In the world of damages, no type of damage is as well known as punitive damages. Victim advocates cite punitive damages as a way to ensure fairness in the world and to make sure that companies that act recklessly pay in accordance to the harm they cause. Tort reform advocates say that punitive damages lead to runaway juries and hurt small business.
Whatever side of the fence someone is on, there is a good chance that they do not understand how punitive damages are proven and awarded in Florida, especially when it comes to employer liability for an employee’s negligence.
What are Punitive Damages?
Punitive damages are unique; they do not seek to make a victim whole or repay him or her for losses or compensate for pain. Unlike most anything else in our civil justice system, and more like our criminal justice system, punitive damages are intended to punish a defendant for behavior that is so bad, it deserves a monetary deterrent to prevent it from happening again.
That is why punitive damages against anyone are hard to get. So hard, in fact, that Florida law actually prohibits a victim from asking for them at the inception of the case. Rather, a separate showing has to be made after evidence is obtained to show the court that there is a valid basis for asking for punitive damages.
If a victim makes that showing, he or she does not get punitive damages, only the right to ask for them from the jury. If a judge does not think the victim has made a sufficient showing, no punitive damages will be allowed to be given by a jury.
Vicarious Liability
In many cases, a victim sues a company for vicarious liability. This is the liability that a company has for the actions or errors of its employees. By way of example, when a Fedex driver causes a major accident, Fedex is often sued for the negligence of its driver, even though Fedex obviously did not intent to injure anyone, and the driver may have been a lower level employee. If an employee at WalMart fails to clean up a spill, it is Walmart that is sued, not the individual employee who may have skipped an aisle because he or she was in a hurry to get home.
Employer Liability for Punitive Damages
In many cases, victims may want to seek punitive damages in these kinds of cases. Although the laws generally recognizes an employer’s liability for its employees’ mistakes, it does not so easily recognize an employer’s obligation to be liable for punitive damages when the employee does something wrong.
To get punitive damages from an employer under vicarious liability, a victim must show by clear and convincing evidence that the employee was “personally guilty” of an intentional act or of “gross negligence.” This has been interpreted as being almost totally intentional behavior by the employee. The degree of culpability is almost equal to the kind of recklessness often needed to prove criminal manslaughter.
Then, if a victim does meet that burden, he still must show must show that the employer “actively and knowingly participated” in the negligent conduct, or that the employer knowingly condoned the negligent conduct or that the employer acted with such “gross negligence” that it “contributed” to the damages sustained by the victim. As you can tell by plain reading, this means a victim actually has to show that the employer was almost an accomplice to the negligent behavior, or an active, knowing, and willing participant in it.
As if this was all not difficult enough, go back to the beginning of the statutory requirement—that all of these elements have to be shown by “clear and convincing” evidence. This is higher than the normal preponderance of the evidence standard needed to prove negligence. The victim has a heightened burden to prove these difficult elements by putting on even stronger and more convincing evidence that the employer knew of, condoned, or sanctioned the employees wanton and reckless behavior.
Only Applicable to Employer Liability
Thankfully, these heightened requirements only apply to suing an employer for vicarious liability. They do not apply to negligence cases in which a victim seeks punitive damages against the person or company for being directly negligent.
The victim still must make the required showing and get permission from the judge to ask the jury for punitive damages, but the statute does not make any mention of any heightened standard—it simply says that the victim needs to show a “reasonable basis” to support a request for punitive damages.
In fact, the burden for getting a judge’s permission to add a claim for punitive damages is relatively low. A court is supposed to accept what the victim proffers as evidence to be true for the sake of determining whether a reasonable basis exists.
No matter what the legal standard, there are still numerous examples of businesses or people acting with such disregard for safety, that punitive damages can be awarded.
If you are injured, you want to obtain all the damages that you are legally entitled to be awarded. Contact the attorneys at Brill & Rinaldi for a free consultation, and for advice as to how to best present your case to a court.