Clients and potential clients sometimes ask attorneys about punitive damages and whether they are entitled to them. Under the New Jersey Punitive Damages Act, punitive damages are defined as “exemplary damages and means damages awarded against a party in a civil action because of aggravating circumstances in order to penalize and to provide additional deterrence against a defendant to discourage similar conduct in the future. Punitive damages do not include compensatory damages or nominal damages.” In order to be eligible for punitive damages you must request them in the initial complaint against the defendants.
Punitive damages are awarded by jurors, not the judge, and they will be awarded if the jurors find “by clear and convincing evidence, that the harm suffered was the result of the defendant’s acts or omissions, and such acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions. This burden of proof may not be satisfied by proof of any degree of negligence including gross negligence.” NJSA 2A:15-5.12.
More often than not the actions of defendants which precipitate a complaint being filed are acting negligently, not intentionally, and therefore punitive damages are not commonly sought. Auto accidents are, for the most part, acts of negligence. Assuming that a plaintiff has found the conduct to be deliberate and reckless, it must still be proven to the jurors, or triers of fact. The statute goes on to state:
“In determining whether punitive damages are to be awarded, the trier of fact shall consider all relevant evidence, including but not limited to, the following:
(1) The likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct;
(2) The defendant’s awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant’s conduct;
(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and
(4) The duration of the conduct or any concealment of it by the defendant.
c. If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then determine the amount of those damages. In making that determination, the trier of fact shall consider all relevant evidence, including, but not limited to, the following:
(1) All relevant evidence relating to the factors set forth in subsection b. of this section;
(2) The profitability of the misconduct to the defendant;
(3) When the misconduct was terminated; and
(4) The financial condition of the defendant.
It is for all of the above reasons that punitive damages are not commonly awarded. If you have been involved in a car accident, slip and fall, medical malpractice, etc., normally there will be no claim for punitive damages. If you have suffered an intentional harmful act on the part of the defendant, such as embezzlement, assault, tortuous interference with prospective economic advantage, then a punitive damages award may be warranted. Finally, even if jurors award punitive damages, they are often reversed as being excessive. As attorneys who are experienced in punitive damages claims we never miss an opportunity to plead them as part of a complaint when there is a likelihood that they will be awarded.
