PJC General Negligence 2024

PJC 31.5

E XEMPLARY D AMAGES

A person acts knowingly, or with knowledge, with respect to a nature of his conduct or circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct. Because section 41.008(d) does not indicate whether the definition of “intention ally” or “knowingly” as narrowed in these examples should be used, and civil courts have not spoken on the issue, the Committee has adopted the complete statutory defi nitions of knowingly and intentionally from Tex. Penal Code §6.03(a), (b) for use in the charge. “Child.” In an appropriate case, submit the following definition of “child,” as provided in Tex. Penal Code § 22.011(c)(1): “Child” means a person younger than seventeen years of age. “Consent.” In an appropriate case, submit the following definition of “consent,” as provided in Tex. Penal Code § 22.011(b)(1), (b)(2): Don Davis ’s conduct is without the consent of the other person when the other person is compelled to submit or participate by the use of physical force, violence, or coercion, or by Don Davis threat ening the use of force or violence or to cause harm to the other per son, and the other person believes Don Davis has the present ability to execute the threat. This instruction may be modified as appropriate based on the evidence, pursuant to Tex. Penal Code § 22.011(b)(3)–(14). Unanimity. PJC 31.5 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

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