Texas PJC Malpractice 2022

P RODUCTS L IABILITY —T HEORIES OF R ECOVERY

PJC 71.9

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. Note that PJC 71.9 is applicable only to cases brought under Tex. UCC § 2.314(b)(3). See Plas-Tex, Inc. , 772 S.W.2d at 445 n.4. For cases involving other types of breach of implied warranty, including other types of breach of warranty of merchantability ( see Tex. UCC § 2.314(b)(1), (b)(2), (b)(4), (b)(6)), see PJC 71.10 and 71.11. The Committee expresses no opinion on the applicability of the above defini tion in a case in which the goods are claimed to be unfit, not because of a lack of something, but because they contain more than is desired—for example, a one-ounce weight that actually is two ounces. Personal injury claims may be brought under Texas UCC. Claims for personal injury are recoverable under the Texas UCC. Garcia v. Texas Instruments , 610 S.W.2d 456, 462–63 (Tex. 1980). Personal injury cases may also be brought under the Decep tive Trade Practices–Consumer Protection Act, Tex. Bus. & Com. Code §§ 17.41–.63. For sample questions in a DTPA case, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment . Proximate cause standard. Unlike a cause of action based on strict tort liability, an action based on breach of implied warranty under the Texas UCC requires a finding of “proximate” rather than “producing” cause. Hyundai , 995 S.W.2d at 667. For a defi nition of “proximate cause,” see PJC 70.2. Other defenses. Other defenses may also apply in breach-of-warranty cases. See Tex. UCC §2.605 (waiver of buyer’s objections by failure to particularize), §2.607 (effect of acceptance, notice of breach), § 2.719 (contractual modification or limitation of remedy). The seller must also be a “merchant” as defined in Tex. UCC § 2.104(a). See Nelson v. Union Equity Co-operative Exchange , 536 S.W.2d 635, 641 (Tex. App.—Fort Worth 1976), aff’d on other grounds , 548 S.W.2d 352 (Tex. 1977) (whether seller is “merchant” is jury question). Implied warranties may be disclaimed. Both the implied warranty of merchant ability, Tex. UCC § 2.314, and the implied warranty of fitness for a particular purpose, Tex. UCC §2.315, may be excluded or modified under certain conditions. See Tex. UCC §2.316; Nobility Homes of Texas, Inc. v. Shivers , 557 S.W.2d 77, 82–83 (Tex. 1977). 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-

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