Section 14.7 Mitigating and Aggravating Circumstances

• Library: Tort Law 2016

B. (§14.7) Mitigating and Aggravating Circumstances

Section 537.090, RSMo Supp. 2013, provides that "[t]he mitigating or aggravating circumstances attending the death may be considered by the trier of the facts . . . ." Aggravating circumstances damages are punitive in nature, specifically having the purpose of punishing the defendant and deterring future wrongdoing. Submission of these damages requires that the plaintiff show "willful misconduct, wantonness, recklessness, or a want of care indicative of indifference to consequences." Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164 (Mo. App. W.D. 1997). Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 466–67 (Mo. banc 1995), held that aggravating circumstances damages under the wrongful death statute, § 537.080, RSMo 2000, are punitive in nature and may only be awarded if accompanied by due process safeguards including proper narrowing jury instructions. MAI 6.02 [1998 Revision] directs lawyers to "select an exemplary damage instruction from Chapter 10.00 that fits the theory of the case (e.g., intentional tort, negligence, strict liability, etc.) and substitute the phrase ‘damages for aggravating circumstances’ for the phrase ‘punitive damages’ in the Chapter 10.00 instruction selected." The burden of proof instruction (MAI 3.01 [1998 Revision]) and the verdict form from Chapter 36.00 (MAI 36.11 [1980 Revision]) would be modified similarly by substituting the phrase "damages for aggravating circumstances" for the phrase "punitive damages."

None of the instructions allow any reference to the Tort Victims’ Compensation Fund. See §§ 537.675–537.693, RSMo Supp. 2013. The fact that half of the punitive damages go to that fund is something deemed to be beyond evidence and instructions in a wrongful death case. Furthermore, it is improper for argument. Henderson v. Fields, 68 S.W.3d 455, 470 (Mo. App. W.D. 2001). But in Delacroix v. Doncasters, Inc., 407 S.W.3d 13, 46–47 (Mo. App. E.D. 2013), plaintiffs’ counsel was allowed to tell the jury in closing argument that "half of any punitive damage award would go to Missouri’s Tort Victims’ Compensation Fund." This was allowed as a response to the defense argument that the plaintiffs were just seeking a "$50 million payday." Id.

Mansfield v. Horner, 443 S.W.3d 627 (Mo. App. W.D. 2014), held that § 510.265, now RSMo Supp. 2013, Missouri’s statutory cap on punitive damages, does not apply to limit damages for aggravating circumstances that are awarded in...