3944. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or Employee--Bifurcated Trial (First Phase) Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 If you decide that [name of employee/agent]'s conduct caused [name of plaintiff] harm, you must decide whether that conduct justifies an award of punitive damages against [name of defendant] for [name of employee/agent]'s conduct. At this time, you must decide whether [name of plaintiff] has proved by clear and convincing evidence that [name of employee/agent] engaged in that conduct with malice, oppression, or fraud. The amount of punitive damages, if any, will be decided later. "Malice" means that [name of employee/agent] acted with intent to cause injury or that [name of employee/agent]'s conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences. "Oppression" means that [name of employee/agent]'s conduct was despicable and subjected [name of plaintiff] to cruel and unjust hardship in knowing disregard of [his/her] rights. "Despicable conduct" is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. "Fraud" means that [name of employee/agent] intentionally misrepresented or concealed a material fact and did so intending to harm [name of plaintiff]. [Name of plaintiff] must also prove [one of] the following by clear and convincing evidence: 3944. Punitive Damages Against Employer or Principal for Conduct of a Specific Agent or Employee--Bifurcated Trial (First Phase) Instruction No 1 Request by Plaintiff Given as Proposed Refused Withdrawn Request by Defendant Given as Modified Requested by Given on Court's Motion Judge Instruction No 1 1. [That [name of employee/agent] was an officer, a director, or a managing agent of [name of defendant] who was acting on behalf of [name of defendant]; [or]] [That an officer, a director, or a managing agent of [name of defendant] had advance knowledge of the unfitness of [name of employee/agent] and employed [him/her] with a knowing disregard of the rights or safety of others; [or]] [That an officer, a director, or a managing agent of [name of defendant] authorized [name of employee/agent]'s conduct; [or]] [That an officer, a director, or a managing agent of [name of defendant] knew of [name of employee/agent]'s wrongful conduct and adopted or approved the conduct after it occurred.] 2. 3. 4. An employee is a "managing agent" if he or she exercises substantial independent authority and judgment in his or her corporate decision making so that his or her decisions ultimately determine corporate policy. ________________________________________________________________________________ New September 2003; Revised April 2004, December 2005