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March 25, 2019

What are Punitive Damages?

Posted by Dan Dewoskin in Auto Accident, Blog, Civil, Personal Injury, Serious Personal Injury and Wrongful Death

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In Georgia, the law allows for punitive damages to be awarded by a jury “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  O.C.G.A. §51-12-5.1.  These damages are not awarded as further compensation to a person who has been injured, but instead are awarded as punishment and designed to penalize and deter the defendant from acting in the same manner in the future.

These damages often come into play in cases where a DUI driver has injured somebody in a car wreck.  If there is so much as $1 in compensatory damages, the jury will get to determine if punitive damages should apply.  Juries are far less likely to award such damages on a first time DUI driver, but in the event that the driver has had many DUIs, or even many incidents that have and could prove dangerous to others that involve alcohol or drugs, the chances of getting punitive damages grow considerably.

Even when punitive damages may be applicable in a case, juries are often skeptical and reluctant to award amounts of money that will enrich the plaintiff.  For instance, juries will often ask at the punitive damages phase if they can designate that the damages will go to Mothers Against Drunk Driving (MADD) or another non-profit.  They will ask the courts if they can order the defendant to enroll in rehabilitation.  The juries will get creative and try to resist awarding money that just goes to the plaintiff, but not as compensatory damages.  Again, they have already considered those damages and rendered their verdict there.  This is about exemplary damages, and the statute even references that.

Punitive damages can be a tricky issue.  The jury will consider many factors in determining how much, if any, to award for punitive damages.  The jury must consider the degree of reprehensibility of the defendant’s actions that give rise to such damages, including considerations as to whether the harm caused was physical or just economic, whether the conduct demonstrated an indifference to  the safety and health of other people, and whether or not it was a one time offense or just one of many occurrences.  The jury also must consider the means of the defendant in assessing these damages.  The higher the price a defendant has paid in the criminal justice setting for the same conduct may very well reduce the level of accountability that the jury is willing to impose in a civil setting.

It is not enough that a defendant was merely negligent for punitive damages to be awarded.  The exposure for punitive damages is strictly limited to those situations where the defendant needs to be punished and have his or her behavior corrected.  This makes perfect sense when, in the case of ordinary negligence, the likes of which result in so many car wrecks and injuries related to those wrecks, the jury is not considering punishment, but only putting the injured plaintiff in the same position that he or she was in before the car wreck.  This is the idea of being “made whole.”  Unfortunately, in countless situations, lives are lost to negligence or injuries are beyond being fixed 100% such that a jury must find the fair amount of monetary compensation to try to make the plaintiff whole.

Knowing when punitive damages should be considered and how to go about seeking them is a complicated decision and process.  However, with proper experience and application, these damages can greatly enhance the chances of getting a just recovery from a fair and impartial jury.  These damages should not be taken lightly and should only be pleaded for in the appropriate circumstances.

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Author: Dan Dewoskin