What are Damages?
In Texas civil cases, a party who suffers loss or harm due to negligent actions of another party may be entitled to monetary compensation, or damages.[1] The purpose of damages in a lawsuit are to make the injured party financially “whole” or help them return to their pre-incident state.[2] If the court finds a plaintiff presented sufficient evidence of compensable damages, the person or company at fault for the accident will be responsible for the payout. Damages under Texas law are codified in Section 41.001 of the Texas Civil Practice and Remedies Code.[3]
People who are entitled to recover damages under Texas civil law are:
- The injured party
- Parents of a minor
- Estates in wrongful death cases
Types of Damages
To understand how courts compensate plaintiffs for the injuries they have suffered, it is important to understand the difference between the types of damages. The most common form of relief available in all personal injury cases are compensatory damages.[4] These damages are designed to compensate a plaintiff for actual harm, injury, or loss.
In addition to compensatory damages, punitive damages (also known as “exemplary damages”) may be awarded in a small number of personal injury cases.[5] If the plaintiff can prove the defendant engaged in gross negligence, fraud, or malice by clear and convincing evidence, courts may award punitive damages to punish the defendant for their misconduct and deter similar actions by defendants in the future.[6]
Compensatory Damages
In Texas, compensatory damages are separated into two categories: tangible and intangible damages. Tangible damages (also called “economic damages”) are calculated based on the injured party’s pecuniary loss and expenses incurred as a result of the incident. On the other hand, intangible damages (also called “noneconomic damages”) are calculated based on the injured party’s subjective and psychological impairment. This can include pain and suffering and mental anguish.[7]
Examples of Tangible Damages
Tangible losses are quantifiable expenses and have a specific monetary value evidenced through receipts, bills, or other documentation. Calculating the total expenses incurred by the plaintiff requires maintaining accurate and complete physical records. Oftentimes, attorneys will hire forensic accounting experts to assist in the quantification of economic losses.[8]
Common types of recoverable tangible damages include:[9]
- Medical expenses
- Rehabilitation expenses
- Future medical costs
- Loss of earnings or wages
- Loss of personal property
- Funeral and burial expenses
Examples of Intangible Damages
While tangible damages can be easily calculated, intangible damages are not immediately visible and discretionary, meaning the judge and jury can determine the appropriate amount to award the plaintiff.
Examples of intangible damages include but are not limited to:[10]
- Pain and Suffering: This is awarded for physical pain caused by the injury at the subject of the lawsuit.
- Mental anguish: This is awarded for emotional distress resulting from the injury and can include anxiety, depression, and other mental health conditions.[11]
- Loss of consortium: This is awarded to a non-injured spouse or family members for the loss of society and companionship in their relationship with the injured party. This type of claim often includes loss of companionship, comfort, care, affection, support, or marital intimacy.[12]
- Physical impairment: This is awarded when a plaintiff suffers from limitations in their movement, coordination, and physical activities.
- Disfigurement: Texas courts define disfigurement as “impairment of beauty, symmetry, or appearance.”[13] This type of damage is awarded when a plaintiff suffers from a permanently altered appearance, such as scars, burns, abrasions, or amputation.
- Loss of enjoyment of life: This is awarded based on how the injury impact’s a plaintiff’s everyday life and happiness.
Calculating Intangible Damages
The subjective nature of intangible damages has presented courts with a challenge. Elements of non-pecuniary damages will likely be proved through testimony from the plaintiff or other witness about the impact of the injury on every-day life and functions. Based on the circumstances of the case, expert witnesses may be used to strengthen certain aspects of the claim. For example, if a plaintiff suffers from PTSD following a motor vehicle accident, a mental health expert is crucial for the jury to understand how the emotional distress effects the plaintiff’s post-accident life.[14]
Two mathematic formulas are typically used in the valuation of non-economic damages:
- Multiplier method: This calculation uses the total economic damages (including medical bills) and multiplies it by a number between 1.5 and 5 to arrive at an estimate. The value of the multiplier may vary based on the seriousness of the injury, evidence of pain, and length of recovery.[15]
- Per Diem Method: In some cases, pain and suffering may be given a dollar amount by assigning a fixed value for each day the plaintiff has suffered from the injury.[16]
Recent Rulings on Non-Economic Damages
Recently this year, the Supreme Court of Texas issued a deeply divided opinion in the case of Gregory v. Chohan concerning whether the amount of non-economic damages awarded was excessive.
In this fatal car crash case, an 18-wheeler driven by Sarah Gregory jackknifed across multiple lanes of traffic, causing a multi-vehicle pileup on an icy, unlit stretch of road in Amarillo, Texas. Bhupinder Deol was one of four individuals who lost their life as a result of this tragic accident. Deol’s wife and family brought a wrongful death lawsuit against the defendant driver, Gregory, and her employer, New Prime, Inc. At the time of trial, the jury awarded the Deol’s family a total of approximately $16.8 million in damages, which included over $15 million in non-economic damages awarded to six family members.
The Dallas Court of Appeals affirmed the trial courts judgement, holding that the award does not meet the criteria of being “flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience.”[17]
Following the court of appeals opinion, the defendants raised three issues in the Supreme Court of Texas. They argued that the court of appeals used an overly deferential standard of review when reviewing non-economic damages, the amount awarded is not supported by sufficient evidence, and the trial court failed to list a responsible third party on the jury charge.[18]
In a plurality opinion authored by Justice Blacklock (joined by Chief Justice Hecht and Justice Busby, and Justice Bland in part), the Court stated there must be “a rational connection, grounded in the evidence, between the injuries suffered and the amount awarded.”[19] With this principle in mind, the Court found the Decedent’s counsel offered insufficient evidence to support the amount of non-economic damages awarded to Deol’s family. The court of appeals opinion was reversed, and the case was ultimately remanded for a new trial.
Impact of Gregory v. Chohan Decision
This decision in Gregory v. Chohan significantly impacts the future of proving elements of non-pecuniary damages in Texas. It creates a higher evidentiary standard for plaintiffs to meet and a stricter level of scrutiny for courts to follow when awarding non-economic damages, such as mental anguish and loss of companionship.
With this decision, it is clear “unsubstantiated anchoring” is not permissible as evidence to justify the amount of non-economic damages awarded.[20] This tactic is commonly used by attorneys in closing arguments to help jurors place a monetary value of human life.
In Gregory v. Chohan, the Court concluded that plaintiffs’ counsel references to the cost of fighter jets and expensive paintings were “impermissible appeals to irrelevant considerations.”[21]
Tangible and intangible damages differ in many ways. On one hand, tangible damages can be quantified through records and documents. On the other hand, intangible damages are typically subjective and proved through testimony and experts. Putting a price on a human life will never be simple. However, it is now apparent that damage awards, particularly intangible damages, must be grounded in justifiable evidence. While the plurality opinion in Gregory v. Chocan doesn’t provide clear guidelines on how plaintiffs can satisfy the new standards for non-economic damages, it marks the decline of unsupported damage awards in Texas cases.
Written by:
Mia Tolin
Law Clerk
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
Frank Guerra
Board Certified – Personal Injury Law
Texas Board of Legal Specialization
WATTS GUERRA LLP
Four Dominion Drive, Bldg. Three, Suite 100
San Antonio, Texas 78257
Phone: (210) 447-0500
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