PJC General Negligence 2024

PJC 28.11

P ERSONAL I NJURY D AMAGES

Definition of “consortium”; factors to consider. The definition of “parental consortium” and the instruction on what factors the jury may consider are from Rea gan , 804 S.W.2d at 467. Although the Committee has suggested a limiting instruction, the court left open the possibility of other factors. Depending on the facts of the case, other factors may be added to those listed above, and some of those listed above may be deleted. Derivative damages subject to reduction because of negligence of injured parent. Because a claim for loss of parental consortium, like that for loss of spousal consortium, is derivative, any percentage of contributory negligence attributable to the parent will reduce the amount of the child’s recovery. Reagan , 804 S.W.2d at 468. Instruction not to reduce amounts because of negligence of injured parent. If the negligence of the injured parent is also in question, the exclusionary instruction given in this PJC 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 injured parent’s negligence. Also, if an exclusionary instruction for failure to miti gate damages is required, this instruction should be modified. See PJC 28.9. Mental anguish damages not included. A claim for loss of consortium does not include a claim for negligent infliction of mental anguish. In Reagan the court specifi cally noted that recovery for mental anguish that is not based on the wrongful death statute requires proof that the plaintiff was “among other things, located at or near the scene of the accident, and that the mental anguish resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the incident, as contrasted with learning of the accident from others after the occurrence.” Reagan , 804 S.W.2d at 467. See PJC 28.12, “Personal Injury Damages—Bystander Claim.”

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