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Click here for the full text of this decision FACTS:The court decides whether a department store customer, Lyndon Silva, mistakenly detained and prosecuted for shoplifting, presented legally sufficient evidence to a jury to support its award of actual and exemplary damages for false imprisonment. HOLDING:The court of appeals’ judgment is modified to delete the award of exemplary damages and, as modified, is affirmed. Because Silva’s testimony is some evidence that Dillard did not detain Silva in a reasonable manner as the shopkeeper’s privilege requires, the court agrees with the court of appeals that there is evidence to support the jury’s award of damages for false imprisonment. Exemplary damages are authorized under the Texas Civil Practice & Remedies Code when the claimant proves by clear and convincing evidence that the harm results from fraud, malice or gross negligence. Because Silva’s unfortunate experience at the department store occurred in 1997, the court applies the two-part, pre-2003 definition of malice. The court of appeals likewise applied this definition but did not examine the record for clear and convincing evidence of such malice. Instead, the court turned its attention to the factors listed in Alamo National Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981), concluding that the exemplary damages were not excessive. In Kraus, the court said that exemplary damages should be “reasonably proportioned to actual damages” and then listed a number of factors a court might consider in making that determination. While the Kraus factors may have value when determining the reasonableness of an award of exemplary damages, they are not a substitute for the threshold inquiry of whether exemplary damages should be awarded in the first place. The dissent in the court of appeals concluded that there was no clear and convincing evidence of malice but confined its review to Texas Civil Practice & Remedies Code 41.001(7)(B)’s gross negligence component. Similarly, the parties to this appeal limit their arguments to the gross negligence component. Silva does not contend that Dillard harbored a specific intent to cause him substantial injury or harm. 41.007(A). Assuming, without deciding, that the gross negligence component of the former statutory malice definition may provide a basis for the award of exemplary damages when the underlying actual damages are for an intentional tort such as false imprisonment, the court agrees with the dissent that there is no evidence of such conduct here. Subpart (B)’s definition of malice incorporates the objective and subjective elements of this court’s gross negligence standard: “(1) viewed objectively from the standpoint of the actor, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). While Silva reiterates the circumstances of his detention and complains that his treatment by Dillard was extreme and outrageous, there is no evidence that such conduct exposed him to an extreme risk of substantial harm. OPINION:Per curiam.

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