(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued March 16, 1999 -- Decided July 20, 1999
Stein, J., writing for a unanimous Court.
The issues presented in this appeal are: whether evidence of conscious pain and suffering is necessary to
sustain a cause of action under the Survivor's Act, N.J.S.A. 2A:15-3, or more precisely, whether a survival action
will lie where the death appears to have been actually or nearly simultaneous with injury-causing conduct; and
whether a claim for punitive damages may be asserted when no compensatory damages have been awarded for pain
and suffering in the underlying survival action.
On January 4, 1990, Helen Robbins was killed when her car was hit by a 36,000-pound oil truck owned by
Coastal Oil Company of New York (Coastal) and driven by Alan L. Whitaker, Jr. (Whitaker). The accident occurred
in the intersection of County Route 649 and County Road 633 in Commercial Township, Cumberland County.
Whitaker was unable to stop the truck as he approached the intersection, causing him to strike the Robbins vehicle
and "overtop" it. A State Trooper who had arrived at the seen shortly after the accident observed that Robbins
appeared to be unconscious and did not appear to be breathing. Robbins never regained consciousness.
In June 1990, Harold E. Smith, executor of Robbins' estate, sued Whitaker and Coastal pursuant to the
Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor's Act. Smith claimed that the Coastal truck had been
negligently and improperly maintained. Smith alleged both punitive damages and compensatory damages, including
direct pecuniary loss for support and maintenance, funeral expenses, pain and suffering, loss of enjoyment of life
(hedonic damages).
The trial court separated the trial into two phases: a trial on the compensatory damage claims and a separate
trial to address the punitive damage claims. Before the start of the compensatory damage trial, Coastal moved to bar
Smith's presentation of evidence to support pain and suffering and hedonic damages. Coastal conceded that Robbins
died as a result of the injuries she sustained in the accident as well as its liability for causing the accident. However,
Coastal claimed that hedonic and pain and suffering damages were unavailable since there was no proof that Robbins
suffered any conscious pain after the accident. Over Smith's objection, the court dismissed the pain and suffering
and hedonic damages claims. The trial court ruled that the claim for punitive damages could go forward in the
second phase of the trial.
In May 1995, the first phase of the trial began, limited to the claims asserted in the wrongful death action.
At the conclusion of the trial, the jury found Coastal and Whitaker liable and rendered a verdict of $40,178 in
pecuniary damages. In addition, the parties consented to the addition of $3939, reflecting the net funeral bill and
related expenses, for a total judgment of $44,117. Thereafter, Coastal filed a motion to dismiss the punitive damages
claim and Smith cross-moved for a new trial on the wrongful death claim. Coastal argued that punitive damages are
not recoverable under the Wrongful Death Act, and that any award of punitive damages under the Survivor's Act had
to be based on a valid underlying judgment of compensatory damages, which were unavailable because it was
conceded that Robbins suffered no conscious pain and suffering prior to her death. The trial court denied both
motions, ruling that Smith's claim could go forward under the Survivor's Act.
The punitive damages trial began in July 1996 before a new jury. The evidence adduced at trial
demonstrated, among other things, that Coastal, after having received an "out-of-service" rating from the State
Police, knowingly and deliberately allowed the truck to remain in that condition for several weeks. Evidence was
also presented that Whitaker and Coastal were aware that the brakes were not working properly.
At the conclusion of trial, the jury found Coastal liable for punitive damages in the amount of $1,250,000.
The court molded the verdict to reflect that the funeral and burial expenses were recovered under the Wrongful
Death Act. Both parties appealed to the Appellate Division. That court affirmed, concluding that the punitive
damages claims were sustainable even in the absence of an underlying award of compensatory damages. The court
also rejected Coastal's contentions that the punitive damages awarded were not based on an adequate factual record
and were excessive.
The Supreme Court granted Coastal's petition for certification.
HELD: In an action under the Survivor's Act, a claim for punitive damages may be sustained even absent an award
of compensatory damages for pain and suffering.
1. The purpose of a wrongful death action is to compensate survivors for the pecuniary losses they suffer because of
the wrongful conduct of others. Damages under the Wrongful Death Act are expressly limited to the economic
losses resulting from the death, together with hospital, medical and funeral expenses incurred for the decedent;
punitive damages are not recoverable. On the other hand, the Survivor's Act preserves for the decedent's estate any
personal cause of action the decedent would have had if he or she had survived. The Survivor's Act contains no
express limitation on the type of damages recoverable. (pp. 8-16)
2. Ordinarily, punitive damages are recoverable only where there is a valid underlying cause of action. The Court
has held that a defendant should not be freed of responsibility for aggravated conduct because of the fortuitous
circumstance that the injured plaintiff cannot prove compensatory damages. Punitive damages are a permissible
form of recovery under the Survivor's Act. The Act must be broadly construed in order to further its remedial
purposes. Because Robbins would have had a claim for punitive damages had she survived her injuries, she should
not be deprived of that claim by virtue of her death. This interpretation is in accord with a majority of states. (pp.
