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Healthcare Centers of Texas12/12/2002
ed the jury to award punitive damages notwithstanding the concurrent criminal act of another. We disagree with Rigby's assertion for the following reasons. First, the injury to Mrs. Underwood was indivisible. We find it highly improbable that the jury awarded $50 million in punitive damages solely because of the criminal act of the nursing home, separate and apart from any criminal act by Jones. Second, in her sixth amended petition, plaintiff admits that the harm resulted from a criminal assault by Morris Jones. The trial court took judicial notice of the plaintiff's sixth amended class petition. A judicial admission occurs when an assertion of fact is conclusively established in live pleadings, making introduction of other pleadings or evidence unnecessary. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983). A judicial admission not only relieves an adversary from introducing proof of the fact admitted but also bars the party from disputing it. Gevinson v. Manhattan Constr. Co. of Okla., 449 S.W.2d 458, 466 (Tex. 1969). Once a fact is conclusively established by judicial admission, jury questions concerning the fact need not be submitted. See Chilton Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 884–886 (Tex. App.—San Antonio 1996, writ denied). After acknowledging plaintiff's judicial admission, we must determine whether Healthcare is exempt from liability for punitive damages under the provisions of Tex. Civ. & Rem. Code § 41.005.
Rigby further argues section 41.005 does not apply because the statute silently, but impliedly, allows recovery of punitive damages resulting from the defendant's conduct. We disagree with that assertion for the following reasons. First, our legislature enumerated and described four exceptions to a defendant's exemption from punitive damages because of the criminal act of another. See Tex. Civ. Prac. & Rem. Code Ann. § 41.005(b). In the instant case, there was no evidence that (1) the assault was committed by an employee of the defendant; (2) defendant (Healthcare) was criminally responsible as a party to the criminal act of assault under the provisions of Chapter 7, Penal Code; (3) the criminal act occurred at a location where, at the time, defendant was maintaining a common nuisance; or (4) the criminal act resulted from the defendant's violation of a duty under Subchapter D, Chapter 92, Property Code. There are no other exemptions. The legislature did not express that a defendant's concurrent criminal act (without criminal responsibility as a party under 41.005 (b)(2)) constitutes an exception to statutory exemption from liability for punitive damages. We cannot add or create another exception to statutory exemption from punitive damages. It is a familiar rule of statutory construction that an exception makes plain the intent that the statute should apply in all cases not excepted. State v. Richards, 157 Tex. 166, 301 S.W.2d 597, 600 (1957); Ins. Co. of N. Am. v. Morris, 981 S.W. 2d 667, 681 (Tex. 1998).
In responding affirmatively to jury question number six , the jury concluded that the harm to plaintiffs resulted from "malice" of Healthcare, by and through its "vice principal." The jury awarded $50,000,000 as exemplary damages in response to question number eight. Assessment of damages in question number eight was "for the conduct found in response to question number six." Question number six was posited such that the jury could not distinguish between the criminal act of Jones and malice attributed to Healthcare. Appellee contends the jury assessed punitive damages because of Healthcare's malice, not because of the criminal act of another. In interpreting or applying 41.005 to any scenario, it seems implicit that our legislature
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