# Brueckner v. Norwich University > Supreme Court of Vermont · February 5, 1999 · 169 Vt. 118 URL: https://www.frixlaw.com/law-library/cases/9756513 ## Case - **Full name:** William C. Brueckmer, Jr. v. Norwich University - **Court:** Supreme Court of Vermont - **Decided:** February 5, 1999 - **Citations:** 169 Vt. 118; 730 A.2d 1086 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Amestoy, Dooley, Morse, Johnson, Skoglund - **Cited by:** 119 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9756513 ## How later opinions describe it (automated extraction) - holding that “[t]o sanction punitive damages solely upon the basis of conduct characterized as heedless disregard of the consequences would be to allow virtually limitless imposition of punitive damages” - finding that a principal may be found directly liable for damages resulting from negligent supervision of its agents’ activities and citing Trahan-Laroche, 657 A.2d at 4 1 9 - explaining that we must view evidence in the “light most favorable to the non-moving party” on appeal of a motion for judgment as a matter of law - holding that a school may be held vicariously liable for claims under both assault and battery theories as well as a NIED claim ## Opinion text Johnson, J., dissenting. The decision whether to award punitive damages against a defendant represents an area of unparalleled discretion on the part of the jury in a civil trial. As a result, punitive damages have been a controversial issue. For this reason, it is critical to have clear guidelines for juries to follow in deciding whether or not an award of punitive damages is appropriate. While the majority today reverses the award of punitive damages in this particular case, it leaves future defendants more vulnerable to potentially arbitrary punitive damages awards by loosely applying the ill-defined concept of “malice,” a term we have criticized in the criminal context as arcane and confusing. See State v. Johnson, 158 Vt. 508, 518-19 , 615 A.2d 132, 136 (1992). In so doing, the majority departs from our holding in Shortle v. Central Vermont Public Service Corp., 137 Vt. 32, 33 , 399 A.2d 517, 518 (1979) (malice may be shown by presence of either personal ill will or reckless disregard for rights of another), even while purporting to rely on it. In this case, the jury was properly instructed in accordance with Vermont law on the punitive damages issue, and had before it sufficient evidence to support the award of punitive damages based on a theory that defendant exhibited reckless disregard for plaintiff’s rights. I believe it is error to invade the province of the jury to. overturn this award. I therefore respectfully dissent. The jury had before it the following facts. Defendant Norwich University authorized certain upperclass cadets (the “cadre”) to indoctrinate and orient incoming cadets (“rooks”). Norwich University trained the cadre to fulfill this role. Plaintiff, a rook, left the university after the cadre verbally and physically harassed him so as to threaten his physical and mental well-being and interfere with his *134 academic studies. Cadre members interrogated plaintiff during meals, preventing him from eating. The cadre’s harassment of plaintiff resulted in an injury to his shoulder, which was exacerbated by forced, unauthorized exercise sessions. Cadre members also vandalized plaintiff’s room. Plaintiff reported the hazing problems to the university before leaving and, in fact, Norwich University had been aware of persistent hazing problems emanating from the cadre. Despite this fact, the university did not remove the cadre from power, did not alter the training received by the cadre, and left the cadre in “virtually unsupervised control” over the rooks. Despite the cadre’s proven unfitness for the task of indoctrinating and orienting the incoming cadets, Norwich continued to authorize the cadre to perform this task. The senior vice-president of Norwich knew that rooks felt intimidated about reporting hazing incidents through the chain of command but did nothing to improve the situation. On the basis of this evidence, the jury awarded plaintiff compensatory and punitive damages on plaintiff’s theory that defendant had consciously chosen to remain ignorant of the hazing activities conducted by the cadre. The majority reverses the jury’s award of punitive damages. The pivotal piece of reasoning in the majority opinion equates malice with “bad motive” and concludes that, because plaintiff’s theory of liability was based on defendant’s “conscious choice to remain ignorant” rather than on defendant’s affirmative act, this precludes a finding of bad motive and thus precludes an award of punitive damages. This reasoning is flawed on several counts. First, the majoiity’s reasoning is inconsistent with doctrine established in Vermont case law. Clear guidelines for awarding punitive damages were developed by this Court in Sparrow v. Vermont Savings Bank, 95 Vt. 29 , 112 A. 205 (1921), and Shortle . These cases established that punitive damages were appropriate where there was actual malice as evidenced by either one of two factual predicates: (1) where a defendant expressed personal ill will toward a plaintiff (i.e., “bad motive”), or (2) where a defendant exhibited reckless or wanton disregard of a plaintiff’s rights. See Sparrow, 95 Vt. at 33 , 112 A. at 207 ; Shortle, 137 Vt. at 33 , 399 A.2d at 518 . In articulating the standard in this manner, these cases broke down the vague “malice” concept into two distinct prongs. The majority states that, “[o]n the basis of this record it may be fair to conclude . . . that the defendant was ‘indifferent to the health and safety of the rooks in its custody and control.’ But indifference *135 attributable to negligence is not malice.” The majority fails to recognize that, while it may be true that indifference is not the same as “bad motive,” indifference can constitute “reckless disregard,” a recognized component of malice under Vermont law. The majority cites a Maine case, Tuttle v. Raymond, 494 A.2d 1353 (Me. 1985), and a treatise to support its conclusion that “indifference is not malice” in Vermont, a conclusion that flies in the face of the settled principles of Sparrow and its progeny. The majority additionally cites Agency of Natural Resources v. Riendeau, 157 Vt. 615 , 603 A.2d 360 (1991), for the proposition that “there must be'some showing of bad motive to make knowing and intentional conduct malicious.” Id. at 625 , 603 A.2d at 365 (emphasis added). Based on this quoted language, the majority concludes that bad motive is a required showing in all cases where punitive damages are awarded. This reasoning is erroneous, however, because the quoted language is taken out of context. In a subsequent passage in Riendeau , we note that the trial court could have alternatively awarded punitive damages on a theory that the defendants were so indifferent to the environmental consequences of their acts that their conduct could be characterized as malicious. See id. We concluded that we could not uphold the award on the basis of this alternative theory, however, because the trial court had not made findings to this effect. See id. Notably, we remanded Riendeau to the trial court for additional findings on the issue of malice instead of simply vacating the award, as the majority does in the instant case. Rather than supporting the majority’s analysis, therefore, our holding in Riendeau reiterates established doctrine: that there are two alternative bases for a finding of malice, bad motive or reckless disregard. There is not a single, overarching “bad motive” requirement, as the majority implies. Equating malice exclusively with bad motive in this manner distorts the doctrine established in our earlier cases, effectively abandoning the second prong of the Shortle test. The majority cannot eliminate the second prong without at least partially overruling Shortle , on which it purportedly relies. In addition to contradicting Vermont case law, the majority’s reasoning is inconsistent with the policy rationale underlying punitive damages awards. By equating malice with bad motive and personal ill will, the majority opinion articulates a new standard for malice that is ill-suited to address the conduct of institutional actors, which cannot be said to have personal will as such. The implications of the *136 majority’s opinion extend well beyond this case by eliminating an entire class of defendants from the scope of this important form of civil sanction. But clearly the conduct of institutional actors may reach a level of culpability meriting the imposition of punitive damages. Institutions act through setting policies, and in some instances, those policies demonstrate such flagrant disregard for the rights of others that they can rightly be characterized as malicious. This is especially true where, as here, an institution owes a duty to the person whose rights are violated. The “reckless disregard” component of the malice test reaches this type of conduct; by abandoning this component, the majority arbitrarily eliminates a category of malicious conduct from consideration. It is especially problematic to define malice in such a way so as to exclude institutional actors from the application of punitive civil sanctions, because in many cases, as here, an institution will be in the best position to correct a potentially recurring danger. In addition to punishing morally culpable conduct, the other primary purpose of awarding punitive damages is to deter the individual defendant and other similarly situated actors from engaging in harmful activities where they have a choice about whether or not to engage in the activity. See R. Posner, Economic Analysis of Law 209 (4th ed. 1992). Thus, punitive damages are most effective where (1) compensatory damages alone will not provide adequate deterrence and (2) the defendant is the person or entity in the best position to prevent future recurrence of the harmful activity. See id. The majority’s exclusive focus on bad motive and personal ill will, therefore, does not serve the deterrence function of punitive damages because it excludes some of the most obvious targets of deterrence. Finally, the majority’s exclusive focus on bad motive and personal ill will does not place sufficient emphasis on the role of harm to the public as a policy justification for the imposition of punitive damages. Generally, the goal of criminal sanctions is to punish, while the goal of civil sanctions is to compensate. See K. Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795 , 1796 (1992). Punitive sanctions are sometimes appropriate in the civil context, however, when a defendant “not only harms the victim, [but] undermines rules and distinctions of significance beyond the specific case.” G. Calabresi & A.D. Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 , 1126 (1972) (discussing why compensation of victim is inadequate remedy in criminal cases). In this sense, some *137 civil defendants are similar to criminal defendants in that their conduct represents a harm to the public as well as to an individual victim. It is the presence of a harm to the public that justifies punishment. In this case, the jury may have fairly and reasonably concluded that Norwich University undermined important rules and norms of society by sanctioning hazing by cadets it had placed in a position of power over other cadets. There was sufficient evidence indicating that the university’s policies might potentially have a negative impact on a much broader group of people than just the plaintiff alone, thereby justifying the imposition of punitive damages by the jury. The only remaining questions, therefore, are whether the jury was properly charged and whether there was sufficient evidence on the record to support the jury’s verdict. Our review of the jury’s decision to award punitive damages is limited. When reviewing a jury verdict to determine if it was supported by sufficient evidence, the standard is whether, when the evidence is looked at in the light most favorable to the prevailing party, there is any evidence which fairly and reasonably tends to support the jury verdict. See