There are essentially two types of tort claims (lawyer speak for bodily injury cases). Intentional torts are torts where the other party meant to hurt you or your property. Think battery or trespass. Punitive damages are expressly authorized in this type of case. The second type of tort claim is negligence. This type of claim involves car wreck, slip and falls, medical malpractice.
Punitive damages are not normally found in negligence cases. The exception is when one side does something willful or with reckless disregard for the rights of others. Let's pretend you are in an elevator in Edwardsville, Illinois. You are using the elevator to get to the fourth floor to see a lawyer about your Madison County, Illinois injury case. Yeah, you have bad luck and it is about to get worse. The elevator malfunctions three floors up and you fall three floors in the elevator. Yikes. Unbeknownst to you (and all the people routinely using the elevator), the property manager was told that elevator was dangerous. Moreover, the property manager was cited with a failure to maintain the elevator from the city inspector. Is this enough to access punitive damages? The answer depends on the judge.
What does the law say? The following is some case law take from a pleading our office recently filed where we argue for punitive damages. “It has long been established in this State that punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” Barton v. Chicago & N. W. Transp. Co., 325 Ill. App. 3d 1005, 1030, 757 N.E.2d 533, 554 (2001). The Illinois Supreme Court has continued to state that punitive damages may be awarded for gross negligence showing a wanton disregard for the rights of others. Barton v. Chicago & N. W. Transp. Co., 325 Ill. App. 3d 1005, 1031, 757 N.E.2d 533, 555 (2001). After filing for punitive damages using this caselaw (and other arguments), the insurance company paid a large sum of money to settle the case…before the judge ruled.
In our example, negligence would be failing to maintain the elevator. It seems egregious that the property manager didn't pay to fix the elevator despite receiving a citation from the city inspector, especially in a city like Edwardsville. A personal injury lawyer could use that fact to argue for punitive damages. The premises liability insurance carrier (defending the property manager) will argue that fact does not support punitive damages. A judge will then decide if you put on enough evidence to meet the burden above.
The odds of an elevator crashing with you in it are slim. However, the odds of a drunk driver crashing into you while texting are not as slim (statistically speaking…although we hope neither happens). Think also about a semi-truck driver texting while driving a tractor-trailer. The same principle will apply in these other scenarios. The more facts that can be pled to show the judge willful or reckless conduct, the more likely the judge will allow punitive damages.