Texas PJC Malpractice 2022

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.7

Compare claimants separately. Each claimant should be submitted separately within the proportionate responsibility question. Tex. Civ. Prac. & Rem. Code §§ 33.003, 33.011(1). For claimants seeking derivative damages, see PJC 61.9. Negligent misrepresentation. Section 552A of Restatement (Second) of Torts (1977) recognizes contributory negligence as a defense in an action based on negligent misrepresentation to the recipient. While the Restatement recognizes it as a complete bar to recovery, the existing statutory scheme requires that contributory negligence be submitted on a comparative basis in actions founded on negligence. See Tex. Civ. Prac. & Rem. Code ch. 33; JCW Electronics, Inc. v. Garza , 257 S.W.3d 701, 705 (Tex. 2008) (proportionate responsibility scheme applies to breach of warranty as well as claims for personal injury, death or property damage, and misrepresentation). 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), (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: Settling person, contribution defendant, or responsible third party. See PJC 61.2.

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