Texas PJC Malpractice 2022

PJC 60.2

N ONMEDICAL M ALPRACTICE —D EFINITIONS & I NSTRUCTIONS

PJC 60.2 New and Independent Cause—Nonmedical Professional “Proximate cause,” when used with respect to the conduct of Dora Dotson , means a cause, unbroken by any new and independent cause, that was a sub stantial factor in bringing about an [ injury ] [ occurrence ], and without which cause such [ injury ] [ occurrence ] would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an accountant exercising ordinary care would have foreseen that the [ injury ] [ occurrence ], or some similar [ injury ] [ occurrence ], might reasonably result therefrom. There may be more than one proximate cause of an [ injury ] [ occur rence ]. A “new and independent cause” of an [ injury ] [ occurrence ] is the act or omission of a separate and independent agent, not reasonably foreseeable by an accountant exercising ordinary care, that destroys the causal connection, if any, between the act or omission inquired about and the [ injury ] [ occurrence ] in question. COMMENT When to use—given in lieu of PJC 60.1. Because “new and independent cause” is an inferential rebuttal, it can be submitted only by instruction. See Tex. R. Civ. P. 277; Thota v. Young , 366 S.W.3d 678, 692 (Tex. 2012). The factors to consider in determining whether a new and independent cause exists include (1) whether the force brings about harm different in kind from the actor’s negligence; (2)whether the force’s operation or consequences appear to be extraordinary; (3)whether the force operates independently of any situation created by the actor’s negligence; (4) whether the force is due to a third person’s act or failure to act; (5) whether the act or omission of any such third party would subject that third party to liability; and (6) the degree of culpability of any such third party. Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 857–58 (Tex. 2009) (citing Restatement (Second) of Torts §442 (1965)). See also Dew v. Crown Derrick Erectors, Inc. , 208 S.W.3d 448, 450–53 (Tex. 2006) (plurality op.). The “new and independent cause” instruction is not used when the intervening forces are foreseeable and within the scope of risk created by the actor’s conduct. Dew , 208 S.W.3d at 450–53. Source of instruction. The instruction for new and independent cause is derived from Hawley , 284 S.W.3d at 856. Substitute particular professional. A term describing the professional involved (e.g., attorney , architect ) should be substituted as appropriate for the term accountant .

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