Louisiana Punitive Damages-A Conflict of Traditions
| Author | John W. deGravelles; J. Neale deGravelles |
| Position | John W. deGravelles is a partner in the firm of deGravelles, Palmintier, Holthaus & Frugé in Baton Rouge, Louisiana. He is a member of the adjunct faculty of the Louisiana State University Paul M. Hebert Law Center; J. Neale deGravelles is an associate in the firm of deGravelles, Palmintier, Holthaus & Frugé in Baton Rouge, Louisiana. |
| Pages | 579-614 |
Page 579
Louisiana's treatment of punitive damages reflects the unique hybrid of civil and common law traditions that exists in Louisiana law. Unlike most pure common law jurisdictions, Louisiana-in keeping with civilian traditions-refuses to allow punitive damages except where authorized by statute. However, the analytical framework employed by Louisiana courts in interpreting exemplary awards that are allowed by statute closely follows the traditional common law approach. The bedrock of this framework is an extreme deference to the findings of the trier of fact both as to when such damages should be awarded and in deciding, "untethered to strict numerical multipliers,"1 the amount of the award. This amalgamation of approaches is the offspring of Louisiana's mixed judicial system.
This paper briefly reviews the history and present status of punitive damages law in Louisiana with a focus on the surviving Civil Code articles that allow for punitive damages not tied to a statutory cap.2 It will consider issues of application and interpretation of these statutes and how these have been affected by Louisiana's mixed civil and common law past. Page 580
Punitive or exemplary damages3 have an exceedingly long pedigree in code-based law across cultures. Often cited antecedents of modern punitive damages law include the Code of Hammurabi (4000 years old), Hittite laws (1400 B.C.), the Hebrew Covenant of Mosaic law (1200 B.C.) and the Hindu Code of Mannu (200 B.C.).4 The very foundation of ancient Roman civil law, the Twelve Tables of 450 B.C., included punitive provisions, some calling for up to quadruple damages.5 More obscure codes of law also included articles allowing for exemplary damages. Under the Kanun (Code) of Leke Dukagjini, the written code of the honor culture of the mountains of northern Albania, an individual who entered the sacred space of another's home without leave to do so was obligated to pay a fine in addition to double the cost of any damage done or the value of any goods stolen in the home.6
In contrast to ancient laws, the prevailing and longstanding rule in modern civil law is that punitive damages violate the purpose behind the law of damages, which is to "repair the harm sustained by the victim of a wrong, and not to punish the wrongdoer."7 With this philosophical underpinning, "the civil law world has so far been reluctant to open its doors to [punitive damage recovery], instead remaining faithful to the traditional principle" that damages should be compensatory in nature.8 Page 581
This suspicion of punitive damages remains largely in place in modern pure civil law jurisdictions.9 However, there are exceptions. The codes of Brazil, Israel, Norway, the Philippines, and Poland allow recovery of punitive damages of some kind.10 Serious consideration is being given to a punitive law provision in the French Civil Code. In September of 2005, a group of civil law scholars, headed by project leader Pierre Catala at Université Pantheon Assas Paris 2, submitted to the French Minister of Justice what has been described as "one of the most ambitious and comprehensive attempts to reform the French Civil Code in a field where it has not been significantly modified in two hundred years of existence"11-the law of obligations. Among the proposed changes is a provision allowing punitive damages against a person guilty of an intentional or deliberate fault with a view toward profit.12
Punitive damages have been a fixture of the common law for over 200 years.13 One of the earliest known punitive provisions in English law dates back to 1275 and stated that "[t]respassers against religious persons, shall yield double damages."14 From 1275 to 1753, the British Parliament passed an additional sixty- four punitive articles calling for the availability of between one to four times compensatory damages.15
Judicial recognition in English courts of the doctrine of punitive damages came in 1763. In Wilkes v. Wood, an award "for more than the injury received" was granted against the English Secretary of State for an unlawful search of the plaintiff's papers.16 In Huckle v. Money, the same judge upheld a jury's award of £300 despite the compensatory damages being valued at roughly £20, stating, "If the jury had been confined by their oath to consider the Page 582 mere personal injury only, perhaps [£20] would have been thought sufficient."17
