22.27B Damages – Punitive Damages, Employer of Tortfeasor

Punitive Damages – Employer of Tortfeasor

You may award punitive damages against [employer / principal’s name] because of the act of its [__employee / agent__], [tortfeasor’s name], if one of the following conditions is met:

(1)  [Employer or principal’s name / managerial agent] authorized the doing and manner of [tortfeasor’s name]’s action; or

(2)  [Tortfeasor’s name] was unfit and [employer or principal’s name / managerial agent] was reckless in [__employing / retaining__] [him/her]; or

(3)  [Tortfeasor’s name] was employed in a managerial capacity and was acting within [his/her] scope of employment; or

(4)  [Employer or principal’s name/managerial agent] ratified or approved [tortfeasor’s name]’s action.

[CommentThe Court will determine whether a party is a principal/employer as a matter of law.  This instruction should be used only if an instruction for punitive damages is to be given against the individual tortfeasor and should be given immediately following the general instruction on “Punitive Damages” (21.27).  The special verdict form should reflect that punitive damages may only be awarded against a principal/employer if punitive damages have first been awarded against the tortfeasor.]


Ramada Inns, Inc. v. Dow Jones & Co., Del. Super., C.A. No. 83C-AU-56, Poppiti, J., at 3 (Feb. 9, 1988)(citing DiStephano v. Hercules, Inc., Del. Super., C.A. No. 83C-JN-24, Taylor, J. (June 4, 1985) and Roberts v. Wilmington Medical Center, Inc., Del. Super., Del. Super., 345 C.A. No. 1977, Christie, J. (Apr. 28, 1978)); Restatement (Second) of Torts ‘ 909 (1965); Porter v. Pathfinder Services, Inc., Del. Supr., 683 A.2d 40, 42 (1996)(employer-employee relationship determined as a matter of law).

Credit: Delaware Superior Court