PJC Business

PJC 115.28

D AMAGES

Source of question and instructions. Tex. Lab. Code §451.002 provides for recovery of reasonable damages. The elements of damages given in PJC 115.28 are not meant to be exclusive, but rather are those most commonly allowed in employment cases. See, e.g., Carnation Co. v. Borner , 610 S.W.2d 450, 453–54 (Tex. 1980) (per mitting recovery for future lost wages, retirement benefits, and other benefits ascer tainable with reasonable certainty); Pacesetter Corp. v. Barrickman , 885 S.W.2d 256, 259 (Tex. App.—Tyler 1994, no writ) (award of past and future employee benefits); Worsham Steel Co. v. Arias , 831 S.W.2d 81, 85–86 (Tex. App.—El Paso 1992, no writ) (mental anguish as a compensable injury); DeFord Lumber Co. v. Roys , 615 S.W.2d 235, 237–38 (Tex. App.—Dallas 1981, no writ) (award of damages for lost wages in the past). In this instruction, damages for “lost earnings” subsumes the elements of lost earnings and loss of earning capacity. See Strauss v. Continental Airlines, Inc. , 67 S.W.3d 428, 435–36 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Equitable relief. In addition to the reasonable damages allowed under Tex. Lab. Code §451.002, the trial court may reinstate the employee (Tex. Lab. Code §451.002(b)) or restrain for cause a violation of section 451.001 (Tex. Lab. Code § 451.003). Mitigation. For a defensive instruction on mitigation, see PJC 115.8 and 115.25. Exemplary damages. See PJC 115.38. After-acquired evidence of employee misconduct. If the employer has pleaded the discovery of evidence of employee misconduct acquired only after the employee’s employment was terminated, see PJC 107.8 for the applicable instruction. See Trico Technologies Corp. v. Montiel , 949 S.W.2d 308 (Tex. 1997). Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving undefined or

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