16-28)
3. The absence of compensatory damages is not necessarily fatal to the assertion of a punitive damage claim.
Although an award of at least nominal damages is ordinarily required to sustain a punitive damages award, that
deficiency is not significant where causation and negligence were established in the related wrongful death action.
An award of funeral expenses, recoverable under the Survivor's Act, comprises sufficient damages to sustain a
survival cause of action. It is not necessary to reallocate those expenses from the wrongful death action to the
survival action in order to conclude that a valid cause of action has been established. Nor is it necessary to rely on
the legal fiction of a presumption of continuing life in order to support a finding of conscious pain and suffering.
(pp. 29-30)
4. Where the other elements of a survival cause of action have been established in a related wrongful death action, to
require an award of funeral expenses, compensatory damages for pain and suffering, or even nominal damages to
support a claim for punitive damages under the Survivor's Act would be superfluous. Accordingly, where all of the
essential elements of a punitive damages claim are established, such a claim may be sustained without proof of pain
and suffering. (pp. 31)
5. The recent amendments to the Punitive Damages Act, requiring an award of compensatory damages as a predicate
for a punitive damages award, are inapplicable to a survival action where the decedent was killed instantly. The
Legislature could not have intended to bar a punitive damage claim where the victim suffers a grievous injury
because of the fortuitous circumstance that the victim died instantly. That result would be inconsistent with the
purposes of punitive damages and would provide an unwarranted benefit to those defendants who inflict the most
profound harm. (pp. 31-33)
6. The Court rejects Coastal's contentions that there was inadequate factual support for the imposition of punitive
damages and that the amount of those damages were excessive. (pp. 33)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE GARIBALDI, concurring, would not have addressed the issue of whether the Legislature
intended to foreclose punitive damages as a remedy for death by egregious conduct pursuant to the Punitive
Damages Act. Such a decision should not be made unless the issue is before the Court and is fully argued and
briefed. This is particularly so when the Court's interpretation appears to be contrary to the clear legislative mandate
indicating that the purpose of the Punitive Damages Act was to restrict, rather than expand, punitive damages.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, and COLEMAN join
in JUSTICE STEIN'S opinion. JUSTICE GARIBALDI filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
15 September Term 1998
HAROLD E. SMITH, Executor of the
Estate of Helen V. Robbins,
Deceased,
Plaintiff-Respondent,
v.
ALAN L. WHITAKER, JR.,
Defendant,
and
COASTAL OIL OF NEW YORK, INC.
(incorrectly pled as COASTAL OIL
COMPANY OF NEW YORK, INC. and
formerly known as BELCHER COMPANY
OF NEW YORK, INC.),
Defendant-Appellant.
Argued March 16, 1999 -- Decided July 20, 1999
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
313 N.J. Super. 165 (1998).
John C. Eastlack, Jr., argued the cause for
appellant (Poplar & Eastlack, attorneys).
Theodore E. Baker argued the cause for
respondent (Lummis, Krell & Baker,
attorneys).
The opinion of the Court was delivered by
STEIN, J.
This appeal concerns the availability of punitive damages
under the Survivor's Act, N.J.S.A. 2A:15-3, and requires us to
determine whether evidence of a plaintiff's conscious pain and
suffering is necessary to sustain a cause of action under the
Act. More precisely, because a plaintiff's pain, suffering and
apprehension of impending death form the usual measure of damages
under the Survivor's Act, the issue is whether a survival action
will lie where, as here, the plaintiff's death appears to have
been actually or nearly simultaneous with defendant's injury
causing conduct. We also must determine whether a claim for
punitive damages may be asserted when no compensatory damages
have been awarded for pain and suffering in the underlying
survival action. In addition to those legal issues, we address
factual disputes concerning whether defendant's conduct justified
the imposition of punitive damages in this case and, if so,
whether the amount of punitive damages awarded was excessive.
On January 4, 1990, Helen V. Robbins, a sixty-year-old
widow, was killed when her 1979 Lincoln Town Car was hit by a
36,000-pound oil truck owned by defendant Coastal Oil Company of
New York (Coastal) and driven by defendant Alan L. Whitaker, Jr.
