Vol. 3, No. 4, Pg. 10. Punitive Damages Today.

• Author: By Desa Ballard

South Carolina Lawyer

1992.

Vol. 3, No. 4, Pg. 10.

Punitive Damages Today

10Punitive Damages TodayBy Desa BallardNot very long ago, United States District Court Judge Robert W. Hemphill characterized South Carolina substantive law on punitive damages as "a type of private revenge which is carried out in courts rather than through duels or in back alleys. . . . " Campus Sweater and Sportswear Co. v. M.B. Kahn Const. Co., 515 F.Supp. 64, 105 (D.S.C. 1979), affirmed, 644 F.2d 877 (4th Cir. 19__).

Earlier, the State Supreme Court had described the specious nature of conduct to which the doctrine was limited. Punitive damages were recoverable when:

[T]he wrongdoer has a mind or spirit which, though averting to its duty and the consequences of its breach, yet in unbridled license disregards the same . . . a conscious failure to observe due care from which evil intent may be inferred.

Watts v. South Bound Ry. Co., 60 S.C. 67, 38 S.E. 240, 242 (1901).

Since the middle of the last century, both the United States Supreme Court and the South Carolina Supreme Court have recognized the role punitive damages play in forming the common law and public policy of American jurisprudence. Day v. Woodworth, 54 U.S. 363, 371, 14 L.Ed. 181 (1851); Spikes v. English, 35 S.C.L. (4 Strob.) 34 (1849).

Recent decisions in both the state and federal courts, however, have blurred the guidelines and procedures which govern the imposition of awards of punitive damages. The most invasive change in the existing standards has resulted from challenges to the imposition of punitive damages on due process grounds. The United States Supreme Court refused to apply the excessive fines provision of the Eighth Amendment to punitive damages awards in Browning-Ferris Industries of Vermont Inc. v. Kelm Disposal Inc., _____ U.S. ____, 109 S.Ct. 2909, 106 L.Ed. 2d 219 (1989). At the same time, it seemed to invite debate on the issue on due process grounds.

Early this year, the United States Supreme Court refused to strike down the concept of punitive damages in whole. It did, however, recognize that a defendant's due process rights would not permit unlimited jury or judicial discretion in awarding punitive damages. Pacific Mutual Life Insurance Company v. Haslip, ____ U.S. ____, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The Court scrutinized Alabama's common law on punitive damages (as applied in the trial of that case) and held that both the jury instructions and the post-verdict review process provided sufficiently reasonable constraints in decision making to satisfy the due process clause.

Subsequently, the South Carolina Supreme Court reviewed the due process implications of Haslip with reference to the common law on punitive damages. Gamble v....