Texas PJC Malpractice 2022

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.5

Caveat. Instructions are proper only if they are raised by the pleadings and the evidence. Tex. R. Civ. P. 278. Submission of an instruction that is not supported by evidence may be reversible error. See Galvan v. Fedder , 678 S.W.2d 596, 598–99 (Tex. App.—Houston [14th Dist.] 1984, no writ). The refusal to give any inferential rebuttal instruction, even if properly requested and supported by the evidence, is not necessarily reversible error. “New and independent cause” is an inferential rebuttal instruction. See Thota , 366 S.W.3d at 684. The Texas Supreme Court has held that (1) trial courts have significant discretion in determining which inferential rebuttal instructions to submit, Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); (2) even if an inferential rebuttal instruction is supported by the evidence, submitting it is not mandatory, Gunn v. McCoy , 554 S.W.3d 645, 676 (Tex. 2018); (3) multiple inferential rebuttal instructions have “the potential to skew the jury’s analysis,” Dillard v. Texas Electric Cooperative , 157 S.W.3d 429, 433 (Tex. 2005); and (4) the trial court’s decision regarding whether to submit an inferential rebuttal instruction is subject to a harmless error analysis. Gunn , 554 S.W.3d at 676; Thota , 366 S.W.3d at 687.

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