Texas PJC Malpractice 2022

PJC 71.4

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

1988), rev’d on other grounds , 776 S.W.2d 152 (Tex. 1989) (plaintiff must establish that product was in defective condition at time the product left the hands of the manu facturer or the particular seller) (citing Restatement (Second) of Torts §402A cmt. g (1965)); AlliedSignal, Inc. v. Moran , 231 S.W.3d 16, 21 (Tex. App.—Corpus Christi– Edinburg 2007) (en banc) (op. on reh’g), pet. granted, judgm’t vacated w.r.m. sub nom. DaimlerChrysler Corp. v. Moran , No. 07-0533 (Tex. May 2, 2008), available at https://search.txcourts.gov/Case.aspx?cn=07-0533&coa=cossup (plaintiff must establish that product was in defective condition when it left the hands of the particular seller). Use of “injury” or “occurrence.” See PJC 71.1. 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. Definition of “producing cause.” The appropriate definition of “producing cause” (see PJC 70.1) should accompany PJC 71.4. Liability of nonmanufacturing product sellers. For a discussion of the liability of a nonmanufacturing product seller, see PJC 70.5. Safer alternative design. The duty of a manufacturer respecting safer alternative design was discussed in Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328 (Tex. 1998). Note on submitting strict liability, negligence, and implied warranty theories in same case. When the controlling issues regarding the existence of defect for strict liability, negligence, or implied warranty are functionally identical, “a trial court is not required to, and should not, confuse the jury by submitting differently worded ques tions that call for the same factual finding.” Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 665–66 (Tex. 1999) (affirming refusal in crashworthiness case to submit question on breach of implied warranty in addition to strict products liability ques tion). Because of the overlapping elements of proof, there is a risk of conflicting answers that will necessitate a new trial. See Ford Motor Co. v. Miles , 141 S.W.3d 309, 315–19 (Tex. App.—Dallas 2004, pet. denied); Otis Spunkmeyer, Inc. v. Blakely , 30 S.W.3d 678, 690 (Tex. App.—Dallas 2000, no pet.); see also Hanus v. Texas Utilities Co. , 71 S.W.3d 874, 881 (Tex. App.—Fort Worth 2002, no pet.) (“Commentators and other courts have also recognized that the duty-to-warn analyses of marketing defect and negligence claims are so similar as to be duplicative.”). Caveat—government contractors. The U.S. Supreme Court has held that states may not impose liability for design defects in military equipment if (1) the United States has approved “reasonably precise specifications,” (2) the equipment conformed

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