Texas PJC Malpractice 2022

PJC 71.7

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

COMMENT When to use. PJC 71.7 may be used to submit a negligence theory to the jury in a products liability case. A negligence theory may be premised on negligent manufac turing, negligent design, or negligent marketing (i.e., warnings or instructions). See, e.g., Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170, 181 (Tex. 2004) (negli gent marketing); American Tobacco Co. v. Grinnell , 951 S.W.2d 420, 437 (Tex. 1997) (negligent manufacture); Gonzales v. Caterpillar Tractor Co. , 571 S.W.2d 867, 871 (Tex. 1978) (negligent design). Although the care taken by the manufacturer of a prod uct is not a consideration in strict liability, it is “the ultimate question in a negligence action.” Gonzales , 571 S.W.2d at 871. Both strict liability and negligence require proof that the injury resulted from a defect in the product. See Toshiba International Corp. v. Henry , 152 S.W.3d 774, 784–85 (Tex. App.—Texarkana 2004, no pet.) (before negligence theory can be used in products case, there must be proof of defect in product); Ford Motor Co. v. Miles , 141 S.W.3d 309, 315 (Tex. App.—Dallas 2004, pet. denied) (whether plaintiff seeks recovery because of negligence or strict liability, he must prove injury resulted from product defect); Simms v. Southwest Texas Method ist Hospital , 535 S.W.2d 192, 197 (Tex. App.—San Antonio 1976, writ ref’d n.r.e.) (whether plaintiff sought recovery because of negligence, breach of warranty, or strict liability, she had to prove injury resulted from defect in product). The definitions of manufacturing, design, and marketing defect in PJC 71.3, 71.4, and 71.5 should be incorporated in the submission depending on the defect theory. In a negligent design case, the instruction and definition of “safer alternative design” should also be submit ted as shown in PJC 71.4. See Tex. Civ. Prac. & Rem. Code §§ 82.001, 82.005. Source of “design defect” definition. The definition of “design defect” is based on Tex. Civ. Prac. & Rem. Code §82.005 and Emerson Electric Co. v. Johnson , 627 S.W.3d 197, 205 (Tex. 2021) (discussing the factors listed in American Tobacco Co. , 951 S.W.2d 420). 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. Caveat—“unavoidably unsafe” products. The Committee expresses no opinion on the applicability of the producing-cause standard to “unavoidably unsafe” products involving a foreseeability element. Courts have recognized that certain products, though manufactured as designed and intended, are “unavoidably unsafe.” Manufac turers of such products—for example, prescription drugs—are generally not liable for resulting harm absent proof that the manufacturer knew or reasonably should have known of the risk of harm at the time of marketing. Restatement (Second) of Torts § 402A cmts. j, k; Restatement (Third) of Torts ch. 1 topic 2—Liability Rules Applica-

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