Proving Physical Impairment in Personal Injury Cases
The Law Office of Doug Goyen is a Dallas car accident law firm. We seek compensation for accidents-related injuries, including physical impairment. If you need a physical impairment accident lawyer, and have been injured as a result of someone else’s negligence, call our office today to learn more about your legal options. We will begin working on your case right away. For a free consultation, call (972) 599 4100.
Some courts in Texas have equated physical impairment to “loss of enjoyment of life”. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 766 (Tex. 2003). Damages for physical impairment cover a person’s inability to do things they normally enjoyed doing before their injury outside of work (which is covered by lost earning capacity), and outside of living pain free. The inability to play a sport, go for walks, read literature for enjoyment, mow their own lawn, or other activities done for enjoyment in life, but not done for earning a living.
The majority of Texas courts have held that a factfinder (jury or judge) should be able to compensate someone who suffers a physically impairing personal injury “to the extent that party may no longer engage in or enjoy activities that he or she was able to do prior to the injury.” Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 766 (Tex 2003).
Physical impairment as a separate element of damages is defined as impairment beyond loss of earning capacity or mere pain and suffering. Jackson v. Golden Eagle Archery, Inc., 143 S.W.3d 477 (Tex. App.-Beaumont 2004, no pet.); Blankenship v. Mirick, 984 S.W.2d 771 (Tex. App.-Waco 1999, pet. denied); Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. App.-Houston [1st Dist] 1988, writ denied).
There may be physical impairment which bears no relation to economic loss and does not necessarily affect the injured party’s capacity to work and earn a living. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.-Tyler 2003, pet. denied); Texas Farm Products Co. v. Leva, 535 S.W.2d 953 (Tex. Civ. App.-Tyler 1976, no writ).
The physical impairment claimed must be more than just a loss of earning capacity, and it must be more than just pain and suffering – as these are separate elements of damages that can be recovered under the law under pain and suffering and lost earning capacity (no double recovery in other words). The physical impairment must be severe enough that it “causes a separate and distinct loss that is significant and for which he should be compensated.” Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 826-28 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).
The majority of Texas courts hold that the claimed physical impairment must be permanent and interfere with physical activities.
Temporary injuries, according to some Texas courts, cause physical impairment and may be compensated.
Courts have allowed awards for physical impairment in the following cases (and thus an injured person with a similar injury should be able to make a claim for physical impairment in those cases).
- A paralyzed person confined to a wheelchair suffers considerable disability beyond the loss of earning capacity, because his life in general is destroyed. Green v. Baldree, 497 S.W.2d 342 (Tex. Civ. App.-Houston [14th Dist.] 1973, no writ).
- Loss of the physical ability to enjoy recreational sports activities extends beyond a loss of earning capacity and beyond pain and suffering. Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.-Tyler 2003, pet. denied).
- Dr. Pepper Bottling Co. v. Rainboldt, 66 S.W.2d 496, 501 (Tex.Civ.App.-Waco 1933), rev’d on other grounds, Schroeder v. Rainboldt, 128 Tex. 269, 97 S.W.2d 679 (1936) (plaintiff’s bladder was permanently injured and she would be unable to have children);
- Charles T. Picton Lumber Co. v. Redden,452 S.W.2d 713, 723 (Tex.Civ.App.-Corpus Christi 1970, writ ref’d n.r.e.) (noting that plaintiff, a paraplegic, was permanently injured and would require braces, crutches, or a wheel chair);
- Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584, 599, 600 (Tex.App.-San Antonio 1990, writ denied) (noting that physician testified that 27year-old plaintiff would have to restrict his activities for the rest of his life and his condition would become worse over time);
- Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 493 (Tex.App.-Houston [14th Dist.] 1989, no writ); (concluding that evidence of loss of ability to enjoy recreational sports supported award);
- Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ dism’d) (observing that plaintiff could no longer engage in manual labor as an employee or for his own benefit, mow a lawn, or play basketball);
- Browning v. Paiz, 586 S.W.2d 670, 675 (Tex.Civ.App.-Corpus Christi 1979, writ ref’d n.r.e.); (observing that physician testified that condition of plaintiff’s leg was permanent and the prognosis was poor, perhaps requiring amputation);
- Blankenship v. Mirick, 984 S.W.2d 771, 778 (Tex.App.-Waco 1999, pet. denied) (concluding that evidence that plaintiff could no longer do aerobic exercises, she did not walk as well, her knees gave out, and her physician said likelihood of developing arthritis was much higher was sufficient to support award for physical impairment);
- Santa Rosa Med. Ctr. v. Robinson,560 S.W.2d 751, 760 (Tex.Civ.App.-San Antonio 1977, no writ) (concluding that evidence of partial paralysis, spasticity, difficulty focusing both eyes, slurring of words, and inability to perform any of the usual tasks of a working man supported award for physical impairment);
- J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659 (Tex. App.-Fort Worth 1999, pet. denied) (trucker could not do things as quickly or without pain since accident, could no longer participate in motocross, work on cars, or do work as electrician).
