Texas PJC Malpractice 2022

PJC 71.8

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.8

Negligent Undertaking

QUESTION ______ Did the negligence, if any, of those named below proximately cause the [ injury ] [ occurrence ] in question? Don Davis was negligent if— 1. Don Davis undertook to perform services that he knew or should have known were necessary for Paul Payne ’s protection, and 2. Don Davis failed to exercise reasonable care in performing those services, and 3. either— a. [ Paul Payne ] relied on Don Davis ’s performance, or b. Don Davis ’s performance increased Paul Payne ’s risk of harm. Answer “Yes” or “No” for each of the following:

1. Don Davis 2. Paul Payne 3. Sam Settlor 4. Responsible Ray 5. Connie Contributor

COMMENT When to use. PJC 71.8 should be used if the plaintiff seeks recovery for damages resulting from a negligent undertaking. See Nall v. Plunkett , 404 S.W.3d 552, 555–56 (Tex. 2013); Torrington Co. v. Stutzman , 46 S.W.3d 829, 838 (Tex. 2000); Restatement (Second) of Torts §§323, 324A (1965). The Committee expresses no opinion about how the elements above should be modified if the negligent undertaking does not involve safety-related services. 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

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