Texas PJC Malpractice 2022

P REMISES L IABILITY —T HEORIES OF R ECOVERY

PJC 66.10

teen-year-old electrocuted on electrical tower when decedent was specifically aware of risk involved). Whether the contributory negligence of a child should be submitted to the jury depends on the age of the child. As a matter of law, a child four years and ten months of age is not contributorily negligent. Yarborough v. Berner , 467 S.W.2d 188, 190 (Tex. 1971). If the child is five years old, a jury issue may be presented if the evidence demonstrates the child engaged in the conduct was subjectively aware of the conse quences. See Gulf Production Co. v. Quisenberry , 97 S.W.2d 166, 168 (Tex. 1936). See also Kerr v. Brown , 279 S.W.3d 697, 699–700, 699 n.4 (Tex. App.—Amarillo 2007, pet. denied) (explaining holding in Quisenberry ). If the contributory negligence of a child of “tender years” is submitted, the definitions of “ordinary care” and “negli gence” used with regard to the child should conform to PJC 65.3. Condition or location in dispute. The foregoing questions assume that there is no dispute that the condition giving rise to the event was in fact located on premises for which the defendant is legally responsible. If this matter is controverted, an appro priate question may be submitted. Caveat. In Eaton , 260 S.W.2d 587, the court relied heavily on Restatement of Torts §339 subpara. (c) (1934) (carried forward in Restatement (Second) of Torts (1965)), which requires for liability that “the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it.” Eaton , 260 S.W.2d at 589–90. See, e.g. , Texas Utilities Electric Co. , 947 S.W.2d at 193–96. Exceptions to the limitations on joint and several liability. The limitations on joint and several liability set forth in chapter 33 of the Civil Practice and Remedies Code do not apply in certain instances. See Tex. Civ. Prac. & Rem. Code § 33.013. See also chapter 72 in this volume. Settling person, contribution defendant, or responsible third party. See PJC 66.2.

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