(Whitaker). At the time of the collision, Robbins was driving
north on County Route 649 in Commercial Township, Cumberland
County, and Whitaker was traveling south on County Road 633. The
southbound lane of County Route 633 is governed by two yield
signs at the point where it intersects County Route 649. Due to
maladjusted brakes, Whitaker was unable to stop the truck as he
approached the intersection even though he was “standing” on the
brakes. The truck crossed the intersection, struck Robbins's
automobile, and “overtopped” it. A state trooper responded to
the scene within approximately five minutes of the accident. The
trooper observed that Robbins did not appear to be breathing and
that she appeared to be unconscious. Robbins was transported to
a nearby hospital, where she was pronounced dead.
In June 1990, Harold E. Smith,See footnote 11 the nominal plaintiff and
executor of Robbins's estate, filed an action against Whitaker
and Coastal pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1
to -6, and the Survivor's Act, N.J.S.A. 2A:15-3. Plaintiff
claimed that the Coastal oil truck had been “improperly serviced
and maintained, in that the brake systems, air hoses and braking
mechanisms were faulty, defective and not in proper working
order.” By way of damages, plaintiff alleged direct pecuniary
loss for support and maintenance, funeral expenses, pain and
suffering and loss of enjoyment of life (hedonic damages). In
addition, plaintiff sought punitive damages, alleging that
defendants' negligent maintenance of the vehicle was "willful,
wanton, and with knowledge of a high degree of probable harm to
others."
The trial court bifurcated the trial of the compensatory and
punitive damages claims. Before the jury was brought into the
courtroom to begin the trial on plaintiff's compensatory damages
claims, Coastal moved to bar plaintiff's presentation of evidence
to support pain and suffering and hedonic damages. Coastal's
attorney conceded that there was “no question” that Robbins had
“died as a result of injuries sustained in the accident.” In
addition, Coastal conceded its liability for causing the
accident. Coastal's attorney noted, however, that it “has
candidly been admitted by [plaintiff's] counsel" that "there is
not one single item of proof that exists or could be placed
before this jury indicating that Mrs. Robbins suffered any
conscious pain or endured any suffering at all," because, during
discovery, no post-accident witness "indicated any consciousness
at all by Mrs. Robbins."
Over plaintiff's objection, the trial court dismissed
plaintiff's damage claim "with respect to the pain and
suffering," finding that evidence of conscious pain and suffering
was required to present to the jury the issue of compensatory
damages under the Survivor's Act. The court noted that "there is
nothing in the medical reports or in the observations of doctors,
nurses, emergency personnel, or any of those people that would
suggest that there was conscious pain and suffering." For the
same reason, the court, over plaintiff's objection, dismissed
plaintiff's damages claim for hedonic damages, because "hedonic
damages would have to be based on the victim's own loss of
enjoyment” and were therefore not available in this case. The
court ruled that plaintiff's claim for punitive damages could go
forward in the second phase of the trial.
In that procedural posture, the first phase of the jury
trial commenced in May 1995, restricted to only the claims
asserted in the wrongful death action. After all sides rested,
the parties agreed to the court's suggestion that a different
jury be empaneled to decide the issue of punitive damages. The
jury returned a unanimous verdict finding defendants liable for
$40,178 in actual pecuniary or financial damages. In addition,
the parties consented to the addition of $3939, reflecting the
net funeral bill and related expenses, for a total judgment of
$44,117. On May 26, 1995, the court entered a judgment against
defendants reflecting that the jury had "rendered a verdict in
the amount of $40,178 pursuant to the Wrongful Death Act,
N.J.S.A. 2A:15-3 et seq.," and that the court had "molded the
verdict as to funeral and burial expenses pursuant to the
Survivor's Act, N.J.S.A. 2A:31-1 to include the sum of
$3,939.00."
After the conclusion of the first trial, Coastal filed a
motion to dismiss plaintiff's punitive damages claim and
plaintiff cross-moved for a new trial of the wrongful death
claim. In support of its motion, Coastal noted that punitive
damages are not recoverable under the Wrongful Death Act, and
that any award of punitive damages pursuant to the Survivor's Act
would have to be supported by a valid underlying judgment of
compensatory damages. Coastal argued that no compensatory award
under the Survivor's Act was sustainable due to plaintiff's
conceded inability to produce evidence that Robbins experienced
conscious pain and suffering before dying.
The trial court denied both Coastal's motion to dismiss the
punitive damages claim and plaintiff's new-trial motion. The
court agreed with Coastal that there was "no question that in
this case, as least insofar as the proofs are concerned, the
decedent died instantly and there was no proof to the contrary."
