PJC General Negligence 2024

PJC 31.4

E XEMPLARY D AMAGES

“Reckless” state of mind. The Penal Code’s definition of aggravated assault includes reckless conduct, but Tex. Civ. Prac. & Rem. Code §41.008(c), (d) require the conduct be committed “knowingly or intentionally.” Accordingly, the term “reck lessly” has been purposely omitted. “Bodily injury” and “serious bodily injury.” In an appropriate case, submit the following definitions of “bodily injury” and “serious bodily injury,” as provided in Tex. Penal Code § 1.07(a)(8), (a)(46): “Bodily injury” means physical pain, illness, or any impairment of physical condition. “Serious bodily injury” means bodily injury that creates a substan tial risk of death or that causes death, serious permanent disfigure ment, or protracted loss or impairment of the function of any bodily member or organ. Unanimity. PJC 31.4 does not require a unanimous jury finding of the conduct listed in Tex. Civ. Prac. & Rem. Code § 41.008(c). Under chapter 41 of the Texas Civil Practice and Remedies Code, “exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary dam ages.” Tex. Civ. Prac. & Rem. Code § 41.003(d). This is consistent with Tex. R. Civ. P. 292(b), which requires jury unanimity for awards of exemplary damages—an excep tion to the general rule (stated in rule 292(a)) that the agreement of ten of twelve jurors is required to render a verdict. Section 41.003 specifically provides an instruction on unanimity that addresses the amount of damages. Tex. Civ. Prac. & Rem. Code §41.003(e) (“You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unani mous.”). However, nothing in chapter 41 purports to address the number of jurors who must agree on the findings required by section 41.008(c) for exceeding the usual limit on exemplary damages set by section 41.008(b). Texas Rule of Civil Procedure 226a provides that, unless otherwise instructed, “the answers to the questions must be based on the decision of at least 10 of the 12 [5 of the 6] jurors. The same 10 [5] jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 [5] jurors, even if it would be a majority.” Tex. R. Civ. P. 226a. As of the publication date of this edition, no Texas appellate court has definitively addressed the question of how many members of a jury must agree to a finding of the conduct listed in section 41.008(c).

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