How Punitive Are Punitive Damages ? How It Works When You Want To Serve Up A Big Ol' Can Of Whoop @$$

Posted By Michael R. Varble || 4-Nov-2013

In today's blog post, I discuss what punitive damages are and when you can recover punitive damages in a personal injury action. If you or someone you love has been injured by the negligence of someone else, give us a call at 1800.900.6204 for a free case evaluation and a free consultation. We have over 150 combined years of experience that we will put to work for you.

Punitive damages are available, in addition to damages to compensate a plaintiff for injuries, in personal injury cases in New York where a plaintiff is injured due to wanton, reckless or malicious behavior. Punitive damages may be awarded when a defendant's conduct represents a high degree of immorality, wanton dishonesty showing criminal indifference to a civil obligation. The purpose of punitive damages is not to compensate a plaintiff, but to punish the defendant for the wanton, reckless or malicious behavior and discourage the defendant and the public from acting in a similar way in the future.

What makes an act malicious, reckless or wanton ? Well, normally a Court and attorneys will look for behavior that is deliberate and where the defendant knows of the plaintiff's rights but does the injurious act anyhow. These types of acts have also been described as acts where there is a conscious indifference or utter disregard of the act's affect on the health, safety and rights of others. Basically, the defendant has acted as a supreme jerk and hurt someone in the process is what you are looking for to have a case where punitive damages will be considered.

Courts will instruct a jury to consider the defendant's acts when thinking about damages and to consider just how reprehensible the damages were and to consider the character of the wrongdoing. A jury is also ask to consider whether the actions were done with an improper motive or vindictiveness, were the acts outrageous or oppressive intentional misconduct, how long did the conduct go on, was the defendant aware of the harm that his or her conduct caused or was likely to cause, if the defendant tried to conceal the wrongdoing, did the defendant commit acts of a similar nature in the past, and the actual and potential harm created by the conduct. The punitive damages awarded are to be reasonable and proportionate to the actual and potential harm caused by the defendant. A jury may also consider the financial condition of the defendant and the impact of the punitive damages award on the defendant.

To be awarded punitive damages in New York, the burden of proof is much higher than a mere preponderance of the evidence that is applicable in civil cases, at least in Southeastern New York. The exact wording of the standard differs in the various Appellate Division Departments in this State, but for our purposes, it is essentially a clear an convincing evidence standard in Southeastern New York. Western New York, in the Fourth Department, only requires proof by a preponderance of the evidence. The other and more technical issue that attorneys need to consider is that there are due process consideration in play when requesting punitive damages. There are numerous U.S. Supreme Court cases on this issue and what the issue is, in summary, is that awards cannot be grossly excessive or arbitrary punishments.

In what type of cases will this issue arise ? Well, there are several types of cases reported in case law, but for the purposes of this blog post I will keep it limited to personal injury actions. You can see this issue with product liability cases - failing to warn of a danger associated with a product, the sale of liquor to an intoxicated person, reckless driving while drunk and having a very high blood alcohol content, and medical malpractice cases. Keep in mind though that a plaintiff has to show compensatory damages - actual damage that he or she sustained before the issue of punitive damages can even be considered. Our readers should also keep in mind that double jeopardy considerations do not bar the imposition of punitive damages either. There are also several different statutory provisions in New York that provide for punitive damages in, for example, housing discrimination cases, civil rights violations, and where patients in residential care facilities are deprived of certain rights. You, our readers, should also keep in mind that punitive damages are not a separate cause of action and, in fact, they do not even have to be specifically requested in a complaint for a jury to award them.

So what does all of this mean to you if you are injured in an accident ? You may be able to recover punitive damages that are aimed at punishing a defendant if the defendant engaged in really bad behavior when you were injured. Drunk driving accidents may be one common situation but it has to be something more than your routine drunk driving accident; medical malpractice actions may be another common situation but I would imagine that the doctor would have to have committed similar acts in the past and possibly attempted to conceal the act or malpractice. If you think that you may be eligible for this type of award, you should give us a call at 1.800.900.6204 for a free case evaluation and a free consultation. Our experienced personal injury attorneys can give you an assessment of your case during regular business hours, at an evening appointment or on a weekend if you require. As I always say, I hope you or someone you love does not become a plaintiff. However, it happens and if it has happened to you or one of your family members, give us a call. Michael R. Varble & Associates, P.C., we'll fight for you !

Categories: Personal Injury

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