Gavel on stack of money

Can you get punitive damages?

Clients often wonder if they can go after punitive damages.  The reality is that individuals and businesses that have suffered some type of loss—property damage, personal injury or lost revenue—are often so emotionally invested in a case that their concept of justice is simply not in line with how the law views the concept.  This is not to say that clients are somehow wrong to feel the way they do or that their attorney should not go after justice with the utmost aggression and skill.  In fact, sometimes an attorney should at least ask for punitive damages even though he or she knows and should tell the client that the claim will likely fail.

The problem is that the law, in any given case, may or may not reflect the client’s moral view of what is right, wrong or possible.  The law will generally only allow damages that are sufficient to make a client “whole,” which basically means the same shape the client was in prior to the damage, injury or economic loss he or she suffered.

On the other hand, punitive damages are allowed only in rare circumstances. For starters, the general rule in many jurisdictions is that punitive damages are not allowed for breach of contract.  Seee.g.Atkinson v. Orkin Exterminating Co., 5 Kan. App. 2d 739, 625 P.2d 505 aff’d and remanded sub nom Atkinson v. Orkin Exterminating Co., Inc., 230 Kan. 277, 634 P.2d 1071 (1981).  Also, state and federal statutory laws often place limits on when and how much punitive damages may be awarded.

So when are punitive damages appropriate? The test is always a difficult one to meet. In Missouri, for example, “[p]unitive damages require clear and convincing proof of a culpable mental state, either from a wanton, willful, or outrageous act, or from reckless disregard for an act’s consequences such that an evil motive may be inferred.”  Diaz v. Autozoners, LLC, No. WD 77861, 2015 WL 6937325, at *15 (Mo. Ct. App. Nov. 10, 2015).  In the absence of specific intent to cause harm, punitive damages can be awarded only “if the defendant showed complete indifference to or a conscious disregard.”  Barnett v. La Societe Anonyme Turbomeca Fr., 963 S.W.2d 639, 659 (Mo. Ct. App. 1997).  This means the defendant knew or should have known his actions would likely result in harm, but he just did not care.  Id.; 22 Am. Jur. 2d Damages § 560 (the defendant must have an “I don’t care attitude.”).

A “classic example” of conduct calling for an award of punitive damages is “firing a rifle into a moving passenger train” without any specific intent to injury.  Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 160 (Mo. 2000).  In other words, although there is no specific intent to injure, injury is likely to occur.

This conduct can be exhibited in all different types of cases, including traffic collisions, fraud, and harm caused by negligent manufacturing or construction.  In the product manufacturing context, a manufacturer can exhibit the “I don’t care” attitude by making a conscious business decision to install a redesigned safety device at a later service call rather than doing an immediate and more expensive recall of all defective products. As an example of this, take a look at the Missouri case of Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 165 (Mo. Ct. App. 1997).In Letz, the manufacturer’s decision resulted in a deadly helicopter crash. Although the design flaw only occasionally caused crashes of the manufacturer’s helicopters, the punitive damages award was upheld due to the company’s calculated business decision to not immediately recall all the helicopters.

Even without a basis for punitive damages, filing a lawsuit and recovering as much money as you can is always some form of justice and is better than nothing. If you are an individual or business that has been wronged, do not hesitate to contact an aggressive lawyer to pursue damages on your behalf. If there is a basis for punitive damages, they will be pursued.