Preview
PERSONAL INJURY DAMAGES PJC 80.3
PJC 80.3 Personal Injury Damages—Basic Question
QUESTION ______
What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Paul Payne for his injuries, if any, that resulted from the occurrence in
question?
Consider the elements of damages listed below and none other. Consider
each element separately. Do 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. Do not
include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any. Do not reduce
the amounts, if any, in your answers because of the negligence, if any, of Paul
Payne. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment.
1. Physical pain and mental anguish sustained in the past.
Answer: _______________
2. Physical pain and mental anguish that, in reasonable probability,
Paul Payne will sustain in the future.
Answer: _______________
3. Loss of earning capacity sustained in the past.
Answer: _______________
4. Loss of earning capacity that, in reasonable probability, Paul Payne
will sustain in the future.
Answer: _______________
5. Disfigurement sustained in the past.
Answer: _______________
6. Disfigurement that, in reasonable probability, Paul Payne will sus-
tain in the future.
Answer: _______________
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PJC 80.3 PERSONAL INJURY DAMAGES
7. Physical impairment sustained in the past.
Answer: _______________
8. Physical impairment that, in reasonable probability, Paul Payne
will sustain in the future.
Answer: _______________
9. Medical care expenses in the past.
Answer: _______________
10. Medical care expenses that, in reasonable probability, Paul Payne
will incur in the future.
Answer: _______________
COMMENT
When to use. PJC 80.3 is the basic general damages question to be used in the
usual personal injury case. The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).
Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined “separately from the
amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a).
Also, separate submission of the damages elements may be called for in the following
instances.
Insufficient evidence. Broad-form submission of multiple elements of damages
may lead to harmful error if there is a proper objection raising insufficiency of the evi-
dence 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.
Community property. Separate answers may also be required if someone other
than the injured party is entitled to part of the recovery. For example, certain elements
of personal injury damages are community property. Tex. Fam. Code § 3.001(3); see
also Graham v. Franco, 488 S.W.2d 390 (Tex. 1972).
Exemplary damages. For actions accruing on or after September 1, 1995, and
filed before September 1, 2003, if exemplary damages are sought in addition to com-
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PERSONAL INJURY DAMAGES PJC 80.3
pensatory damages, it is necessary to obtain separate answers for economic and non-
economic damages. “Economic damages” means “compensatory damages for
pecuniary loss; the term does not include exemplary damages or damages for physical
pain and mental anguish, loss of consortium, disfigurement, physical impairment, or
loss of companionship and society.” See Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B.
25), eff. Sept. 1, 1995.
Broad-form submission of elements. Where separate answers are not required,
the following broad-form submission may be appropriate.
QUESTION ______
What sum of money, if paid now in cash, would fairly and reason-
ably compensate Paul Payne for his injuries, if any, that resulted
from the occurrence in question?
Consider the elements of damages listed below and none other.
Consider each element separately. Do 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 compen-
sate twice for the same loss, if any. Do not include interest on any
amount of damages you find.
1. Physical pain and mental anguish.
2. Loss of earning capacity.
3. Disfigurement.
4. Physical impairment.
5. Medical care expenses.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Paul Payne. Any recovery will be determined
by the court when it applies the law to your answers at the time of
judgment.
Answer in dollars and cents for damages, if any, that—
were sustained in the past;
Answer: _______________
in reasonable probability will be sustained in the future.
Answer: _______________
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PJC 80.3 PERSONAL INJURY DAMAGES
One element only. Only those elements for which evidence is introduced should
be submitted. If only one element is submitted, the question should read—
What sum of money, if paid now in cash, would fairly and reason-
ably compensate Paul Payne for medical care expenses, if any,
resulting from the occurrence in question?
The phrase medical care expenses may be replaced by any applicable element.
No evidence of physical pain. If there is no evidence of physical pain but there is
evidence of compensable mental anguish, element 1 should submit only “mental
anguish.” See St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987), over-
ruled on other grounds by Boyles v. Kerr, 855 S.W.2d 593, 595–96 (Tex. 1993).
