PJC Business

PJC 115.34

D AMAGES

damages in defamation claims are the actual pecuniary losses proximately caused by a defamation. Anderson , 550 S.W.3d at 618; Hurlbut v. Gulf Atlantic Life Insurance Co. , 749 S.W.2d 762, 766–67 (Tex. 1987). Courts have recognized a variety of special damages in defamation cases. Brown v. Petrolite Corp. , 965 F.2d 38, 46 (5th Cir. 1992) (increased advertising costs to respond to defamation); Peshak v. Greer , 13 S.W.3d 421, 427 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.) (loss of earning capac ity); Wenco of El Paso/Las Cruces, Inc. v. Nazario , 783 S.W.2d 663, 667 (Tex. App.— El Paso 1989, no writ) (past and future loss of wages); Houston Belt & Terminal Rail way Co. v. Wherry , 548 S.W.2d 743, 753 (Tex. App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.) (loss of employment). Source of instruction. This question is based on Hurlbut , 749 S.W.2d at 766–67. Multiple statements. Chapter 110 of this volume assumes a single allegedly defamatory statement. If multiple statements are at issue, separate submissions may be required. For example, as a matter of common law and constitutional law damages are recoverable only for false and defamatory statements. See Hancock , 400 S.W.3d at 65; Philadelphia Newspapers, Inc. v. Hepps , 475 U.S. 767, 777 (1986) (libel plaintiff “must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant”); NAACP v. Claiborne Hardware Co. , 458 U.S. 886, 918 (1982) (no damages can be awarded for economic losses caused by expression protected by First Amendment); Bell Publishing Co. v. Garrett Engineering Co. , 170 S.W.2d 197, 206 (Tex. 1943) (under common law, where affir mative defense of substantial truth has been submitted to jury, damages are recover able only for defamatory statements that are not found to be true: “[W]here some of the defamatory charges are found to be true and others false, the jury should be instructed to consider only such damages as resulted from the false . . . .”). For further discussion, see PJC 116.2 regarding broad-form issues and the Casteel doctrine. Elements considered separately. The instruction not to compensate twice for the same loss is taken from Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003) and is proper in cases involving undefined or potentially overlapping cate gories of damages. In other cases, the following instruction may be substituted: Consider the following elements of damages, if any, and none other. Past and future damages submitted separately. Separation of past and future damages is required because “[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 property damage cases).

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