PJC General Negligence 2022

PJC 11.9

T RESPASS

“Exemplary damages” means an amount that you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount that you may have found as actual damages. Factors to consider in awarding exemplary damages, if any, are— 1. The nature of the wrong. 2. The character of the conduct involved. 3. The degree of culpability of the wrongdoer. 4. The situation and sensibilities of the party concerned. 5. The extent to which such conduct offends a public sense of justice and propriety. 6. The net worth of Don Davis . Answer in dollars and cents, if any. Answer: _______________ Exemplary damages available only if malice is found. Exemplary damages are recoverable when the harm results from malice. See Tex. Civ. Prac. & Rem. Code §41.003(a). To obtain exemplary damages in a trespass action, the plaintiff must prove by clear and convincing evidence that the defendant intended to harm the plain tiff. See Coinmach Corp. v. Aspenwood Apartment Corp. , 417 S.W.3d 909, 922 (Tex. 2013) (citing Wilen v. Falkenstein , 191 S.W.3d 791, 800–801 (Tex. App.—Fort Worth 2006, pet. denied)). Bifurcation. No predicating instruction is necessary if the court has granted a timely motion to bifurcate trial of the amount of punitive damages. See Tex. Civ. Prac. & Rem. Code § 41.009. If in the first phase of the trial the jury finds facts establishing a predicate for an award of exemplary damages, then a separate phase two jury charge should be prepared. In such a phase two jury charge, PJC 28.7 should be submitted with both PJC 1.3 and PJC 1.4 instructions. COMMENT

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