In Pennsylvania civil actions for a financial recovery, it’s important to distinguish between ordinary negligence and reckless or intentional conduct. While punitive damages may be warranted for the latter, they are not for ordinary negligence. Pursuing punitive damages may have advantages, but it may also reduce the plaintiff’s recovery, overall.
Let’s talk about the trade-offs of asserting mere negligence versus a claim for recklessness and punitive damages.
Negligence
Proving “negligence” is relatively easy. Just about any disregard of safety for a person or damage to another’s property can constitute “negligence.”
Perhaps a person carelessly rear-ended your vehicle. Or, a neighbor uphill from you added too much weight to a hillside and caused movement onto your property. You only need to show that the Defendant acted “unreasonably” to put you or your property (or both) in harm’s way. Sometimes you need an expert to prove “negligence,” but often you do not.
Liability insurance covers negligence; for example, one’s motor vehicle, homeowner or renters insurance can protect the defendant’s assets from execution (to satisfy a judgment). Insurance also compensates the victim, typically without any lawsuit filed.
But a claim for negligence can be discharged in bankruptcy. Nor can one seek punitive damages or payment for his attorney fees for mere “negligence.” Each litigant pays their fees and costs of suit, typically.
So what about “recklessness”?
Monetary Recovery For Reckless Conduct
If the defendant’s conduct rises to the level of “recklessness” — and it causes plaintiff’s injuries — everything changes: the plaintiff can seek an award for his attorney fees, plus compensatory damages and exemplary (or punitive) damages, meaning, an amount sufficient to punish the defendant and to deter similar conduct in the future, but not to exceed the actual damages by an unfair amount. See Bert Co. v. Turk, 298 A.3d 44 (Pa. 2023).
Drawbacks of Advancing Claims for Punitive Damages
A potential drawback of claiming “recklessness” and/or intentional conduct — along with punitive damages — is that liability insurance will not cover intentional conduct or punitive damages, frustrating collectibility. This is because, while liability insurance can cover ordinary mistakes, it’s against public policy in PA for insurance to cover intentional conduct or awards to “punish” the Defendant. (How does the punitive damage award “punish” the Defendant, if his insurance pay? – is the reasoning.)
So, for example, let’s say you complain to your neighbor for years about his tree leaning toward your garage. He recklessly ignores the complaints, saying multiple times: “So what? Shut up. it’s just a stupid garage!”
Eventually the tree falls on your garage, destroying it. There’s conflicting evidence as to the cost of repair to your garage, ranging from $10,000 to $90,000. The jury can’t decide. They’re deadlocked on that issue, so they enter a compromise award for only $10,000 for actual damages, plus $80,000 for punitive damages, which is allowed in PA and most states.
A big win for the Plaintiff, right?
Not necessarily.
You’ll have a verdict for $90,000, but your neighbor’s homeowner’s insurance will only cover $10,000. As for collecting the difference from your neighbor’s assets — such as his home — he might have a mortgage and if so, his bank’s mortgage will take priority over your civil judgment.
Advantages of Seeking Exemplary Damages
A claim for recklessness and punitive damages can drive up the amount of a verdict and thus create leverage in settlement negotiations. In fact, most seven or eight figure verdicts include some sort of claim for recklessness and punitive damages. And, if the defendant is a large company, the plaintiff can likely collect the entire judgment from the defendant, even in the absence of the defendant carrying liability insurance.
Plus, a verdict for reckless or intentional conduct cannot be discharged in bankruptcy, which can make an uninsured defendant willing to pay at least something to satisfy it. And, even if liability insurance will not cover claims for punitive damages, it can make for an awkward conversation between the defendant and his insurance company, when this fact is explained, making the insurance company want resolve the matter amicably early on to avoid complicated coverage issues as to what parts of the claim may or may not be covered by insurance.
So what, then, in “recklessness” as to justify an award for punitive damages?
Recklessness, Defined
Recklessness involves conduct that’s either intentional or in disregard for a high probability of harm to the Plaintiff. The “law school” example is, a person shooting a gun at a moving train; he may not necessarily “intend” to injure someone on the moving train, but he’s disregarding the high probability of injury. The defendant’s conduct must also be outrageous.
Pennsylvania’s Supreme Court in Feld v. Merriam, 506 Pa. 383 (Pa. 1984) indicated that a jury may award punitive damages for:
…”conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” See Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). Punitive damages must be based on conduct which is “`malicious,’ `wanton,’ `reckless,’ `willful,’ or `oppressive’ . . .”
Further, one must look to “the act itself together with all the circumstances including the motive of the wrongdoers and the relations between the parties . . .” Chambers v. Montgomery, supra, 411 Pa. at 345, 192 A.2d at 358.
Thus, for example, the careless driver who fails to pay attention might only be “negligent” for rear-ending the plaintiff’s vehicle and causing only moderate damage. But the driver who rear-ends someone at sixty (60) miles per hour on a road having a 30 MPH limit, or causes injury then flees the scene trying to avoid responsibility, may expect to receive a claim for recklessness and punitive damages. See Guy v. ELIWA, Dist. Court, MD Pennsylvania 2023, 4:2023cv00412.
Pleading Recklessness in Court
In Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, 2022 WL 17087072 (Pa. Super. Nov. 21, 2022), the Superior Court determined that allegations of recklessness and/or reckless conduct can be generally pled. This opinion eliminates the need for plaintiffs to plead allegations of reckless conduct with specific details.
However, in several subsequent cases, judges have looked to the actual facts asserted in the complaint to determine whether the case might involve true “recklessness.”
In Keefer v. Basinger, No. 68 of 2023 G.D. (Fay. Co. May 17, 2023), a judge found that even if the Defendant had been driving at an “unsafe speed” and had “failed to apply the brakes in time,” did not meet the threshold for punitive damages. Such allegations were too general, and sounded like mere “negligence.”
On the other hand, in Daresse Henderson v. Elliot Palmer, Lawrence County Court of Common Pleas No. 10035 of 2019, a judge found that texting while driving can amount to recklessness. In another case, the Defendant’s “road rage” warranted a claim for punitive damages.
Practical Pointers
It’s important to understand that just because you can assert a claim for recklessness (and punitive damages), it doesn’t mean you should, because liability insurance may not cover it. It often makes sense to include a claim for “negligence” with every claim for reckless or intentional conduct.
For example, let’s say you attend a sporting event and the fact of you cheering for your team has caused another fan to punch you in the face. Clearly, that’s an assault, involving intentional and/or reckless conduct, warranting punitive damages.
If the defendant is a high net worth individual or company, your claim for punitive damages may have significant value, even if the Defendant is “self insured” (carrying no liability insurance).
Plus, if the defendant is otherwise judgment proof, the claim for intentional conduct (and assault) has some value, as the defendant cannot discharge it in bankruptcy. If the defendant has some insurance, but no assets, you may also want to add a count for “negligence,” claiming, for example, that the Defendant “negligently” brought his fist in contact with your face, to trigger his homeowner or renters insurance coverage to pay some or all of your claim.
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