PJC Malpractice 2024

W RONGFUL D EATH D AMAGES

PJC 81.4

on whether the property is separate or community, on whether the property is real or personal, and on which other family members survive the decedent. See comments below. Claim of surviving spouse and community property. The Committee believes that the rationale of Yowell may support a recovery for loss of what would have been a sur viving spouse’s enhanced community estate. Thus, claims by both a child and a sur viving spouse may require an instruction to protect the surviving spouse’s absolute right to recover for the loss of his or her enhanced community-half. See PJC 81.3 com ment, “Loss of community estate.” The roles of a will and the law of intestacy. It would seem that in certain cases the jury could not properly answer the loss-of-inheritance question without information concerning the law of wills and intestate succession. The number of variables makes it virtually impossible to arrive at a standard instruction that takes every aspect of this problem into account. Alternative terminology. Problems with a complicated submission of the loss-of inheritance damages element might be avoided by using other terminology. For exam ple, if there is no factual dispute regarding to whom additions to the estate would pass from the deceased, the jury inquiry could be limited to the amount of the additions. If necessary, the laws of inheritance then could be applied to determine the amount of a particular claimant’s recovery, with the following definition substituted for element 7: 7. Loss of addition to the estate. “Loss of addition to the estate” means the loss of the present value of assets that Mary Payne , in reasonable probability, would have added to the estate existing at the end of her natural life. Prejudgment interest not recoverable on loss of inheritance. Prejudgment interest is not recoverable for element 7, loss of inheritance. Yowell , 703 S.W.2d at 636. Loss of inheritance and pecuniary loss. If element 7 is not submitted, the phrase excluding loss of inheritance should be omitted from the definition following element 1. See Moore , 722 S.W.2d 683. Separate answer for each element. Economic damages must 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 dam ages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to support 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.

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