Texas PJC Malpractice 2022

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.1

PJC 61.1 Use of “Injury” or “Occurrence” (Comment) “Injury” should ordinarily be used, particularly if there is evidence of the plaintiff’s preoccurrence negligence that is “injury causing” but not “occurrence causing,” such as the failure to wear a seatbelt. 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 “percentage 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 damages is sought”) (emphasis added). However, a plaintiff’s preoccurrence, injury causing conduct is distinct from the plaintiff’s postoccurrence failure to mitigate dam ages, which is submitted as an exclusionary instruction to the damages questions. See PJC 80.8; Nabors , 456 S.W.3d at 564. If a failure-to-mitigate instruction is given in the damages question (see PJC 80.8), and “injury” is used in the liability question, then the jury should be instructed in the liability and the proportionate responsibility questions as follows: In answering this question, do not consider Paul Payne ’s failure, if any, to exercise reasonable care in caring for or treating his injury, if any. In a case involving a death, the word “death” may be used instead of “injury.” In cases with no allegations of injury-causing negligence by a plaintiff, it may be appropriate to use “occurrence” in the questions in this chapter. However, the con cerns expressed in Nabors should be considered carefully.

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