CBA Record September 2018


Procedure Functionally, a plaintiff filing a lawsuit in Illinois state court may not seek punitive damages in an initial complaint (735 ILCS 5/2-604.1). A plaintiff planning to appeal to a jury for an award of punitive damages must file a motion for leave to amend the complaint to include a prayer for relief seeking punitive damages. At the hearing on plaintiff’s motion for leave to amend the complaint, plaintiff must establish a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. If a plaintiff successfully establishes such a reasonable likelihood, a version of Illinois Pattern Jury Instructions 35.00 may be read to the jury, and a line-item for punitive damages will be added to the jury verdict form. After closing statements are delivered, but before the jury begins deliberating, the jury may be informed by the judge that in addition to compensatory damages, the law permits a jury under certain circumstances to award punitive damages–if the jury finds a defendant’s conduct to be: • Fraudulent, intentional, or willful and wanton; and • Proximately caused injury or damage to the plaintiff; and • If the jury believes that justice and the public good require it, the jury may

punitive damages is to punish the wrong- doer and to deter future wrongful conduct. Beaver v. Country Mut. Ins. Co., 95 Ill. App. 3d 1122 (5th Dist. 1981). Punitive damages are not an independent cause of action, and must be considered in conjunc- tion with another valid cause of action. Kleinwort Benson North America, Inc. v. Quantum Financial Services, Inc., 181 Ill. 2d 214 (1998). Recovery of Punitive Damages A plaintiff may seek punitive damages in the following types of actions: (1) bodily injury, (2) physical damage to property, or (3) product liability based on strict tort lia- bility (735 ILCS 5/2-604.1). Under certain circumstances, Illinois statutes may allow a plaintiff to seek punitive damages. See Public Utilities Act (220 ILCS 5/5-201); Antitrust Act (740 ILCS 10/1); Nursing Home Care Act (210 ILCS 45/3-602). Punitive damages can also be sought in workers compensation retaliatory discharge claims. Clemons v. Mechanical Devices Co., 184 Ill. 2d 328 (1998). Punitive damages are neither recoverable against municipal defendants under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101), nor are they recoverable in loss of consortium claims. Hammond v. North American Asbestos Corp., 97 Ill. 2d 195 (1983). Punitive damages are prohibited in medical and legal malpractice cases (735 ILCS 5/2-1115). Claims for punitive dam- ages expire at death and are not recoverable for claims under the Wrongful Death Act or the Survival Act (740 ILCS 180/1; 755 ILCS 5/27-6). While punitive damages are typically not permitted in contract actions, there may be an exception when the breach itself amounts to an independent willful tort. Wallace v. Prudential Ins. Co., 12 Ill. App. 3d 623, 630 (5th Dist. 1973). For corporations, Illinois has adopted a Com- plicity Rule, meaning a jury may not award punitive damages against a corporation for the acts of its employees based on a theory of respondeat superior unless some actual fault by the officers of the corporation has been shown. Kemner v. Monsanto Co., 217 Ill. App. 3d 188, 207 (5th Dist. 1991).

award punitive damages to punish the defendant and discourage the defen- dant, and others from similar conduct. Amount In determining the amount of punitive damages to award, a jury should consider the following three questions: (1) How reprehensible was the defen- dant’s conduct? (2) What actual and potential harm did the defendant’s conduct cause to the plaintiff in this case? (3) What amount of money is necessary to punish the defendant and discourage the defendant and others from future wrongful conduct in light of defendant’s financial condition? Further considerations include the facts and circumstances of the defendant’s conduct, the financial vulnerability of the plaintiff, the duration and frequency of the misconduct, whether the harm was physical or economic, and whether the defendant tried to conceal the misconduct. If the jury awards punitive damages, the damages must be proportionate to the wrong committed, and “the punishment should fit the crime.” State Farm Mut. Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003); Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676 (7th Cir. 2003). Punitive damages are not allowed

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