Damages for Dignitary Torts
• What is a dignitary tort?
• Torts that assault or impair our dignity but don’t necessarily cause
physical or pecuniary harm.
• Examples: Assault, Defamation, False Imprisonment, IIED, NIED,
Malicious prosecution, Invasion of privacy
• As with pain & suffering damages, difficult valuation issues arise
• Levka v. City of Chicago
• P sues for emotional distress resulting from illegal search after
misdemeanor arrest.
• Awarded $50,000 for emotional distress but 7th Circuit remits to
$25,000.
What could Levka ’ s attorney have done
differently to convince the appellate court of her
emotional distress?
• Focus on plaintiff’s harm
• Emphasize particular frailty
• Reframe inferences court drew from evidence
• Bolster psychological evidence
• Focus on defendant’s conduct
• Try to frame it as more outrageous than court characterized it
How courts generally approach damages with
dignitary torts:
In these types of torts, courts generally attempt to gauge damages
in light of the two factors we just discussed:
1) Plaintiff’s injury (especially if particular frailty) and
2) Defendant’s conduct (how outrageous?)
• These are applied as a sliding scale
• Are there problems w/ focusing on D’s conduct?
• Are there problems w/ focusing on P’s frailties?
How relevant are other jury verdicts to
determining “excessiveness”?
o
Levka court used “remittitur” – a practice where district or
appellate courts order a reduction in damages because they
are “grossly excessive.”
•
Most courts use remittitur at some point and they have a
lot of discretion.
•
Court usually gives the option of a new trial so P can
choose between new trial and reduction of damages.
•
See Mo SCT Rules 78.10
Remittitur and Comparator Verdicts
o Some courts, like Levka, are starting to use comparator
verdicts to make remittitur decisions (i.e., re whether a
particular decision is grossly excessive).
o Are such verdicts relevant to the issue of excessiveness?
o What kind of mathematical precision do we want judges to
engage in here?
Damage awards for constitutional violations –
the rule in Carey v. Piphus
o
Why does P only get $1 in damages?
o
Why won’t SCT presume damages for a procedural due process
violation (or for any constitutional violation for that matter)?
o
What kind of damages could P try to recover?
The Value of Constitutional Rights?
• The Court dances around the question of whether constitutional
rights have an innate value – do they?
• If so, shouldn’t we compensate for the mere violation of a right?
• What issues arise if we compensate for a right violation without actual
damages (like those the plaintiff suffered in Levka)?
• Note that SCT takes same approach in Stachura (p. 149 n.1) that it
did in Carey v. Piphus.
Goals of Punitive Damages
• Punishment
• Notions of public morality and “just deserts” require that Ds
“pay” for their bad actions
• Deterrence
• Compensatory damages, criminal sanctions and/or government
safety standards don’t sufficiently deter the conduct at issue so
punitive damages are necessary.
• Focus is on D’s behavior not P’s losses
Why don’t compensatory damages, criminal fines,
safety standards sufficiently deter?
• Difficulty of measuring some damages may cause under-compensation &
under deterrence
• Some wrongs are small but nevertheless outrageous (damage awards may
not deter)
• E.g., Levka – strip search of all female arrestees
• Some behavior is extremely profitable (beyond awards of compensatory
damages)
• Some Ds profit in ways that compensatory damages can’t account for –
i.e., pleasure at causing another pain
• Criminal fines are usually quite small (even smaller than compensatory
awards)
• Safety standards are often not enforced by administrative officials & fines
are often small