Nonetheless, the court ruled that plaintiff's claims for punitive
damages could go forward under the authority of the Survivor's
Act. In addition, at Coastal's request, the court clarified that
the award for funeral expenses of $3939 “would properly be
included in the wrongful death aspect of the case.”
In July 1996 the punitive damages trial began before a new
jury. Plaintiff and Coastal consented to the dismissal of the
punitive damages claims against Whitaker. The evidence adduced
in that proceeding showed that one month prior to the accident
the State Police, after inspecting Whitaker's vehicle, had cited
Coastal with numerous safety violations, including two “out-of
service” conditions that indicated the vehicle would not be
considered safe to operate until those conditions were corrected.
There was no evidence that the necessary repairs were made;
rather, it appeared Coastal knowingly and deliberately operated
the vehicle in its “out-of-service” condition for several weeks.
Evidence also was presented that in the weeks leading up to the
accident both Whitaker and Coastal were aware that the brakes
were not working properly. An inspection at the time of the
accident revealed that both rear brakes were so far out of
adjustment as to render the vehicle unsafe to drive. Finally,
the evidence suggested that Coastal provided no instruction or
training for its drivers regarding proper brake safety or
maintenance and that Coastal simply ignored regulatory record
keeping requirements regarding its vehicle maintenance.
At the conclusion of that trial, the jury found Coastal
liable for punitive damages in the amount of $1,250,000. In
September 1995, the court entered an order denying Coastal's new
trial motion. In that order, at Coastal's request, the court
amended the May 26, 1995, judgment, reallocating the award of
funeral expenses to reflect that the “molded verdict including
funeral and burial expenses were recovered pursuant to the
Wrongful Death Act.” Both parties then appealed.
The Appellate Division affirmed, concluding that plaintiff's
punitive damages claims were sustainable even in the absence of
an underlying award of compensatory damages.
313 N.J. Super. 172, 175-90 (1998). The Appellate Division also rejected
Coastal's contentions that its conduct was not sufficiently
egregious to justify an award of punitive damages and that the
amount of the award was excessive. Id. at 190-98, 201-03. We
granted Coastal's petition for certification.
156 N.J. 410
(1998).
A
An award of damages in a wrongful death action “is not a matter of punishment for an errant defendant or of providing for decedent's next of kin to a greater extent than decedent himself would have been able, but is rather a replacement for that which decedent would likely have provided and no more.” The amount of recovery is based upon the contributions, reduced to monetary terms, which the decedent might reasonably have been expected to make to his or her survivors.
[Alexander, supra, 114 F. 3d at 1398 (citation omitted).]
Consistent with its remedial purpose, damages under the Act are expressly limited to “the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased.” N.J.S.A. 2A:31-5.
Further, courts interpreting the Act have consistently held that it permits recovery only of a survivor's calculable economic loss and that the Act does not support an award of punitive damages. See Meehan v. Central R.R. Co., 181 F. Supp. 594, 598 (S.D.N.Y. 1960) (dismissing claim for punitive damages under New Jersey Wrongful Death Act); Carey v. Lovett, 132 N.J. 44, 67 (1993) ("Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters."); Graf v. Taggert, 43 N.J. 303, 311 (1964) ("Our [Wrongful] Death Act was not intended to grant damages against a tortfeasor merely to punish him."); Turon v. J. & L. Constr. Co., 8 N.J. 543, 555-56 (1952) (noting remedial purpose of Wrongful Death Act and observing that from Act's inception damages recoverable thereunder intended to be limited to "pecuniary injuries" sustained by qualified beneficiaries); Goss v. American Cyanamid, Co., 278 N.J. Super. 227, 241 (App. Div. 1994) ("An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided."); DeFelice v. Beall, 274 N.J. Super. 592, 599 (App. Div.) ("The purpose of New Jersey's Wrongful Death Act is to provide compensation for pecuniary losses suffered by survivors of those killed by wrongful acts."), certif. denied, 138 N.J. 268 (1994).
Plaintiff does not dispute the unavailablity of punitive damages under the Wrongful Death Act, acknowledging that plaintiff's claims for punitive damages clearly were asserted under the Survivor's Act. Coastal contends, however, that because the only compensatory award below was rendered in the wrongful death action and because no separate judgment awarding compensatory or even nominal damages was entered pursuant to the Survivor's Act prior to the punitive damages phase, the punitive damages action necessarily, and impermissibly, arose under the Wrongful Death Act.
As the Appellate Division found, however, the contemplation of both the court and the parties unquestionably was that plaintiff's punitive damages claims were to be addressed as the sole measure of relief available to plaintiffs under the survival action, plaintiff's claims for pain and suffering having been dismissed. Therefore, the critical issue before this Court is whether plaintiff established a valid claim for punitive damages under the Survivor's Act in the absence of an underlying award of compensatory damages for pain and suffering.
