PJC Malpractice 2024

PJC 85.5

E XEMPLARY D AMAGES

A person acts “intentionally,” or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 85.5 should be used in a case in which (1) exemplary damages are sought, (2) the harm to the plaintiff is alleged to have resulted from conduct described as a felony in Tex. Penal Code § 19.02, and (3) the jury has previously found that the defendant committed conduct authorizing recovery of exemplary damages as set out in Tex. Civ. Prac. & Rem. Code § 41.003. See Tex. Civ. Prac. & Rem. Code § 41.008(c)(1). If the jury finds conduct that violates Tex. Penal Code § 19.02, and 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)(1). Source of instruction and definition. The question and instructions are derived from Tex. Penal Code §§ 6.03(a), (b), 19.02; Tex. Civ. Prac. & Rem. Code § 41.008. Allegation of felony other than manslaughter. Number 3 requires a finding that the defendant committed or attempted to commit a felony other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, committed or attempted to commit an act clearly dangerous to human life that caused the death of an individual. Tex. Penal Code §19.02(b)(3). If the plaintiff has alleged conduct implicating number 3, and the pleadings and evidence support the inclusion of a jury instruction on the alleged fel ony, include an instruction with the elements of the alleged offense. See, e.g., PJC 85.8 (elements of aggravated assault). Bifurcation. If a defendant has requested a bifurcated trial pursuant to Tex. Civ. Prac. & Rem. Code §41.009, PJC 85.5 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

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