Turgeon v. Schneider, 150 Vt. 268, 270 , 553 A.2d 548, 550 (1988). The jury was properly charged in accordance with Vermont law, 1 and there appears to be no basis for challenging the jury’s verdict as a matter of law. 2 The jury had before it sufficient evidence to support an award of punitive damages based on a theory that defendant acted with reckless disregard for plaintiff’s rights. The trial court found that “[o]fficers of Norwich were aware of incidences [sic] of hazing which perennially were perpetrated by the cadre, yet the officers left the cadre in virtually unsupervised control of Mr. Brueckner as a rook at Norwich.” The majority errs by characterizing defendant’s conduct as omission rather than affirmative act. It is true that the university’s *138 conduct can be characterized as “inaction and inattention” in the sense that, at the time of plaintiff’s injuries, the university had not embarked on a new course of action but had simply allowed the status quo to continue. That status quo, however, was the result of the university’s affirmative act of authorizing the cadre to discipline and orient incoming students. The jury may have fairly and reasonably concluded that malice — understood as reckless disregard of another’s rights — was evidenced by the fact that the university, which knew of the hazing problem, could have .remedied it by eliminating the “virtually unsupervised control” that the cadre enjoyed over the cadets, but declined to do so. Indifference in the face of a known threat to the health and safety of another, where there is also a duty to protect that person’s health and safety, as there was here, could fairly and reasonably lead to a jury’s conclusion that defendant recklessly disregarded plaintiff’s rights. The decision whether to award punitive damages is firmly rooted in ‘ the discretion of the jury. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15, 19 (1991); K. Mann, supra, at 1799 (“The privately invoked [punitive civil] sanction derives from the common law right of the jury to award exemplary damages, and is thus doctrinally circumscribed by little other than the concept of discretion uninfluenced by corrupt motive.”). The jury in this case was presented with the facts, and had the opportunity to evaluate the credibility of the witnesses and to assign weight to the evidence. The jury was therefore in the best position to evaluate the moral culpability 3 of Norwich University and the need to deter it and other similar institutions from continuing the policies that gave rise to plaintiff’s injuries. The majority’s searching review for a sufficient level of malice — a review apparently guided by nothing more than a subjective sense of what is “enough” malice — represents an unjustified invasion into the province of the jury by an appellate court. The majority thus introduces arbitrariness into the process at two levels. It introduces *139 arbitrariness at the level of the jury’s decision by abandoning the two-pronged malice test for a single, ill-defined, subjective criterion, i.e., “enough” malice. Secondly, it introduces arbitrariness at the appellate level by encouraging this Court to impose its own sense of what is “enough” malice. Needless to say, the abandonment of clear, well-articulated standards for the award of punitive damages ultimately does a disservice to defendants. There has been a great deal of concern expressed over the fact that jury awards of punitive damages are out of control. The only way to curb this trend is to formulate and adhere to clear principles that juries can follow in deciding whether or not to make a punitive damages award. This goal is not furthered when an appellate court imposes a vague “malice” standard that departs from established doctrine when it reviews a jury verdict. Rather, trial courts should provide guidance by directing juries to consider the purposes of punitive damages — to punish and to deter — and to follow the two-pronged test established in Shortle . The trial court provided accurate guidance to the jury in the instant case, and the jury had sufficient evidence to find that Norwich University acted with reckless disregard of plaintiff’s rights. Therefore, their decision to award punitive damages should be allowed to stand. The trial court charged the jury as follows: The plaintiff must show that the defendant acted with malice, bad faith, or with reckless disregard of the plaintiff’s rights. Malice may be shown by conduct manifesting personal ill will or carried out under circumstances evidencing insult or oppression or by conduct showing reckless or wanton disregard of one’s rights. The purposefs] of punitive damages are to punish conduct that is morally culpable and to deter potential wrongdoers from repeating the conduct in the future. The trial court additionally instructed the jury on the correct standard for awarding punitive damages against a corporation. The majority’s analysis of the applicable legal standard is dictum, therefore, as it points to no flaw in the jury instructions and no specific inadequacy in the evidence. Defendant argues that it did not possess the degree of moral culpability that would justify an award of punitive damages by referring to other cases in which educational institutions were found not to be liable for punitive damages for hazing that occurred on their campuses. These cases, however, are inapposite. Norwich University is unlike these institutions in that it is styled as a military academy in which students have very little personal freedom and little choice about with whom they will associate. Rirthermore, a select group of students (the cadre) are trained and given explicit control over the incoming students (the rooks) by the university. Thus the university has a relationship to those 'students who form the cadre that is unlike the relationship between a nonmilitary university and its students, be thby members of a fraternity or unaffiliated. This distinction is a sufficient basis for the jury’s verdict. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9756513. Public record. Not legal advice.