PJC General Negligence 2024

PJC 31.7

E XEMPLARY D AMAGES

Code § 41.008(c)(7). If the conduct results in an injury to a child, elderly individual, or disabled individual and is conduct occurring while providing health care as defined by Tex. Civ. Prac. & Rem. Code §74.001, the exception to the limitation on the amount of recovery does not apply. See Tex. Civ. Prac. & Rem. Code § 41.008(c)(7). Source of instruction and definition. The question and instructions are derived from Tex. Penal Code §§ 6.03(a), (b), 22.04; Tex. Civ. Prac. & Rem. Code § 41.008. Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 31.7B 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). Use of “or.” Each of elements 1, 2, and 3 should be used only when raised by the evidence. 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)(7). Culpable mental state. Tex. Civ. Prac. & Rem. Code §41.008(d) states that “intentionally” and “knowingly” have the same meanings assigned in Tex. Penal Code §6.03(a), (b). No civil court has clarified the mental state to be applied to the jury instructions to be used under Tex. Civ. Prac. & Rem. Code §41.008(c). However, criminal courts have in some instances applied a narrower definition of intent or knowledge based on whether the offense is result- or conduct-oriented in nature. See McQueen v. State , 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (explaining difference between result- and conduct-oriented crimes); Alvarado v. State , 704 S.W.2d 36, 39– 40 (Tex. Crim. App. 1985) (en banc) (op. on reh’g) (result-oriented crime; reversible error to instruct jury to find guilt based on intent either to engage in conduct or for result to occur, or both).

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