Texas PJC Malpractice 2022

PJC 66.5

P REMISES L IABILITY —T HEORIES OF R ECOVERY

steps to make the premises safe.” The jury charge in Del Lago used the PJC language in element 4, and the court noted that “[t]he jury could have construed the charge to mean, and could have made the factual finding, that ordinary care under the circum stances required something other than a warning.” Del Lago Partners, Inc. , 307 S.W.3d at 771 n.32. The court, however, did not offer guidance on whether a trial court may modify element 4 or the definition of “ordinary care” in cases where the evidence shows that no warning can adequately substitute for making the condition of the prem ises safe. Use of “injury” or “occurrence.” See PJC 66.1. Substitution of “death.” Under the Texas wrongful death statute, a defendant’s liability may be predicated only on “an injury that causes an individual’s death.” Tex. Civ. Prac. & Rem. Code §71.002(b); see also Kramer v. Lewisville Memorial Hospi tal , 858 S.W.2d 397, 404 (Tex. 1993). Therefore, in a case involving a claim for wrongful death, the word “death” may be substituted for the word “injury” in the neg ligence question. Accompanying definitions and instructions. The standard of care of a defen dant owner or occupier of a premises is set out in the above instruction. Williams , 940 S.W.2d at 584. PJC 65.2 should be used when the conduct of a contributorily negligent plaintiff or a defendant who is not an owner or occupier of a premises is also to be con sidered by the jury. PJC 65.3 should be used for a child’s standard of care. The defini tion of “proximate cause” is set out in PJC 65.4. If the evidence raises “new and independent cause,” the definitions in PJC 65.5 should be used in lieu of the definition of “proximate cause” in PJC 65.4. Plaintiff’s negligence. If the plaintiff’s negligence is not in issue, the plaintiff’s name ( Paul Payne ) should not be included in the above question. In a case in which the plaintiff’s negligence is in issue, or in any case including more than one defendant, a proportionate responsibility question should follow PJC 66.5. Tex. Civ. Prac. & Rem. Code §§ 33.001–.017. See PJC 66.11 and 66.13. Plaintiff’s status as to easement holder defendant. The plaintiff’s status as to an easement holder defendant depends on whether the easement is exclusive or nonex clusive. An exclusive easement gives the holder the right to exclusive possession; con versely, a nonexclusive easement does not convey the right to exclude others from the easement. If a plaintiff sues a nonexclusive easement holder, his status as to the land owner is determinative—that is, if the plaintiff is an invitee as to the landowner, then he will be an invitee as to the easement holder. If a plaintiff sues an exclusive easement holder, then his status depends on his relationship to the easement holder, not to the landowner. Hernandez v. Heldenfels , 374 S.W.2d 196 (Tex. 1963); Roberts v. Friendswood Development Co. , 886 S.W.2d 363, 367 (Tex. App.—Houston [1st Dist.] 1994, no writ); Phillips Pipe Line Co. v. Razo , 409 S.W.2d 565, 571 (Tex. App.—Tyler 1966), rev’d on other grounds , 420 S.W.2d 691 (Tex. 1967); Denton County Electric

186