Punitive Damages

You asked what is the general rule in Connecticut concerning the availability and amount of

punitive damages. You asked us to compare Connecticut's rule with the rules in other states.

Punitive damages are compensation to the victim of a civil (as opposed to criminal) wrong in excess of the actual damages that the victim suffered. Actual damages are losses directly caused by the wrongful act. They include such things as lost wages, medical expenses, property damage, and pain and suffering.

In Connecticut, the general common law (judge made) rule is that courts can allow punitive damages in personal injury cases when the evidence shows a reckless indifference to the rights of others or an intentional or wanton violation of those rights. However, unlike most other states, Connecticut courts have limited punitive damages under this general rule to attorney's fees and other litigation costs.

In addition to this common law rule, Connecticut has numerous statutes that allow punitive damages for certain types of cases and situations. Some of these statutes authorize courts to award double or triple the actual damages. Others establish a monetary cap. Typically they contain a standard of conduct that must exist in order for punitive damages to be awarded. For example, for groundless or vexatious civil suits or defenses, CGS § 52-568 provides for double damages if the suit or defense was without probable cause, and triple damages if additionally the suit was motivated by a “a malicious intent unjustly to vex and trouble another person.”

Most states allow the recovery of punitive damages in personal injury cases. A few states have abolished them altogether while some allow them only if and where explicitly authorized by statute. Some states have begun to regulate punitive damages by establishing limits on the amount of the award. These limits are often in the form of a formula such as three times the amount of actual damages or in the form of an explicit monetary cap. Others contain some combination of the two.

The main difference between Connecticut and most of the states that allow punitive damages is the amount of the award. By limiting punitive damages in most cases to litigation expenses, Connecticut's punitive damages tend to be lower than other states especially those that view punitive damages as a method of punishing the wrongdoer. These states allow much higher punitive damages based on such considerations as the defendant's wealth and finances. As previously noted, some Connecticut statutes allow punitive damages for certain situations in the amount of two or three times the victim's actual damages. While this sometimes can be a sizeable amount where the victim's actual damages were significant, it does not compare to states that do not put similar limits on their punitive damages awards and instead focus on such things as punishment and the defendant's financial situation.

Following is a summary of Connecticut's common law and statutory law regarding punitive damages. Following that is an overview of the law of punitive damages in other states. We have focussed on the reasons for punitive damages, the amount of such awards, judicial review, burden of proof, and damages based on an employee's actions. Please let us know if you need a broader or more detailed analysis.

Information concerning punitive damages in other states was taken largely from a treatise by Matthew Bender entitled “Damages in Tort Actions.” Section citations in this portion of the memo dealing with other states are to this treatise.

Under Connecticut common law, courts have the discretion to award damage “when the evidence shows a reckless indifference to the rights of others or an intentional or wanton violation of those rights” (Collens v. New Canaan Water Co., 155 Conn. 477, 489 (1967) (tort action asserting taking of water privileges), quoted with approval in Tessman v. Tiger Lee Construction Co., 228 Conn. 42, 54 (1993), (CUTPA action), see also e.g., Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 532 (1989) (common law assault and battery action); Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 128 (1966) (breach of contract action founded on tortuous conduct)).

In addition to this general authority, there are numerous statutes that authorize some form of punitive damages under various circumstances

Statutes, which provide for punitive damages awards, usually specify their amount or establish a maximum dollar figure. Where punitive damages are awarded under the common law, or the applicable statute is silent as to their amount, the general rule is that they are limited to plaintiff's attorney's fees and nontaxable costs (see Bodner v. United Servs. Auto. Ass'n., 222 Conn. 480, 492 (1992)). In Bodner, the Court observed that this rule provides some punishment and deterrence in addition to compensation of the victim. The Court reiterated the reasoning articulated in Waterbury Petroleum Products, Inc. v. Canaan Oil and Fuel Co., 193 Conn. 208, 237-38 (1984), where it rejected plaintiff's claims that punitive damages should not be limited to the expense of litigation less taxable costs. According to the Bodner Court,

in limiting punitive damages awards to the costs of litigation less taxable costs, our rule fulfills the salutary purpose of fully compensating a victim for the harm inflicted on him while avoiding the potential for injustice which may result from the exercise of unfettered discretion by a jury (222 Conn. at 492 (quoting Waterbury Petroleum Prods., Inc., 193 Conn. at 237-38)). Punitive damages do not, however, include costs incurred in defending a subsequent appeal (O'Leary v. Indus. Park Corp., 211 Conn. 648, 651 (1989)).

