Pg 12

Question 1

What are punitive damages?

Answer 1

These are meant to punish egregious wrongdoers for committing legal wrongs and to make an example of them to deter others

Question 2

What does it mean that punitive damages are discretionary?

Answer 2

They are not automatically given and there is no right to punitive damages. The P can request them, but the trier of fact decides if they will be given

Question 3

What are the required elements for punitive damages?

Answer 3

• intentional tort [not negligence or SL]
  – actual injury [can be nominal damages]
  – particularly egregious conduct [socially deplorable, wilful or wanton]

Question 4

What is the purpose of punitive damages?

Answer 4

To make an example of the defendant, to punish the bad conduct, and deter others from doing similar things

Question 5

The majority of jurisdictions only allow punitive damages for what?

Answer 5

Torts, and not contract because contract damages are only for compensation. Although if a defendant’s action in breaching the contract was also an independent tort, like fraud, then punitive damages can be given for that tort

Question 6

Are punitive damages heavily tested on the bar?

Answer 6

No, so on an essay just recognize that the plaintiff might seek punitive damages for the defendant’s egregious conduct.

Question 7

What is a good indicator that punitive damages will likely also be given?

Answer 7

If the defendant put profits before safety

Question 8

Can punitive damages stand on their own as an independent cause of action?

Answer 8

No, so they have to be added to some other award

Question 9

What is the only way that a plaintiff can succeed on a punitive damages award?

Answer 9

If he succeeds on the underlying claim

Question 10

What is the complicit liability rule with regard to punitive damages?

Answer 10

This is based on an agent’s egregious conduct, and it says that the agent’s contact doesn’t usually extend to the principal, but he can be liable if the agent’s actions were:
– authorized or ratified by the principal
– if the principal deliberately retained an unfit servant
– if the agent was employed in a managerial capacity and he was acting within the scope of his employment

Question 11

If the plaintiff is given nominal damages, can that support an additional punitive damages award?

Answer 11

– majority: yes

– minority: no there has to be a compensatory award beyond just nominal damages before punitive can be added

Question 12

In what situations will an appellate court overturn a punitive damages award from a lower court?

Answer 12

If the amount SHOCKS THE CONSCIENCE and is so excessive that it appears to be the result of passion or prejudice. Then the judge can deny punitive damages or amend the award if it is excessive

Question 13

What is the supreme court’s due process analysis with a three factor test to decide if punitive damages violate due process?

Answer 13

This considers:
– the degree of reprehensibility of the defendant’s conduct
– the ratio of punitive damages award to the compensatory damages award
– the difference between the size of the punitive damages and the size of the civil penalties that are imposed in similar cases

Question 14

What does the supreme court say can be the upper limits of the ratio between a punitive damages award and the compensatory damages before it will be deemed excessive?

Answer 14

As long as it is a single digit ratio that is less than 10 to 1, it is OK. Ratios higher than 10 are still possible but they are subject to greater scrutiny. This only applies when an actual compensatory award is given. If the award was just nominal, then the ratio doesn’t apply

Question 15

In order to get punitive damages, what has to have happened?

Answer 15

There had to of been intentional tort involved, not negligence or strict liability

Question 16

What is good wording for an essay to determine the first element of punitive damages which says there has to be an intentional tort?

Answer 16

“Generally punitive damages are only awarded when the defendant has committed an intentional tort. Here, defendant likely committed a………… (battery), which consists of …………… (elements).”

Question 17

What is considered to be egregious conduct for punitive damages?

Answer 17

Intentional conduct that crosses the line into socially deplorable. The defendant must act wilfully or wantonly

Question 18

What are some factors to consider when deciding if a defendant has acted egregiously for punitive damages?

Answer 18

– what his motives were
– the reprehensibility of his conduct
– how long the improper conduct went on
– how the defendant responded when he learned of the improper conduct
– attempts to conceal the misconduct
– the relationship between the plaintiff and the defendant
– whether the defendant profited financially from his conduct
– how profitable the improper conduct was to the defendant

Question 19

If a car manufacturer makes cars that have a defect in the steering, and they learn about it but they keep making the cars without fixing it, would that be enough for punitive damages to be awarded?

Answer 19

Yes, because it involves an intentional tort, a motive to put profits above safety, and something that was continually done for a long time. When they found out, they didn’t recall or try to correct the problem, and they likely made a lot of profit by selling cars

Question 20

If a defendant is leaving a soccer game after watching his favourite team, and he’s about to get in his car, but the plaintiff was a rival fan who runs to him and starts teasing him, so he shoves the plaintiff into bushes and P gets cuts and bruises, would that be enough for punitive damages to be awarded?

Answer 20

No, even though he should’ve been aware that pushing the plaintiff would cause him to suffer harm, his motive was to stop the teasing, it was a one-time act, and it was not profitable for the defendant.

Question 21

What are factors to consider in the measurement of punitive damages?

Answer 21

• if the behaviour was socially deplorable
  – the defendant’s net worth
  – the relationship between the harm suffered by the plaintiff and the amount of the damages

Question 22

How do you figure out a person’s net worth?

Answer 22

By taking the value of their assets minus their liabilities

Question 23

Punitive damages cannot be so large that they do what?

Answer 23

Destroy the defendant