Texas PJC Malpractice 2022

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.8

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. Substitute particular condition. If it is agreed that the case involves only one condition, the Committee recommends that the particular condition (e.g., a grape on the floor ) be substituted for the phrase the condition . Warning as inadequate substitute. In Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 771 n.32 (Tex. 2010), an opinion involving an ordinary care standard, the Texas Supreme Court observed that “in some circumstances no warning can ade quately substitute for taking reasonably prudent steps to make the premises safe.” The court has not ruled on whether a warning can be an inadequate substitute in premises cases involving a gross negligence standard. Source of instruction. Elements 1 and 2 are from State v. Williams , 940 S.W.2d 583, 584 (Tex. 1996) (per curiam). That portion of the above instruction relating to gross negligence (element 3) is taken from section 41.001(11) of the Texas Civil Prac tice and Remedies Code (definition of “gross negligence”). An affirmative answer by the jury to the above question provides a basis for recovering only actual damages. If a plaintiff seeks both actual and exemplary damages, both PJC 66.8 and PJC 85.3 are required. The jury must unanimously answer “Yes” to PJC 66.8 as a condition to sub mitting the exemplary damages question, and the jury must be unanimous in its award of exemplary damages. See Tex. Civ. Prac. & Rem. Code § 41.003(d).

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