Texas PJC Malpractice 2022

PJC 65.3

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.3 Child’s Degree of Care “Negligence,” when used with respect to the conduct of a child, means fail ing to do that which an ordinarily prudent child of the same age, experience, intelligence, and capacity would have done under the same or similar circum stances or doing that which such a child would not have done under the same or similar circumstances. “Ordinary care,” when used with respect to the conduct of a child, means that degree of care that an ordinarily prudent child of the same age, experience, intelligence, and capacity would have used under the same or similar circum stances. COMMENT When to use. These definitions should be used if the standard of “child’s degree of care” is submitted to the jury. The conduct of a child “of tender years” is judged by the standard of a child and not by that of an adult. Dallas Railway & Terminal v. Rog ers , 218 S.W.2d 456, 458 (Tex. 1949); see also Nabors Well Services, Ltd. v. Romero , 456 S.W.3d 553, 564 (Tex. 2015) (minor held to degree of care that would be exer cised by an “ordinarily prudent child of [the same] age, intelligence, experience and capacity...under the same or similar circumstances”) (quoting Rudes v. Gottschalk , 324 S.W.2d 201, 204 (Tex. 1959)). For the appropriate age when a child is considered to be of such immaturity that the above definitions should be submitted, see Rogers , 218 S.W.2d 456; City of Austin v. Hoffman , 379 S.W.2d 103, 107 (Tex. App.—Austin 1964, no writ) . Modify “proximate cause” definition if only “child’s degree” submitted. If the only standard of care submitted is “child’s degree,” the phrase a child’s degree of care should replace the phrase ordinary care in the definition of “proximate cause” in PJC 65.4 or 65.5. See Rudes , 324 S.W.2d at 207; MacConnell v. Hill , 569 S.W.2d 524, 528 (Tex. App.—Corpus Christi–Edinburg 1978, no writ); see also Thompson v. Wooten , 650 S.W.2d 499, 500 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.). Additional instruction in comparative question if negligence of child and adult apportioned. In MacConnell , 569 S.W.2d at 528, the court recommended the fol lowing instruction in comparative negligence cases if the jury must apportion negli gence between a child and an adult: In answering this question, you should take into consideration that Don Davis was an adult and Paul Payne, Jr. was a child. If given, this instruction should be placed immediately after the proportionate respon sibility question.

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