Punitive Damages

• Author: Gary T. Schwartz
• Pages: 2081-2082

Page 2081

The plaintiff who prevails in a tort case is entitled to compensatory DAMAGES, including damages for pain and suffering. In a limited number of cases involving aggravated wrongdoing, the plaintiff can recover punitive damages as well. Sometimes the understanding is that these damages are indeed punitive: that their intent is to punish defendants for their wrongdoing. At other times, punitive damages seem designed to provide a higher level of deterrence than would be occasioned by the mere threat of compensatory damages; at this juncture, the language of "exemplary damages" becomes apt.

Although scholars have long expressed uneasiness with punitive damages, until recently their constitutionality has been taken for granted. In recent years, however, the number of punitive-damage awards has increased, and the size of the average punitive-damage verdict has soared. These changes have encouraged the posing of new questions as to their constitutionality. In Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc. (1989), the defendant committed a business tort against the plaintiff that resulted in $51,146 in actual damages. A jury awarded the plaintiff these damages?and six million dollars in punitive damages as well. An argument advanced by the defendant was that this award constituted an "excessive fine," forbidden by the Eighth Amendment. Amazingly, Browning-Ferris was the first case involving the excessive-fines clause that the Supreme Court had ever considered. The Court, divided 7?2, finally decided that punitive damages awarded in private civil actions are not "fines" and are hence unregulated by the clause. The majority opinion, authored by Justice HARRY A. BLACKMUN, left open the question as to whether the clause pertains only to proceedings that are officially criminal: rather, the rationale adopted by Blackmun was that the clause has no application to a legal proceeding in which the government is no

Page 2082

way a party. The dissent, authored by Justice SANDRA DAY O'CONNOR, would have found the clause applicable to punitive-damage awards and, hence, would have subjected such awards to a "proportionality" analysis that O'Connor drew from the case law under the Eighth Amendment's CRUEL AND UNUSUAL PUNISHMENT clause.

Although denying the relevance of the Eighth Amendment, the Browning-Ferris majority acknowledged that large punitive-damage awards might raise a problem of DUE PROCESS. A concurring opinion...