May 29, 2019 | News & Blog
There are 8 elements of damages you can recover in a Texas personal injury case. A “personal injury case” is any case where someone is injured because of the negligence of another person. This includes a car accident, 18-wheeler accident, motorcycle accident, etc.
The 8 types of damages recoverable in a Texas personal injury case are:
In a personal injury case, an injury victim can recover damages for past and future physical pain. It is within the jury’s discretion to decide whether pain and suffering occurred and how much compensation is appropriate.
To prove past physical pain, the plaintiff can testify about the pain or introduce other evidence of it. Even when there is no direct evidence of pain, the jury may infer that pain occurred from the nature of the injury. The law assumes that physical pain results from a serious injury. However, the injured person can be compensated only for pain she was conscious of.
To prove future physical pain, the evidence must show there is a reasonable probability the injury will continue to affect the plaintiff in the future. The mere possibility of future pain is insufficient.
Damages for past pain and suffering are general damages and do not need to be specifically pleaded. However, damages for future pain and suffering should be specifically pleaded.
In a personal injury case, a plaintiff can recover damages for past and future mental anguish. A plaintiff can always recover mental anguish damages if she was physically injured. Mental anguish damages are recoverable in virtually all personal injury cases. Mental anguish damages are also recoverable in a case for the aggravation of preexisting medical conditions.
What about cases where the plaintiff was not physically injured? In a wrongful death case, the plaintiff (i.e. wrongful death beneficiary, such as a family member of the decedent) can recover mental anguish damages without showing physical manifestation of the mental anguish. In this situation, the recovery sought is for emotional damage to the family unit and its surviving members rather than for physical injuries.
Additionally, a plaintiff who witnessed an injury to a third person but who suffered no physical injury herself can recover damages for mental anguish in some situations. A bystander who suffers no physical injury can recover mental anguish damages only if she was (1) present at or near the scene of the accident, (2) suffered shock as a result of a direct emotional impact from perceiving the accident as it happened or immediately afterword, and (3) was closely related to the victim. For a bystander to recover damages, she must establish that the defendant negligently inflicted serious or fatal injuries to the primary victim.
To recover damages for past mental anguish, the plaintiff must show physical injury or, if no physical injury, direct evidence of the nature, duration, or severity of the plaintiff’s mental anguish, establishing a substantial disruption in the plaintiffs daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.
In many cases, the plaintiff must prove some physical injury before recovering mental anguish damages. When a plaintiff proves a serious bodily injury, mental anguish can be inferred.
To recover damages for future mental anguish, the plaintiff must show there is a reasonable probability that mental anguish will be suffered in the future.
Damages for past mental anguish are general damages and do not need to be specifically pleaded. Damages for future mental anguish are special damages and must be specifically pleaded. If future mental anguish can be implied from the nature of the injuries, it is sometimes treated as a general damage and does not need to be specifically pleaded.
In a personal injury case, a plaintiff can recover damages for past and future disfigurement. Disfigurement is defined as that which impairs or inhibits the beauty, symmetry, or appearance of a person or thing, or that which renders unsightly, misshapen, imperfect, or deformed in some manner. Disfigurement damages are awarded for the plaintiff’s embarrassment and for her need to conceal her disfigured body parts.
The amount of damages is measured from the date of injury to the time that disfigurement is expected to end.
Common forms of disfigurement include scars, burns, and amputations. Disfigurement also includes contorted limbs and other deformities. It is not necessary that the disfigurement be large or noticeable.
There are a number of ways to prove past disfigurement. For one, the plaintiff may show the jury the disfigured body part or present photographs of the disfigured part. To make a comparison, the plaintiff may show photographs of the affected area before and after the injury.
Recovery for future disfigurement is necessarily speculative, so each case must be judged on its own facts and considerable discretion is given to the jury. Recovery for future disfigurement does not need to be based solely on future scarring and deformity. Future disfigurement can be based on future embarrassment caused by the disfigurement. It is not necessary for the plaintiff to prove additional scarring or deformity.
Damages for disfigurement are general damages and do not need to be specifically pleaded. However, the allegation in plaintiff’s petition should give the defendant fair notice of the claim for disfigurement.
In a personal injury case, a plaintiff can recover damages for past and future physical impairment. Physical impairment is defined as “loss of enjoyment of life.” Physical impairment encompasses the ability to participate in sports, hobbies, or other recreational activities. To be recoverable as damages, physical impairment must be substantial and extend beyond pain and suffering, mental anguish, or lost earning capacity.
To recover damages for past physical impairment as a separate element of damages, the plaintiff must prove she suffered an additional loss beyond that of lost earning capacity and pain and suffering. The impairment must produce a separate and distinct loss for which the plaintiff should be compensated. Unless the separate and distinct loss is obvious, the plaintiff must produce some evidence showing the tasks or activities that she can no longer perform. The plaintiff does not need to prove the egregious injuries to recover from physical impairment. The plaintiff does not need to show that she is unable to perform an act that she was able to perform before the injury.
Damages for physical impairment are special damages and must be specifically pleaded.
In a personal injury case, a plaintiff can recover damages for past and future medical expenses. A plaintiff can recover these damages regardless of whether the jury awards the plaintiff damages for pain and suffering. Medical expenses can include cost of hospital care, doctor services, services of other healthcare providers, laboratory tests, and transportation.
