PJC Business

D AMAGES

PJC 115.37

898), eff. Sept. 1, 1997. (Note: In the remainder of this Comment, citations to the Texas Civil Practice and Remedies Code as set out in the preceding session laws will be made to “former Tex. Civ. Prac. & Rem. Code §____.”) PJC 115.37B is derived from Tex. Civ. Prac. & Rem. Code §§ 41.001(7), (11), 41.003(a)(1), (a)(2), (a)(3), (d), 41.004(a). By the supreme court’s March 15, 2011, effective April 1, 2011, and April 13, 2011, effective April 13, 2011, orders under Tex. R. Civ. P. 226a, the supreme court requires unanimity on the exemplary damages question and the applicable liability question in cases governed by Tex. Civ. Prac. & Rem. Code § 41.003(d). PJC 115.37B is conditioned accordingly. The unanimity instruction is adapted from the instruction in Tex. Civ. Prac. & Rem. Code §41.003(e) and the supreme court’s March 15, 2011, effective April 1, 2011, and April 13, 2011, effective April 13, 2011, orders under Tex. R. Civ. P. 226a. Fraud as a ground for exemplary damages. Fraud, as well as malice, is a ground for recovery of exemplary damages. Tex. Civ. Prac. & Rem. Code § 41.003(a)(1). As a predicate for recovery of exemplary damages, fraud is defined as “fraud other than constructive fraud.” Tex. Civ. Prac. & Rem. Code § 41.001(6). In an appropriate case, substitute fraud for malice in the question proper and insert a defini tion for “fraud” conforming to the pleadings and evidence of the case, using the defini tions for fraud found at PJC 105.2–105.3, 105.7–105.11 as a guide. However, if fraud is an underlying theory of liability as well as a predicate for recovery of exemplary damages, the question may be modified as follows: Do you find by clear and convincing evidence that the harm to Paul Payne resulted from [ malice, gross negligence, or ] any fraud found by you in Question ______ ? Constructive fraud cannot serve as a predicate for recovery of exemplary damages. Tex. Civ. Prac. & Rem. Code §41.001(6). Accordingly, if constructive fraud is an underlying theory of liability in addition to intentional or statutory fraud, constructive fraud should be separately submitted and not included as a predicate for PJC 115.37. See PJC 105.4 comment, “Fraud as a ground for exemplary damages.” Gross negligence as a ground for exemplary damages. In actions filed on or after September 1, 2003, gross negligence is also a ground for recovery of exemplary damages. Tex. Civ. Prac. & Rem. Code § 41.003(a)(3). As a predicate for recovery of exemplary damages, the following instruction should be given: “Gross negligence” means an act or omission by Don Davis , 1. which when viewed objectively from the standpoint of Don Davis at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

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