The Gradual Expansion of Punitive Damages in Louisiana

“Sue early and sue often.” We hear this in society, in law schools, and among lawyers and laypeople alike when a loved one suffers injury at the hands of another. And rightfully so–the American legal system has always provided means for injured plaintiffs to recover for damages caused by wrongdoers. It’s a notion deeply embedded in our law and culture.

The idea is simple: An individual suffers harm due to the fault of another and we expect the wrongdoer to make the victim whole again. Luckily for plaintiffs, the United States boasts one of the most robust civil justice systems in the world, making it relatively easy for injured victims to recover for the wrongs committed by another. But this mantra–“sue early and sue often”–has questionable weight here in Louisiana. There’s no doubt that the impetus for this mantra reflects the idea that injured plaintiffs may recover a big financial payout from the wrongdoer. In law, this big “payout” comes in the form of “damages,” better known as the money owed to the plaintiff for breaching their legal duty.

In most jurisdictions, there are two major forms of damages: compensatory damages and punitive damages. Intuitively, compensatory damages are designed to “compensate” victims for what they’ve lost due to the injury and to place the injured party in the position he would have been in had the accident not occurred, and punitive damages are designed to punish the wrongdoer for the damage he caused. The two categories of compensatory damages, special damages and general damages, generally compensate injured parties for quantifiable expenses (i.e. medical bills) and non-quantifiable damages (i.e. mental anguish, pain and suffering) respectively. Unlike compensatory damages, punitive damages are those that are imposed beyond what is necessary to compensate the victim. Punitive damages are designed to deter the tortfeasor and others from similar conduct in the future–they’re “punitive” in nature, and therefore, they are intended to be a punishment.

History reveals a philosophical split between civil law jurisdictions and common law jurisdictions on the imposition of punitive damages. In the common law tradition, punitive damages have been a fixture for over 200 years. In fact, one of the earliest recorded provisions establishing punitive damages dates back to an Irish law from 1275 which states “trespassers against religious persons shall yield double damages.” However, judicial recognition of punitive damages didn’t become prevalent until the late eighteenth century where an award for “more than the injury received” was granted against a tortfeasor for their wrong.

Conversely, the modern civilian tradition is that punitive damages violate the purpose behind the law of damages, which is to “repair the harm sustained by the victim of a wrong, and not to punish the wrongdoer.” Accordingly, civilian jurisdictions through the centuries have been reluctant to impose exorbitant awards of damages beyond what was necessary to compensate the victim.

Louisiana’s position on the issue of punitive damages reflects the influence that both common law and civil law traditions have had on our legal system. Louisiana’s very first civil code–the Digest of 1808–neither permitted nor forbade the imposition of punitive damages in civil suits. Notwithstanding this omission, Louisiana courts began to award punitive damages to victims. However, in the early nineteenth century, Louisiana courts began to realize their departure from the civilian tradition with regard to punitive damages, and began efforts to reign in the imposition of these penalties. Over the years, the Louisiana Civil Code was revised to include an express, general prohibition on the imposition of punitive damages. In a nod to our civilian tradition, the Louisiana legislature drafted article 3546 which states that “punitive damages may not be awarded by a court of this state…” However, this article goes on to provide a narrow exception for the imposition of punitive damages where expressly authorized by statute.

As it currently stands, the Louisiana legislature has deemed it proper to permit the imposition of punitive damages in certain instances of particularly egregious conduct. Specifically, the following statutes are just a few examples of legislation that authorizes punitive damages:
o La. R.S. §22:1973 (punitive damages authorized where an insurer breaches its duty of good faith and fair dealing)
o La. R.S. §22:1811 (punitive damages authorized where an insurer fails to timely pay on an insurance policy for accidental death if no just cause exists for the delay)
o La. R.S. §9:3552 (punitive damages authorized for bad faith violations of consumer credit transaction laws)
o La. C.C. art. 2315.3 (punitive damages may be awarded in cases of injury caused by a “wanton and reckless disregard for the rights of safety of the person through an act of pornography involving juveniles)

o La. C.C. art. 2315.4 (punitive damages may be awarded when injuries were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause…of the injuries)

Effective August 1, 2014, a recent bill expanding the grounds for an award of punitive damages to situations where the injury arose from a domestic abuse scenario, regardless of whether the defendant was criminally prosecuted for his or her acts. Louisiana is systematically chipping away at its civilian heritage by carving out exceptions to the general prohibition on punitive damages. However, by keeping these exceptions limited to circumstances of particularly egregious misconduct, we can advance important societal values while not straying too far from our Roman law roots.