Texas PJC Malpractice 2022

PJC 66.3

P REMISES L IABILITY —T HEORIES OF R ECOVERY

actual control is generally a question of fact for the jury.” Lee Lewis Construction, Inc. , 70 S.W.3d at 783; see also Shell Oil Co. v. Khan , 138 S.W.3d 288, 292 (Tex. 2004). Therefore, if the case does not involve a contractual retention of the right of control or if the trial court rules as a matter of law that the occupier or property owner did not retain a contractual right to control, the parties should omit the bracketed phrase or retain from the question and submit to the jury only the issue of actual exer cise of control. If the trial court rules as a matter of law that the occupier or property owner did retain a contractual right of control, this question may not need to be sub mitted unless a fact issue exists with respect to actual exercise of control. See, e.g., Elliott-Williams Co. v. Diaz , 9 S.W.3d 801, 804 (Tex. 1999) (if right of control has contractual basis, circumstance of no actual exercise of control will not absolve con tractor of liability). Source of question. PJC 66.3 is based on United Scaffolding , 537 S.W.3d at 473– 79.

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