Where a wrongdoer has been subjected to criminal proceedings but not substantially punished (e.g., s 10 dismissal or acquittal), the trial judge may take the criminal proceedings into account as one relevant but not determinative factor in deciding whether to award exemplary damages. Verbal provocation by a plaintiff may be taken into account in assessing both exemplary and aggravated damages for assault, even where the plaintiff engaged in no physical violence. Disciplinary proceedings and suspension from employment may also be treated as a form of punishment relevant to the exemplary damages assessment. The question whether a non-State employer can be vicariously liable for exemplary damages for its employees' contumelious conduct remains unresolved.
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