N.J.S.A. 2A:15-3 provides: Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.
In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.
The Survivor's Act was intended to be supplementary to the Death Act and to “afford[] complete and adequate redress to the estates of those who were injured in person or property by injuries causing death,” Kern, supra, 93 N.J. Super. at 472, by allowing the decedent's estate to recover any loss to the decedent that accrued between injury and death, id. at 471. The Act was designed to eliminate the arbitrary rule that “grounded a man's right to recover for an injury to his person or estate, inflicted by a tortious act, on the contingency of the party injured surviving to the date of trial.” Id. at 471. Consistent with that purpose, the Act has been broadly construed “to suppress the mischief and advance the remedy.” Ibid. (quoting 1 Bl. Com. 87).
The Survivor's Act, in contrast to the Wrongful Death Act, contains no express limitation on the types of damages recoverable under the statute. A majority of states have decided that punitive damages are recoverable in a survival action, see Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Action as Surviving Death of Tortfeasor or Person Wronged, 30 A.L.R.4th 707 §5 (1984), the typical reasoning being that “[l]ogic dictates that if a wrongdoer may be punished if his victim lives, then surely he should not escape retribution if his wrongful act causes a death,” Leahy v. Morgan, 275 F. Supp. 424, 425 (N.D. Iowa 1967). This Court, however, has not had occasion to address that question. In Kern, supra, 93 N.J. Super. at 475, the Law Division observed that “[n]owhere do the cases in this area indicate that actions for pain and suffering brought under N.J.S.A. 2A:15-3 be restricted to compensatory redress, as is indicated by the cases dealing with the Wrongful Death Act.” 93 N.J. Super. at 475. To the contrary, the Kern court noted, the Legislature in enacting the Survivor's Act broadly intended to afford “executors or administrators an action for any trespass done to the person or property of their testator or intestate.” Id. at 472. Further, the court observed, prior reported cases involving survival actions appeared to recognize, without expressly so holding, that punitive damages were in fact a permissible form of recovery under the Survivor's Act. Id. at 474-75 (citing Meehan, supra, 181 F. Supp. 594 (upholding punitive damages of $1000 for reckless and wanton conduct that brought about conscious pain and suffering of decedent as well as death), and Messina v. Petroli, 11 N.J. Misc. 583, 587 (Cir. Ct. 1933) (holding pain and suffering compensable under survival statute and impliedly recognizing availability of punitive damages in action under Executors and Administrators Act)). Thus, in Kern, supra, the plaintiff's claims for punitive damages under the Survivor's Act were allowed to stand. 93 N.J. Super. at 475-76. Significantly, although the Legislature amended the Survivor's Act in 1969 to allow recovery of funeral expenses, L. 1969, c. 266, § 1, no action was then taken to overrule Kern's holding regarding the availability of punitive damages in a survival action. See Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J. Super. 67, 77 (App. Div.) (noting principle that when legislature reenacts statute that has been construed judicially there is strong presumption that Legislature intended to leave that interpretation intact), certif. denied, 151 N.J. 77 (1997). Nor has there been any further modification to the statute in the thirty years since funeral expenses were made available.
In this case, plaintiff was unable to establish compensable pain and suffering due to the unfortunate circumstance that Robbins apparently was killed immediately upon impact with Coastal's vehicle. The question is whether a plaintiff's inability to establish conscious pain and suffering in a survival action involving instantaneous death bars a claim for punitive damages. See Nappe, supra, 97 N.J. at 45 (noting general rule that punitive damages may lie where valid underlying cause of action exists).
As the Appellate Division observed, the irony of a rule requiring conscious pain and suffering is that it makes the recoverability of punitive damages for egregious conduct resulting in death dependent on whether or not the victim died instantaneously. See Ford Motor Co. v. Superior Court, 120 Cal. App.3d 748, 753 (Ct. App. 1981) (Poche, J., dissenting) (noting that “malicious actor is subject to [punitive damages] when he harms property, when he causes personal injury or nonimmediate death, but not when he dispatches you straightaway”). Nevertheless, some jurisdictions do consider conscious pain and suffering essential to any recovery of punitive damages, reasoning that any recovery arising directly from a person's death has traditionally, and statutorily, been relegated to actions for wrongful death in which punitive damages are not available. See, e.g., Ford Motor Co., supra, 120 Cal. App. 3d at 749; Rubeck v. Huffman, 374 N.E.2d 411, 413 (Ohio 1978); Wangen v. Ford Motor Co., 294 N.W.2d 437, 463-64 (Wis. 1980).
