Torts Commons^™

The Vitality Of The Doctrine Of Punitive Damages In Maine, Kevin F. Gordon

Maine Law Review

On four separate occasions between December 1981 and February 1982, the Maine Supreme Judicial Court called into question the continued vitality of the common law doctrine of punitive damages. The substantive propriety of punitive damages was not challenged by any of the defendants in those four cases. As a result, the Law Court assumed for the purposes of each opinion that punitive damages could be awarded by a court "in some instances without explicit statutory authorization." Nevertheless, in a footnote to Braley v. Berkshire Mutual Insurance Co., the court challenged this assumption. Noting that the doctrine of punitive damages initially …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith

Maine Law Review

In Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine's common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder's discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine's uncertain justification and vague standards, however, punitive damages had become the subject of …

Punitive Damages As A Deterrent To Distracted Driving: Where The Statutory Penalties Fall Short, The Supreme Court Of Pennsylvania Must Fill The Gap, Abagail Hudock

Duquesne Law Review

Punitive damages have always been one of the more controversial remedies available for tort harms.¹ While a minority of states prohibit punitive damages altogether,² the majority of jurisdictions embrace them not only as a means of punishment on those tortfeasors who commit especially heinous, callous, or irresponsible acts, but also as a deterrent to others from committing such conduct.³ They function, therefore, as a societal protection against behavior that poses a great risk to the public that criminal penalties and compensatory damage awards might not be able to prevent or attenuate on their own.

Transnational Punitive And Compensatory Damages: Villains Or Role Models?, Attilio M. Costabel

St. Thomas Law Review

This Article concludes that the purpose and the scale of the American punitive damages and compensatory damages alike should not be disparaged as excesses of a society spoiled by exaggerated wealth; instead, they should be seen as a model for valuing the universal integrity of human life, while not depending on technicalities of international forum shopping.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

A Critical Study Of The Methodology Of Comparative U.S. Tort Law Research, Hassan Badini, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

In recent decades, legal comparative studies in Iran have increased drastically. The US tort law has fascinated many Iranian scholars and jurists. Yet, many of the comparative studies lack the necessary elements of a high-quality legal research. Different factors attribute to this problem. Among these factors are lack of in depth knowledge of the US legal system, incorrect translation of legal texts, incorrect citations and lack of access to resources. Furthermore, understanding the ways we can incorporate the US based tort law theories in Iran should be accompanied with the understanding of Iran’s socio-economic status. In addition, the tort law …

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

Institutional Liability For Employees’ Intentional Torts: Vicarious Liability As A Quasi-Substitute For Punitive Damages, Catherine M. Sharkey

Valparaiso University Law Review

No abstract provided.

Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka

Cleveland State Law Review

Using data from punitive damages decisions of U.S. federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following: (1) there is no apparent statistical difference between the levels of jury and judge awards; (2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards; (3) with regard to the cases involving remittitur, or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards; (4) as the levels of compensatory awards go up, …

Improving The Effectiveness Of South Korean Product Liability Including Punitive Damages: A Comparative Analysis Between The United States And South Korea, Minsung Kim

Maurer Theses and Dissertations

As South Korean Product Liability Act was revised to adopt the U.S. doctrine of punitive damages, there is a theoretical necessity of reviewing the relations between the theory of product liability and the U.S. doctrine of punitive damages. The theory of product liability is closely related to the strict liability but the doctrine of punitive damages has been developed to regulate malicious misconducts. Due to the different basic concepts, the strict liability and malicious misconducts, the theory of product liability might not include the doctrine of punitive damages. In addition to the compatibility issue, functions of the punitive damages are …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech

Akron Law Review

A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.

The Latest Word From The Supreme Court On Punitive Damages, Leon D. Lazer

Touro Law Review

No abstract provided.

