The Law of Punitive Damages

We often hear about punitive damages in movies or on TV. It seems easy to get them, if you believe Hollywood’s interpretation of punitive damages. But in Florida, punitive damages are not easy to get, and there is even a special statute that dictates when and how punitive damages can be sought.

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What Are Punitive Damages

As the name implies, punitive damages are intended to punish, or at least, deter others from acting in a similar manner in the future. This is different from traditional damages, which seek to compensate the injured victim for loss.

A jury can calculate a victim’s economic or monetary losses. It can’t exactly calculate emotional loss or pain and suffering, but a jury can use its life experience to put a value on that. But valuing how much to “punish” a defendant, is a much harder question. Because the damages awarded are often extreme, Florida law has placed restrictions on when and how such damages can be attained.

First, a party can’t ask for punitive damages in its initial complaint, no matter the circumstances. It must try to get evidence of conduct that would be worthy of punitive damages, and then amend its complaint to include them later on.

The court must give approval for this amendment. That means a judge must do so—not the jury (although the jury will determine whether there is liability sufficient to award punitive damages, and if so how much, assuming the judge allows a party to allege them).

For this reason, it’s important that an attorney conducts discovery with an eye towards that amendment, and that an attorney tries to uncover facts that would convince a judge that punitive damages can be requested.

Standard for Getting Punitive Damages Is High

The standard for obtaining punitive damages is also very high. The law says that only personally a party “guilty of intentional misconduct or gross negligence” can obtain them. That requires that a party knows what he’s doing, and intends to do it, and that the act constituted a “conscious disregard” for the safety of others. It’s almost akin to proving an act was intentional.

It gets harder when trying to obtain punitive damages from an employer for the acts of an employee. Not only must it be demonstrated that the employee acted near intentionally, but the employer must have known about it, participated it, or knowingly allowed it.

And on top of all that, to get punitive damages, an injured party must meet those standards by “clear and convincing” evidence—higher than the normal “preponderance of the evidence” standards.

Despite the high burden, there are situations where courts have allowed punitive damages. Often a party’s conduct is so reckless or careless that punitive damages can be obtained. A good attorney should know from day one whether punitive damages are a possibility, and should gear the litigation strategy towards building a case that convinces a judge to allow punitive damages to be brought before the jury at trial.

If you are injured by the negligence of another, make sure you have attorneys that plan your strategy to obtain the maximum amount of damages awardable. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your injury case and to understand how the law applies in your situation.

Photo Credit: orangesparrow via Compfight cc

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