Dillard Department Stores, Inc. v. Silva , 106 S.W.3d 789 ( 2003 )

CARTER, Justice,

dissenting.

I do not believe the evidence is legally sufficient to sustain the punitive damage award.

To support exemplary damages, a plaintiff must prove by clear and convincing evidence that the harm resulted from malice. The first prong of malice requires proof of an act or omission that involved an extreme degree of risk. Tex. Civ. PRAc. & Rem.Code Ann. § 41.001(7)(B)(i) (Vernon 1997).

This Court has previously stated that Moriel explains that the harm to be anticipated from the conduct must be extraordinary harm, which is further described as “death, grievous physical injury, or financial ruin.” Celanese Ltd. v. Chem. Waste Mgmt., Inc., 75 S.W.3d 593, 600 (Tex.App.-Texarkana 2002, pet. denied) (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex.1994)). An extreme degree of risk is required. A remote possibility does not meet the test, and the conduct must create a likelihood of serious injury. Universal Servs. Co. v. Ung, 904 S.W.2d 638, 641 (Tex.1995). Exemplary damages are available for the purpose of punishing a defendant for outrageous, malicious, or otherwise morally culpable conduct. Celanese Ltd., 75 S.W.3d at 600. The extreme degree of risk factor is a significantly higher standard than the reasonable person test for ordinary negligence. Moriel, 879 S.W.2d at 22. To determine if acts or omissions involve extreme risks, we must analyze the events and circumstances from the defendant’s perspective at the time the harm occurred, without resorting to hindsight. Id. at 23. An extreme risk of harm is a function of both the magnitude and the probability of the anticipated injury to the plaintiff. The extreme risk prong is not satisfied by a remote possibility or injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Id. at 22. This objective element is the distinguishing feature between conduct which is deserving of punishment and that which merely demands restitution. Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex.1993).

In analyzing this matter from the defendant’s perspective at the time, as we are required to do, without resorting to hindsight, it cannot be said that the defendant created an extreme degree of risk by its actions. By statute, Dillard Department Stores, Inc. is authorized to detain persons it reasonably believes have stolen or are attempting to steal property in a reasonable manner and for a reasonable time to investigate ownership of the property. Tex. Civ. Prac. & Rem.Code Ann. § 124.001 (Vernon 1997). The jury found that such detention was not reasonable and awarded Lyndon Silva damages he incurred. However, the jury also found that Dillard did not maliciously prosecute Silva after being instructed in that question that malice meant “ill will, bad or evil motive, or such gross indifference to the rights of others as to amount to a willful or wanton act.” Silva was found negligent, and the jury attributed forty percent of the cause of the occurrence to him. The question in this case is did Dillard’s actions rise to the level of outrageous, malicious, or otherwise morally culpable conduct which should be punished. Ellis County State Bank v. Keever, 936 S.W.2d 683 (Tex.App.-Dallas 1996, no writ).

Viewed in the light most favorable to Silva, the evidence shows Silva was suspected of shoplifting, detained, handcuffed, placed on the floor, and taken to a police car as onlookers watched. This action does not pose such an extreme degree of risk as to create a likelihood of serious injury. It is rather, at most, conduct that the law considers wrong, but not a “most exceptional case.”

The jury awarded Silva damages for physical pain and mental anguish in the past and in reasonable probability will be sustained in the future and attorney’s fees in the total sum of $13,124.01. These damages recompense Silva.

However, “[t]o be malicious, the act not only must be unlawful, but it must also be of a wanton and malicious nature, or somewhat of a criminal or wanton nature. Whereas every tort involves conduct that the law considers wrong, punitive damages are proper only in the most exceptional of cases.” C & D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex.App.-Texarkana 2001, no pet.) (citing Monel, 879 S.W.2d at 18). There is no more than a scintilla of evidence in the record supporting a finding that Dillard created an extreme degree of risk of serious injury of such magnitude as to be deserving of punishment.

Likewise, I do not believe there is any clear and convincing evidence that Dillard was consciously indifferent to Silva’s rights or welfare. Silva argues that the “most important” evidence of Dillard’s conscious indifference is its failure to ask the State to dismiss charges against Silva. However, the jury absolved Dillard of any liability for malicious prosecution.

Based on the above, I do not believe that there is legally sufficient evidence to conclude clearly and convincingly that Silva suffered harm as a result of malice. I concur in all other portions of the opinion.