Punitive Damages As a Result from ''Malice'' In Texas

To receive punitive damages, a claimant must prove by clear and convincing evidence that the harm suffered resulted from malice. See Tex. Civ. Prac. & Rem. Code Ann. 41.003(a)(2) (West 1997). The relevant definition of malice is: (B) an act or omission: (i) which 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 (ii) 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. Id. at 41.001(7)(B). The definition of malice in section 41.001(7)(B) mirrors the court's definition of gross negligence in Transportation Insurance Company v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 n.2 (Tex. 1998). Therefore, Moriel's legal sufficiency review of gross negligence is relevant to legal sufficiency review of malice as redefined by section 41.001(7)(B). Id. When conducting a factual sufficiency review of a punitive damages award, the court of appeals must detail all the relevant evidence and explain why that evidence supports or does not support the punitive damages award. See Ellis County State Bank v. Keever, 915 S.W.2d 478, 479 (Tex. 1995); Moriel, 879 S.W.2d at 31. the court must consider: (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 parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety. See Moriel, 879 S.W.2d at 31; Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981).