PJC Business

PJC 115.35

D AMAGES

Appropriate instructions tailored to the specific damages at issue should be submitted with this question. Some illustrative instructions that could be modified to submit these elements of damages include PJC 115.10 (mental anguish) and 115.26 (lost earn ings). Source of instruction. In appropriate cases, damages for invasion of privacy can include mental anguish (“Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful invasion of the right of privacy because the injury is essentially mental and subjective, not actual harm done to the plaintiff’s body.” Billings v. Atkinson , 489 S.W.2d 858, 861 (Tex. 1973); see also Patel v. Hussain , 485 S.W.3d 153, 177–78 (Tex. App.—Houston [14th Dist.] 2016, no pet.); Beaumont v. Basham , 205 S.W.3d 608, 615–18 (Tex. App.—Waco 2006, pet. denied) (supporting award of damages for mental anguish based on invasion of pri vacy)); lost wages; or other special damages proximately caused by the invasion of privacy. Household Credit Services, Inc. v. Driscol , 989 S.W.2d 72 (Tex. App.—El Paso 1998, pet. denied) (supporting award of mental anguish damages, exemplary damages, and damages for lost wages and future lost wages in invasion of privacy action). In the case of misappropriation of name or likeness, damages can also include the loss of the exclusive use of the value so appropriated ( see Restatement (Second) of Torts §§ 652H cmt. a, 652H(c) (1977)). 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 potentially overlapping categories of damages. In those cases, the following language should be substituted for the instruction to consider each element separately: Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money

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