Texas Premises Liability Jury Definitions, Instructions, and Questions for Criminal Actor Cases-A Pattern to Ease the Madness?
Stilwell, James H., The Review of Litigation
James H. Stilwell*
I. Introduction and Background
A prolific number of premises liability decisions, involving suits arising out of crimes by third party actors against tenants or invitees on a premises, have been rendered by Texas appellate courts in recent years. The Texas Supreme Court has issued a flood of at least thirteen opinions in premises liability cases in the past fourteen years.1 In the last fifteen months, courts of appeals have contributed numerous opinions as well.2 The 1997 Texas Pattern Jury Charges3 provide additional aid regarding the subject of this Article; however, the provided premises liability pattern jury charges contain a warning against their use in activity-based premises liability cases.4
The art of advocacy is essential in preparing and arguing for particular jury definitions, instructions, and questions for premises/crime cases due to the morass of existing case law. With the plethora of opinions that have been rendered, a variety of arguments can be made as to which definitions, instructions, and questions should be given to juries in these types of cases. Heed should be given, however, to existing case law.5 Providing the jury with an improper charge6 can cause the reversal of a hard fought victory.7 Furthermore, if a plaintiff fails to include all of the requisite elements in the charge, the plaintiff may have waived the claim.8
Understanding the foundational background of the basis for civil liability of a premises owner or property manager for crimes committed against tenants or invitees on his or her property is a prerequisite for preparing a proper jury charge.9 This Article begins by providing the practicing litigator with an overview of jury charge drafting and submission procedure, followed by the basic law in premises liability criminal-actor cases-focusing on recent case decisions. The Article then examines and analyzes the 1997 Texas Pattern Jury Charge for premises liability cases. Finally, this Article sets forth and provides arguments for additional premises liability charge definitions, instructions, and jury questions not present in the 1997 Texas Pattern Jury Charge.lo The Article also refers the reader to an appendix containing a draft jury charge, with definitions and instructions, as well as citations to the existing case law basis for each item.
B. Background-Drafting and Submitting the Jury Charge
While a number of different Rules of Civil Procedure relate to the submission of the jury charge,11 the Rules themselves do not govern the drafting or contents of the charge.12 The only guidance specifically provided by the Texas Rules of Civil Procedure is set forth in Rule 278. Rule 278 states in part, "The court shall submit [to the jury, in a written charge,'3] the questions, instructions and definitions . . . which are raised by the written pleadings and the evidence."14 As the contents of the jury charge are based on the substantive law and law of the case, a number of different sources exist to aid in drafting an appropriate charge. The State Bar of Texas has prepared a series of Texas Pattern Jury Charges (hereinafter "Pattern Charges");15 however, these are intended as guides to assist attorneys and judges and should not be indiscriminately used. The introduction to one of the volumes of the Pattern Charges states:
The purpose of this volume . . . is to assist the bench and bar in preparing the court's charge in jury cases. It provides definitions, instructions, and questions needed to submit jury charges in . . . premises . . . cases. The pattern charges are suggestions and guides to be used by a trial court if they are applicable and proper in a specific case.16
Wary practitioners should also consult the statutes and cases that govern the particular matter at bar when preparing a draft jury charge." The Pattern Charges have been held improper before.18
Different courts will require attorneys to submit their draft jury charges at different times. …