§ 14-195 Defendant deliberately or with reckless disregard operated motor vehicle in violation of specific traffic provisions. Double or treble damages for persons injured as a result. (Discretionary with trier of fact.)

§ 42-110g Connecticut Unfair Trade Practices Act. Punitive damages. (Discretionary with the court.) Additional civil penalties up to specified amounts, payable to the state if temporary restraining order or injunction violated, of if wilful violation of the Act (CGS § 42-110o).

§ 46a-89(b) Discriminatory practices regarding the sale or rental of a dwelling or commercial property. Punitive damages not to exceed $50,000. Additional civil penalties in specified amounts payable to the state to vindicate the public interest. (Discretionary with the court.)

§ 46a-98 Discriminatory credit practices. Punitive damages not to exceed $1,000; for class actions, punitive damages not to exceed $5,000 or 1% of creditor's net worth. (Discretionary with the court.)

§ 52-240(b) Product liability actions. Punitive damages, not to exceed twice the damages, if the harm resulted from a product seller's reckless disregard for safety of product users, consumers, or others who were injured. (Discretionary with the trier of fact; court determines amount.)

§ 52-245 False statement concerning a defense. Double costs, if judgment in favor of plaintiff and court is of the opinion that defendant filed an affidavit or made a statement without just cause or for purpose of delay. (Discretionary with the court.)

§ 52-564 Theft. Treble damages if defendant stole property of another or knowingly received and concealed stolen property. (Mandatory.)

§ 52-564a Shoplifting. Punitive damages in amount not to exceed $300. If plaintiff does not prevail, the court may award defendant his costs, including reasonable attorney's fees, and damages not to exceed $300. (Mandatory.)

§ 52-567 Injury to milestone, guidepost, or railing for the direction or safety of travelers. Treble damages. (Mandatory.)

§ 52-568 Groundless or vexatious suit or defense in any civil action. Double damages if suit or defense without probable cause. Treble damages if suit or defense without probable cause and with malicious intent unjustly to vex and trouble. (Mandatory.)

§ 52-569 Wilfully and unlawfully throwing down or leaving open any bar, gate or fence belonging to a particular enclosure or common field. Double damages and a sum not to exceed $5.00, according to nature and aggravation of the trespass. (Mandatory.)

§52-570(b) Computer-related offenses. Treble damages where showing of wilful and malicious conduct in violation of § 53a-251. (Mandatory.)

§ 52-571 Discrimination on account of membership in armed forces. Double damages. (Mandatory.)

The basic purposes and reasons for awarding punitive damages are: (1) to punish the defendant, (2) to deter him from repeating the conduct, (3) to deter others from engaging in similar conduct, (4) to preserve the peace, (5) to induce private law enforcement, (6) to compensate the victim for uncompensable losses, and (7) to pay the plaintiff's attorney's fees.

The states that allow punitive damages can be divided into two groups, according to their view of the primary purpose of punitive damages. The overwhelming majority look at punitive damages as a way to punish the wrongdoer, while making an example of him to deter similar conduct. Another group of states, considers punititve damages as additional compensation for the plaintiff based on the extreme offensiveness of the defendant's conduct. A few states seem to mesh the goals of compensation and deterrence (§ 40.02(2)).

Punitive damages are reserved, for the most part, for cases involving aggravated or outrageous conduct. Most states allow punitive damages for conduct that evidences malice, fraud, oppression, or willful and wanton disregard for others' rights and safety. A few states allow such damages for gross negligence (§ 40.03(6)).

The defendant's degree of culpability is usually considered when determining how much punishment is justified and how much deterrence is needed. The jury or court also considers any circumstances that might mitigate punitive damages. Factors that courts consider include the defendant's intent, whether he concealed the wrongdoing, whether the conduct was engaged in routinely or as a matter of policy, the conduct's duration, whether the defendant had been provoked, and whether the defendant tried to correct the wrongful act.

The overwhelming majority of states consider evidence of the defendant's wealth and finances relevant to the amount of punitive damages. Similarly, evidence of the defendant's profits from the misconduct is relevant and admissible. Evidence of the defendant's lack of financial resources can mitigate the amount of the punitive damages award, and some states allow the defendant to introduce evidence of the effect the punitive award will have as its financial position (§ 40.08(2)).

