• 2006 - Exemplary Damages (Principal/Agent)
  • C-72.06
    • Damages
  • Alternative A (Authorization, Approval, or Ratification) You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements: 1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions; and 2) The principal [A managerial agent of the principal] authorized, approved, or ratified the doing and manner of the act. Alternative B (Reckless Employment or Retention) You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements: 1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions; 2) The agent was unfit; and 3) The principal [managerial agent of the principal] was reckless in employing or retaining the agent. Alternative C (Managerial Capacity) You may, in your discretion, award a reasonable sum as exemplary or punitive damages against a principal because of an act by the agent, only if you find by clear and convincing evidence both of the following elements: 1) That the agent has acted with [oppression] [fraud] [or] [actual malice] as defined in these instructions; 2) The agent was employed in a managerial capacity; and 3) The agent was acting in the scope of employment. Continued Text Exemplary or punitive damages are different from the damages awarded to compensate for an injury or loss. These damages permit you to make an example to others or to punish a wrongdoer. If you decide to use your discretion to award a reasonable sum as exemplary or punitive damages, then you must also find by clear and convincing evidence that: 1) the amount awarded bears a reasonable relationship to any harm that is likely to result from the conduct and any harm that actually has occurred; and 2) the amount awarded is consistent with the degree of reprehensibility of the conduct and its duration. [Further, in considering an award of exemplary or punitive damages, you must also consider: 1) the extent to which the Defendant was aware of the conduct or concealed it; 2) the extent to which the Defendant profited from the conduct and whether or not it would be desirable to remove that profit or have the Defendant also sustain a loss; 3) the extent to which the Defendant has already been punished for the same conduct by criminal sanctions.]
    • 32-03.2-11(5)
    • 32-03.2-11(8)
  • Notes: The most appropriate alternative from those listed should be selected based on the facts of the case. In appropriate cases the terms “principal” and “agent” may be replaced with “employer,” “employee,” or the names of the parties. The Court should instruct the Jury with the bracketed language as warranted by the evidence. A specific finding is required.