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Civil Litigation Click here for the full text of this decision FACTS:Ronald Jackson received a compound hunting bow manufactured by Golden Eagle Archery as a gift from his wife. When she presented it to him, he attempted to demonstrate how it is used. The bow went out of control, and the metal rod that separated the bow string from the cables struck Jackson in the eye. Jackson sued Golden Eagle, alleging that the bow was defectively designed and marketed. The jury failed to find a design defect, but found that Golden Eagle did not give adequate warnings of the product’s danger. A single damage question was submitted in which the jury was permitted to award damages in six separate categories. They awarded $25,393 for medical care, $2,500 for physical pain and mental anguish, $2,500 for “physical impairment of loss of vision,” $0 for “physical impairment other than the loss of vision,” $1,500 for disfigurement and $4,600 for loss of earnings in the past. The trial court rendered judgment on the verdict in favor of Jackson, and Jackson appealed. The court of appeals reversed the trial court’s judgment after concluding that two of the rules of procedure were unconstitutional. The court reversed the court of appeals and remanded other, unresolved issues to that court. Following that remand, the court of appeals considered Jackson’s contention that he was entitled to a new trial because the jury’s failure to award any damages for “physical impairment other than loss of vision” was against the great weight and preponderance of the evidence. Jackson also contended that the jury’s awards for physical pain and mental anguish, physical impairment because of loss of vision, and disfigurement were inadequate and required a new trial. The court of appeals agreed with Jackson regarding the award of no damages for physical impairment other than loss of vision. It remanded the case for a new trial and therefore did not reach Jackson’s other issues on appeal. HOLDING:Reversed and remanded. The jury submission in this case comports with a practice suggested by some courts of appeals. Instead of defining damage categories for juries in such a way that they do not overlap, which the court recognizes may not be feasible for some damage elements, some courts of appeals have concluded that to avoid double awards of damages, particularly when physical impairment is submitted, juries should be directly instructed not to award overlapping damages. The decision in French v. Grigsby, 567 S.W.2d 604 (Tex. Civ. App. � Beaumont), writ ref’d n.r.e., 571 S.W.2d 867 (Tex. 1978), approved such an instruction in affirming the trial court’s judgment awarding damages for physical impairment: “In answering this special issue you shall not award any sum of money on any element if you have otherwise, under some other element, awarded a sum of money for the same loss, that is, do not compensate twice for the same loss, if any.” This type of instruction informs the jury that it is not to make a duplicative award of damages. The court notes that the trial court in this case followed the State Bar of Texas Pattern Jury Charge to some extent, which uses language different from the instruction in French. The trial court’s charge said: “Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element.” The instruction in French is clearer. Given that some of the categories of damages submitted to the jury in this case were not defined and therefore were not cleanly and clearly segregated from one another, the question, then, is how should the court of appeals review the factual sufficiency of the evidence supporting the jury’s award for physical impairment. When only one category of damages is challenged on the basis that the award in that category was zero or was too low, a court should consider only whether the evidence unique to that category is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. When, as in this case, the jury’s failure to find greater damages in more than one overlapping category is challenged, the court of appeals should first determine if the evidence unique to each category is factually sufficient. If it is not, the court of appeals should then consider all the overlapping evidence, together with the evidence unique to each category, to determine if the total amount awarded in the overlapping categories is factually sufficient. This standard of review gives due regard to a jury’s choice of whether and how to categorize and compensate for specific losses or injuries that could reasonably fall into more than one category of damages. It also advances the principles that a tort victim should be fully and fairly compensated, but that a double recovery should be avoided. Additionally, in reviewing a jury’s failure to award any damages, courts of appeals should apply the principles articulated in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). In this case, the court of appeals did not detail the evidence that supported the jury’s failure to award any damages for physical impairment other than loss of vision or state in what regard the contrary evidence greatly outweighed the evidence in support of the verdict, as Pool requires. OPINION:Owen, J.; Phillips, C.J., Hecht, Enoch, Smith and Wainwright, JJ. join. Jefferson, J., did not participate. CONCURRENCE:O’Neill, J. “Rather than applying the relatively straightforward Pool standard, the Court wanders through the origins of physical impairment as a distinct damage element (something neither party felt compelled to discuss), ruminates on whether impairment damages should be awarded for other than permanent injuries (again, neither party raised the issue), and contemplates which damage element best encompasses the concept of hedonic damages (nary a word from the parties). Because the Court’s writing consists primarily of dicta, and the factual sufficiency review standard it “adopt[s] today’ is confusing at best and completely unnecessary, I concur in the judgment only.”

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