Damage is an essential element.
1. Damage is an essential element of the plaintiff’s prima facie case for negligence. This means actual harm or injury. Unlike the situation for some of the intentional torts, the damage will not be presumed. Thus, nominal damages are not available in action in negligence; some proof of harm must be offered.
a. Personal Injury Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general. This includes fair and adequate compensation for economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. Plaintiff is entitled to compensation for impaired future earning capacity, discounted to present value to avoid an excess award, i. e. The plaintiff receives an amount that, if securely invested, would produce the income the jury wishes him to have.
b. Property Damage, The measure of damages for property damage is the reasonable repair cost or, if the property has been almost or wholly destroyed, its fair market value at the time of the accident. Courts generally do not permit recovery of emotional distress damages for negligent harm to property.
c. Punitive Damages generally are not available in negligence cases. However, if the defendant’s conduct was “wanton and willful,” reckless, or malicious, most jurisdictions permit recovery of punitive damages.
d. Nonrecoverable Items: Certain items are not recoverable as damages in negligence actions. These include 1) Interest from the date of damage in personal injury action and 2) Attorneys’ fees.
Duty to Mitigate Damages
2. Duty to Mitigate Damages: In all cases, the plaintiff must take reasonable steps to mitigate damages in property damage cases to preserve and safeguard the property, and in personal injury cases, to seek appropriate treatment to effect a cure or healing and to prevent aggravation. Failure to mitigate precludes recovery of any additional damages caused by the irritation of the injury.
Texas Civil Practice & Remedies Code – Section §147.123
Mitigation of damages is a contract law concept requiring a victim in a contract dispute to minimize the damages resulting from a breach of the contract. It means that the victim is legally obligated to act in a manner that will mitigate both the effects of the violation and their losses. And even if the victim suffers emotional injury through no fault, they should take reasonable steps to avoid further loss and minimize the damage’s consequences. As such, the mitigation of damages law is outlined in the Texas Civil Practice & Remedies Code – Section §147.123, which provides:
Chapter 33 (Proportionate Responsibility)
In an action to which Chapter 33 (Proportionate Responsibility) applies, the Court shall instruct the finder of fact regarding the determination of responsibility according to Section §33.003 (Determination of Percentage of Responsibility) using the appropriate approved pattern jury charge, which the Court may modify as appropriate to the circumstances.
In all actions not governed by Subsection (a), the Court shall instruct the finder of fact regarding a claimant’s duty to mitigate or avoid damages in a manner appropriate to the action using the reasonable approved pattern jury charge, which the Court may modify as appropriate to the circumstances.
In other words, the Code allows the finder of facts, the jury, to decide whether a person took the necessary steps to avoid increasing damages or “mitigate” their damages. Under Texas law, whether a person took the steps required to avoid increasing damages or “mitigate” their injuries would be grounds for recovery. And denial of recovery.
The Court of Appeals of Texas
“The mitigation of damages doctrine requires the injured party to exercise reasonable care to minimize damages. The party asserting failure to mitigate has the burden of proving facts showing a lack of mitigation. It must also show the amount the damages were increased by failure to mitigate.” Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 708 (Tex. App. 2006). The Court held in Cotton that the party asserting affirmative defense must request findings in support thereof to avoid waiver.
3. Collateral Source Rule As a general rule, damages are not reduced or mitigated because of benefits received by the plaintiff. From other sources, e. g., health insurance and sick pay from the employer. Hence, at trial, defendants may not introduce evidence of financial aid from other sources. A growing number of states have made exceptions to this rule in specific actions. Such as (e. g., medical malpractice actions), allowing defendants to introduce evidence of insurance awards or disability benefits.