8.60 PUNITIVE DAMAGES ACTIONS — Filed On OR After 10/27/95 (Other than Products Liability Actions) (3/10)1
NOTE TO JUDGE
This charge incorporates the statutory changes in Public Law 1995, ch. 142, N.J.S.A. 2A:15-5.9 et seq., the Punitive Damages Act, and should only be used for causes of action filed on or after October 27, 1995. The Punitive Damages Act includes the following procedural requirements:
(a) Punitive damages must be specifically prayed for in the complaint.
(b) Actions involving punitive damages shall, if requested by any defendant, be conducted in a bifurcated trial. However, in light of Herman v. Sunshine Chemical Specialties, 133 N.J. 329, 342 (1993), the trial court should conduct a bifurcated trial on punitive damages even if the defendant has not made such a request. The statute also requires a bifurcated trial with the liability and damages phases of a punitive damages action tried separately at the second stage of the bifurcated trial. Evidence relevant only to punitive damages shall not be admissible in the liability and compensatory damages phase.
(c) Punitive damages may be awarded only if compensatory damages have been awarded. Nominal damages can not support an award of punitive damages.
(d) When there are two or more defendants, an award of punitive damages must be specific as to each defendant and each defendant is liable only for the award made against him or her.
(e) There is a cap on punitive damages — five times the amount of compensatory damages or $350,000, whichever is greater. The jury shall not be informed that there is a cap on punitive damages.[2]
(f) Before entering judgment for punitive damages, the trial judge must ascertain whether the award is reasonable and justified in light of the purposes of punitive damages. The judge may reduce or eliminate the award if the judge considers that such action is necessary to satisfy the requirements of the statute. N.J.S.A. 2A:15-5.14(a).
If you find the defendant has [insert a description of the specific intentional conduct giving rise to a claim for punitive damages], you must consider whether or not to award punitive damages to the plaintiff. Punitive damages are awarded as a punishment of the defendant. The plaintiff is not automatically entitled to punitive damages simply because you have found that the defendant has [insert a description of the specific intentional conduct giving rise to a claim for punitive damages] or because you have awarded damages to compensate the plaintiff for his/her injury. You may award punitive damages only if the plaintiff has proven certain matters that I am going to explain to you.
Initially, I want to advise you that the purposes of punitive damages are different from the purposes of compensatory damages. Compensatory damages are intended to compensate the plaintiff for the actual injury or loss the plaintiff suffered as a result of the defendant’s misconduct. In contrast, punitive damages are intended to punish a wrongdoer and to deter the wrongdoer from similar wrongful conduct in the future.[3] Punitive damages are designed to require the wrongdoer to pay an amount of money that is sufficient to punish the defendant for particular conduct and to deter that defendant from misconduct in the future. Punitive damages are also designed to serve as an example to discourage anyone else from committing similar acts.
I will now explain the considerations that should govern your decision on whether punitive damages should be awarded to the plaintiff in this case. To support an award of punitive damages you must find that the plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant’s actions or omissions[4] and that either (1) the defendant’s conduct was malicious or (2) the defendant acted in wanton and willful disregard of another’s rights. Malicious conduct is intentional wrongdoing in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with knowledge or a high degree of probability of harm to another who foreseeably might be harmed by defendant’s acts or omissions and reckless indifference to the consequence of the acts or omissions.
Remember that I instructed you that the plaintiff must prove certain factors by clear and convincing evidence to be awarded punitive damages. Clear and convincing evidence means that standard of evidence which leaves no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. This standard does not mean that the plaintiff must persuade you beyond a reasonable doubt, but it does require more than a preponderance of evidence to support an award of punitive damages.
In determining whether punitive damages are to be awarded, you should consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) consider the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant.[5]
If you decide that the defendant has engaged in the type of wrongdoing that justifies punitive damages, you must then decide the amount of punitive damages that should be awarded.
In determining that amount of punitive damages, you must consider all relevant evidence, including but not limited to, evidence of the four factors that I previously mentioned to you in connection with your determination as to whether punitive damages should be awarded at all. As you may recall, these factors are (1) the likelihood, at the relevant time, that serious harm would arise from the defendant’s conduct; (2) the defendant’s awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant’s conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct or any concealment of it by the defendant. In addition to these factors, you should also consider the profitability of the misconduct to the defendant; consider when the misconduct was terminated; and consider the financial condition of the defendant or the defendant’s ability to pay the punitive damages award.[6]
Finally you should make sure that there is a reasonable relationship between the actual injury and the punitive damages.[7]
After considering all these factors, you should exercise your judgment and determine (1) whether punitive damages should be awarded in this case; and (2) if you decide to award punitive damages, what the proper amount should be.
[1] The Model Civil Jury Charge Committee believes that the trial judge has discretion to decide whether or not to explain at the outset of a trial that there is a request for punitive damages. In any event, the trial judge should take into account the possible length of the bifurcated procedures in a punitive damages action when discussing the trial days it will take to complete the case.
[2] The Model Civil Jury Charge Committee has included separate punitive damage charges under the LAD charge (8.61) and CEPA charge (8.63) which are exempt from the punitive damage cap under N.J.S.A. 2A:15-5.14.
[3] The Appellate Division in the case of Tarr v. Ciasulli, 390 N.J. Super. 557 (App. Div. 2007), aff’d, 194 N.J. 212, 224 (2008) found that the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-15-5.9, et al. does not permit counsel to urge the jury to increase a punitive damage award in order to enhance the general deterrence of others. Accordingly the language in the original charge which allowed punitive damages to be awarded as a “deterrence to others” was deleted.
[4] N.J.S.A. 2A:15-5.12(a).
[5] See N.J.S.A. 2A:15-5.12(b). Sec. 5.12(b) provides that the trier of fact must consider these four factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors since the four statutory factors are not intended to be exclusive.
[6] See N.J.S.A. 2A:15-5.12(c). Sec. 5.12(c) provides that the trier of act must consider these factors in determining whether punitive damages should be awarded. However, the trier of fact may consider additional factors, if appropriate, since the statutory factors are not intended to be exclusive. The trial judge should also instruct the jurors on any other aggravating or mitigating factors, if warranted by the evidence, that may justify an increase or reduction in the amount of punitive damages. With regard to the “financial condition” factor, see Herman v. Sunshine Chemical Specialities, Inc., 133 N.J. 329, 345 (1993).
[7] Fischer v. Johns-Manville Corp., 103 N.J. 643, 675 (1986).
