Kemner v. Monsanto Co.

JUSTICE GREEN, specially concurring:

The expressed policy of the Illinois Supreme Court in regard to awarding punitive damages is well set forth in the opinion of the court written by Justice Lewis. Frequently, as of late in Loitz, that court has warned that because of the penal nature of punitive damages, they “are not favored in the law.” (Loitz, 138 Ill. 2d at 414, 563 N.E.2d at 401.) In Pacific Mutual Life Insurance Co. v. Haslip (1991), 499 U.S___ 1.. L. Ed. 2d 1, 111 S. Ct. 1032 , the United States Supreme Court held that an award of punitive damages does not necessarily violate due process. However, the majority opinion there began its analysis by reciting the concerns which the members of that court had previously expressed as to whether award of punitive damages in civil cases is constitutionally permissible. That opinion then stated, “[w]e note once again our concern about punitive damages that ‘run wild.’ ” Haslip, 499 U.S. at_, 113 L. Ed. 2d at 20 , 111 S. Ct. at 1043 .

I concur in the decision to reverse without remandment and in the decision, in the alternative, merely to grant a new trial if our decision to reverse outright does not stand. I agree with the reasoning of the opinion of Justice Lewis. I write separately only to explain policies which I deem inherently involved in our decision and which I consider necessary to prevent punitive damages that do “run wild.” These policies concern whether punitive damages can be based upon merely nominal damages and the consideration to be given to evidence that a tortfeasor against whom punitive damages are sought has committed other similar acts of misconduct.

Justice Lewis correctly points out that no decision of an Illinois court of review has passed directly upon the question of whether punitive tort damages may be predicated upon nominal damages, but that the language in various cases indicates that actual damages, which appear to be something more than nominal damages, are required. The opinion also carefully explains that (1) no conduct involving intent to harm is present here; and (2) had the jury found the plaintiffs, other than the Kemners, received actual injury, damages larger than nominal damages could have been calculated and awarded. Thus, two of the strongest reasons for award of punitive damages based only on nominal damages are not present. Accordingly, the case differs from Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1987), 827 F.2d 119 , where, applying Illinois law, that court in a defamation case upheld an award of punitive damages predicated upon an award of only nominal damages. That court emphasized that (1) the conduct of that defendant was libelous per se, giving rise to a presumption of substantial damages; and (2) malice was shown.

In asking that we hold that punitive damages cannot be based upon the award of merely nominal economic damages to the non-Kemner plaintiffs, defendant is not requesting overruling of prior precedent. It is merely stating we should not extend the operation of punitive damage awards to those whose incidence to the allegedly wrongful conduct is so slight that they are not entitled to compensation of any substance. Under such circumstances, a decision based upon policy seems most appropriate.

A leading text on the law of torts points out that a majority of States do not permit recovery of punitive damages predicated upon only nominal damages but states that “[sjince it is precisely in the cases of nominal damages that the policy of providing an incentive for plaintiffs to bring petty outrages into court comes into play,” the better “view” is to allow punitive damages based on nominal damages. (Emphasis added.) (W. Keeton, Prosser & Keeton on Torts §2, at 14 (5th ed. 1984).) However, that text also recognizes that, in recent years, the policy of permitting exemplary damages in tort litigation has come under special scrutiny as the Haslip and Loitz cases indicate.

The Loitz opinion cites a law review article by Professor David G. Owen, a scholar who is, in general, a proponent of the use of punitive damages. (Owen, Problems in Assessing Punitive Damages Against Manufacturers of Defective Products, 49 U. Chi. L. Rev. 1 (1982).) Professor Owen states the proliferation of large exemplary damage awards against large manufacturers in product liability cases has caused him to conclude that some modifications of the law applicable to those types of cases is desirable. He does not discuss the question of predicating punitive damages upon nominal damages, but he does advocate taking steps to minimize the size of and proliferation of punitive damages awards in cases against large manufacturers.

In cases such as that before us, permitting people who did not receive any measurable injury to recover punitive damages greatly increases the exposure of the alleged tortfeasor. One plaintiff here, permitted to share in the $16,250,000 punitive damage award, did not come to Sturgeon until the summer of 1979, well after the January 1979 spill. She stayed there for 27 days, spending the hours of 9 a.m. until 5 p.m. on all but two of those days visiting her mother in a hospital in Mexico, Missouri, less than 25 miles away. Another such plaintiff lived in Columbia, Missouri, a similar distance away, and had not been in Sturgeon during the time of the spill or cleanup. However, she had washed the clothes of her husband, who spent three or four hours a day in Sturgeon during the time of the cleanup collecting trash. One of his customers had a place of business near the site of the spill, and another of his customers was involved in the cleanup. According to that plaintiffs husband, on one occasion a glass jar, containing mud and water and found in the rubbish of the latter customer, broke and spilled on that husband. He testified he felt a burning sensation from that spilled liquid and immediately washed himself. The plaintiff wife testified she smelled a strong odor upon washing her husband’s clothing. She complained of a panoply of illness and physical repercussions extending from headache and depression to loss of libido and menstrual problems.

The jury could have properly concluded that the misconduct of defendant was of such a character as to justify very substantial punitive damage awards. If nobody was shown to receive any measurable personal injury from this conduct, permitting an award of punitive damages to someone would serve the purposes of punishing a tortfeasor who should be punished, discouraging others from similar conduct, and rewarding plaintiffs for and compensating them for their expenses in imposing sanctions for dangerous and highly improper conduct. However, when such a wide group of persons having little close connection with the occurrence involving the tort are permitted to recover punitive damages limited, at best, only by some otherwise undefined standard of reasonableness, a real danger of punitive damages that “run wild” exists. Here, we do not know how many other people could also sue claiming nominal damages. The tort alleged here does not appear to be subject to any statute of repose. Minors could sue many years into the future.

In view of the well-documented concern about the proliferation and size of punitive damage awards, I conclude that the better policy requires generally limiting punitive damage awards for unintentional torts to those who suffer more than nominal damage. As I have indicated, I agree with the conclusion of Justice Lewis that existing precedent does not appear to permit the award of punitive damages to those receiving only nominal economic damages here. I also consider public policy considerations support that holding.

Another need for limitation in regard to punitive damage awards arises here from plaintiffs’ attempts to use evidence of other occurrences to prove the wilful nature of defendant’s improper conduct. I agree with Justice Lewis that, under the supreme court decision in Loitz and that of the First District Appellate Court in Bass, much of the evidence of those occurrences should not have been admitted. Prejudice to defendant was compounded when, in closing argument, plaintiffs’ counsel indicated to the jury that the jury should not only consider this evidence as bearing upon the severity of defendant’s misconduct for which damages were sought here, but that the jury should, by a punitive damage award here, punish defendant for its conduct on those other occasions. If evidence of other misconduct of a defendant is properly received to show the wilfulness of that defendant’s misconduct in the occurrence giving rise to the case on trial, great care by the trial court is required in its rulings upon the receipt and use of such evidence. Any failure to do so is also likely to cause punitive damage awards to “run wild.”