Caveat on submitting physical pain and mental anguish together. To avoid
concerns about improperly mixing valid and invalid elements of damages (see Harris
County, 96 S.W.3d at 234), when the sufficiency of the evidence to support either
physical pain or mental anguish is in question, separate submission of those items may
avoid the need for a new trial if a sufficiency challenge is upheld on appeal. See Katy
Springs & Manufacturing, Inc. v. Favalora, 476 S.W.3d 579, 597–99, 610–11 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied) (although challenge to separate sub-
mission was waived, separate awards allowed modification of judgment, rather than
remand for new trial, where evidence of future mental anguish was legally insuffi-
cient). The Texas Supreme Court has yet to decide the issue.
Medical care expenses in actions filed on or after September 1, 2003. For
actions filed on or after September 1, 2003, recovery of medical or health care
expenses is governed by section 41.0105 of the Texas Civil Practice and Remedies
Code. This statute provides, “In addition to any other limitation under law, recovery of
medical or health care expenses incurred is limited to the amount actually paid or
incurred by or on behalf of the claimant.” Tex. Civ. Prac. & Rem. Code § 41.0105. See
also Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011) (interpreting section
41.0105).
Reasonable expenses and necessary medical care. If there is a question whether
medical expenses are reasonable or medical care is necessary, the following should be
substituted for elements 9 and 10:
9. Reasonable expenses of necessary medical care in the past.
Answer: _______________
10. Reasonable expenses of necessary medical care that, in rea-
sonable probability, Paul Payne will incur in the future.
Answer: _______________
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PERSONAL INJURY DAMAGES PJC 80.3
Medical care expenses may also be replaced by the specific items (e.g., physicians’
fees, dental fees, chiropractic fees, hospital bills, medicine expenses, nursing services’
fees) raised by the evidence. In an appropriate case, the phrase health care expenses
may replace medical care expenses.
Existence of injury. Under Texas & Pacific Railway v. Van Zandt, 317 S.W.2d
528 (Tex. 1958), a separate question was required on the existence of injury if a genu-
ine dispute was raised by the evidence. Now, given the preference for broad-form sub-
mission, Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984), the Committee believes that a
separate question is no longer necessary. The issue, if raised, would be subsumed
under the damages question, which includes the phrase “if any.” Further, if there is
doubt whether the injury resulted from the occurrence in question or from another
cause, an exclusionary instruction may be appropriate. See PJC 80.7 (for other condi-
tion), 80.8 (for preexisting condition), and 80.9 (for failure to mitigate).
Bystander injury. This question may be used to submit a bystander’s injury in
appropriate cases. But see Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76
(Tex. 1997).
Physical impairment and lost earning capacity. If both physical impairment
and lost earning capacity are included, the instruction in the second paragraph of the
question will avoid a possible double recovery. See Golden Eagle Archery, Inc., 116
S.W.3d at 770 (quoting French v. Grigsby, 567 S.W.2d 604, 608 (Tex. Civ. App.—
Beaumont), writ ref’d n.r.e. per curiam, 571 S.W.2d 867 (Tex. 1978)).
Physical impairment and disfigurement. For the difference between physical
impairment and cosmetic disfigurement, see Texas Farm Products v. Leva, 535 S.W.2d
953 (Tex. Civ. App.—Tyler 1976, no writ). See also Golden Eagle Archery, Inc., 116
S.W.3d at 772, for a discussion of physical impairment.
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 1985, writ ref’d n.r.e.); Carr v. Gal-
van, 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. If the need for future medical care is established by the evi-
dence, it may be considered even if there is no evidence of the exact dollar amount of
the future care. Hughett v. Dwyre, 624 S.W.2d 401 (Tex. App.—Amarillo 1981, writ
ref’d n.r.e.); City of Houston v. Moore, 389 S.W.2d 545 (Tex. Civ. App.—Houston
1965, writ ref’d n.r.e.).
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PJC 80.3 PERSONAL INJURY DAMAGES
Instruction not to reduce amounts because of plaintiff’s negligence. If the
plaintiff’s negligence is also in question, the exclusionary instruction given in this PJC
immediately 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 plaintiff’s negligence. Also, if an exclusionary instruction for failure to mitigate
damages is required, this instruction should be modified. See PJC 80.9.
