Damages for Dignitary Torts What is a dignitary tort? Torts that assault or impair our dignity but don’t necessarily cause physical or pecuniary harm. Examples: Assault, Defamation, False Imprisonment, IIED, NIED, Malicious prosecution, Invasion of privacy As with pain & suffering damages, difficult valuation issues arise Levka v. City of Chicago P sues for emotional distress resulting from illegal search after misdemeanor arrest. Awarded $50,000 for emotional distress but 7th Circuit remits to $25,000.

Focus on plaintiff’s harm What could Levka’s attorney have done differently to convince the appellate court of her emotional distress? Focus on plaintiff’s harm Emphasize particular frailty Reframe inferences court drew from evidence Bolster psychological evidence Focus on defendant’s conduct Try to frame it as more outrageous than court characterized it

How courts generally approach damages with dignitary torts: In these types of torts, courts generally attempt to gauge damages in light of the two factors we just discussed: 1) Plaintiff’s injury (especially if particular frailty) and 2) Defendant’s conduct (how outrageous?) These are applied as a sliding scale Are there problems w/ focusing on D’s conduct? Are there problems w/ focusing on P’s frailties?

How relevant are other jury verdicts to determining “excessiveness”? The Levka court engaged in “remittitur” – a practice where district or appellate courts order a reduction in damages because they are “grossly excessive.” Most courts engage in this practice at some point and they have a lot of discretion. Court usually gives the option of a new trial so P can choose between new trial and reduction of damages. “Grossly excessive” determinations & “comparator” verdicts Some courts, like Levka, are starting to use comparator verdicts to make remittitur decisions. Are such verdicts relevant to the issue of excessiveness? What kind of mathematical precision do we want judges to engage in here?

Damage awards for constitutional violations – the rule in Carey v Damage awards for constitutional violations – the rule in Carey v. Piphus Why does P only get $1 in damages? Why won’t SCT presume damages for a procedural due process violation (or for any constitutional violation for that matter)?

The Value of Constitutional Rights? The Court dances around the question of whether constitutional rights have an innate value – do they? If so, shouldn’t we compensate for the mere violation of a right? What issues arise if we compensate for a right violation without actual damages (like those the plaintiff suffered in Levka)?

Goals of Punitive Damages Punishment Notions of public morality and “just deserts” require that Ds “pay” for their bad actions Deterrence Compensatory damages, criminal sanctions and/or government safety standards don’t sufficiently deter the conduct at issue so punitive damages are necessary. Focus is on D’s behavior not P’s losses

Why don’t compensatory damages, criminal fines, safety standards sufficiently deter? Difficulty of measuring some damages may cause under compensation & under deterrence Some wrongs are small but nevertheless outrageous (damage awards may not deter) E.g., Levka – strip search of all female arrestees Some behavior is extremely profitable (beyond awards of compensatory damages) Some Ds profit in ways that compensatory damages can’t account for – i.e., pleasure at causing another pain Criminal fines are usually quite small (even smaller than compensatory awards) Safety standards are often not enforced by administrative officials & fines are often small

Jury Instructions Regarding Punitive Damages Courts have recognized legitimacy of punitive damages for centuries. But such damages sit uneasily within the notion of civil compensation. So courts have also attempted to ensure that they are not grossly excessive or a result of bias or prejudice toward the defendant. Possible approaches to controlling punitive damage awards (usually seen in jury instructions and/or statutory standards governing post-verdict judicial review) Epithet approach Factors approach Multipliers (as instituted by SCT in Exxon)

Epithets Approach Jury is given an instruction to award punitive damages if the jurors believe defendant’s behavior was “willful and wanton” or “outrageous” – or some such behavior. Any award of punitive damages will be subject to review: Could be as vague as the standard for “remittitur” – are the damages grossly excessive? Could be subject to review based on factors – see slide 12 Could be subject to review based on approaches discussed next week.

Jury instruction using a typical “epithet” approach: Missouri’s standard for awarding punitive damages: D's conduct must be outrageous because of “evil motive or reckless indifference.” Intentional tort Jury instruction (MAI 10.01) – “If you believe D’s conduct was outrageous because of evil motive or reckless indifference to the rights of others” in addition to compensatory damages “you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.” Recklessness Jury Instruction (MAI 10.02) – “If you believe D’s conduct shows complete indifference to or conscious disregard for the safety of others” in addition to compensatory damages “you may award plaintiff an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter defendant and others from like conduct.” If the jury in Exxon were instructed under an epithets approach, how would Exxon fare? What did Exxon do? Is it, should it be, responsible for Hazelwood?

Jury instruction or review using a “factors” approach Some states have juries consider various factors to determine whether punitive damages should be awarded. Other states have judges use these factors to review jury awards based on an epithets approach. Such factors can include: Actual/likely harm from D’s conduct Reprehensibility of D’s conduct Profitability of D’s conduct Financial condition of D Amount of compensatory damages Other possible criminal or civil penalties for D’s conduct Are these factors relevant? Prejudicial? Distracting? Is this approach better than the “epithet” approach? Would Exxon fare differently under this approach than under the epithet approach?