5th Cir. Pattern Jury Instr. (Civil) 15.7

1

If you find that Defendant [name] is liable for

Plaintiff [name]’s injuries, you must award Plaintiff

[name] the compensatory damages that [he/she] has

proved. You may, [in addition], award punitive damages if you find that Defendant [name] acted with

malice or with reckless indifference to the rights of

others. One acts with malice when one purposefully or

knowingly violates another’s rights or safety. One acts

with reckless indifference to the rights of others when

one’s conduct, under the circumstances, manifests a

complete lack of concern for the rights or safety of

another.

2

Plaintiff [name] has the burden of proving

that punitive damages should be awarded [insert appropriate burden of proof here].

1As with each of these pattern damages jury instructions, it is essential to determine what damages rules and elements apply to the particular claim. This instruction is merely a starting point. On the general

subject of punitive damages and the guidelines to be considered in fashioning jury charges, see State Farm Mut. Auto Ins. Co. v. Campbell , 538 U.S.

408 (2003); BMW of North America v. Gore , 517 U.S. 559 (1996); Pacific

Mut. Life Ins. Co. v. Haslip , 499 U.S. 1 (1991). As in federal law, punitive

damages under state law are only available in specific causes of action

and under specific circumstances. See, e.g. , Ross v. Conoco, Inc. , 828 So.2d

546, 555 (La. 2002) (“a fundamental tenet of [Louisiana] law is that punitive or other penalty damages are not allowable unless expressly authorized by statute.”). Additionally , state law may contain its own standard

for the assessment of punitive damages.

2Depending on the facts of a particular case, it may be advisable to

give a more detailed definition of recklessness, such as the one found in

the Restatement (Third) of Torts:

A person acts recklessly in engaging in conduct if:

(a) the person knows of the risk of harm created by the conduct

or knows facts that make the risk obvious to another in the

person’s situation, and

(b) the precaution that would eliminate or reduce the risk

involves burdens that are so slight relative to the magnitude

of the risk as to render the person’s failure to adopt the

precaution a demonstration of the person’s indifference to the

risk.

Restatement (Third) of Torts: Liability for Physical and Emotion

Harm § 2 (2005).

15.7DAMAGES

347

The purpose of punitive damages is to punish and

deter, not to compensate. Punitive damages serve to

punish a defendant for malicious or reckless conduct

and, by doing so, to deter others from engaging in similar conduct in the future. You are not required to award

punitive damages. If you do decide to award punitive

damages, you must use sound reason in setting the

amount. Your award of punitive damages must not

reflect bias, prejudice, or sympathy toward any party.

It should be presumed that Plaintiff [name] has been

made whole by compensatory damages, so punitive

damages should be awarded only if Defendant [name]’s

misconduct is so reprehensible as to warrant the

imposition of further sanctions to achieve punishment

or deterrence.

If you decide to award punitive damages, the following factors should guide you in fixing the proper

amount:

1. the reprehensibility of Defendant [name]’s

conduct, including but not limited to whether

there was deceit, cover-up, insult, intended or

reckless injury, and whether Defendant

[name]’s conduct was motivated by a desire to

augment profit;

2. the ratio between the punitive damages you

are considering awarding and the amount of

harm that was suffered by the victim or with

which the victim was threatened;

3. the possible criminal and civil sanctions for

comparable conduct.

3

As always, care should be taken to tailor punitive damages instructions to

the specific claims being tried, especially if state law is the source of those

claims.

3Only include this factor if evidence regarding criminal and civil

sanctions for comparable conduct has been presented at trial.