Damages Available to an Injured Plaintiff

The measure of damages for personal injury in Texas is designed to compensate the injured party for the injuries sustained and proven. When we talk about damages, it is in the context of a lawsuit and what a jury can award the injured plaintiff. In the pre-litigation phase, adjusters may or may not understand how damages are calculated, but we use the measure of damages to negotiate settlement while attempting to avoid suit.

Compensatory damages include both economic and non-economic damages. Economic damages typically cover lost wages, lost earning capacity, and medical expenses, while non-economic damages address pain, suffering, mental anguish, disfigurement, and physical impairment. For physical pain, mental anguish, and physical impairment, there is no fixed rule for measuring damages. Each case is evaluated based on its unique facts, and the jury is given wide latitude in determining the appropriate amount. The process of awarding damages for such subjective injuries is inherently difficult, and appellate courts generally defer to the jury's discretion unless the award is clearly excessive or unsupported by evidence. The jury must ensure that the amount awarded fairly and reasonably compensates the plaintiff for their loss, avoiding awards based on passion, prejudice, or improper motives.

Future damages, such as future medical expenses or loss of earning capacity, require evidence showing a reasonable probability that such expenses or losses will occur. The fact-finder has discretion in determining the amount, but the award must be based on evidence and not mere speculation. In litigation, we establish damages by using an expert to create a life care plan.

Additionally, Texas law allows recovery for damages that are a proximate, natural, and probable consequence of the defendant's negligence, including aggravation of pre-existing conditions. However, the plaintiff is entitled to recover only for the extent to which the defendant's negligence aggravated the prior condition. In cases involving mental anguish, Texas courts require evidence of the nature, duration, and severity of the anguish to justify an award. Mental anguish damages are generally recoverable only when accompanied by physical injury or when the mental anguish produces a physical manifestation.

Punitive damages, also called exemplary damages, are an award that punishes a defendant when their actions exceed negligence to an intentional, reckless or grossly negligent level.