The psychology of punishment and the puzzle of why tortfeasor death defeats liability for punitive damages.

• Author: Sommers, Roseanna
• Position: COMMENT

Nearly every jurisdiction that allows for the recovery of noncompensatory punitive damages conceives of them as serving two main purposes: (1) punishing outrageous conduct and (2) deterring its future occurrence. (1) The deterrent function of punitive damages operates both to deter the defendant from reoffending--an objective known as "specific deterrence"--and to deter others from committing similar tortious acts--"general deterrence." (2) The general deterrence rationale dates back to the first cases to impose punitive damages in the United States, (3) and a majority of jurisdictions have embraced general deterrence as the primary justification or one of several primary justifications for punitive damages. (4)

Simultaneously, a large majority of jurisdictions and the Restatement of Torts disallow punitive damages recoveries following the death of the tortfeasor. (5) Courts' stated rationale for this rule of nonsurvivability is that neither of the two primary aims of punitive damages--punishment or deterrence--is served when the defendant dies before damages can be imposed. (6) This rationale is correct as applied to punishment and specific deterrence, since neither can operate on a deceased person. Yet the aim of general deterrence is not necessarily defeated by the death of the defendant. Indeed, this Comment argues that if punitive damages imposed against living defendants serve general deterrence, then so do punitive damages imposed on the estates of deceased tortfeasors. The stated justification for abandoning punitive damages upon the tortfeasor's death therefore seems unconvincing, since one of the two primary purposes of these damages remains operative in the posthumous context. In making this argument, this Comment focuses on individual, non-corporate tort defendants, though in the Conclusion it draws on the corporate context to highlight recent punitive damages jurisprudence that suggests possible difficulties with the general deterrence rationale.

This Comment advances a novel explanation for the rule of nonsurvivability, one that does not rely on the deterrence rationale. Rather, this Comment focuses on the psychology of punishment. It argues that punitive damages lose some of their appeal when leached of their retributivist content because, research in the field of moral psychology suggests, preventing future misconduct by other potential wrongdoers is not as psychologically satisfying as seeing the individual wrongdoer receive her just deserts. There is thus little satisfaction to be found in imposing punitive damages posthumously. In addition, many courts express aversion to the idea of punishing the tortfeasor's innocent heirs for the misdeeds of the decedent. This reluctance, the Comment proposes, further underscores punitive damages' association with retribution as distinct from deterrence.

Part I of this Comment argues that, contrary to the prevailing justification put forth by courts embracing the nonsurvivability rule, posthumous punitive damages do advance general deterrence. Part II offers an alternative explanation for the nonsurvivability rule, one that relies on a psychological understanding of what motivates punishment. Part III concludes with a brief discussion of relevant considerations based on recent Supreme Court cases dealing with punitive damages in the corporate context.

1. THE GENERAL DETERRENT EFFECT OF PUNITIVE DAMAGES WHEN THE TORTFEASOR HAS DIED

   Courts embracing the nonsurvivability rule have stated that the deterrent effect of punitive awards is watered down or becomes speculative when the deceased wrongdoer's estate is held liable instead of the wrongdoer herself. (7) In this Part, however, I argue that under the prevailing logic of deterrence, posthumous punitive damages should actually serve general deterrence.

   Consider the deterrent message broadcast to potential tortfeasors when punitive damages are imposed against a deceased tortfeasor's estate, as happens under the regime adopted by the small minority of jurisdictions eschewing the nonsurvivability rule. (8) Under this minority rule, potential future tortfeasors are put on notice that if they commit a similar tort and die, then their estate will pay punitive damages. But future tortfeasors also gain a sense of what will happen if they commit a similar tort and survive: they will be personally liable for punitive damages. (9) In this way, the deterrent message communicated by the minority rule is substantially the same as the deterrent message communicated in typical punitive damage cases, in which damages are assessed against a living defendant. In both situations, potential tortfeasors learn that if they commit similar misconduct and survive, they will face personal liability for punitive damages. Consequently, the general deterrent effect of punitive damages does not seem weakened as a result of the tortfeasor's death.

   In comparison, consider the relatively feeble deterrent message communicated by the nonsurvivability regime adopted by the majority of jurisdictions and recommended by the Restatement of Torts. Whether a potential future tortfeasor expects to live or die after committing a tort, the majority rule provides less deterrence than the minority rule. To the potential wrongdoer who expects to survive following the tort, (10) the minority rule can use posthumous punitive damages to send a clear signal that the misconduct will trigger enhanced liability. The majority rule, on the other hand, does not reach the question whether punitive damages are warranted and therefore does not deter to the same extent potential tortfeasors who expect to live. (11) For the wrongdoer who expects to die before punitive damages can be assessed, neither rule creates the expectation of personal liability. But only under the majority rule is a potential wrongdoer assured that her estate will be spared punitive damages. Of course, in the extreme case of an entirely self-interested potential tortfeasor who expects to die prior to judgment and is concerned only with her personal liability, punitive damages will provide equally ineffective deterrence under either rule. For the potential tortfeasor who cares about the future wellbeing of her family, however, the minority rule improves upon the majority nonsurvivability rule by holding her estate liable. (12) Therefore, under any set of circumstances, a regime that imposes punitive damages posthumously will deter at least as well as, and frequently better than, a regime that does not.

   Why, then, do courts insist that punitive damages do not deter when the tortfeasor is deceased? One possible answer is that courts focus solely on specific deterrence, which clearly is thwarted by the death of the tortfeasor. Yet, in most jurisdictions, courts hold that general deterrence is one of the primary aims of punitive damages. (13) Moreover, most courts defend the nonsurvivability rule by pointing to a rationale other than thwarted specific deterrence: that the general deterrent effect of a punitive award is frustrated when the paying party (that is, the tortfeasor's estate) is innocent of wrongdoing. (14) A commentator has elaborated the reasoning behind this position as follows: "The punishment of an innocent actor will have no positive effect on potential wrongdoers. Indeed, they may develop a contemptuous attitude, feeling that they may commit egregious acts for which innocent others will bear the punishment." (15)

   Yet this ordinarily sensible argument--that penalties must be inflicted upon the guilty, not the innocent, in order to deter future wrongdoing by others--does not justify the nonsurvivability rule. While judges have argued that "deterrence requires a perception by others that the tortfeasor is being punished," (16) it seems more accurate to say that "deterrence requires a perception by others that they will be punished if they engage in similar misconduct." This latter message can be conveyed by posthumous punitive damages, as long as potential future tortfeasors expect to live after committing the tort. (17) Under most circumstances, then, the aim of general deterrence can be served by assessing punitive damages against the tortfeasor's estate.

2. AN ALTERNATIVE EXPLANATION FOR THE NONSURVIVABILITY RULE

   1. A Psychological Account of the Nonsurvivability Rule

      I have argued that, contrary to the prevailing justification for the nonsurvivability rule, (18) awarding posthumous punitive damages deters potential tortfeasors. Why, then, do the majority of jurisdictions abandon punitive damages when the tortfeasor has died, even though one of their main stated rationales endures?

      I propose the following account. Courts use punitive damages in part to seek retribution against the wrongdoer. When the defendant's death thwarts retributive aims--that is, when a remedy cannot offer the satisfaction of seeing the despicable wrongdoer saddled with an enormous judgment--there is diminished appetite to impose punitive damages, even though the general deterrence rationale remains strong. (19) Overall, then, the...