Punitive Damages in Death Cases

By Jason M. Kroot, Winter 2007

Unlike compensatory damages, which are designed to compensate, punitive damages are intended to punish the offender and deter similar misconduct. Punitive damages are reserved only for the most egregious cases. In most states, punitive damages require proof of intentional wrongdoing, malice, or reckless disregard for the safety of others. However, in many states like Illinois, punitive damages are generally unavailable if the victim dies. As crude as it may sound, it is often cheaper to kill your victim than maim them. This archaic common law rule traces back hundreds of years in many states which, today, can lead to exceptionally unjust results.

Consider the following hypothetical. In a drunken rage, a wealthy husband runs down his wife in a vehicle. During the first attempt, his wife is only injured. At this point, his wife may seek punitive damages. However, the husband continues his rampage. During the second attempt, he succeeds in killing his wife. The moment his wife takes her last breath, the husband is no longer responsible for punitive damages.

Some states, like Illinois, recognize one or two exceptions to this rule. However, these exceptions are highly problematic and almost never apply. More importantly, these exceptions do not change the general rule which denies punitive damages when death results.

In states that deny punitive damages in death cases, there is a solution. That solution rests legislative body of that state, who can revise their wrongful death (and survival) statutes to permit punitive damages in death cases. In the Illinois Supreme Court, as in other states, has all but encouraged the state legislature to correct this injustice:

[T]he plaintiffs ask that we consider the often repeated adage that it is cheaper to kill your victim than leave him maimed, and the possibility that defendants faced with punitive damage claims may attempt to delay the proceedings until the plaintiffs who advance them die. Persuasive as these arguments sound, we believe they are better addressed to the General Assembly than this court… Froud v. Celotex, 456 N.E.2dd 131 (1983).

Until state legislatures amend their death statutes, this arcane and absurd area of law will only continue.

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