PJC Malpractice 2024

E CONOMIC D AMAGES

PJC 84.6

Source of instructions. The measures of damages set forth in the instructions are prescribed by Restatement (Second) of Torts § 552B (1977) and have been adopted by the Supreme Court of Texas. Federal Land Bank Ass’n of Tyler v. Sloane , 825 S.W.2d 439, 442–43 (Tex. 1991); see also D.S.A., Inc. v. Hillsboro Independent School Dis trict , 973 S.W.2d 662, 663–64 (Tex. 1998). In D.S.A, Inc. , the court also recognized that under Restatement (Second) of Torts §311 (1965) a party could recover damages for risk of physical harm if actual physical harm had resulted from negligent misrepre sentation. D.S.A., Inc. , 973 S.W.2d at 664; but see Sloane , 825 S.W.2d at 443 n.4. Separating elements of damages. The Code requires economic damages to be determined “separately from the amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a). In addition, broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evidence to sup port one or more of the elements submitted. Harris County v. Smith , 96 S.W.3d 230 (Tex. 2002). See also Romero v. KPH Consolidation, Inc. , 166 S.W.3d 212, 215 (Tex. 2005) (harmful error in submitting broad-form question incorporating both valid and invalid theories of liability). Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an alternative instruction that may be appropri ate in certain cases involving undefined or potentially overlapping categories of dam ages. The following language should be substituted for the instruction to consider each element separately: Consider the following elements of damages, if any, and none other. You shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss. That is, do not compensate twice for the same loss, if any. Parallel theories. If the negligent misrepresentation cause of action is only one of several theories of recovery submitted in the charge and any theory has a different legal measure of damages to be applied to a factually similar claim for damages, a sep arate damages question for each theory may be submitted and the following additional instruction may be included earlier in the charge: In answering questions about damages, answer each question sep arately. Do not increase or reduce the amount in one answer because of your answer to any other question about damages. Do not specu late about what any party’s ultimate recovery may or may not be. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment.

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