When personal injury lawsuits are discussed, whether in casual conversation or in media coverage of jury verdicts, the subject of punitive damages inevitably surfaces.  Whatever feelings people may have for or against punitive damages, the facts and the legal theory behind them are often poorly understood.  This blog will attempt to give an overview of punitive damages in personal injury cases in Massachusetts.

First, what are punitive damages?  A person who has suffered personal injuries or death at the hands of someone else’s negligence is entitled to what are known as compensatory damages.  These are damages that are expressly designed to compensate a person for things like lost wages, medical expenses, and pain and suffering.  They are not designed to punish the negligent party; they are literally meant to compensate, or pay the injured party back, for their losses. 

Punitive damages, also known as exemplary damages,  are designed to punish a person or corporation for wrongful conduct that has harmed someone, and to deter similar conduct in the future.  The theory behind punitive damages is that, in some instances, simply repaying a person for what they have lost is not enough.  The law says what we all intuitively understand in our day to day lives: that there is a level of misconduct which, if proven, warrants both punishment and deterrence of similar conduct in the future.   

What many people may not know is that punitive damages are simply not available in most personal injury cases in Massachusetts.  This dates back to very old Massachusetts law that did not provide for punitive damages, no matter how negligent the conduct and no matter how bad the injuries.  That law remains in effect today.  Even the drunk driver of a dynamite truck who runs a red light and hits a pedestrian in a crosswalk rendering them quadriplegic is not subject to punitive damages in Massachusetts. 

Punitive damages are available in Massachusetts, however, if a person or corporation’s gross negligence or willful or wanton conduct causes a death. This is because the Massachusetts Wrongful Death Act, M.G.L. c. 229, carved out an exception to the common law. It may seem curious that a person can be punished for killing somebody by gross negligence, but not for severely injuring them; however, that is currently the law in Massachusetts.

So, in order to recover punitive damages in a case involving personal injuries, a death must occur due to someone else’s gross negligence. What is gross negligence? Much has been written on this subject, but some of the words Massachusetts courts have used to describe it are: “Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence…It is very great negligence or the absence of slight diligence or the want of even scant care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected….”

Ultimately, it is for a jury to determine whether a person or company’s conduct crosses the line of negligence and becomes gross negligence. But if the jury does find gross negligence, and finds that it caused a death, it may award both compensation for the victim and the victim’s family, and punitive damages to punish and deter the conduct that caused the wrongful death.

How does a jury determine the amount of punitive or exemplary damages to award the estate of a deceased person? After the jury hears the evidence in the case (and assuming the jury finds gross negligence), the judge gives the jury an instruction to guide them in making the award. The instruction the judge gives varies based on the evidence in the case and what the parties ask the judge to instruct, but a typical instruction would be something like: “In assessing punitive damages, you may consider the character of the defendant’s act, and the nature and extent of the harm to the plaintiff that the defendant caused…”

If the jury does find gross negligence and does award punitive damages, the defendant may ask the judge to review the award and determine whether the amount awarded satisfies certain constitutional requirements set up by the United States Supreme Court and adopted by Massachusetts’ Supreme Judicial Court. A full discussion of these requirements is beyond the scope of this blog, but the factors that a court may consider include “the degree of reprehensibility of the nondisclosure; the disparity between the harm or potential harm suffered by [the plaintiff] and his punitive damages award; and the difference between [the punitive damages] and the civil penalties authorized or imposed in comparable cases.” These are the factors set out in the Supreme Court’s decision in BMW v. Gore, which can be found at http://www.law.cornell.edu/supct/html/94-896.ZO.html

If the judge determines that the amount of the punitive damages satisfies these factors, the jury’s award will stand.

Because punitive damages are only available in Massachusetts in cases of wrongful death, and only where gross negligence is proven, punitive damage awards are rare in the Commonwealth. However, punitives remain a viable remedy to pursue when there is evidence of misconduct which, in the minds of the jury, is deserving of punishment and deterrence.

If you have questions regarding a potential personal injury or wrongful death case, please fill out a contact form, call Benjamin Zimmermann at (617) 542-1000 or e-mail bzimmermann@sugarman.com.