Texas PJC Malpractice 2022

PJC 66.9

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.9

Premises Liability—Plaintiff Is Trespasser

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 66.9 may be used in a suit in which the plaintiff-trespasser sues a premises defendant for gross negligence. See Jannette v. Deprez , 701 S.W.2d 56, 59 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (in premises case, defendant’s gross negli gence may be compared with plaintiff’s ordinary negligence). PJC 66.9 also may be adapted for use in suits under the Texas recreational use stat ute, Tex. Civ. Prac. & Rem. Code ch. 75, which elevates the plaintiff’s status to that of a trespasser. See Tex. Civ. Prac. & Rem. Code §75.002. For a discussion of the stan dard of care owed to recreational users of property asserting premises liability claims under chapter 75, see State v. Shumake , 199 S.W.3d 279, 286–88 (Tex. 2006) (holding that Tex. Civ. Prac. & Rem. Code ch. 41 gross negligence standard, rather than com mon-law trespasser standard, applies under ch. 75). Predicate questions submitting other conditions necessary to incur liability under the recreational use statute may also be required. and failed to make that condition reasonably safe, and 3. Don Davis ’s conduct was an act or omission— Answer “Yes” or “No.” Answer: _______________

194