314
PERSONAL INJURY DAMAGES PJC 80.4
PJC 80.4 Personal Injury Damages—Injury of Spouse
QUESTION ______
What sum of money, if paid now in cash, would fairly and reasonably com-
pensate Mary Payne for injuries, if any, to her husband, Paul Payne, that
resulted from the occurrence in question?
Consider the elements of damages listed below and none other. Consider
each element separately. Do 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. Do not
include interest on any amount of damages you find.
Answer separately, in dollars and cents, for damages, if any. Do not reduce
the amounts, if any, in your answers because of the negligence, if any, of Paul
Payne. Any recovery will be determined by the court when it applies the law to
your answers at the time of judgment.
1. Loss of household services sustained in the past.
“Household services” means the performance of household and domes-
tic duties by a spouse to the marriage.
Answer: _______________
2. Loss of household services that, in reasonable probability, Mary
Payne will sustain in the future.
Answer: _______________
3. Loss of consortium sustained in the past.
“Consortium” means the mutual right of the husband and wife to that
affection, solace, comfort, companionship, society, assistance, sexual rela-
tions, emotional support, love, and felicity necessary to a successful mar-
riage.
Answer: _______________
4. Loss of consortium that, in reasonable probability, Mary Payne will
sustain in the future.
Answer: _______________
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PJC 80.4 PERSONAL INJURY DAMAGES
COMMENT
When to use. PJC 80.4 should be used to submit questions on damages arising
out of injury to a party’s spouse. The above question separately submits past and future
damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction
is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex.
2003).
Loss of consortium. A spouse has a cause of action for loss of consortium as a
result of physical injuries caused to the other spouse by the negligence of a third party.
Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994); Whittlesey v.
Miller, 572 S.W.2d 665 (Tex. 1978); see also Reed Tool Co. v. Copelin, 610 S.W.2d
736 (Tex. 1980). An action for loss of consortium in favor of the deprived spouse
against an intentional tortfeasor-employer of the impaired spouse has been recognized.
Copelin, 610 S.W.2d 736.
Loss of household services. A spouse has a cause of action for loss of services of
the other spouse, which is separate from any cause of action for loss of consortium.
Whittlesey, 572 S.W.2d at 666 & n.2. “Services” generally means the performance by
a spouse of household and domestic duties. Whittlesey, 572 S.W.2d at 666 n.2. These
damages result from a physical injury to the spouse caused by the negligence of a third
party. See, e.g., EDCO Production, Inc. v. Hernandez, 794 S.W.2d 69, 77 (Tex. App.—
San Antonio 1990, writ denied).
Separate property. A recovery for loss of services and loss of consortium is the
separate property of the spouse claiming the loss. Whittlesey, 572 S.W.2d at 669.
Derivative damages subject to reduction because of negligence of injured
spouse. Because claims for loss of services and loss of consortium are derived from
the injured spouse’s claim, recovery by the noninjured spouse will be reduced by the
percentage of contributory negligence that caused the occurrence attributable to the
injured spouse. See Copelin, 610 S.W.2d at 738–39.
Separate answer for each element. For actions filed on or after September 1,
2003, the Code requires economic damages to be determined “separately from the
amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a).
Also, separate submission of elements may be called for in the following instances.
Insufficient evidence. Broad-form submission of multiple elements of damages
may lead to harmful error if there is a proper objection raising insufficiency of the evi-
dence 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.
Exemplary damages. For actions accruing on or after September 1, 1995, and
filed before September 1, 2003, if exemplary damages are sought in addition to com-
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PERSONAL INJURY DAMAGES PJC 80.4
pensatory damages, it is necessary to obtain separate answers for economic and non-
economic damages. “Economic damages” means “compensatory damages for
pecuniary loss; the term does not include exemplary damages or damages for physical
pain and mental anguish, loss of consortium, disfigurement, physical impairment, or
loss of companionship and society.” See Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B.
25), eff. Sept. 1, 1995.
