PJC General Negligence 2024

PJC 28.3

P ERSONAL I NJURY D AMAGES

Existence of injury. Under Texas & Pacific Railway v. Van Zandt , 317 S.W.2d 528 (Tex. 1958), a separate question was required on the existence of injury if a genu ine dispute was raised by the evidence. Now, given the preference for broad-form sub mission, Lemos v. Montez , 680 S.W.2d 798 (Tex. 1984), the Committee believes that a separate question is no longer necessary. The issue, if raised, would be subsumed under the “occurrence” version of the damages question, which includes the phrase “if any,” or in the liability question (which includes the phrase “if any”) if the case is sub mitted using “injury.” Further, if there is doubt whether the injury resulted from the occurrence in question or from another cause, an exclusionary instruction may be appropriate. See PJC 28.8 (for other condition or preexisting condition) and 28.9 (for failure to mitigate). Physical impairment. the following language may be considered if the element of physical impairment is included: “Physical Impairment” means a loss or diminution of the injured party’s ability to engage in tasks or activities for one’s own benefit or enjoyment. In assessing damages for physical impairment, you may consider the loss of enjoyment of life. The effect of the physical impairment must be substantial and extend beyond any pain, suffer ing, mental anguish, lost wages, or diminished earning capacity. If the definition of physical impairment is provided to the jury, then it is appropriate to advise the jury that it may consider loss of enjoyment of life as a factor, but the jury should be instructed that “the effect of any physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earn ing capacity and that a claimant should not be compensated more than once for the same elements of loss or injury.” Golden Eagle Archery, Inc. , 116 S.W.3d at 772; see also Dawson v. Briggs , 107 S.W.3d 739, 752 (Tex. App.—Fort Worth 2003, no pet.) (“Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party’s former lifestyle.”). If both physical impairment and lost earning capacity are included, the instruction in the paragraph immediately following the damages question (beginning with “Consider the elements of damages listed below and none other.”) will avoid a possible double recovery. See Golden Eagle Archery, Inc. , 116 S.W.3d at 770 (quoting French v. Grigsby , 567 S.W.2d 604, 608 (Tex. App.—Beaumont 1978), writ ref’d n.r.e. , 571 S.W.2d 867 (Tex. 1978) (per curiam)). In determining whether the evidence supports an award for physical impairment “distinct from losses compensable under other damages categories....Texas courts have looked to whether (1) impediments to the plaintiff’s non-work related activities are obvious from the injury itself; or (2) the plaintiff produces some evidence of spe cific non-work related tasks or activities he can no longer perform.” Patlyek v. Brit tain , 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied) (op. on reh’g). See, e.g. , Patlyek , 149 S.W.3d at 787 (difficulty eating and communicating with others;

404