In most states litigation expenses, including attorney fees, may be considered in assessing the punitive damages award. With respect to those types of expenses, punitive damages have a compensatory element since the plaintiff is able to recoup costs he otherwise might be unable to collect.

Several states have enacted limits on the amount of punitive damages that may be awarded in a single case against a defendant. Some have established a statutory cap in the form of a specific monetary amount. For example, Georgia (GA. L. Code Ann. § 51-12-5.1(g)) establishes a $250,000 limit, and Virginia (Va. Code § 8.01-38-1) establishes a $350,000 limit. Other states use formulas that limit punitive awards to a multiple of the compensatory awards. For example, Nevada (Nev. L Rev. State. § 42.005) establishes a limit of three times the compensatory damages if they are $100,000 or more and a limit of $300,000 if compensatory damages are less than $100,000. Texas (Tex. Civ. Prac. and Rem. Code Ann. § 41.007) establishes a limit of four times the actual damages or $200,000, whichever is greater. Florida provides that if the award exceeds three times the compensatory damages, it is deemed excessive and can be reduced unless the plaintiff, shows by clear and convincing evidence that the punitive damages award is not excessive in light of the facts and circumstances that were presented at the trial (Fla. Stat. L. Ann. § 768.73(1)(a)). Other states limit the award to a percentage of the defendant's wealth. For example, Kansas limits punitive damages awards to the lesser of the defendant's highest gross annual income in any one of the five years before the accident or $5 million dollars (Kan. Stat. Ann. § 60.3701). Some states do not allow the jury to be informed of the limitation, but requires the court to reduce the verdict to bring it within the statutory cap (for example, see Fla. Stat. Ann. § 768.73; Tex. Civ. Prac. and Rem. Code Ann. § 41.0009).

Some states require that the amount of punitive damages bear a reasonable relationship to the size of the compensatory award, or the actual damages. Examples of this are Virginia and Arizona (Johnson v. Hugo's Skateway, 974 F.2d 1408 (4th Cir. 1992); and Magma Copper v. Shuster, 575 P.2d 350 (1977)).

A few states have abolished punitive damages or limited them to instances expressly provided for by statute. For example, Louisiana does not permit punitive damages awards unless expressly authorized by statute (Gagnard v. Baldridge, 612 So.2d, 732 (1993). Massachusetts never recognized punitive damages at common law, and authorizes these awards only under certain situations by statute (Santana v. Registrars of Voters of Worcester, 502 N.E.2d, 132 (1986)). Nebraska does not recognize punitive damages in civil cases (Miller v. Kingsley, 230 N.W.2d, 472 (1975)). Washington disallows recovery of punitive damages, unless expressly authorized by statute (Fishes Properties, Inc. v. Arden-Mayfair, Inc., 726 P.2d 8 (1986)). New Hampshire refuses to allow punitive damages unless authorized by statute (N.H. Rev. Stat. Ann. § 507.16).

Some states have regulated the process for claiming punitive damages and proving damages at trial. Such regulations include discovery rules, proof standards, and the admissibility of financial worth evidence. They often require pretrial hearings and bifurcated trial procedures.

Both trial and appellate courts have the power to review punitive damage awards, which they must review for excessiveness. The most common reasons for setting aside punitive awards are (1) bias, passion, or prejudice; (2) lack of evidentiary support; and (3) excessiveness that shocks the judicial conscience. Courts commonly judge excessiveness by comparing the amount of the award with the defendant's conduct, the injury suffered, and the defendant's financial status (§ 40.09).

Some states, including Connecticut, have retained the usual civil standard of a “preponderance of evidence.” Most jurisdictions require a higher “clear and convincing evidence” standard. The preponderance of evidence standard requires that it be more likely than not that the conduct in question occurred. Put another way, the likelihood that the conduct occurred has to be greater than 50%. The clear and convincing evidence standard, on the other hand, requires a firm conviction that the conduct occurred. In other words, the fact finder has to be without substantial doubt that the alleged conduct occurred (§ 40.07(3)).

A majority of states allows an award of punitive damages against an employer for the actions of an employee only if the employer authorized, ratified, or approved the act, or the employer was reckless in employing or retaining an unfit employee. Connecticut is one of these states (Maisenbacker v. Society Concordes, 71 Conn. 369 (1899)). A number of states, on the other hand, allow punitive damages if the plaintiff only proves the employer was acting within the scope of his employment (§ 40.06).