Texas PJC Malpractice 2022

P RODUCTS L IABILITY —D EFINITIONS , I NSTRUCTIONS & Q UESTIONS

PJC 70.3

PJC 70.3

New and Independent Cause—Products Liability

A “new and independent cause” of an [ injury ] [ occurrence ] is the act or omission of a separate and independent agency, not reasonably foreseeable, that destroys the causal connection, if any, between the act or omission inquired about and the [ injury ] [ occurrence ] in question. COMMENT When to use. PJC 70.3 should be used in addition to PJC 70.2 if there is evidence that the occurrence was caused by a new and independent cause. See Tarry Warehouse & Storage Co. v. Duvall , 115 S.W.2d 401, 405 (Tex. 1938); Phoenix Refining Co. v. Tips , 81 S.W.2d 60, 61 (Tex. 1935). The Committee expresses no opinion on whether “new and independent cause” applies in a strict tort liability submission involving a producing-cause standard. Com pare V. Mueller & Co. v. Corley , 570 S.W.2d 140, 144–45 (Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.), with Dover Corp. v. Perez , 587 S.W.2d 761, 765 (Tex. App.—Corpus Christi–Edinburg 1979, writ ref’d n.r.e.). Because a new and independent cause is in the nature of an inferential rebuttal, it should be submitted by instruction only. Tex. R. Civ. P. 277. For elements to consider when determining whether a new and independent cause exists, see Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 857–59 (Tex. 2009). The “new and independent cause” instruction is not used when the intervening forces are fore seeable and within the scope of risk created by the actor’s conduct. Dew v. Crown Der rick Erectors, Inc. , 208 S.W.3d 448, 450–53 (Tex. 2006). Caveat. Instructions are proper only if they are raised by the pleadings and the evidence. Tex. R. Civ. P. 278. Submission of an instruction that is not supported by evidence may be reversible error. See Galvan v. Fedder , 678 S.W.2d 596, 598–99 (Tex. App.—Houston [14th Dist.] 1984, no writ). The refusal to give any inferential rebuttal instruction, even if properly requested and supported by the evidence, is not necessarily reversible error. “New and independent cause” is an inferential rebuttal instruction. See Thota v. Young , 366 S.W.3d 678, 684 (Tex. 2012). The Texas Supreme Court has held that (1)trial courts have significant discretion in determining which inferential rebuttal instructions to submit, Mobil Chem. Co. v. Bell , 517 S.W.2d 245, 256 (Tex. 1974); (2) even if an inferential rebuttal instruction is supported by the evidence, submitting it is not mandatory, Gunn v. McCoy , 554 S.W.3d 645, 676 (Tex. 2018); (3)multiple inferential rebuttal instructions have “the potential to skew the jury’s analysis,” Dil lard v. Texas Electric Cooperative , 157 S.W.3d 429, 433 (Tex. 2005); and (4)the trial

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