Troy Broeker 1

Punitive Damages
Many Americans have differing views on the U.S. tort system and legal system in
general, but the rationale for many of the laws and statutes can be explained with just a little
background in economics. On the other hand, some statutes seem to clearly be in the wrong
when looking at them from an economics perspective. One such instance that is sure to draw
very heated opposing views is the Wrongful Death Act in Illinois. Judge Lopinot, in a recent
wrongful death suit stated, It has long been the law in Illinois that, as a general rule, the right to
seek punitive damages for personal injuries ends with the death of the injured part (Gvillo
2015). The case in question involved a high speed collision estimated at about 100 miles per
hour. Alcohol and or drugs were allegedly involved, although it has not been proven. The
plaintiff, who is the mother of a girl killed in the collision, is seeking punitive damages because
she believes the accident was avoidable (Gvillo 2015). This paper will not examine whether or
not the mother should receive the punitive damages, but rather the possible implications of the
statute in Illinois overall by using this particular case as an example. Coming from an economic
perspective, tort law aims to avoid costly accidents. Tort law is supposed to encourage the injurer
to internalize the effects caused by his actions or his lack of care (Cooter and Ulen 189).
Both efficient and inefficient accidents exist whether or not the general population
recognizes it. If it costs more to prevent an accident than the resulting damage from that accident
would cost, then it would not be efficient to prevent that specific accident (Friedman 1989).
Decreasing the speed limit on roads to five miles per hour would prevent almost all traffic
accidents and it would save many lives, but the costs associated with the change would be
staggeringly high. In general, Americans seem to be in favor of higher speed limits even though
it brings with it a higher probability of accidents and injuries. Most people are willing take the

Troy Broeker 2

higher likelihood of accidents if it means allowing them significantly shorter travel times. Based
on anecdotal evidence and the actual events that have transpired, it seems inefficient to prevent
all traffic accidents. Accidents are always going to happen, no matter how many precautions are
taken, therefore the goal should be to minimize the total sum of accident costs and prevention
costs (Friedman 1989). Accident costs may seem unrelated to punitive damages, but in order to
only have the efficient number of accidents, the injurer must properly internalize the damages
that he causes. Tort awards are only granted if there is harm, cause, and a breach of duty.
Assuming that all three of these conditions are met, damages for torts should be possible to
acquire for the plaintiff. Damages should not necessarily always be awarded, but the plaintiff
should have the option of seeking damages even in the case of a wrongful death. Most people
would rather have a crippled family member than a dead family member, although the courts
seem to treat crippling disabilities as worse than a wrongful death (Cooter and Ulen 2011). The
way damages are awarded in American courts, breaking a passengers back in a car crash may be
much more costly to the defendant than killing a passenger in a similar car crash. Although it is
most likely inadvertent, this gives potential injurers an adverse incentive. Sometimes it may be in
the injurers best interest to take less care under the Illinois law than he otherwise would if the
state would allow family members of a deceased party to sue individuals for wrongful death.
Why should the state disallow family members of the deceased party to seek damages for
wrongful death? If we accept that increasing the expected punishment (the expected punishment
equals the probability of getting caught multiplied by the severity of the punishment if you are
caught) for certain actions will decrease those actions, then why isnt the punishment for reckless
disregard of others safety more severe? Although not all accidents are worth preventing, most of
the time wrongful death suits will be worth preventing because of the high value that society

Troy Broeker 3

places on human life. There are high costs involved in determining the value of a lost life, and
people close to the injured party will never believe that the compensation is enough, but neither
of these are legitimate reasons against allowing damages for a wrongful death. As long as the
estimates for the value of the lost life are reasonable, then potential injurers will be better able to
assess which precautions are worth taking.
Those who are somewhat familiar with the legal system may claim that it is correct to
disallow plaintiffs from suing for wrongful death because the only person who had standing is
now unable to take the injurer to trial. Although the most severely injured party is deceased, the
family is also injured. Emotional injuries are very difficult to quantify, but it is easy to believe
that the mother of the deceased has been injured in some form. It makes sense to base the
damages on the economic value of the lost life since emotional damages are nearly impossible to
determine accurately, but it does not make sense to place no value on the life lost. If there is an
injurer who is most likely at fault and there are no damages awarded for the lost life, then isnt
that basically placing zero value on that life lost? Injurers may be avoiding the efficient amount
of punishment if they dont have to answer to civil claims over wrongful death. In certain cases a
defendant may face both civil and criminal punishments, or it is possible to face only a civil
punishment because of the differences in standards of evidence. In some cases a person may be
most likely at fault, but still escape criminal punishment because it cant be proven beyond a
reasonable doubt. Punishments could very likely be too mild in states that dont allow civil cases.
The injurer could potentially walk away without even paying a fine, even when he is most likely
responsible. In civil cases the evidence required is only a preponderance of evidence, which is
likely to hand out many more punishments than people would receive under the stricter standard
of evidence used in criminal trials.

Troy Broeker 4

There is a case to be made against always allowing punitive damages in civil cases
however. An argument claiming reduced rationality in cases involving alcohol or drugs is a valid
argument to examine. If alcohol and drugs were involved, then maybe the injurer was unable to
make the most rational choice at that moment. The motivation behind awarding damages to the
injured party is to make them whole, but also to encourage the injurer to internalize the costs of
his actions, and to deter people from committing those actions in the future. A person in a
reduced mental state due to drugs or alcohol may be unable to see the potential and foreseeable
consequences of his actions. The main reason punishments exist is to alter behavior, and to
hopefully avoid certain outcomes. Punishments dont affect behavior of irrational people in the
same way that they affect the behavior of a perfectly rational individual. Punishments or
normally altered for people with certain mental conditions. An individual who is declared legally
insane wont be put in jail, but rather in a mental hospital. The punishment overall is less severe,
but the person is still incapacitated. Alcohol and drugs are certainly different than legally
recognized mental diseases though. Courts may wish to curb the use of alcohol and drugs since
they inevitably lead to more accidents. If the expected punishment is severe enough, then some
people will be dissuaded from abusing certain substances. A person using drugs or alcohol may
have diminished rationality, but whatever actions are taken is still the responsibility of that
person. A rational person could determine the possibilities of what might happen in the future in
order to plan for it. While diminished rationality may be an argument for altering how punitive
damages are assessed, it is not an argument for eliminating punitive damages en masse.

Troy Broeker 5

References
Friedman, David. 1989. An Economic Explanation of Punitive Damages.
http://www.daviddfriedman.com/Academic/Punitive/Punitive.html
Isringhausen Gvillo, Heather. 2015. Mothers prayer for punitive damages dismissed in
fatal high speed collision case. Madison-St. Clair Record. May 4.
http://madisonrecord.com/issues/426-wrongful-death/270515-mothers-prayer-for-punitivedamages-dismissed-in-fatal-high-speed-collision-case
Robert Cooter and Thomas Ulen. Law and Economics. Boston: Pearson Education, 2011,
257-258.