PJC General Negligence 2024

PJC 31.2

E XEMPLARY D AMAGES

b. during different criminal transactions but the deaths are committed pursuant to the same scheme or course of conduct; or 8. knowingly or intentionally cause the death of an individ ual under ten years of age; or 9. knowingly or intentionally cause the death of an individ ual ten years of age or older but younger than fifteen years of age; or 10. knowingly or intentionally cause the death of an individ ual in retaliation for or on account of the service or status of the individual as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal dis trict court, a constitutional county court, a statutory county court, a justice court, or a municipal court? See Tex. Penal Code § 19.03(a). If more than one of the alternative instructions listed above is used, each must be separated by the word “or” because a finding of any one of the circumstances defined by the instructions would support removing the cap on exemplary damages under Tex. Civ. Prac. & Rem. Code § 41.008(c)(2). Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 31.2 should be answered in the first phase of the trial. See Transportation Insurance Co. v. Moriel , 879 S.W.2d 10, 30 (Tex. 1994) (not ing that in second phase of bifurcated trial, jury is “presented evidence relevant only to the amount of punitive damages”) (emphasis added). Caveat—burden of proof. Because Tex. Civ. Prac. & Rem. Code § 41.008 iden tifies no burden of proof and Tex. R. Civ. P. 226a instructs the jury that a “yes” answer must be based on a preponderance of the evidence, this question uses a preponderance of the evidence burden of proof. Tex. R. Civ. P. 226a. For a claimant to recover exem plary damages, the jury charge must require a finding of fraud, malice, or gross negli gence by clear and convincing evidence. See Tex. Civ. Prac. & Rem. Code §41.003(a). See PJC 4.2 and 10.15 for these findings. The Penal Code provisions listed in section 41.008 do not establish a cause of action or otherwise authorize exem plary damages. See Tex. Civ. Prac. & Rem. Code §41.003(c). Rather, if the jury finds any of the conduct listed in section 41.008(c), the limitation in section 41.008(b) does not apply. See Tex. Civ. Prac. & Rem. Code § 41.008(c). As of the publication date of this edition, no Texas appellate court has definitively addressed the burden of proof for the conduct listed in section 41.008(c). Corporate defendants. For the definition of “person,” see Tex. Penal Code § 1.07(a)(38).

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