There are two types of damages in Massachusetts personal injury actions. Compensatory damages and punitive damages. Compensatory damages are there to make the plaintiff whole and may include an award for past and future medical bills, past and future lost earnings, pain and suffering, disfigurement, and loss of capacity for enjoyment of life. Punitive damages by contrast are awarded to punish the wrongdoer, rather than compensate the injured plaintiff. However, in Massachusetts punitive damages are only available in wrongful death cases. Unfortunately, that means that no matter how egregious a defendant’s conduct, in serious injury cases with a living plaintiff, punitive damages are not available. There is a high bar to proving punitive damages in Massachusetts. The plaintiff must show that the decedent’s death was caused by the “malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.” M.G.L. c. 229, Section 2.
Whether to award punitive damages and the amount to be awarded is determined by the jury. In 2013 the Supreme Judicial Court held that a punitive damages award of $18 million dollars to the estate of an individual who had been rendered a quadriplegic in a swimming pool slide accident, and died the next day, was not grossly excessive. In that case the jury had awarded $2,640,000 in compensatory damages to the estate of the deceased. In part of its analysis the Court noted that the defendant corporation, Toys R Us, “neglected to ensure that the slide conformed with applicable safety regulations before it sold the slide to customers, even when it knew or should have known, based on the instructions included with the slide and the warning label affixed thereon, that head-first use could result in serious if not catastrophic injury or death. Such conduct evinces an indifference to the safety of persons using products sold by Toys R Us.” The Supreme Judicial Court characterized this conduct as grossly negligent rather than willful or malicious, but it still met the standard for an award of punitive damages.