We previously have held that in some cases involving egregious conduct, a punitive damages claim may constitute plaintiff's sole basis for recovery, “at least where some injury, loss, or detriment to the plaintiff has occurred.” Nappe, supra, 97 N.J. at 51. In Nappe, we observed that the true “loss, injury, and detriment” suffered by plaintiff, in this case her death, is not necessarily coextensive with the “compensatory damages” awarded, which is merely “a monetary amount awarded in court to compensate or indemnify a plaintiff.” Id. at 41 n.1. When the value of a real legal injury cannot be measured in money, id. at 56 (O'Hern, J., concurring), a plaintiff who has been harmed substantially may not be able to establish an entitlement to compensatory damages. Under such circumstances, we held in Nappe that a defendant should not be freed of responsibility for aggravated conduct because of the fortuitous circumstance that an injured plaintiff cannot prove compensatory damages. Id. at 50. Rather, where a plaintiff suffers substantial legal injury due to a defendant's egregious conduct, nominal damages, supporting a claim of punitive damages, may be awarded to vindicate the invasion of plaintiff's rights. Id. at 48. Employing similar reasoning, in Potomac Electric Power Co. v. Smith, the Maryland Court of Appeals held that recovery of punitive damages in a survival action does not require proof of conscious pain and suffering:
Under the unique circumstances before us, there has been proof of an “actual loss” or a “showing of compensable injuries” although, aside from the award for funeral expenses, no compensatory damages were awarded in the survivorship action. In arguing that no punitive damages may be awarded, appellant shall not be permitted to rely on the fact that its reckless act instantaneously caused the death of the 15 year-old decedent. Because punitive damages are not recoverable under the wrongful death statute, in cases of instantaneous death punitive damages would be precluded under appellant's theory. Such a result would thwart the policy of punitive damages “to punish the wrongdoer for misconduct and to deter future egregious conduct by others.” To establish a policy rewarding defendants otherwise liable for punitive damages for their expediency in causing an innocent person's death would be absurd. We refuse to do so, and we uphold the jury's award of punitive damages in the survivorship claim.
[ 558 A.2d 768, 793 (Md. App.) (citations omitted), cert. denied, 564 A.2d 407 (Md. 1989), overruled on other grounds, United States v. Streidel, 620 A.2d 905 (Md. 1993).]
Similarly, the trial court in this case refused to accept Robbins's instant death as a basis for precluding a claim for punitive damages:
Punitive damages would have been a claim available to Mrs. Robbins had she survived. I believe it should not depend on whether or not she died instantly or whether or not she died after an agonizing death. To do so would place the following unusual circumstance that someone who was to do something outrageous and worthy of punitive damages, if the person was killed thereby, and killed instantly, there would be no claim for punitive damages. Whereas if they were less effective in their method and, consequently, the person lingered in the hospital for a year, then punitive damages would apply. I believe that that is not the intent of the Legislature and I don't believe that that was the intent of the decision in Kern.
When there is only a nominal compensatory damage award, such as the traditional six cents symbolic of the diminutive English six-pence piece, there is inherent in that small award a finding by the jury of a violation of a legal right. For example, there might have been a trespass without any substantial damage. But when no compensatory damages are awarded, not even nominal, . . . there is an inference that the jury did not find a violation of a legal right, else it would have allowed at least nominal damages. A verdict for punitive damages alone suggests a punishment for malice, without more.
[111 N.J. Super. at 29-30.]
Thus, in O'Connor, the court found that "the exercise of the board members' legal right to terminate plaintiff's contract for a valid reason is not converted into an actionable wrong, merely because some malice attended the exercise of the legal right." Id. at 29; cf. In re Paris Air Crash v. Plaintiffs in MDL 172, 622 F.2d 1315, 1321 (9th Cir.) (noting that requiring actual injury as predicate to punitive damages claims places reasonable limit on plaintiff's standing to “bring suits expressing social condemnation and disapproval”), cert. denied by Kalinsky v. General Dynamics Corp., 449 U.S. 976, 101 S. Ct. 387, 66 L. Ed.2d 237 (1980).
In 1995, the Legislature amended the Punitive Damages Act to require an award of compensatory damages as a statutory predicate for an award of punitive damages and disallowing nominal damages as a basis for a punitive damages claim. N.J.S.A. 2A:15-5.14(b). That provision did not take effect until October 27, 1995, and thus does not govern our disposition of this appeal.
the defendant's conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an “evil-minded act” or an act accompanied by a wanton and wilful disregard of the rights of another.
