Tort Remedies

Introduction

Tort remedies are designed to compensate injured plaintiffs for harm caused by the defendant’s wrongful conduct. The principal remedy is compensatory damages, which aim to restore the plaintiff to the position they would have occupied had the tort not occurred. Punitive damages are available in limited circumstances to punish the defendant for particularly egregious conduct and to deter similar conduct in the future. The law of tort remedies also addresses joint and several liability, contribution, and indemnification.

Compensatory Damages

Compensatory damages are intended to make the plaintiff whole for the losses caused by the tort. Economic damages are quantifiable monetary losses, including medical expenses, lost earnings, lost earning capacity, property damage, and other out-of-pocket costs. Past economic damages are calculated based on actual losses. Future economic damages are estimated based on life expectancy, work-life expectancy, and projected medical needs.

Noneconomic damages compensate for intangible losses, including pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium, and disfigurement. Noneconomic damages are more difficult to quantify and are typically determined by the jury. Some states impose caps on noneconomic damages, particularly in medical malpractice cases. The constitutionality of damage caps varies by state.

Punitive Damages

Punitive damages are awarded in addition to compensatory damages to punish the defendant and deter future misconduct. Punitive damages are available only when the defendant’s conduct is particularly reprehensible —involving malice, fraud, oppression, or gross negligence. Most states require proof by clear and convincing evidence.

The Supreme Court in BMW of North America v. Gore (1996) established three guideposts for evaluating the constitutionality of punitive damages under the Due Process Clause: the degree of reprehensibility of the defendant’s conduct; the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and the difference between the punitive damages award and the civil penalties authorized or imposed in comparable cases.

The Court in State Farm Mutual Automobile Insurance Co. v. Campbell (2003) held that punitive damages exceeding a single-digit ratio to compensatory damages are presumptively unconstitutional. The Court in Philip Morris USA v. Williams (2007) held that a jury may not punish a defendant for harm caused to non-parties.

Joint and Several Liability

Joint and several liability allows the plaintiff to recover the entire judgment from any defendant, regardless of that defendant’s share of fault. The defendant who pays more than its share may seek contribution from other liable parties. Several liability (several-only) holds each defendant liable only for its share of fault.

Most states have modified joint and several liability. Many states limit joint and several liability to economic damages, impose several liability for noneconomic damages, or apply joint and several liability only to defendants whose fault exceeds a specified threshold.

Contribution and Indemnification

Contribution allows a tortfeasor who has paid more than its share of a judgment to recover from other tortfeasors. The Uniform Contribution Among Tortfeasors Act (UCATA) provides for contribution based on the relative fault of each tortfeasor. Indemnification shifts the entire loss from one party to another, typically based on an express contract or a special relationship.

Conclusion

Tort remedies provide compensation for injured plaintiffs and deterrence for wrongful conduct. The distinction between economic and noneconomic damages, the constitutional limits on punitive damages, and the rules of joint and several liability define the remedial framework. Tort remedies continue to evolve, with ongoing debates about damage caps, tort reform, and the appropriate role of punitive damages.