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Punitive damages in California Negligence Claims

Posted by attorney John Stobart

Civil Code § 3294 provides that a plaintiff may seek punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice." That's all and good for an intentional act, but can you get punitive damages for a non-intentional act such as negligence? The answer is yes, if the negligenet conduct is so bad it amounts to malice under the meaning of 3294.

Punitive damages on a negligence claim require that “the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences." (Taylor v. Superior Court of Los Angeles County (1979) 24 Cal. 3d 890, 896, emphasis added.) “Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result. (Citations omitted)" (Ford Motor Co. v. Home Ins. Co. (1981)116 Cal. App. 3d 374, 381, emphases added.)

In order to recover punitive damages, the act complained of must not only be willful in the sense of intentional, but must also be accompanied by aggravated circumstances amounting to malice in fact; mere negligence, even gross negligence, is not sufficient to justify an award of punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 99 Cal.Rptr. 706, emphasis added.) “Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’" (Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal. App. 3d 1034, 1044, emphases added; citing Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

The California Supreme Court, in Donnelly v. Southern Pacific CO. (1941) 18 Cal.2d 863, gave the following examples from the United States Supreme Court of when negligent conduct would warrant punitive damages:

"This is the type of misconduct that the federal courts characterize as "willful and wanton negligence." In New York Central R. R. Co. v. Mohney, [252 U.S.152], an engineer ran his train past two separate danger signals and it crashed into a train ahead. The collision resulted in injury to plaintiff, who was traveling on a free pass containing a provision releasing the railroad from liability for negligence. The State Court of Appeals found the engineer guilty of willful and wanton negligence, and the United States Supreme Court held the railroad liable, despite the release in the pass, on the ground that there was sufficient evidence to support the state court's finding of willful and wanton negligence. A railroad engineer who has deliberately run his train past two danger signals has intentionally performed so dangerous an act that he must have known that harm would probably result, and he is guilty of wanton and reckless misconduct rather than negligence. In Virginia Beach Bus Line v. Campbell, 73 Fed. (2d) 97, plaintiff, a holder of a free pass with a release provision, was injured by a collision at a dangerous crossing between the bus in which he was riding and a railroad train. The court permitted him to recover against the defendant bus company on the ground that the negligence of the driver in operating the bus at a rate of from 55 to 60 miles per hour over a dangerous railroad crossing was willful and wanton. Such conduct constitutes more than negligence. It is a dangerous act performed intentionally with the knowledge that it will probably cause harm." (Donnelly v. Southern Pacific Co. (1941) 18 Cal. 2d 863, 870, emphasis added.)

So, if you have a negligence claim, do not expect punitive damages unless the defendant's conduct is comparable to the above. As always, consult an attorney before relying on anything you read on the internet, even this post. Thanks!

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