To recover for past medical expenses, the plaintiff must prove the expenses were necessary to treat the injury and were reasonable in amount, and the expenses were paid or incurred by or on behalf of the plaintiff.
To recover for future medical expenses, the plaintiff must show there is a reasonable probability that expenses resulting from the injury will be necessary in the future. To make this showing, the plaintiff must provide evidence of two elements: (1) a reasonable probability the plaintiff will incur future medical expenses, and (2) the reasonably probable amount of the future medical expenses. The amount of future medical expenses is within the discretion of the jury. The jury may decide the amount of future medical expenses based on the injury suffered, the medical care rendered before trial, the injured party’s progress towards recovery under the treatment received, and the condition of the injured party at the time of trial. The plaintiff does not need to provide expert testimony to prove the amount of future medical expenses, although expert testimony is preferable.
Damages for past and future medical expenses are special damages and must be specifically pleaded.
In a personal injury case, the plaintiff can recover damages for loss of earning capacity. The plaintiff’s recovery can include damages for loss of earning capacity both in the past and in the future.
To understand the loss of earning capacity, it is important to distinguish loss of earning capacity from loss of earnings. Loss of earning capacity is the plaintiff’s diminished ability to earn a living. Loss of earnings is the loss of actual income because of the inability to perform a certain job that the person held before the injury. Loss of earning capacity is the proper measure of damages, not loss of earnings. Even an unemployed person can recover for loss of earning capacity. Specific proof of loss of earnings simply provides evidence on the ultimate issue of loss of earning capacity.
Loss of past earning capacity is the plaintiff’s diminished capacity to earn a living during the period between the injury and the day of trial. The central issues are (1) what was the plaintiff’s capacity to earn, and (2) to what extent was that capacity impaired by the injury. The plaintiff can recover damages for lost earning capacity from an occupation even if she never actually earned income from that occupation before her injury. Loss of future earning capacity is the plaintiff’s diminished capacity to earn a living after the trial. Because the amount of money a plaintiff may earn in the future is always uncertain, the jury has considerable discretion in determining the amount.
To prove loss of past earning capacity, the plaintiff must introduce evidence sufficient to allow a jury to reasonably measure her earning capacity before her injury in monetary terms. The plaintiff should introduce evidence of past earnings, time missed from work, and any other factors that illustrate the plaintiff’s reduced ability to perform work in the past. If the plaintiff operates her own business, she should introduce evidence of lost profits, the character and size of the business, the capital and labor employed, and the extent in nature of her participation in the business.
To prove loss of future earning capacity, the plaintiff must introduce evidence sufficient to allow the jury to reasonably measure earning capacity in monetary terms. An award of damages for loss of future earning capacity can be based on a combination of factors that may affect a person’s capacity to earn a living. To support an award of damages for loss of future earning capacity, the plaintiff can introduce evidence of past earnings, the plaintiff’s ability to work with pain, the weaknesses and degenerative changes that will naturally result from the plaintiff’s injury, and the plaintiff’s work life expectancy.
To support an award for loss of earning capacity, the plaintiff must introduce evidence of the loss of income in the form of a net loss after reduction for income tax payments or unpaid tax liability under federal income tax law.
Damages for loss of past and future earning capacity are special damages and must be specifically pleaded.
In a personal injury case, the plaintiff can recover damages for loss of consortium. A claim for loss of consortium is derivative of the injured person’s claim. Loss of consortium is based on the loss of love, affection, protection, emotional support, companionship, care, and society that can occur when a family member is injured. Consortium can be recovered only when the injured person incurred physical injury. The injured person’s mental anguish is not sufficient.
A spouse can recover for loss of consortium when the other spouse’s injury was caused by the negligence or intentional tort of a third-party. Spousal loss of consortium concerns the emotional and intangible elements of the marriage, including affection, solace, comfort, companionship, society, assistance, and sexual relations.
A child can recover for loss of consortium when the parent suffered serious, permanent, and disabling injury or death. In determining the amount of damages, the jury may consider the severity of the injury to the parent and its effect on the parent-child relationship, the child’s age and emotional and physical characteristics, and whether other consortium-giving relationships are available to the child.
Because the assessment of loss of consortium does not require special knowledge, expert testimony about the value of the loss is not admissible.
In a personal injury case, a plaintiff can recover damages for loss of services of the injured person. Services refers to the performance of household and domestic duties. Loss of services is entirely separate from loss of consortium. A spouse can recover for loss of services of the injured spouse. A parent can recover for loss of services of an injured child. The parents’ right to the child’s services and earnings is codified in the Texas Family Code.
When claiming loss of services of a spouse or child, the plaintiff must offer evidence of the services the injured spouse can no longer perform. To support an award for loss of services, the plaintiff must introduce evidence of the loss in the form of a net loss after reduction for income tax payments or unpaid tax liability under federal income tax law.
Damages for loss of services are special damages and must be specifically pleaded.
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Those are the 8 main elements of damages you can recover in a Texas personal injury case. If you or someone you know has been injured in an accident, contact us today! We have experience recovering these damages on behalf of our clients. The consultation is 100% free, and you don’t pay unless we win your case.