The Dallas Court of Appeals recently held that a jury verdict of 11-1 on negligence bars recovery of exemplary damages based on gross negligence. In this case, the jury returned a verdict against the defendant for negligence by a vote of 11 to 1. Ignoring the predicate instruction to only answer the gross negligence question on an unanimous finding of negligence, the jury returned a verdict for gross negligence against the defendant by a vote of 12 to 0 and awarded $2.5 million in exemplary damages. The trial court refused to award judgment for exemplary damages. On appeal, the court of appeals confirmed what seems logical, but is not exactly clear from the applicable statute.
Section 41.003(d) of the Texas Civil Practice and Remedies Code requires that the jury be unanimous in its finding on liabilty for, and amount of, exemplary damages. The statute is slient as to liability for actual damages. Texas Rule of Civil Procedure 226a requires an unanimous finding on liability, liability for exemplary damages, and the amount of exemplary damages. Rejecting the argument that the rule and statute conflict, the court stated that "it is logical to conclude that the Legislature intended the unanimity requirement to apply to all of the elements necessary to establish a right to recover punitive damages." Because the jury did not unanimously find negligence against the defendant, the court affirmed the trial court’s refusal to award exemplary damages. The court’s decision in Kia Motors Corp. v. Ruiz can be found at this link.