PJC General Negligence 2024

PJC 31.11

E XEMPLARY D AMAGES

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)(16). Source of instruction and definition. The question and instruction are derived from Tex. Penal Code §§ 6.03(a), (b), 21.02; Tex. Civ. Prac. & Rem. Code § 41.008. Various conduct that satisfies definition of continuous sexual abuse of young child under section 21.02 of Texas Penal Code. As appropriate, the question should include one or more of the subparts identified in Tex. Penal Code §21.02(c)(1)–(8). Note that the Committee interprets Tex. Civ. Prac. & Rem. Code §41.008(e) to prohibit the naming of the specific offense at issue in a “cap-busting” jury charge submitted under section 41.008. Accordingly, the charge should be drafted with reference to the elements of the particular offense listed in these subparts, rather than by identifying the name of the offense. Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 31.11 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. 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

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