PJC General Negligence 2022

P ROPERTY D AMAGES

PJC 32.3

Such alternative measures of damages can include, for those items of small or no actual market value having “their primary value in sentiment,” the subjective loss in value to the owner. City of Tyler v. Likes , 962 S.W.2d 489, 497 (Tex. 1997) (citing Brown v. Frontier Theatres, Inc. , 369 S.W.2d 299, 304–05 (Tex. 1963)). Alternative measures of damages may also encompass the “intrinsic value” to the property owner of the items destroyed. Gilbert Wheeler , 449 S.W.3d at 482–83 (recognizing that a landowner could be entitled to compensation for intrinsic value of destroyed trees con sisting of loss of aesthetic and utilitarian value conferred by trees on real property where there was no or only nominal diminution in value to land itself). Such alterna tive measures of damages as intrinsic or subjective value, however, does not extend to the loss of pets. Strickland v. Medlen , 397 S.W.3d 184, 198 (Tex. 2013) (declining to extend damages based on intrinsic or subjective value to loss of pets and limiting such damages to fair market or actual economic value of pet). Finally, alternative measures of damages can also include the cost to replace or reproduce the item destroyed. Wise , 476 S.W.3d at 696–97 (citing International-Great Northern Railroad Co. v. Casey , 46 S.W.2d 669, 670 (Tex. Comm’n App. 1932, holding approved)). In any event, before intrinsic or subjective value measures of damages may be applied to the loss of per sonal property, the burden of proof is on the plaintiff to show, first, that fair market value is unavailable or nominal and, then, if appropriate, that replacement value is unavailable. See Brown , 369 S.W.2d at 305. Instruction not to reduce amounts because of plaintiff’s negligence. If the plaintiff’s negligence is also in question, the exclusionary instruction given in this PJC immediately before the answer blanks is proper. See Tex. Civ. Prac. & Rem. Code § 33.001; Tex. R. Civ. P. 277. This instruction should be omitted if there is no claim of the plaintiff’s negligence. Prejudgment interest recoverable. Prejudgment interest is recoverable on prop erty damages. Tex. Fin. Code §304.102; see also J&D Towing , 478 S.W.3d at 677 n.199 (prejudgment interest is statutorily required on judgment that includes compen sation for both fair market value and loss-of-use damages). Mitigation of damages. If the defendant alleges that the plaintiff failed to miti gate its damages, see PJC 28.9.

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