Broad-form submission of elements. For an example of a broad-form submis-
sion of damages elements, see PJC 80.3 comment, “Broad-form submission of ele-
ments.”
Instruction not to reduce amounts because of negligence of injured spouse. If
the negligence of the injured spouse is also in question, the exclusionary instruction
given in this PJC immediately 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 spouse’s negligence. Also, if an exclusionary instruction for
failure to mitigate damages is required, this instruction should be modified. See PJC
80.9.
317
Preview
PERSONAL INJURY DAMAGES PJC 80.3 PJC 80.3 Personal Injury Damages—Basic Question QUESTION ______ What sum of money, if paid now in cash, would fairly and reasonably com- pensate Paul Payne for his injuries, if any, that resulted from the occurrence in question? Consider the elements of damages listed below and none other. Consider each element separately. Do 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. Do not include interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Paul Payne. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. 1. Physical pain and mental anguish sustained in the past. Answer: _______________ 2. Physical pain and mental anguish that, in reasonable probability, Paul Payne will sustain in the future. Answer: _______________ 3. Loss of earning capacity sustained in the past. Answer: _______________ 4. Loss of earning capacity that, in reasonable probability, Paul Payne will sustain in the future. Answer: _______________ 5. Disfigurement sustained in the past. Answer: _______________ 6. Disfigurement that, in reasonable probability, Paul Payne will sus- tain in the future. Answer: _______________ 309 PJC 80.3 PERSONAL INJURY DAMAGES 7. Physical impairment sustained in the past. Answer: _______________ 8. Physical impairment that, in reasonable probability, Paul Payne will sustain in the future. Answer: _______________ 9. Medical care expenses in the past. Answer: _______________ 10. Medical care expenses that, in reasonable probability, Paul Payne will incur in the future. Answer: _______________ COMMENT When to use. PJC 80.3 is the basic general damages question to be used in the usual personal injury case. The above question separately submits past and future damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex. 2003). Separate answer for each element. For actions filed on or after September 1, 2003, the Code requires economic damages to be determined “separately from the amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a). Also, separate submission of the damages elements may be called for in the following instances. Insufficient evidence. Broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evi- dence 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. Community property. Separate answers may also be required if someone other than the injured party is entitled to part of the recovery. For example, certain elements of personal injury damages are community property. Tex. Fam. Code § 3.001(3); see also Graham v. Franco, 488 S.W.2d 390 (Tex. 1972). Exemplary damages. For actions accruing on or after September 1, 1995, and filed before September 1, 2003, if exemplary damages are sought in addition to com- 310 PERSONAL INJURY DAMAGES PJC 80.3 pensatory damages, it is necessary to obtain separate answers for economic and non- economic damages. “Economic damages” means “compensatory damages for pecuniary loss; the term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.” See Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B. 25), eff. Sept. 1, 1995. Broad-form submission of elements. Where separate answers are not required, the following broad-form submission may be appropriate. QUESTION ______ What sum of money, if paid now in cash, would fairly and reason- ably compensate Paul Payne for his injuries, if any, that resulted from the occurrence in question? Consider the elements of damages listed below and none other. Consider each element separately. Do 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 compen- sate twice for the same loss, if any. Do not include interest on any amount of damages you find. 1. Physical pain and mental anguish. 2. Loss of earning capacity. 3. Disfigurement. 4. Physical impairment. 5. Medical care expenses. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Paul Payne. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. Answer in dollars and cents for damages, if any, that— were sustained in the past; Answer: _______________ in reasonable probability will be sustained in the future. Answer: _______________ 311 PJC 80.3 PERSONAL INJURY DAMAGES One element only. Only those elements for which evidence is introduced should be submitted. If only one element is submitted, the question should read— What sum of money, if paid now in cash, would fairly and reason- ably compensate Paul Payne for medical care expenses, if any, resulting from the occurrence in question? The phrase medical care expenses may be replaced by any applicable element. No evidence of physical pain. If there is no evidence of physical pain but there is evidence of compensable mental anguish, element 1 should submit only “mental anguish.” See St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex. 1987), over- ruled on other grounds by Boyles v. Kerr, 855 S.W.2d 593, 595–96 (Tex. 1993). Caveat on submitting physical pain and mental anguish together. To avoid concerns about improperly mixing valid and invalid elements of damages (see Harris County, 96 S.W.3d at 234), when the sufficiency of the evidence to support either physical pain or mental anguish is in question, separate submission of those items may avoid the need for a new trial if a sufficiency challenge is upheld on appeal. See Katy Springs & Manufacturing, Inc. v. Favalora, 476 S.W.3d 579, 597–99, 610–11 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (although challenge to separate sub- mission was waived, separate awards allowed modification of judgment, rather than remand for new trial, where evidence of future mental anguish was legally insuffi- cient). The Texas Supreme Court has yet to decide the issue. Medical care expenses in actions filed on or after September 1, 2003. For actions filed on or after September 1, 2003, recovery of medical or health care expenses is governed by section 41.0105 of the Texas Civil Practice and Remedies Code. This statute provides, “In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” Tex. Civ. Prac. & Rem. Code § 41.0105. See also Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011) (interpreting section 41.0105). Reasonable expenses and necessary medical care. If there is a question whether medical expenses are reasonable or medical care is necessary, the following should be substituted for elements 9 and 10: 9. Reasonable expenses of necessary medical care in the past. Answer: _______________ 10. Reasonable expenses of necessary medical care that, in rea- sonable probability, Paul Payne will incur in the future. Answer: _______________ 312 PERSONAL INJURY DAMAGES PJC 80.3 Medical care expenses may also be replaced by the specific items (e.g., physicians’ fees, dental fees, chiropractic fees, hospital bills, medicine expenses, nursing services’ fees) raised by the evidence. In an appropriate case, the phrase health care expenses may replace medical care expenses. Existence of injury. Under Texas & Pacific Railway v. Van Zandt, 317 S.W.2d 528 (Tex. 1958), a separate question was required on the existence of injury if a genu- ine dispute was raised by the evidence. Now, given the preference for broad-form sub- mission, Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984), the Committee believes that a separate question is no longer necessary. The issue, if raised, would be subsumed under the damages question, which includes the phrase “if any.” Further, if there is doubt whether the injury resulted from the occurrence in question or from another cause, an exclusionary instruction may be appropriate. See PJC 80.7 (for other condi- tion), 80.8 (for preexisting condition), and 80.9 (for failure to mitigate). Bystander injury. This question may be used to submit a bystander’s injury in appropriate cases. But see Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76 (Tex. 1997). Physical impairment and lost earning capacity. If both physical impairment and lost earning capacity are included, the instruction in the second paragraph of the question will avoid a possible double recovery. See Golden Eagle Archery, Inc., 116 S.W.3d at 770 (quoting French v. Grigsby, 567 S.W.2d 604, 608 (Tex. Civ. App.— Beaumont), writ ref’d n.r.e. per curiam, 571 S.W.2d 867 (Tex. 1978)). Physical impairment and disfigurement. For the difference between physical impairment and cosmetic disfigurement, see Texas Farm Products v. Leva, 535 S.W.2d 953 (Tex. Civ. App.—Tyler 1976, no writ). See also Golden Eagle Archery, Inc., 116 S.W.3d at 772, for a discussion of physical impairment. 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 1985, writ ref’d n.r.e.); Carr v. Gal- van, 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. If the need for future medical care is established by the evi- dence, it may be considered even if there is no evidence of the exact dollar amount of the future care. Hughett v. Dwyre, 624 S.W.2d 401 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.); City of Houston v. Moore, 389 S.W.2d 545 (Tex. Civ. App.—Houston 1965, writ ref’d n.r.e.). 313 PJC 80.3 PERSONAL INJURY DAMAGES Instruction not to reduce amounts because of plaintiff’s negligence. If the plaintiff’s negligence is also in question, the exclusionary instruction given in this PJC immediately 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 plaintiff’s negligence. Also, if an exclusionary instruction for failure to mitigate damages is required, this instruction should be modified. See PJC 80.9. 