Texas PJC Malpractice 2022

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.8

PJC 65.8

Act of God

If an occurrence is caused solely by an “act of God,” it is not caused by the negligence of any person. An occurrence is caused by an act of God if it is caused directly and exclusively by the violence of nature, without human inter vention or cause, and could not have been prevented by reasonable foresight or care. COMMENT When to use—given immediately after definition of “proximate cause.” Because “act of God” is an inferential rebuttal defense, it can be submitted only by instruction. See Tex. R. Civ. P. 277; Thota v. Young , 366 S.W.3d 678, 692 (Tex. 2012). As noted in the “Caveat” section below, the submission of any inferential rebuttal instruction is never mandatory, and its submission remains within the discretion of the trial court. Gunn v. McCoy , 554 S.W.3d 645, 676 (Tex. 2018). It is appropriate to sub mit PJC 65.8 if there is evidence (1) the loss was due directly and exclusively to an act of nature and without human intervention; (2)no amount of foresight or care which could have been reasonably required of the defendant could have prevented the injury; and (3)the act of nature was unusual or unprecedented. Dillard v. Texas Electric Cooperative , 157 S.W.3d 429, 433 n.5 (Tex. 2005); McWilliams v. Masterson , 112 S.W.3d 314, 320 (Tex. App.—Amarillo 2003, pet. denied). 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. “Act of God” is an inferential rebuttal instruction. Scott v. Atchinson, T & SFR Co. , 572 S.W.2d 273, 279 (Tex. 1978). 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 man datory, Gunn , 554 S.W.3d at 676; (3)multiple inferential rebuttal instructions have “the potential to skew the jury’s analysis,” Dillard , 157 S.W.3d at 433; and (4) the trial court’s decision whether to give an inferential rebuttal instruction is subject to a harm less error analysis. Gunn , 554 S.W.3d at 676; Thota , 366 S.W.3d at 687.

173