PJC Business 2024

PJC 115.21

D AMAGES

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). Economic damages for negligent misrepre sentation are limited to those necessary to compensate the party for the pecuniary loss caused by the misrepresentation. Benefit-of-the-bargain and lost-profit damages are not available. Sloane , 825 S.W.2d at 442–43 (adopting Restatement (Second) of Torts § 552B (1977)); see also D.S.A., Inc. , 973 S.W.2d at 663–64. 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 misrepresentation. D.S.A., Inc. , 973 S.W.2d at 664; but see Sloane , 825 S.W.2d at 443 n.4. Elements of damages submitted separately. The Committee generally recom mends that multiple elements of damages be separately submitted to the jury. Harris County v. Smith , 96 S.W.3d 230, 233–34 (Tex. 2002) (broad-form submission of valid and invalid elements of damages may lead to harmful error if there is a proper objec tion raising insufficiency of the evidence to support one or more of the elements sub mitted); see also Tex. Civ. Prac. & Rem. Code §41.008(a) (“In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages.”). Separating economic from noneconomic damages is required to allow the court to apply the limits on recovery of exemplary damages based on economic and noneco nomic damages as required by Tex. Civ. Prac. & Rem. Code § 41.008(b). Further, “[p]rejudgment interest may not be assessed or recovered on an award of future damages.” Tex. Fin. Code § 304.1045 (wrongful death, personal injury, or prop erty damage cases). Therefore, separation of past and future damages is required. Elements considered separately. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 770 (Tex. 2003), provides an instruction for cases involving undefined or potentially overlapping categories of damages. In those cases, 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:

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