PJC Business

PJC 115.46

D AMAGES

PJC 115.46 Other Conduct of Defendant Authorizing Removal of Limitation on Exemplary Damages Award (Comment) In addition to the actions described in PJC 115.40–115.45, nine other instances of the defendant’s conduct, listed in Tex. Civ. Prac. & Rem. Code §41.008(c), will sup port a removal of the limitation on exemplary damages awards set out in Tex. Civ. Prac. & Rem. Code § 41.008(b). They are: • murder (Tex. Penal Code § 19.02); • capital murder (Tex. Penal Code § 19.03); • aggravated kidnapping (Tex. Penal Code § 20.04); • aggravated assault (Tex. Penal Code § 22.02); • sexual assault (Tex. Penal Code § 22.011); • aggravated sexual assault (Tex. Penal Code § 22.021); • injury to a child, elderly individual, or disabled individual (Tex. Penal Code §22.04), but for actions filed on or after September 1, 2003, “not if the con duct occurred while providing health care as defined by [Texas Civil Practice and Remedies Code] Section 74.001” (Tex. Civ. Prac. & Rem. Code § 41.008(c)(7)); • intoxication assault (Tex. Penal Code § 49.07); and • intoxication manslaughter (Tex. Penal Code § 49.08). When to use. A question asking whether the defendant engaged in the conduct described in the Penal Code provisions set out above should be used in a case in which (1)exemplary damages are sought, (2) the jury has previously found that the defen dant committed conduct authorizing recovery of exemplary damages as set out in Tex. Civ. Prac. & Rem. Code §41.003, and (3) the plaintiff alleges harm based on conduct described in the Penal Code provision. See Tex. Civ. Prac. & Rem. Code §41.008(c). This statute applies to causes of action accruing on or after September 1, 1995. If the jury answers “Yes” to such a question, 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). Drafting of question. A jury question regarding one or more of the acts set out in the Penal Code sections listed above should follow the pattern set out in PJC 115.40– 115.45. For questions and instructions on these actions, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products . Standard of conduct — “knowingly” or “intentionally.” Tex. Civ. Prac. & Rem. Code §41.008(c) authorizes elimination of the limitation on exemplary damages awards if the conduct described in the applicable Penal Code section was committed either knowingly or intentionally. “Knowingly” is defined as follows:

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