22.27 Damages – Punitive Damages

Punitive Damages

If you decide to award compensatory damages to [plaintiff’s name], you must determine whether [defendant’s name] is also liable to [plaintiff’s name] for punitive damages.

Punitive damages are different from compensatory damages.  Compensatory damages are awarded to compensate the plaintiff for the injury suffered.  Punitive damages, on the other hand, are awarded in addition to compensatory damages.

You may award punitive damages to punish a party for outrageous conduct and to deter a party, and others like [him/her/it], from engaging in similar conduct in the future.  To award punitive damages, you must find by a preponderance of the evidence that [defendant’s name] acted [intentionally/recklessly].  Punitive damages cannot be awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.

Intentional conduct means it is the person’s conscious object to engage in conduct of that nature.  Reckless conduct is a conscious indifference that amounts to an “I don’t care” attitude.  Reckless conduct occurs when a person, with no intent to cause harm, performs an act so unreasonable and dangerous that [he/she/it] knows or should know that there is an eminent likelihood of harm that can result.  Each requires that the defendant foresee that [his/her/its] conduct threatens a particular harm to another.

The law provides no fixed standards for the amount of punitive damages.

In determining any award of punitive damages, you may consider the nature of  [defendant’s name]’s conduct and the degree to which the conduct was reprehensible.  Finally, you may assess an amount of damages that will deter [defendant’s name] and others like [him/her/it] from similar conduct in the future.  You may consider [defendant’s name]’s financial condition when evaluating deterrence.  Any award of punitive damages must bear a reasonable relationship to [plaintiff’s name]’s compensatory damages.  If you find that [plaintiff’s name] is entitled to an award of punitive damages, state the amount of punitive damages separately on the verdict form.

{Comment: Generally the jury will decide liability and compensatory damages before hearing evidence on assets and being instructed on punitive damages.  If both compensatory and punitive damages go to the jury at the same time, the jury should also be instructed:

[Defendant’s name]’s financial condition must not be considered in assessing compensatory damages.}


State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003); BMW of North American, Inc. v. Gore, 517 U.S. 559, 575 (1996); Wilhelm v. Ryan, 2006 Del. LEXIS 399, at *13-14 (Del. Jul. 18, 2006)(civil jury may consider criminal punishment in determining punitive damages); Gannett Co. v. Kanaga, 750 A.2d 1174, 1190 (Del. 2000); Devaney v. Nationwide Mut. Auto Ins. Co., 679 A.2d 71, 76-77 (Del. 1996); Tackett v. State Farm Fire and Cas. Ins. Co., 653 A.2d 254, 265-66 (Del. 1995)(punitive damages available in bad faith action if breach is particularly egregious); Jardel Co. v. Hughes, 523 A.2d 518, 527-31 (Del. 1987); Jones v. Del. Cmty. Corp. for Individual Dignity, 2004 Del. Super. LEXIS 133, at *14-15, aff’d, Del. Cmty. Corp. for Individual Dignity v. Jones, 2005 Del. LEXIS 152 (Del. Apr. 12, 2005)(ORDER).

Credit: Delaware Superior Court