Plaintiff has the burden of proving that they have a physical disability that goes beyond mere pain or impairment of earning capacity to the point where it causes a separate and distinct loss that is substantial and for which they should be compensated. Green v. Baldree, 497 S.W.2d 342 (Tex. Civ. App.-Houston [14th Dist.] 1973, no writ); Allen v. Whisenhunt, 603 S.W.2d 242 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ dism’d w.o.j.).
- Physical impairment may be inferred when injuries are extremely severe, such as paralysis or amputations.Plainview Motels, Inc. v. Reynolds, 127 S.W.3d 21 (Tex. App.-Tyler 2003, pet. denied); Sunset Brick & Tile, Inc. v. Miles, 430 S.W.2d 388 (Tex. Civ. App.-Corpus Christi 1968, writ ref’d n.r.e.).
- In cases of less demonstrable disability, the plaintiff should testify directly about how the disability results in a separate and distinct loss that is significant. Green, 497 S.W.2d 342.
- Evidence that plaintiff could not mow lawn or play basketball because of injury supported an award for physical impairment. Allen v. Whisenhunt, 603 S.W.2d 242 (Tex. App.-Houston [14th Dist.] 1980, writ dism’d w.o.j.).
Apache Ready Mix Co. v. Creed, 653 S.W.2d 79 (Tex. App.-San Antonio 1983, writ dism’d), The court ruled that a twenty-minute videotape of the injured minor plaintiff demonstrating the extent of her injuries was admissible.
Photographs and videotapes are admissible to demonstrate the extent of the minor’s injuries. Air Shields, Inc. v. Spears, 590 S.W.2d 574 (Tex. Civ. App.-Waco 1979, writ ref’d n.r.e.)
The content of the videotape or movie may be subject to the court’s discretion if its contents are prejudicial, as in the case where the court correctly excluded portions of an operation performed on the plaintiff. Karp v. Cooley, 493 F.2d 408 (5th Cir. 1974).FUTURE PHYSICAL IMPAIRMENT
Future physical impairment – the court stated that “In a personal injury case, an award of future damages is always speculative. Life expectancy, medical advances, and the future cost of goods, services, and money are not certain. A jury must frequently extrapolate an award of future damages from evidence of other matters… the jury must rely on its common knowledge and sense of justice…” Pipgras v. Hart, 832 S.W.2d 360 (Tex. App.-Fort Worth 1992, writ denied); Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835 (Tex. App.-Fort Worth 2003, pet. denied).
Texas law provides compensation for people who have been injured, including those who have suffered physical harm as a result of an accident. Call the Law Office of Doug Goyen; our personal injury attorney has over 23 years of experience getting our clients compensation. Contact us at (972) 599 4100. There is no fee unless and until you win!
If you are looking for a personal injury attorney, call (972) 599 4100. We offer free phone consultations. We also provide a free strategy session. The strategy session includes a summary of your case, legal issues involved, and legal issues we identify as being critical to maximizing the compensation owed.THERE IS NO FEE IF WE DO NOT WIN
You owe us nothing if we are unable to recover. We charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests.DIRECTIONS TO OUR OFFICE
Law Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
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