Texas PJC Malpractice 2022

PJC 66.8

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.8

Premises Liability—Plaintiff-Licensee Injured by Gross Negligence

QUESTION ______ Was Don Davis ’s gross negligence, if any, a proximate cause of the [ injury ] [ occurrence ] in question? Don Davis was grossly negligent with respect to the condition of the prem ises if— 1. the condition posed an unreasonable risk of harm, and 2. Don Davis both failed to adequately warn Paul Payne of the danger a. which, when viewed objectively from the standpoint of Don Davis at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and b. of which Don Davis had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. COMMENT When to use. PJC 66.8 presents a ground of recovery independent of that found in PJC 66.4 or 66.5. It may be used as a basis for recovery of actual damages in a case in which the plaintiff-licensee claims to have been injured as a result of the defendant’s gross negligence. The possessor of a premises owes to the licensee the duty not to injure the licensee by willful or wanton conduct or gross negligence. Sampson v. Uni versity of Texas at Austin , 500 S.W.3d 380, 385 (Tex. 2016) (citing State Department of Highways & Public Transportation v. Payne , 838 S.W.2d 235, 237 (Tex. 1992)). In a premises case based on this liability theory, the premises occupier’s gross neg ligence may be compared with the ordinary negligence of the plaintiff. See Jannette v. Deprez , 701 S.W.2d 56, 59 (Tex. App.—Dallas 1985, writ ref’d n.r.e.), abrogated on other grounds by Reagan v. Vaughn , 804 S.W.2d 463 (Tex, 1990). and failed to make that condition reasonably safe, and 3. Don Davis ’s conduct was an act or omission— Answer “Yes” or “No.” Answer: _______________

192