Texas PJC Malpractice 2022

PJC 66.10

P REMISES L IABILITY —T HEORIES OF R ECOVERY

COMMENT When to use. PJC 66.10 may be used if the plaintiff seeks to impose liability on the owner or occupier for harm caused to trespassing children by structures or other artificial conditions on the premises. It is immaterial whether the child was attracted to the premises by the structure or artificial condition as long as the presence of the child should have been reasonably anticipated. Eaton v. R.B. George Investments, Inc. , 260 S.W.2d 587, 590 (Tex. 1953); Banker v. McLaughlin , 208 S.W.2d 843, 847, 849 (Tex. 1948) (adopting Restatement (Second) of Torts §339). Use of “injury” or “occurrence.” See PJC 66.1. Substitute particular attractive nuisance. The alleged attractive nuisance should be substituted for the phrase the oil derrick in Question 1. Accompanying definitions and instructions. PJC 66.10 is designed to be accompanied by the appropriate definitions of the standard of care and “proximate cause” set out in PJC 65.2–65.4. PJC 65.2 should be used when the conduct of a con tributorily 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. 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. Derivative claimant. In cases involving a derivative claimant (see PJC 66.13), the above question must also include the name of the derivative claimant along with that of the primary claimant. Warning as inadequate substitute. In Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 771 n.32 (Tex. 2010), the Texas Supreme Court observed that “in some circumstances no warning can adequately substitute for taking reasonably prudent steps to make the premises safe.” The jury charge in Del Lago used the PJC language in element 3, 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 3 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. Age of child. Whether the child is within the age bracket to be protected by the doctrine is a law question. Children under fourteen or fifteen years of age, depending on the type of dangerous condition, normally are included. Massie v. Copeland , 233 S.W.2d 449, 453 (Tex. 1950); Johns v. Fort Worth Power & Light Co. , 30 S.W.2d 549, 551, 554–55 (Tex. App.—Fort Worth 1930, writ ref’d). But see Texas Utilities Electric Co. v. Timmons , 947 S.W.2d 191, 193–96 (Tex. 1997) (doctrine did not apply to four-

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