PJC Malpractice 2024

PJC 85.1

E XEMPLARY D AMAGES

structive fraud is defined as “the breach of some legal or equitable duty which, irre spective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.” Archer v. Griffith , 390 S.W.2d 735, 740 (Tex. 1964). The Committee expresses no opinion on the elements that may be required to establish fraud in the context of a case involving a claim for exemplary damages against a nonmedical professional. The burden of proof is clear and convincing evidence. For questions, instructions, and definitions for fraud as a predicate for actual damages, see the current edition of State Bar of Texas, Texas Pat tern Jury Charges—Business, Consumer, Insurance & Employment PJC105.1–105.11. Exceptions to the limitation on exemplary damages. See Tex. Civ. Prac. & Rem. Code §41.008(c). See PJC 85.5–85.21 for questions and instructions on these exceptions. Malice as a ground for exemplary damages. In addition to gross negligence and fraud, malice is a ground for recovery of exemplary damages. Tex. Civ. Prac. & Rem. Code §41.003(a)(2). As a predicate for recovery of exemplary damages, the jury question should be tailored to inquire about malice instead of gross negligence, and the following instruction should be given in place of the instruction for gross negligence: “Malice” means a specific intent by Don Davis to cause substan tial injury or harm to Paul Payne . See Tex. Civ. Prac. & Rem. Code § 41.001(7). Source of question and instructions. The question and instructions are derived from Tex. Civ. Prac. & Rem. Code §§41.001(7), (11), 41.003(a), (d), 41.004(a); Tex. R. Civ. P. 226a.

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