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In Illinois, the amount of punitive damages assessed is often quite unpredictable. Unlike awards for compensatory damages that tend to be calculated in a precise manner, the valuation of punitive damages can range widely. As such, it is extremely important to be aware of the possibility of being awarded punitive damages, especially because punitive damages are typically excluded from the coverage in insurance policies. In Loitz v. Remington Arms Co., the Court held that a jury may award the plaintiff punitive damages where a defendant’s underlying conduct, resulting in harm to the plaintiff, is willful and wanton, outrageous, or where the defendant acted with actual malice, fraud, deliberate violence, or gross negligence. 138 Ill. 2d 404 (1990). Where punitive damages may be assessed, they are allowed in the nature of punishment and as a warning and example to deter the defendant and others from committing like offenses in the future. Id. at 415. Similarly, in Beaver v. Country Mut. Ins. Co., the Court held that the purpose of punitive damages is to punish the wrongdoer and to deter future wrongful conduct. 95 Ill. App. 3d 1122 (5th Dist. 1981).

Under Illinois law, 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 liability. (735 ILCS 5/2-604.1). In addition, as found in Clemons v. Mechanical Devices Co., punitive damages can also be sought in workers compensation retaliatory discharge claims. 184 ILL. 2d 328 (1998). Although punitive damages may be allowed under certain circumstances per Illinois statutes, punitive damages prohibited in medical and legal malpractice cases. (735 ILCS 5/2-1115). There are several restrictions for punitive damages. For example, claims for punitive damages are typically not awarded in contract actions. Wallace v. Prudential Ins. Co., 12 Ill. App. 3d 623, 630 (5th Dist. 1973). There may be an exception when the breach of contract itself amounts to an independent willful tort. Id. Furthermore, Illinois has adopted a Complicity Rule, which means that a jury cannot 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).

As part of the procedure, a plaintiff filing a lawsuit in Illinois state court may not seek punitive damages in the initial complaint. (735 ILCS 5/2-604.1). Instead, the 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. The jury may award punitive damages to punish the defendant and discourage the defendant (or others) from similar conduct if the jury finds a defendant’s conduct to be: (1) fraudulent, intentional, or willful and wanton; and (2) proximately cause the injury or damage to Plaintiff; and (3) if the jury believes that justice and the public good require it.

In determining the amount of punitive damages to be awarded, there are several factors that a jury should consider. Brett Geschke described how punitive damages are awarded in his article “A Primer on Punitive Damages in Illinois.” First, the jury must consider how reprehensible the defendant’s conduct was. Next, the jury should consider what the actual and potential harm was caused to the plaintiff because of the defendant’s conduct. Lastly, the jury should consider 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. Geschke further explains that 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 should all be considered when trying to determine the amount of punitive damages. Id. Illinois Courts have reiterated that if a jury awards punitive damages, the damages must be proportionate to the wrong committed, and “the punishment should fit the crime.” Mathia v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676 (7th Cir. 2003). It is important to note that punitive damages cannot be awarded unless actual or compensatory damages are recovered first. Tonchen v. All-Steel Equipment, Inc., 13 Ill. App. 3d 454 (2d Dist. 1973). As noted in Turner v. Firstar Bank, N.A., however, room should be left for relatively high award of punitive damages where particularly loathsome acts resulted in small amounts of measurable economic damages. 363 Ill. App. 3d 1150 (5th Dist. 2006).

Although only certain circumstances allow for the recovery of punitive damages, it is extremely important to be aware of the possibility of recovery. Juries have the ability to award seven-figure award for punitive damages, and often times punitive damages exceed the amount of actual or compensatory damages. If you have been recently been injured, have had physical damage to your property, or are seeking a product liability claim, contact the attorneys at Sherwood Law Group at 312-627-1650 for a free consultation and case review.