Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
4. When a tortious act is concealable, a judgment equal to the harm done by the act will
underdeter. Suppose a person who goes around assaulting other people is caught only half the
time. Then in comparing the costs, in the form of anticipated damages, of the assaults with the
benefits to him, he will discount the costs (but not the benefits, because they are realized in every
assault) by 50 percent, and so in deciding whether to commit the next assault he will not be
confronted by the full social cost of his activity.
5. An award of punitive damages expresses the community’s abhorrence at the defendant’s act.
We understand that otherwise upright, decent, law-abiding people are sometimes careless and that
their carelessness can result in unintentional injury for which compensation should be required.
We react far more strongly to the deliberate or reckless wrongdoer, and an award of punitive
damages commutes our indignation into a kind of civil fine, civil punishment. Some of these
functions are also performed by the criminal justice system. Many legal systems do not permit
awards of punitive damages at all, believing that such awards anomalously intrude the principles
of criminal justice into civil cases. Even our cousins the English allow punitive damages only in
an excruciatingly narrow category of cases. But whether because the American legal and political
cultures are unique, or because the criminal justice system in this country is overloaded and some
of its functions have devolved upon the tort system, punitive damages are a regular feature of
American tort cases, though reserved generally for intentional torts, including the deliberate use of
excess force as here. This suggests additional functions of punitive damages:
6. Punitive damages relieve the pressures on the criminal justice system. They do this not so
much by creating an additional sanction, which could be done by increasing the fines imposed in
criminal cases, as by giving private individuals—the tort victims themselves—a monetary
incentive to shoulder the costs of enforcement.
7. If we assume realistically that the criminal justice system could not or would not take up the
slack if punitive damages were abolished, then they have the additional function of heading off
breaches of the peace by giving individuals injured by relatively minor outrages a judicial remedy
in lieu of the violent self-help to which they might resort if their complaints to the criminal justice
authorities were certain to be ignored and they had no other legal remedy.
What is striking about the purposes that are served by the awarding of punitive damages is
that none of them depends critically on proof that the defendant’s income or wealth exceeds some
specified level. The more wealth the defendant has, the smaller is the relative bite that an award
of punitive damages not actually geared to that wealth will take out of his pocketbook, while if he
has very little wealth the award of punitive damages may exceed his ability to pay and perhaps
drive him into bankruptcy. To a very rich person, the pain of having to pay a heavy award of
damages may be a mere pinprick and so not deter him (or people like him) from continuing to
engage in the same type of wrongdoing. . . . But rich people are not famous for being indifferent
to money, and if they are forced to pay not merely the cost of the harm to the victims of their torts
but also some multiple of that cost they are likely to think twice before engaging in such
expensive behavior again. Juries, rightly or wrongly, think differently, so plaintiffs who are
seeking punitive damages often present evidence of the defendant’s wealth. The question is
whether they must present such evidence—whether it is somehow unjust to allow a jury to award
punitive damages without knowing that the defendant really is a wealthy person. The answer,
obviously, is no. A plaintiff is not required to seek punitive damages in the first place, so he
should not be denied an award of punitive damages merely because he does not present evidence
that if believed would persuade the jury to award him even more than he is asking.
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