Texas PJC Malpractice 2022

PJC 65.4

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.4 Proximate Cause—Premises “Proximate cause” means a cause that was a substantial factor in bringing about an [ injury ] [ occurrence ], and without which cause such [ injury ] [ occur rence ] would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the [ injury ] [ occurrence ], or some similar [ injury ] [ occur rence ], might reasonably result therefrom. There may be more than one proxi mate cause of an [ injury ] [ occurrence ]. COMMENT Source of definition. This definition of “proximate cause” is based on language from Transcontinental Insurance Co. v. Crump : [W]e first examine the causation standards for proximate cause and produc ing cause. “The two elements of proximate cause are cause in fact (or sub stantial factor) and foreseeability. . . . Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred.” IHS Cedars Treatment Ctr. v. Mason , 143 S.W.3d 794, 798–99 (Tex. 2004). “The approved definition of ‘proximate cause’ in negligence cases and the approved definition of ‘producing cause’ in compensation cases are in substance the same, except that there is added to the definition of proximate cause the element of fore seeableness.” [ Texas Indemnity Insurance Co. v. Staggs , 134 S.W.2d 1026, 1028–29 (Tex. 1940).] In other words, the producing cause inquiry is con ceptually identical to that of cause in fact. Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 222–23 (Tex. 2010). See also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007). The “and without which cause” language of this instruction follows a long-accepted “strict but for” causation test applicable in most tort cases. See Rudes v. Gottschalk , 324 S.W.2d 201, 207 (Tex. 1959). However, the Texas Supreme Court has articulated an “aggregate-level” but-for causation test applicable to multiple negligent actors committing concurrent negligence “[i]f the negligent acts of each provider are so con current that they cannot be examined in isolation.” Pediatrics Cool Care v. Thompson , 649 S.W.3d 152, 159–61 (Tex. 2022) (citing Bustamante v. Ponte , 529 S.W.3d 447, 457 (Tex. 2017), and Bostic v. Georgia-Pacific Corp. , 439 S.W.3d 332, 344–45 (Tex. 2014)). Under such a circumstance, “the correct approach is to consider whether each provider’s individual negligence was a substantial factor in [causing the plaintiff’s injury] and whether the providers’ combined negligence was a but-for cause of [the plaintiff’s injury].” Pediatrics Cool Care , 649 S.W.3d at 160. To date, no Texas case

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