PJC General Negligence 2022

P ERSONAL I NJURY D AMAGES

PJC 28.4

COMMENT When to use. PJC 28.4 should be used to submit questions on damages arising out of injury to a party’s spouse. The above question separately submits past and future damages. See Tex. Fin. Code §304.1045. The “do not compensate twice” instruction is adapted from Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003). Loss of consortium. A spouse has a cause of action for loss of consortium as a result of physical injuries caused to the other spouse by the negligence of a third party. Browning-Ferris Industries, Inc. v. Lieck , 881 S.W.2d 288 (Tex. 1994); Whittlesey v. Miller , 572 S.W.2d 665 (Tex. 1978); see also Reed Tool Co. v. Copelin , 610 S.W.2d 736 (Tex. 1980). An action for loss of consortium in favor of the deprived spouse against an intentional tortfeasor-employer of the impaired spouse has been recognized. Copelin , 610 S.W.2d 736. Loss of household services. A spouse has a cause of action for loss of services of the other spouse, which is separate from any cause of action for loss of consortium. Whittlesey , 572 S.W.2d at 666 & n.2. “Services” generally means the performance by a spouse of household and domestic duties. Whittlesey , 572 S.W.2d at 666 n.2. These damages result from a physical injury to the spouse caused by the negligence of a third party. See, e.g., EDCO Production, Inc. v. Hernandez , 794 S.W.2d 69, 77 (Tex. App.— San Antonio 1990, writ denied). Separate property. A recovery for loss of services and loss of consortium is the separate property of the spouse claiming the loss. Whittlesey , 572 S.W.2d at 669. Derivative damages subject to reduction because of negligence of injured spouse. Because a claim for loss of services and consortium is derived from the injured spouse’s claim, the recovery by the noninjured spouse will be reduced by the percentage of contributory negligence that caused the occurrence attributable to the injured spouse. See Copelin , 610 S.W.2d at 738–39. Separate answer for each element. For actions filed on or after September 1, 2003, the Code requires economic damages to be determined “separately from the amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code §41.008(a). Additionally, broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to sup port one or more of the elements submitted. Harris County v. Smith , 96 S.W.3d 230 (Tex. 2002). If there is any question about the sufficiency of the evidence to support one or more of the elements, the Committee recommends that the elements of damages be separately submitted to the jury as above. Broad-form submission of elements. For an example of a broad-form submis sion of damages elements, see PJC 28.3 comment, “Broad-form submission of ele ments.”

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