PJC General Negligence 2022

PJC 11.6

T RESPASS

COMMENT When to use. PJC 11.6 submits the measure of damages recoverable for tempo rary injury. Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Tex.), L.P. , 449 S.W.3d 474, 481 (Tex. 2014); Schneider National Carriers, Inc. v. Bates , 147S.W.3d 264, 276 (Tex. 2004). The question should be conditioned on a finding of trespass. Mental anguish add-on. Mental anguish damages should be submitted as part of PJC 11.6 only when the trespass has been found to be intentional. This is because men tal anguish damages are recoverable in actions for trespass to real property, but Texas courts have required a showing of deliberate and willful trespass and actual property damage before awarding damages for emotional distress or mental anguish. City of Tyler v. Likes , 962 S.W.2d 489, 497–500 (Tex. 1997). Source of question and instructions. PJC 11.6 is derived from Crosstex North Texas Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 610 (Tex. 2016); McGinty v. Hen nen , 372 S.W.3d 625, 627 (Tex. 2012) (per curiam) (a party seeking to recover reme dial damages must prove that the damages sought are reasonable and necessary); Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909 (Tex. 2013); Schneider National Carriers, Inc. , 147 S.W.3d at 276; Coastal Transport Co. v. Crown Central Petroleum Corp. , 136 S.W.3d 227, 235 (Tex. 2004); and Vestal v. Gulf Oil Corp. , 235 S.W.2d 440, 442 (Tex. 1951). Determining appropriate cutoff period for loss of use. Because the cases repeatedly state that the proper measure of damages for temporary injury cannot include damages that will accrue in the future, there must be a legal cutoff point for loss of use. See, e.g., Schneider National Carriers, Inc. , 147 S.W.3d at 275, and PJC 11.3. However, there is conflict in the cases regarding the time period for which loss of use is awarded. See, e.g., Crosstex North Texas Pipeline, L.P. , 505 S.W.3d at 610 (loss of use up to time of trial); Coastal Transport Co. , 136 S.W.3d at 235 (permitting loss of use incurred while repairs were ongoing, which presumably could continue after trial was begun); J&D Towing, LLC v. American Alternative Insurance Corp. , 478 S.W.3d 649, 677 (Tex. 2016) (permitting loss-of-use damages so long as “reasonably needed” in personal property case). Until there is clarity on the legal cutoff point for loss of use, the Committee leaves that portion of the question to the parties and the trial courts. In addition to the legal determination of cutoff point, there may be factual dis putes as to when past loss-of-use damages actually or should have ceased. Economic feasibility exception/failure to prove reasonableness of cost of repairs. If the claimant fails to prove the cost to repair is reasonable and necessary, or if the repairs are not economically feasible, the injury may be deemed permanent as a matter of law and the claimant limited to the diminution in fair market value. See Gilbert Wheeler, Inc. , 449 S.W.3d at 481 (refusing to permit cost of repair because it was “disproportionately” larger than essentially nominal loss of market value); see also McGinty , 372 S.W.3d at 629 (extensively discussing whether evidence on differ-

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