PJC General Negligence 2024

PJC 31.9

E XEMPLARY D AMAGES

Source of instructions and definitions. The question and instructions are derived from Tex. Penal Code §§1.07(a)(11), (a)(35), 31.01(2)–(5), 31.03, 31.08, 49.01(2), 49.07; 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 31.9 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). Culpable mental state. Although most criminal offenses under Tex. Civ. Prac. & Rem. Code §41.008 require a mental state of “intentionally” or “knowingly,” the mental state requirement differs for intoxication assault. See Tex. Civ. Prac. & Rem. Code § 41.008(c). Accordingly, the mental state requirement of “by accident or mis take” from Tex. Penal Code § 49.07 should be used. Alternative language for culpable conduct. In an appropriate case, the language while operating an aircraft, watercraft, or amusement ride or as a result of assembling a mobile amusement ride may be substituted for while operating a motor vehicle in a public place in the original language of the charge. Tex. Penal Code § 49.07(a)(1)–(2). Unanimity. PJC 31.9 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

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