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The main consideration of injury cases, indeed most civil cases, is compensation. Unlike the criminal justice system where we need to be concerned about deterrence and public safety, the civil justice system strives only to put back what has been lost economically. This is true throughout the civil legal system with one notable exception: punitive damages.

With punitive damages, the goal is not to compensate but to punish. While the need to do so may be obvious to injury victims, this actually runs counter to the philosophy in most civil cases. For example, many centuries ago when the concept of punitive damages was forming, an important question was posed: who should be able to keep punitive damages when they are awarded? If the goal really is to punish, why should these damages (which are awarded over and above compensatory damages) go to the injury victim and not the government. Fortunately, this issue has been settled for decades, and the victim of extraordinarily negligent behavior is allowed to keep any awarded punitive damages. While this may seem like a natural way to enhance the award which an injury victim receives, punitive damages are, in fact, rather rare and only awarded in special cases.

To understand why, note that negligence is not a singular legal concept but, in fact, a spectrum of different behaviors. On the lower end of the spectrum, we find what is commonly called “simple negligence.” Simple negligence might be defined as the absence of ordinary care or making a mistake which leads to injuries. In the middle of the spectrum, we might find concepts like “ordinary negligence” which involves a greater degree of carelessness. At the far end of the spectrum, we encounter “gross negligence” which is typically defined as “recklessness” or “wanton, willful misconduct.” These concepts are just a step away from intentional misconduct (which can also give rise to punitive damages).

The actual definition of these terms is the subject of numerous legal opinions and the source of endless debates within the courts. To take a more modern example, note the way the courts have dealt with DUI accidents. For many years, there was a substantial debate about whether a drunk driver was simply negligent or grossly negligent. Fortunately, the issue has now been defined in black and white terms under the Virginia Code. For all intents and purposes, unless the driver had a blood alcohol level in excess of .15, it will be difficult to recover punitive damages from him.

Unfortunately, there are no black and white rules with regard to so many other injury cases. In order to figure out whether punitive damages are awardable, an attorney must look at all of the facts including the history of the relationship between the plaintiff and defendant. Is there a history of animosity? Has the defendant behaved badly under similar circumstances in the past? Did he continue to behave badly after the subject accident? Had the person been warned in the past about his conduct? Had the person been arrested or detained by authorities? What is the net worth of the wrongdoer? All of these factors can determine whether a typical sort of injury may rise to the level of gross negligence such that punitive damages may be recovered.

There is one final interesting fact about punitive damages. Unlike most of the damage categories, an award of punitive damages is typically not tax free. This flows from the origin of punitive damages discussed above. With punitive damages, the intention is not to simply compensate the injury victim but to actually punish the wrongdoer. As such, the injury victim recovers a deserved windfall. While this will likely enhance his award, the injury victim must be careful to report any such recovery on tax returns.

Because of its unique characteristics, a claim for punitive damages needs especially careful consideration by a personal injury lawyer. If the facts and circumstances are there, however, recovery of punitive damages can substantially enhance any award due to an injury victim.