Punitive Damages

Most valid personal injury claims entitle you to compensatory damages, which means compensation for all your losses. Under the right circumstances, you might also qualify for punitive damages. Courts award punitive damages only under certain circumstances. If you plan to seek punitive damages, you need to prepare in advance.

How Punitive Damages Work

How Punitive Damages Work

Courts award punitive damages, if at all, in addition to ordinary compensatory damages. Punitive damages are not to compensate you but to punish the defendant. You still get to keep the money, though. The only real disadvantage of punitive damages is that the IRS considers punitive damages taxable income, unlike compensatory damages.

Elements of a Punitive Damages Claim

To win punitive damages, you must prove the following elements:

  • You suffered “actual damages”–in other words, you qualify for compensatory damages; and
  • The defendant must have acted with gross “negligence,” “malice,” or fraud.” 

You must specifically plead punitive damages to win them. You must also prove both of the above elements with “clear and convincing evidence.”

Gross Negligence, Malice, or Fraud

Following is a more detailed look at the mental states that justify a punitive damages claim.

Gross Negligence

The meaning of “negligence” in legal parlance is close to the meaning of carelessness in common parlance. Ordinary negligence is enough to win you compensatory damages. 

Gross negligence, by contrast,  is extreme negligence. The defendant’s acts must have involved a high degree of unwarranted risk, and the defendant must have known of the risk and acted despite that risk.

You must prove gross negligence to win punitive damages—ordinary negligence won’t do it. Nevertheless, there is no clear dividing line between ordinary negligence and gross negligence. Different juries can look at the same facts in different ways. This is where the persuasiveness of your lawyer comes in.   

Some examples of behavior that courts are likely to view as gross negligence include:

  • A DUI accident;
  • Consistent failure by an employer to observe critical safety regulations;
  • Street racing;
  • Nursing home staff neglect to feed a resident for several days; and
  • A doctor prescribes a medicine containing a substance to which your medical records show you have a drug allergy.

Texas courts have adjudicated hundreds of more examples of gross negligence.


The defendant acted with malice if they specifically intended to harm the victim. For example, this might mean a “road rage” accident or an unjustified beating inflicted by a bar bouncer. For example, a murder might generate a wrongful death lawsuit that might qualify for punitive damages.


The defendant acts with fraud when they intentionally misrepresent an important fact or speak with reckless disregard for the truth or falsity of their words. The defendant must have also intended for you to rely on their statement. Finally, you must have reasonably relied on the defendant’s words and suffered harm as a result.

Clear and Convincing Evidence

“Clear and convincing evidence” means enough evidence to firmly convince the jury that your allegations are true. This standard is harder to meet than the normal ”preponderance of the evidence” standard, which is one of the reasons why punitive damages are so difficult to win. The “clear and convincing evidence” standard is still easier to meet than the “beyond a reasonable doubt” standard in criminal law.

Determining the Actual Amount of Punitive Damages

The Texas punitive damages statute identifies several factors that a jury must consider when it decides how much money to award in punitive damages:

  • The nature and character of the defendant’s misconduct;
  • The defendant’s degree of culpability;
  • The sensibilities and circumstances of the parties;
  • Whether the defendant’s conduct offends justice and public decency; and
  • The defendant’s net worth.

The jury is to weigh these factors based on the overall circumstances of the case–there is no precise formula.

Limits on Punitive Damages

Texas limits punitive damages to the greater of:

In any case, punitive damages may not exceed $750,000 in a single case.

Punitive Damages in Settlement Negotiations

Don’t expect the defendant to agree to punitive damages during settlement negotiations. It happens sometimes, but only once in a while. The reason why defendants (or, more commonly, their insurance companies) refuse to agree to pay punitive damages is that courts usually do not award them.

In settlement negotiations, you might be better off doubling your demand for pain and suffering damages rather than adding a claim for punitive damages.

You Definitely Need a Personal Injury Lawyer in Fort Worth for This One

Most courts do not like to award punitive damages. That doesn’t mean they never do. It just means that under normal circumstances, it’s an uphill battle. Some circumstances, however, are not normal, and punitive damages can be easy to win.

A Fort Worth personal injury lawyer can greatly improve your likelihood of winning them. Call us today at (817) 294-1900 or contact us online contact an attorney at Anderson Injury Lawyers.