PJC General Negligence 2024

PJC 31.3

E XEMPLARY D AMAGES

COMMENT When to use. PJC 31.3 should be used in a case in which (1) exemplary damages are sought, (2) the harm to the plaintiff is alleged to have resulted from conduct described as a felony in Tex. Penal Code § 20.04, and (3) the jury has previously found that the defendant committed conduct authorizing recovery of exemplary damages as set out in Tex. Civ. Prac. & Rem. Code § 41.003. See Tex. Civ. Prac. & Rem. Code § 41.008(c)(3). If the jury finds conduct that violates Tex. Penal Code § 20.04, and that conduct rises to the level of a felony, the limitations on exemplary damages awards set out in Tex. Civ. Prac. & Rem. Code § 41.008(b) do not apply. Tex. Civ. Prac. & Rem. Code § 41.008(c)(3). Source of instruction and definition. The question and instructions are derived from Tex. Penal Code §§6.03(a), (b), 20.01(1), (2), 20.04; Tex. Civ. Prac. & Rem. Code § 41.008. Various conduct that satisfies definition of aggravated kidnapping under sec tion 20.04 of Texas Penal Code. In an appropriate case, the question should include one or more of the following subparts: 1. hold him for ransom or reward; or 2. use him as a shield or hostage; or 3. facilitate the commission of a felony or the flight after the attempt or commission of a felony; or 4. inflict bodily injury on him or violate or abuse him sexu ally; or 5. terrorize him or a third person; or 6. interfere with the performance of any governmental or political function? See Tex. Penal Code §20.04(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)(3). Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 31.3 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

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