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Punitive Damages in Kentucky

 Monetary awards in personal injury cases are generally intended to compensate a victim of negligence for actual past and future compensatory losses or “special damages”—whether medical bills, lost income, future impairment of ability to earn money—as well as pain and suffering. However, where a defendant has acted with  at least recklessness or gross negligence in Kentucky, an award of punitive damages by a jury is warranted. Additionally, where intentional conduct is involved—such as an intentional assault and battery—punitive damages against the one who caused the harm are similarly warranted.

Punitive damages can be used in a wide array of circumstances, whether it is to punish an individual who drives drunk or texts while driving and injures someone else, whether it is to punish and deter a bouncer and bar for an intentional assault of a patron by the bouncer, or whether it is to punish a corporate or wealthy defendant whose conduct the jury wants to deter, such as the owner of a service station who permits an attendant to possess and use a  firearm but fails to train the employee resulting in injury, just to name a few situations. A punitive damages award can also be used to deter a particular type of conduct generally, among similarly situated defendants, such as manufacturers of similar products or hospitals that employ similar policies that are detrimental to patients.

In a car accident case which went to the Court of Appeals this year, a couple that had undergone gastric bypass surgery several years earlier were driving home when another driver turned his Nissan Altima into the wrong lane and drove towards them. An SUV driving in front of them managed to swerve away, but they crashed into the Altima. The Altima driver, who was drunk, died on the scene.

The man was able to exit, but the woman was trapped inside their Nissan Pathfinder and suffered severe injuries, including a rupture of her gastric bypass. She sued the deceased man’s estate and the car manufacturer, Nissan, arguing that his negligence combined with Nissan’s defectively designed restraint system in the Pathfinder caused her injuries.

At trial Nissan argued its restraint system was in compliance with federal safety regulations. The wife, however, argued that the restraint system was designed only to protect people who weighed the same weight as the crash test dummy, 171 pounds. She argued that because the tests were performed only on dummies the size of the crash test dummies used for federal ratings, Nissan chose ratings over safety for all sizes of consumer. Because of this she “submarined” or slid out from under the seatbelt and this caused the gastric bypass rupture. If the company had properly limited the amount of webbing that the load limiter could spool out, she would not have submarined.

The jury agreed, awarding $2,577,547 in compensatory damages and $2,500,000 in punitive damages. Nissan appealed, arguing that it had achieved the highest safety rating. It argued that the woman survived the crash because the Nissan Pathfinder was safe.

The court noted that the wife had presented both a failure-to-warn products liability theory and a design-defect theory. The jury found Nissan liable under both theories.

Nissan appealed the punitive damages award. The appellate court explained that several factors are used to determine the reprehensibility of conduct in a case like this:

  • physical rather than economic harm;
  • tortious conduct that showed indifference or reckless disregard of others’ health and safety;
  • repeated actions versus an isolated incident; and
  • harm that resulted from intentional malice, trickery, deceit versus a mere accident.

Nissan argued that the fact it performed well on safety tests and used recognized safety devices and had not been subject to recalls based on the restraint system meant it didn’t act with malice or disregard.

The appellate court disagreed, explaining that even if the Pathfinder performed well under specific circumstances, the standards for the dummy test had not been changed since 1970. Meanwhile, however, society has gotten larger in girth and population, but Nissan didn’t test to see how safe it was for larger users. Failing to test for defects or a cavalier willingness to expose the public to risk is considered a basis for punitive damages.

The standard for proving punitive damages is a heightened standard: clear and convincing evidence. As long as there is some evidence of gross negligence then a court should submit the issue of punitive damages to the jury, and in this case the jury’s multi-million dollar award of punitive damages against Nissan was upheld on appeal to the Court of Appeals.

Punitive damages are not appropriate in every case, but if you have been catastrophically injured as a result of gross negligence or worse, you should retain experienced Kentucky trial attorneys. Many attorneys can negotiate and try to reach some sort of settlement in a personal injury case, but only trial attorneys with substantial experience are able to aggressively and skillfully advocate for punitive damages at trial. Ensure that your attorneys have the trial experience necessary to help you. Contact us at 877-634-1519 or via our online form.

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