Texas PJC Malpractice 2022

PJC 65.9

P REMISES L IABILITY —D EFINITIONS AND I NSTRUCTIONS

PJC 65.9 Emergency When a person is confronted by an “emergency” arising suddenly and unex pectedly, which was not proximately caused by any negligence on his part and which, to a reasonable person, requires immediate action without time for deliberation, his conduct in such an emergency is not negligence or failure to use ordinary care, if, after such emergency arises, he acts as a person of ordi nary prudence would have acted under the same or similar circumstances. COMMENT When to use—given immediately after definition of “negligence.” Because “emergency” 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). Source of instruction. The instruction for “emergency” is derived from Thomas v. Oldham , 895 S.W.2d 352, 360 (Tex. 1995) (citing McDonald Transit, Inc. v. Moore , 565 S.W.2d 43, 44 (Tex. 1978)). 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. “Emergency” 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 sup ported 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 whether to give an inferential rebut tal instruction is subject to a harmless error analysis. Gunn , 554 S.W.3d at 676; Thota , 366 S.W.3d at 687.

174