Written by attorney Christopher Michael Davis

Forty-One States Allow Punitive Damages – Washington Does Not

At least 41 states allow punitive damages, while Washington state does not. Punitive damages are different from compensatory damages, like lost wages, medical expenses and pain and suffering. Punitive damages are designed to punish a wrongdoer for egregious conduct.

In an ordinary civil damage case involving an injury or a “tort," the plaintiff must prove his case by a preponderance of the evidence. This means the plaintiff must have at least 51% of the evidence in his favor to convince a jury. With punitive damages, most states enact a higher burden of proof. Sometimes the burden of proof must be “clear and convincing" evidence, and this requires a greater showing of proof than the preponderance standard.

Also, punitive damages are usually assessed for conduct that is “reckless" or “intentional" or “grossly negligent." Punitive damages are usually not allowed in cases of “ordinary negligence" which is merely defined as the failure to exercise ordinary care. So, in cases where punitive damages are awarded the jury has usually determined that the defendant’s conduct was much more than a simple mistake or simple carelessness. With punitive damages assessed, the jury is saying that the defendant’s conduct was so bad that he, she or it must be punished.

Many people confuse punitive damages with other types of damages. In fact, I’ve heard Washington state politicians, both at the state and local level, improperly complain that “punitive" damages are too high. But Washington state does not allow punitive damages and never has. Washington’s failure to allow punitive damages is only shared by 9 other states. Washington is in the minority by not allowing a plaintiff to recover punitive damages against a wrongdoer that engages in egregious conduct.

Here’s an example of how the absence of punitive damages can be very unjust. A drunk driver causes a severe accident that kills another person. That person’s family brings a wrongful death action. The drunk driver, or more accurately the drunk’s insurance company, admits fault for the accident. Then the drunk driver’s lawyer asks the judge to exclude any evidence or reference that the driver was drunk at the time of the accident, or that the drunk has prior convictions for DUI. So the jury only heards that the defendant caused a serious accident. The jury NEVER hears that the defendant was also drunk and had prior DUI convictions. The basis for excluding this evidence is that the defendant’s intoxication and prior DUI history is irrelevant to deciding the amount of the plaintiff’s compensatory damages. The exclusion of this type of evidence happens all of the time in Washington state courts.

But if Washington allowed punitive damages, then the jury would be allowed to hear this evidence and decide whether the drunk driver acted egregiously or recklessy and punish him with a higher award. I bet the prospect of punitive damages might motivate some people to avoid drinking and driving.

Punitive damages are also important in holding corporations accountable for egregious conduct that recklessly harms others. Think Enron, Worldcom, and now what appears to be many of the large financial corporations like Bear Stearns and AIG. Yet, if we were to apply Washington state law, a corporate wrongdoer is only liable for the compensatory damages caused to another person. So if those damages are quite low compared with the cost of complying with the law, then a corporation might simply write off the lawsuit award as a “cost of doing business" without any incentive to change its harmful ways.

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