Uninsured Motorist Insurance Now Covers Punitive Award - Hutchinson V. J.C. Penny Casualty Insurance Company, Dale Katzenmeyer

Akron Law Review

A split of authority exists among the few states which have decided the issue In jurisdictions permitting recovery of punitive damages, uninsured motorist coverage is intended to place the insurer in the shoes of the uninsured tortfeasor. Since the insurer stands in the shoes of the tortfeasor, and since punitive damages could be covered if the tortfeasor had his own insurance, it is illogical to deny the victim punitive damages simply because the tortfeasor is uninsured. Other jurisdictions believe that punitive damages should not be awarded since that award would not operate to punish the tortfeasor and would therefore violate …

What Makes The Collateral Source Rule Different?, Michael B. Kelly

Akron Law Review

Tort liability forces parties engaged in risk-producing activities to internalize the costs that the activities impose on those adversely affected by the risks they create. Rational parties should take precautions to reduce those risks rather than pay the costs the risks cause – at least up to the point that further reductions would cost more than the harms they would prevent. How could reforms that reduce liability, and thus force parties to internalize a lower portion of the costs suffered as a result of the risks they create, produce a decrease in fatal accidents? Part I below briefly considers this …

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Akron Law Review

This article begins in Part II with background about appeal bonds and the way their amounts were set before tort reform. Since the defendant’s cost of an appeal bond is an expense and, perhaps, an impediment to its appeal, the defendant will seek ways to surmount, reduce, or avoid the impediment. Part II then uses Pennzoil v. Texaco to illustrate two of defendants’ strategies for staying collection on a judgment pending review in lieu of posting a huge appeal bond—obtain a federal injunction and file for bankruptcy. This article shows why neither strategy is sufficient: the federal court’s abstention doctrines …

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Akron Law Review

In this article, I examine two procedural questions arising from the use of statutory caps. First, how should a statutory cap affect judicial review of awards for possible excessiveness? Second, when a legislature has imposed a total cap on a combination of different types of damages (such as on the total of punitive and compensatory damages or on the total of economic and noneconomic damages), how should courts allocate multiple awards to conform to the cap?...With respect to multiple awards that exceed a total cap on different types of damages, I suggest that the appropriate way to conform multiple awards …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

Exxon Shipping Co. V. Baker: Why The Supreme Court Missed The Boat On Punitive Damages, Maria C. Klutinoty

Akron Law Review

This Note will touch upon the numerous constitutional challenges the doctrine of punitive damages has faced, and will discuss noteworthy Supreme Court cases preceding Exxon Shipping Co. v. Baker at length, including BMW of North America, Inc. v. Gore, 5 as well as State Farm Mutual Automobile Insurance Co. v. Campbell. 6 This Note argues against the imposition of a strict one-to-one maximum ratio of punitiveto-compensatory damages. In light of the varying application of Exxon outside of the maritime context, such an imposition defeats the purpose of punitive damages by diluting their potential for deterrence, and it needlessly complicates the …

Pricing Lives For Corporate Risk Decisions, W. Kip Viscusi

Vanderbilt Law Review

The 2014 GM ignition-switch recall highlighted the inadequacies of the company's safety culture and the shortcomings of regulatory sanctions. The company's inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should place a greater value on lives at risk than they have in previous risk analyses and that they should receive legal protections for product risk analyses. Companies' valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently …

International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings

Georgia Journal of International & Comparative Law

No abstract provided.

Changing Tides: The Introduction Of Punitive Damages Into The French Legal System, Matthew K.J. Parker

Georgia Journal of International & Comparative Law

No abstract provided.

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Invading The Realm Of The Dead: Exploring The (Im)Propriety Of Punitive Damage Awards Against Estates, Emily Himes Iversen

University of Michigan Journal of Law Reform

Punitive damages are traditionally understood, at least in part, as damages designed to punish. It should therefore come as no surprise that, in the majority of states that have decided the issue, courts have chosen not to allow punitive damage awards against the estates of deceased tortfeasors. After all, the tortfeasor can no longer be punished (at least by tort awards). Nonetheless, punitive damages can also serve other purposes, such as deterrence. This Note argues that Michigan, a state which has not yet taken a stance, should adopt the minority position that allows punitive damages to be awarded against estates. …

Surprisingly Punitive Damages, Bert I. Huang

Faculty Scholarship

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly …

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Punitive Damages In Product Liability Cases , Mark P. Robinson Jr., Gerald H.B. Kane Jr.

Pepperdine Law Review

No abstract provided.

Punitive Damages And The Drunken Driver, William C. Cooper

Pepperdine Law Review

A discussion of the history and theory of punitive damages which results in advocating their application in a drunk driving context after giving due consideration to the pros and cons of such a sanction. An analysis of case law will reveal the underlying rationale that has motivated certain jurisdictions in applying this severe penal approach in an attempt to deter and curtail the senseless destruction on our nation's highways as well as exploring the impetus behind those other jurisdictions that do not utilize the remedy of punitive damages. The culminating focus is on California's position in this regard. Finally, there …

The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler

Pepperdine Law Review

Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.