Punitive Damages

Punitive damages, exemplary damages and civil penalties

"Punitive damages" consist of an award of money against a defendant in a court case, in an amount intended to, and sufficient to, punish the defendant and make an example of him or her. Another name for these damages is "exemplary damages" because they make an example of the defendant and hopefully deter others from the same kind of conduct. A related concept is a "civil penalty" that serves the same end.

Punitive damages are unusual because the usual measure of damages "is the amount which will compensate for all the detriment proximately caused [by the defendant's act or omission], whether it could have been anticipated or not." (California Civil Code sec. 3333.)

Grounds required

Special grounds are required before punitive damages can be awarded:

If injury to an animal is "committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given." (California Civil Code sec. 3340.)
If the injury is intended, or where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (California Civil Code sec. 3294.)
Some cities provide for punitive damages or civil penalties against dog owners. For example, the City of San Jose, California, authorizes a special award of $5,000.00 (in addition to other damages) against the owners of dangerous dogs that injure people.

There are specific definitions of "malice," "oppression" and "fraud" in California Civil Code section 3294:

"Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
"Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
"Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

There are special rules that apply to employers and corporations, also contained in California Civil Code section 3294. An employer shall not be liable for punitive damages, based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Practical considerations

Insurance companies are not required to pay punitive damages, with one exception discussed below. As a practical matter, therefore, it usually is self-defeating for a victim to attempt to prove a case for punitive damages. The reason is that, if there is proof that the defendant's actions were willful, then the insurance company is relieved from paying the victim -- at least to the extent of the punitive damages, but possibly the entire amount of the damages!

The exception pertains to acts of a minor which result in liability that is imputed to the parents. An insurance company may have to pay on behalf of the parents if the minor was not listed as an insured person under the policy. The limit, however, is $10,000.00. (To read more about this, return to the home page of Dog Bite Law, click on Lawyers, and select Civil Liability for Dog Bites In California. Once there, scroll to the subsection entitled Minors.)

Punitive damages generally cannot be discharged in bankruptcy. Therefore, a person who has assets that can be reached by a court judgment has a great deal to lose if punitive damages are awarded against him or her. On the other hand, if the defendant has insufficient assets and no insurance, then even a claim for punitive damages might not benefit the victim.

Every case is different, and the decision to attempt getting punitive damages must be made by a competent attorney after review of all the relevant facts. Furthermore, the laws pertaining to punitive damages differ from state to state; there are some municipal code sections pertaining to dogs that add to state law. Therefore, it is essential that a victim obtain the advice of a competent attorney regarding punitive damages.

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