In the unique context of a survival action, we do not view the absence of a compensatory damage award as necessarily fatal to the assertion of plaintiff's claim for punitive damages. The requirement that a plaintiff show compensatory damages in order to obtain punitive damages is based on the underlying assumption that compensatory damages measure the wrong inflicted on the plaintiff. Often, a jury's conclusion that no compensation is warranted reflects that jury's determination that no harm accrued to the plaintiff. As we observed in Nappe, however, that underlying assumption is not unassailable. Nappe, supra, 97 N.J. at 48. Here, plaintiff's failure to establish compensatory damages arises not from the absence of any appreciable injury to Robbins, but from the fact that her instantaneous death precluded any damages award for pain and suffering.
We recognize that an award of at least nominal damages ordinarily is required to sustain a punitive damages award. See O'Connor, supra, 111 N.J. Super. at 29. Even where a plaintiff has suffered a harm inestimable in terms of dollars and cents, an award of nominal damages serves to confirm the jury's finding that plaintiff has suffered a harm cognizable at law. That deficiency is not significant in these circumstances, however, where the elements of causation and defendant's negligence were established in the related wrongful death action. See Alfone, supra, 87 N.J. at 110-11 (recognizing that substantive issue of liability may be litigated in the same action for wrongful death and survival actions). Thus, the only additional finding by the jury that was required to support a valid survival claim was a finding that Robbins was harmed.
In that regard, we agree with the Appellate Division's conclusion that an award of funeral expenses, recoverable under the Survivor's Act, comprises sufficient damages to sustain a survival cause of action. See Potomac Electric, supra, 558 A. 2d at 792 (noting that funeral expenses could be considered “substitute damages” for pain and suffering and medical expenses decedent would have sustained had she survived her injuries). Nevertheless, like the Appellate Division, we find it unnecessary to reallocate those expenses from the wrongful death action to the survival action in order to conclude that a valid cause of action was established. Nor is it necessary to rely on the legal fiction of a presumption of continuing life in order to support a finding of conscious pain and suffering. Such a finding is relevant only to the issue of compensatory damages and, we conclude, is not an indispensable element of a survival cause of action. That a negligently-caused death constitutes a legally cognizable injury is irrefutable. Cf. United States v. Streidel, 620 A.2d 905, 909 (Md. 1993) ("The death of a victim as a result of a 'personal injury' or 'injury' is . . . the ultimate injury to that victim."). Thus, where the other elements of a survival claim have been established in a related action pursuant to the Wrongful Death Act, we hold that to require an award of funeral expenses, compensatory damages for pain and suffering, or even nominal damages to support a claim for punitive damages under the Survivor's Act would be superfluous. Accordingly, where all of the essential elements of a punitive damages claim are established, such a claim may be sustained without proof of pain and suffering.
We also conclude that the recent amendments to the Punitive Damages Act, requiring an award of compensatory damages as a predicate for a punitive damages award, are inapplicable to a survival action where the decedent was killed instantly. That provision, as previously noted, took effect after this matter was commenced and thus does not govern the disposition of this appeal. Nevertheless, we do not believe that the Legislature, in enacting that provision, intended to foreclose a remedy for a death caused by egregious conduct. Governor Whitman's statement accompanying the signing of the Punitive Damages Act explained that the legislation was intended to “strike[] a fair balance between preserving a person's right to sue and controlling nuisance suits that drive up the cost of doing business in New Jersey.” Office of the Governor, News Release at 1 (June 29, 1995). Governor Whitman's statement supports our finding that the statutory requirement indicates a valid legislative attempt to curtail suits seeking redress for allegedly malicious conduct that causes no substantial injury. The mechanism chosen by the Legislature to limit awards in suits involving insubstantial injury is consistent with the correlation in most cases between the harm suffered by a plaintiff and the amount of a compensatory damages award. We do not believe, however, that the Legislature could have intended to bar a claim for punitive damages where, as here, a party suffered the grievous and, indeed, ultimate injury of death, because of the mischance that the victim died instantly. See Strasenburg v. Straubmuller, 146 N.J. 527, 541-42 ("It is a venerable principle that a law will not be interpreted to produce absurd results.”) (citation and subsequent history on remand omitted); Adams v. Cooper Hosp., 295 N.J. Super. 5 (App. Div. 1996) ("Statutes must be read sensibly so as to provide interpretations consistent with their legislative purpose and to avoid unreasonable results.”), certif. denied, 148 N.J. 463 (1997). That result clearly would be inconsistent with the underlying purposes of punitive damages, and would provide an unwarranted benefit to those defendants who inflict the most profound harm.
