• By: Hank Stout
  • Published: December 2019
punitive damages in texas

In Texas, the purpose of punitive damages, also known as exemplary damages, are to punish bad actors and deter or prevent other bad actors in the future. 

However, over the last 30 years, Texas Courts and the Texas Legislature has made it  increasingly difficult to obtain punitive damages.

Punitive damages are awarded in addition to the claimant’s compensatory damages (e.g. medical bills and lost wages) if you can show by clear and convincing evidence that the person or company acted with fraud, malice, or gross negligence.

Punitive Damages: A Classic Case

A recent and classic example of a punitive damages case involves a man who sued a local polymer manufacturing company for knowingly giving him cancer. Jurors in the case, Vigneron v. E. I. du Pont de Nemours and Company, awarded the plaintiff, Kenneth Vigneron, an Ohio truck driver, $10.5 million in punitive damages.

Vigner said his drinking water was tainted by a dangerous chemical used to make Teflon, which came from smokestacks owned by a nearby DuPont plant. The particles settled in the nearby well fields and contaminated the water supply, eventually getting into Vigneron’s body.

The reason Vigneron was awarded $10.5 million in punitive damages was because jurors found that DuPont acted maliciously because it knew in the 1960s that the same dangerous chemical was toxic and posed a great cancer risk, but said nothing about it until it was forced to by lawsuits.

The punitive damages were meant to punish DuPont and to prevent it from acting in a similar manner in the future, and to remediate its existing plants or face similar lawsuits or damages.

Wondering whether you may be entitled to punitive damages?

To find out whether you may be entitled to punitive damages, call Sutliff & Stout at (713) 987-7111 or complete the short form below.

What Texas law says about punitive damages

Punitive damages are not easy to get in Texas The Texas Civil Practice and Remedies Codes establishes the standard for recovering punitive damages (referred to as exemplary damages):


(a) Except as provided by Subsection (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from:

(1) fraud;

(2) malice; or

(3) gross negligence.

(b) The claimant must prove by clear and convincing evidence the elements of exemplary damages as provided by this section. This burden of proof may not be shifted to the defendant or satisfied by evidence of ordinary negligence, bad faith, or a deceptive trade practice.

(c) If the claimant relies on a statute establishing a cause of action and authorizing exemplary damages in specified circumstances or in conjunction with a specified culpable mental state, exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the damages result from the specified circumstances or culpable mental state.

(d) Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.

What this means in plain language

In Texas, most claims for punitive damages fall under the gross negligence category. For an act or omission to be considered gross negligence in Texas, you must demonstrate that:

  • When viewed objectively from the standpoint of the actor at the time of its occurrence the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
  • The actor had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

While this definition alone sets up a high hurdle, there is more. Texas has made the recovery of punitive damages more difficult by changing what is known as the burden of proof. In most negligence cases, a jury simply has to find that the actor more likely than not acted in a negligent manner.

But in a punitive damage case, the jury must find that there is “clear and convincing evidence” that the offender’s act or omission constituted gross negligence.

To get punitive damages in Texas, all jurors must agree

Finally, the state of Texas has said that to award punitive damages, every juror must agree on the award, meaning all 12 people have to agree. This is unlike a normal jury verdict which only requires 10 out of the 12 to agree.

To make things more difficult and to limit punitive damage awards, the state has also placed caps on punitive damages. If you can get past all the legal challenges and be awarded punitive damages, in most circumstances, you’re limited to an amount between $200,000 and $750,000, depending on the the actual “economic” damages determined by the jury.

In the context of a car accident, the only exception to the caps is intoxication assault or intoxicated manslaughter. Intoxication assault is defined as “operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”  Intoxicated manslaughter is when the injuries result in the death of another person.

While punitive damages can be difficult to get, under certain circumstances, they are still awarded. It’s advised that you seek legal consultation to determine if you have a case involving a potential punitive damage claim.

About the Author

Hank Stout co-founded Sutliff & Stout, Injury & Accident Law Firm, to protect and pursue the rights of people who were harmed by the carelessness of others. Mr. Stout is Board Certified in Personal Injury Trial Law and has been actively trying cases for over fifteen years. In recognition of his accomplishments and results, he has been selected by Thompson Reuters as a Super Lawyer since 2014 (a distinction given to less than 1% of the lawyers in the state of Texas) and has been selected as Lead Counsel. To learn more, read Hank's full bio here.

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