Texas PJC Malpractice 2022

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.9

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. See generally Hernandez v. Heldenfels , 374 S.W.2d 196, 198–99 (Tex. 1963). See also Allen v. Texas & Pacific Railway Co. , 430 F.2d 982, 985 (5th Cir. 1970) (Texas law); 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, 570 (Tex. App.—Tyler 1966), rev’d on other grounds , 420 S.W.2d 691 (Tex. 1967). 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 . 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. 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 considered by the jury. PJC 65.3 should be used for a child’s standard of care. The definition of “proximate cause” is set out in PJC 65.4. If the evidence raises “new and independent cause,” the defini tions in PJC 65.5 should be used in lieu of the definition of “proximate cause” in PJC 65.4. 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

195