PJC General Negligence 2024

P ERSONAL I NJURY D AMAGES

PJC 28.3

continuing inability to sleep due to sharp pains, plus inability to run, bicycle, partici pate in triathlons, and play with children; past inability to walk and future difficulties in running, standing, and climbing; inability to ascend or descend stairs or kneel and difficulty in standing for long periods of time; loss of seventy-five percent of strength in left arm, which subsequently contributed to plaintiff’s falling, breaking her leg, and being confined to a wheelchair; and difficulties performing yard work, car mainte nance, and playing racquetball). See also Estrada v. Dillon , 44 S.W.3d 558, 561–62 (Tex. 2001) (per curiam) (evidence of physical impairment must focus on restriction of activities caused by the injury) . Disfigurement. Disfigurement is “that which impairs or injures the beauty, sym metry, or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner.” Goldman v. Torres , 341 S.W.2d 154, 160 (Tex. 1960). Recovery for disfigurement includes recovery for the embarrassment caused by the disfigurement. E.g. , Hopkins County Hospital District v. Allen , 760 S.W.2d 341, 344 (Tex. App.—Texarkana 1988, no writ). Texas courts have upheld jury verdicts for disfigurement based on evidence of burns, scars, lost teeth, contorted limbs, facial deformities, amputations, and other physical injuries and deformities. See, e.g. , Press Energy Services v. Ruiz , 650 S.W.3d 23 (Tex. App.—El Paso 2021, no pet.) (severed ear and hand/shoulder scarring); Critical Path Resources, Inc. v. Cuevas , 561 S.W.3d 523, 572 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (burns); Wal-Mart Stores, Inc. v. Tinsley , 998 S.W.2d 664 (Tex. App.—Texarkana 1999, pet. denied) (surgical scar); Pentes Design, Inc. v. Perez , 840 S.W.2d 75, 81 (Tex. App.—Corpus Christi– Edinburg 1992, writ denied) (teeth); Hopkins County , 760 S.W.2d at 344–45 (surgical scar); Baptist Memorial Hospital System v. Smith , 822 S.W.2d 67, 80 (Tex. App.—San Antonio 1991, writ denied), abrogated on other grounds by Sampson v. Baptist Memo rial Hospital System , 940 S.W.2d 128 (Tex. App.—San Antonio 1996) (contorted limbs and facial deformity); Goldston Corp. v. Hernandez , 714 S.W.2d 350, 353 (Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d n.r.e.) (amputation). Loss of earning capacity. The proper measure of damages in a personal injury case is loss of earning capacity, rather than loss of earnings in the past. Dallas Railway & Terminal v. Guthrie , 210 S.W.2d 550 (Tex. 1948); T.J. Allen Distributing Co. v. Leatherwood , 648 S.W.2d 773 (Tex. App.—Beaumont 1983, writ ref’d n.r.e.). How ever, loss of earnings has been allowed in some cases. See Home Interiors & Gifts v. Veliz , 695 S.W.2d 35 (Tex. App.—Corpus Christi–Edinburg 1985, writ ref’d n.r.e.); Carr v. Galvan , 650 S.W.2d 864 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). For loss of earning capacity if the plaintiff is self-employed, see King v. Skelly , 452 S.W.2d 691 (Tex. 1970), and Bonney v. San Antonio Transit Co. , 325 S.W.2d 117 (Tex. 1959). Future medical care. Future medical care is established by evidence that, in all reasonable probability, such care will be required and by evidence of the reasonable cost of that care. Whole Foods Market Southwest, L.P. v. Tijerina , 979 S.W.2d 768, 781 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). However, “an award of future

405