PJC Business 2024

D EFAMATION , B USINESS D ISPARAGEMENT & I NVASION OF P RIVACY

PJC 110.6

PJC 110.6

Question and Instructions on Actual Malice

If you answered “Yes” to Question ______ [ 110.5 ], then answer the follow ing question. Otherwise, do not answer the following question. QUESTION ______ Do you find by clear and convincing evidence that, at the time Don Davis made the statement in Question ______ [ 110.3 ]— 1. Don Davis knew it was false as it related to Paul Payne , or 2. Don Davis made the statement with a high degree of awareness that it was probably false, to an extent that Don Davis in fact had serious doubts as to the truth of the statement? “Clear and convincing evidence” is that measure or degree of proof that will produce in the mind of the jury a firm belief or conviction as to the truth of the allegations sought to be established. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. Fault is an element of defamation, but the level of fault required can be either negligence or “actual malice,” depending on the circumstances of the case. In re Lipsky , 460 S.W.3d 579, 593 (Tex. 2015). When negligence is required, use PJC 110.5. When actual malice is required, use PJC 110.6. For a discussion of the circum stances under which each level of fault is required, see the Comment to PJC 110.5. PJC 110.6 can also be used when an actual malice finding is relevant to some other issue. For example, in a case brought by a private figure involving a matter of public concern, the plaintiff must prove actual malice by clear and convincing evidence to recover exemplary damages. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 760–61 (1985) (citing Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974)). And actual malice may also be a fact issue in a case involving a qualified-privilege defense. Dun & Bradstreet, Inc. v. O’Neil , 456 S.W.2d 896, 900 (Tex. 1970). “Actual malice.” Because the U.S. Supreme Court has expressed remorse over the use of “actual malice” to describe the standard, and chapter 41 of the Texas Civil Practice and Remedies Code uses “malice” in connection with exemplary damages, the instruction avoids the use of the phrases “actual malice” and “reckless disregard.”

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