Section 15.35 Punitive Damages

• Library: Tort Law 2016

G. (§15.35) Punitive Damages

In September 2014, the Supreme Court struck down the punitive damage cap enacted as part of Missouri’s tort reform legislation, § 510.265, RSMo Supp. 2013. Lewellen v. Franklin, 441 S.W.3d 136 (Mo. banc 2014). Nevertheless, punitive damages awards remain subject to a due process analysis as identified by the U.S. Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 574–75 (1996), which analysis examines:

· the degree of reprehensibility of misconduct;

· the disparity between the harm and the punitive damages award; and

· the difference between the punitive damages award and the penalties authorized or imposed in comparable cases.

Of these, the degree of reprehensibility of the misconduct is the most important factor. See also State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).

In Missouri, punitive damages are recoverable in a strict products liability case. The evidentiary test for the submission of exemplary damages is strict. See:

· Rodriguez v. Suzuki Motor Corp., 936 S.W.2d 104 (Mo. banc 1996) (the plaintiff must prove entitlement to damages by clear and convincing evidence)

· Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 397 (Mo. banc 1987)

· Angotti v. Celotex Corp., 812 S.W.2d 742 (Mo. App. W.D. 1991)

To recover punitive damages, the "plaintiff must present evidence that the defendant not only placed in commerce an unreasonably dangerous product, but that in so doing defendant’s conduct showed a complete indifference to or conscious disregard for the safety of others." Sparks v. Consol. Aluminum Co., 679 S.W.2d 348, 354 (Mo. App. E.D. 1984); Kansas City v. Keene Corp., 855 S.W.2d 360 (Mo. banc 1993); see also Racer v. Utterman, 629 S.W.2d 387, 396–97 (Mo. App. E.D. 1981). "[N]either inadvertence nor bungling can be equated to ‘complete indifference.’" Bhagvandoss, 723 S.W.2d at 397 (quoting Hoover’s Dairy, Inc. v. Mid-Am. Dairymen, Inc., 700 S.W.2d 426 (Mo. banc 1985)). Moreover, evidence must show that at the time of the act of which the plaintiff complains, "the defendant had knowledge of a high degree of probability of injury to a specific class of persons." Lewis v. FAG Bearings Corp., 5 S.W.3d 579, 584 (Mo. App. S.D. 1999) (citing Keene, 855 S.W.2d at 375). "[V]ague and generalized knowledge of danger is insufficient." Lewis, 5 S.W.3d at 584.

To establish that the defendant’s conduct was in complete indifference to or in conscious disregard of the safety of others, the plaintiff must...