We note but reject Coastal's concern that our holding will ensure that every wrongful death action will give rise to a claim for punitive damages. Beyond proof of a negligently-caused death, the assertion of a claim for punitive damages requires a plaintiff to prove by clear and convincing evidence that defendant's conduct amounted to a “deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to the consequences.” Berg v. Reaction Motors Div., 37 N.J. 396, 414 (1962), codified at N.J.S.A. 2A:15 15.10. Moreover, we observe that in every wrongful death action in which the decedent survived her injuries, however briefly, punitive damages may lie provided defendant's conduct met that standard; we perceive no legitimate reason why the remedy should be different for a decedent who was killed instantly.
We reject Coastal's contentions that on this record there was inadequate factual support for the imposition of punitive damages, and that the amount of the punitive damages award was excessive, substantially for the reasons set forth in the opinion of the Appellate Division. 313 N.J.Super. at 190-98, 201-03.
IV
We affirm the judgment of the Appellate Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN,
and COLEMAN join in JUSTICE STEIN's OPINION. JUSTICE GARIBALDI
has filed a separate concurring opinion.
SUPREME COURT OF NEW JERSEY
A-
15 September Term 1998
HAROLD E. SMITH, Executor of the
Estate of Helen V. Robbins,
Deceased,
Plaintiff-Respondent,
v.
ALAN L. WHITAKER, JR.,
Defendant,
and
COASTAL OIL OF NEW YORK, INC.
(incorrectly pled as COASTAL OIL
COMPANY OF NEW YORK, INC. and
formerly known as BELCHER COMPANY
OF NEW YORK, INC.),
Defendant-Appellant.
GARIBALDI, J., concurring.
I agree that plaintiff established a valid claim for
punitive damages under the Survivor's Act, N.J.S.A. 2A:15-3 for
the tragic accident that occurred in 1990. As the Court
observed, effective October 27, 1995, the Legislature enacted the
Punitive Damages Act (the "Act"), N.J.S.A. 2A:15-5.9 to -5.17.
The Legislature's purpose in enacting the Act was to establish
more restrictive standards with regard to the awarding of
punitive damages. See N.J.S.A. 2A:15-5.9; Assembly Insurance
Committee Statement, Senate, No. 1496-L. 1995, c. 142 (stating
the restrictions imposed on the awarding of punitive damages).
For example, that Act requires an award of compensatory damages
as a statutory precedent for an award of punitive damages and
disallows nominal damages as a basis for a punitive damages
claim. N.J.S.A. 2A:15-5.13(b) and (c).
The Court properly recognized that the Act did not govern
the disposition of this appeal, as it did not take effect until
October 27, 1995. The parties, also recognizing that the Act was
not applicable, did not argue or brief whether the Act would be
applicable in future matters where circumstances were as
egregious as those presented in this appeal. Nevertheless, the
Court reached out for that issue and concluded that the
Legislature did not intend to foreclosure punitive damages as a
remedy for death caused by egregious conduct.
I would not have reached that issue. I recognize that the
Court's holding in that regard is dicta. Nevertheless, such an
important decision should not be made unless the issue is before
the Court, and is fully argued and briefed. That is particularly
true when the Court's interpretation appears to be contrary to
the clear legislative mandate indicating that the purpose of the
Act was to restrict punitive damages, rather than expand them.
NO. A-15 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
HAROLD E. SMITH, Executor of the Estate
of Helen V. Robbins, Deceased,
Plaintiff-Respondent,
v.
ALAN L. WHITAKER, JR.,
Defendant,
and
COASTAL OIL OF NEW YORK, INC.
(incorrectly pled as COASTAL OIL COMPANY
OF NEW YORK, INC. and formerly known as
BELCHER COMPANY OF NEW YORK, INC.),
Defendant-Appellant.
DECIDED July 20, 1999
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY Justice Garibaldi
DISSENTING OPINIONS BY
Footnote: 1 1 Smith died in 1995 and Grant Keller was appointed to
replace him as plaintiff.
Footnote: 2 2 The rule was
probably . . . a product of the felony-merger rule -- a
doctrine that disallowed recovery for an act that
constituted both a tort and a felony.” Summerfield v.
Superior Court, Maricopa Cty.,
144 Ariz 467, 471,
698 P.2d 712, 716 (1985). Under this rule a tort was
considered less important than an offense against the
Crown and, as a result, was merged into, or pre-empted
by, a felony. As noted in Moragne v. State Marine
Lines,
398 U.S. 375, 382,
90 S.Ct. 1772, 1778,
26 L.Ed 2d 339, 346 (1970),
[t]he doctrine found practical justification
in the fact that the punishment for the
felony was death of the felon and the
forfeiture of his property to the Crown;
thus, after the crime had been punished,
nothing remained of the felon or his property
on which to base a civil action.