In due course, the common law punitive damages doctrine was carried over to the common law courts of the United States by 1784.18 During the nineteenth century, punitive damages became a widely accepted concept in America.19 A central feature of the common law of damages was the jury's "broad discretion to award damages as they saw fit."20 Under the common law approach, "in cases where the amount of damages was uncertain[,] their assessment was a matter so peculiarly within the province of the jury that the Court should not alter it."21
This broad discretion included whether to award punitive damages and the amount of such award.22 Under the American common law of torts (i.e., that developed through jurisprudence in American Courts), "no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount."23 Early common law decisions made clear that a jury's award of punitive damages would not be disturbed absent a finding that the award was so "outrageous" that "all mankind at first blush must think so."24 American common law followed suit.25
Louisiana's Civil Code of 1808 did not include articles that directly addressed or allowed punitive damages. Even some provisions in traditional French law that contained elements of exemplary damages (such as the partie civille, which allowed a Page 583 criminal victim to bring a civil action simultaneously with, and in the same court as, the criminal action)26 did not carry over into Louisiana's code.27 Nonetheless, Louisiana courts soon began to award punitive damages. As early as 1836,28 the Louisiana Supreme Court approved a jury's award of "smart money."29 Despite the lack of a specific statutory basis for such an award, at least ten decisions rendered between 1836 and 1917 awarded or recognized the availability of punitive damages under Louisiana law.30 However, some courts felt the need to demonstrate a statutory justification for the award and turned to Louisiana Civil Code article 1928 (now 2324.1), which states "in the assessment of damages in cases of offenses, quasi-offenses, and quasi-contracts, much discretion must be left to the judge or jury."31
In Black v. Carrollton Railroad Co., Judge Ogden's concurring opinion claimed that Civil Code article 1928 provided "the sanction of express legislation" for exemplary damages "which [had] so long existed at common law."32 He went on to quote common and early American maritime law cases in praise of punitive damages as a "true and salutary doctrine"33 that issued "proper punishment which belongs to . . . lawless conduct."34 The Page 584 opinion concluded that the doctrine was "too well-settled in practice and . . . too valuable a principle to be called in question."35
Justice Slidell issued a vigorous dissent. He disputed the idea that punitive damages had any support in the Louisiana Civil Code and specifically disagreed with the proposition that Civil Code article 1928 authorized such an award.36 Turning to Civil Code article 2294 (now article 2315), he argued that this article allowed for reparation only, i.e., "a just and adequate compensation to the plaintiff for the injury received by him from the defendant. It suggests no idea of revenge or punishment."37 He acknowledged other instances in which courts allowed punitive damages but termed these pronouncements "dicta" and "casual expressions."38 Citing (en Français) French legal scholars Merlin, Toullier, Duranton, and Domat, he stated: "My conclusion is that there is nothing in the provisions of our Code or settled provisions of our law which sanctions what are called punitory, vindictive, or exemplary damages . . . ."39
The continued tension between Louisiana's civilian principles and its adopted common law rule is well illustrated by the 1887 case of Dirmeyer v. O'Hern. In Dirmeyer, a lessee sued his lessor for damages arising from the lessor's "rough and bulldozing" efforts to execute a writ of provisional seizure, including putting the lessee in fear of a physical attack with a bludgeon.40 The jury awarded $500, a sum in excess of the compensatory damages.41
The Louisiana Supreme Court, while expressing reluctance to do so, nonetheless affirmed the punitive damages award. The court acknowledged that "[t]here has been great confusion of ideas . . . in our own Reports . . . respecting actual and exemplary or punitory damages"42 and conceded that the principle of punitive damages was "borrowed from the common law, and, though tacitly and sometimes expressly recognized in our decisions, it is really an...
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