PJC General Negligence 2022

T HEFT L IABILITY

PJC 7.5

COMMENT When to use. PJC 7.5 should be predicated on a ‘‘Yes” answer to PJC 7.2 or 7.3 and may be adapted for use in most Texas Theft Liability Act cases by the addition of appropriate instructions setting out legally available measures of damages. See PJC 7.6. If only one measure of damages is supported by the pleadings and proof, the measure may be incorporated into the question. Actual damages. A person who commits theft is civilly liable under the Act “for the damages resulting from the theft.” Tex. Civ. Prac. & Rem. Code § 134.003(a). A “person who has sustained damages resulting from theft may recover. . . the amount of actual damages found by the trier of fact and, in addition to actual damages, dam ages awarded by the trier of fact in a sum not to exceed $1,000.” Tex. Civ. Prac. & Rem. Code § 134.005(a)(1). Because the Act does not further define “actual dam ages,” actual damages under the Act have been recognized as those recoverable at common law. Beaumont v. Basham , 205 S.W.3d 608, 619 (Tex. App.—Waco 2006, pet. denied); cf. Arthur Andersen & Co. v. Perry Equipment Corp. , 945 S.W.2d 812, 816 (Tex. 1997) (“actual damages” recoverable under DTPA “are those damages recoverable under common law”). At common law, actual damages are either direct or consequential. Direct damages are the necessary and usual result of the defendant’s wrongful act; they flow naturally and necessarily from the wrong. Direct damages compensate the plaintiff for the loss that is conclusively presumed to have been foreseen by the defendant from its wrong ful act. Consequential damages result naturally, but not necessarily, from the defen dant’s wrongful act. Under the common law, consequential damages need not be the usual result of the wrong but must be foreseeable and must be directly traceable to the wrongful act and result from it. See Houston Livestock Show & Rodeo, Inc. v. Ham rick , 125 S.W.3d 555, 582 (Tex. App.—Austin 2003, no pet.). If consequential damages are sought, that element should be submitted with the additional instruction that the element of damages was “a natural, probable, and fore seeable consequence of Don Davis ’s theft of the property.” See the current edition of State Bar of Texas, Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment PJC 115.5. 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 multi ple elements of damages may lead to harmful error if there is a proper objection rais ing insufficiency of the evidence to support one or more of the elements submitted); 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

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