem. Code § 33.004, 33.011(6). “‘Responsible third party’ means any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages is sought, whether by negligent act or omission, by any defective or unreasonably dangerous product, by other conduct or activity that violates an applicable legal standard, or by any combination of these.” Tex. Civ. Prac. & Rem. Code §33.011(6). Section 33.003(b) provides that a question regarding con duct by any person may not be submitted to the jury without evidence to support the submission. Tex. Civ. Prac. & Rem. Code § 33.003(b).

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