Recovering Exemplary Damages in Texas

By Clay Dugas & Associates | Dec 5, 2018

When Can Plaintiffs Recover Exemplary Damages?

In Texas, a plaintiff can recover exemplary damages in certain situations (also called “punitive damages”). In order to recover exemplary damages in a personal injury case, a plaintiff has to show evidence of gross negligence.

In Texas, Gross Negligence is defined by the Texas Civil Practices & Remedies Code, §41.001 (11):

(11) "Gross negligence" means an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Objective Standard: Awareness of Risk

In laymen’s terms, the first part involves an objective standard where pretty much everyone agrees that the bad actor was or should have been aware that his or her actions involved an extreme degree of risk when considering the probability of potential harm to others and when the magnitude of the potential harm to others is an extreme risk. In other words, the actions are recognized by virtually everyone as dangerous and risky. For instance, driving a car 70 miles per hour through a school zone or driving an 18 wheeler loaded to full capacity at 80,000 pounds while texting at 75 miles per hour would meet that test.

Subjective Standard: Disregard for Known Risk

The second part is the subjective component that almost universally has to be proven with circumstantial evidence. The plaintiff has to show that the bad actor had an actual awareness of the risk of his or her behavior but went ahead and did it anyway. If a truck driver exceeds the number of hours that he is allowed to drive and continues to drive anyway, despite having sleep apnea, then (because he is actually trained not to do that) he would have an actual awareness of the risk and harm to others.

In Texas, a jury would have to be unanimous on this question, unlike other civil verdicts where a split of eleven to one or ten to two is allowed.

Gross Negligence Requirement

A gross negligence finding is a prerequisite to recovering exemplary damages in Texas. The vast majority of defendants will elect to bifurcate the exemplary damages question. This means the jury would first answer the underlying negligence, product liability or other base cause of action. Then, they would award whatever damages were allowed at that point. At that point, the jury would have no indication or suggestion that any additional questions were forthcoming. Then, the judge would advise them that because of their answers to the gross negligence question (if they answered it unanimously) they now had to hear evidence on the exemplary damages.

The judge will submit a question that includes the following language from the Texas Pattern Jury Charges: “Exemplary damages” means an amount that you may in your discretion award as a penalty or by way of punishment.

Factors to Be Considered When Awarding Exemplary Damages

When awarding exemplary damages, the court will consider the following:

  1. The nature of the wrong
  2. The character of the conduct involved
  3. The degree of culpability of the Defendant
  4. The situation and sensibilities of the parties concerned
  5. The extent to which such conduct offends a public sense of justice and propriety
  6. The net worth of the defendant
A jury can then award damages based on whatever evidence is presented but again, they must be unanimous in their finding on the exemplary damages. In Texas, exemplary damages can be awarded in a wrongful death case from an on the job injury or something like a death caused by an 18 wheeler.

18-Wheeler Accident Attorney in Beaumont, TX

At Clay Dugas and Associates, we do whatever it takes to help clients who have been injured in trucking accidents in Southeast Texas. If you are a victim of negligence, we understand the laws and regulations relevant to your case and we know how to help you obtain an appropriate settlement or verdict. Connect with a member of our team as soon as possible to schedule your initial consultation and learn what we can do to help.

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