314 PERSONAL INJURY DAMAGES PJC 80.4 PJC 80.4 Personal Injury Damages—Injury of Spouse QUESTION ______ What sum of money, if paid now in cash, would fairly and reasonably com- pensate Mary Payne for injuries, if any, to her husband, Paul Payne, that resulted from the occurrence in question? Consider the elements of damages listed below and none other. Consider each element separately. Do 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. Do not include interest on any amount of damages you find. Answer separately, in dollars and cents, for damages, if any. Do not reduce the amounts, if any, in your answers because of the negligence, if any, of Paul Payne. Any recovery will be determined by the court when it applies the law to your answers at the time of judgment. 1. Loss of household services sustained in the past. “Household services” means the performance of household and domes- tic duties by a spouse to the marriage. Answer: _______________ 2. Loss of household services that, in reasonable probability, Mary Payne will sustain in the future. Answer: _______________ 3. Loss of consortium sustained in the past. “Consortium” means the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual rela- tions, emotional support, love, and felicity necessary to a successful mar- riage. Answer: _______________ 4. Loss of consortium that, in reasonable probability, Mary Payne will sustain in the future. Answer: _______________ 315 PJC 80.4 PERSONAL INJURY DAMAGES COMMENT When to use. PJC 80.4 should be used to submit questions on damages arising out of injury to a party’s spouse. The above question separately submits past and future damages. See Tex. Fin. Code § 304.1045. The “do not compensate twice” instruction is adapted from Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 770 (Tex. 2003). Loss of consortium. A spouse has a cause of action for loss of consortium as a result of physical injuries caused to the other spouse by the negligence of a third party. Browning-Ferris Industries, Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994); Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978); see also Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex. 1980). An action for loss of consortium in favor of the deprived spouse against an intentional tortfeasor-employer of the impaired spouse has been recognized. Copelin, 610 S.W.2d 736. Loss of household services. A spouse has a cause of action for loss of services of the other spouse, which is separate from any cause of action for loss of consortium. Whittlesey, 572 S.W.2d at 666 & n.2. “Services” generally means the performance by a spouse of household and domestic duties. Whittlesey, 572 S.W.2d at 666 n.2. These damages result from a physical injury to the spouse caused by the negligence of a third party. See, e.g., EDCO Production, Inc. v. Hernandez, 794 S.W.2d 69, 77 (Tex. App.— San Antonio 1990, writ denied). Separate property. A recovery for loss of services and loss of consortium is the separate property of the spouse claiming the loss. Whittlesey, 572 S.W.2d at 669. Derivative damages subject to reduction because of negligence of injured spouse. Because claims for loss of services and loss of consortium are derived from the injured spouse’s claim, recovery by the noninjured spouse will be reduced by the percentage of contributory negligence that caused the occurrence attributable to the injured spouse. See Copelin, 610 S.W.2d at 738–39. Separate answer for each element. For actions filed on or after September 1, 2003, the Code requires economic damages to be determined “separately from the amount of other compensatory damages.” Tex. Civ. Prac. & Rem. Code § 41.008(a). Also, separate submission of elements may be called for in the following instances. Insufficient evidence. Broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evi- dence 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. Exemplary damages. For actions accruing on or after September 1, 1995, and filed before September 1, 2003, if exemplary damages are sought in addition to com- 316 PERSONAL INJURY DAMAGES PJC 80.4 pensatory damages, it is necessary to obtain separate answers for economic and non- economic damages. “Economic damages” means “compensatory damages for pecuniary loss; the term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society.” See Acts 1995, 74th Leg., R.S., ch. 19, § 1 (S.B. 25), eff. Sept. 1, 1995. Broad-form submission of elements. For an example of a broad-form submis- sion of damages elements, see PJC 80.3 comment, “Broad-form submission of ele- ments.” Instruction not to reduce amounts because of negligence of injured spouse. If the negligence of the injured spouse is also in question, the exclusionary instruction given in this PJC immediately 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 spouse’s negligence. Also, if an exclusionary instruction for failure to mitigate damages is required, this instruction should be modified. See PJC 80.9. 317