James J. Ross

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Punitive damages in tort law, awarded to the plaintiff in addition to full compensation for injuries, are said to punish the defendant, to restrain him from committing the same act again, and to deter others from following his example. Nevertheless, “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage … or such a conscious and deliberate disregard of the interests of others that [the defendant’s] conduct may be called willful or wanton.”

An anomalous area exists in the awarding of punitive damages. Under the general rule, punitive damages cannot be awarded in a wrongful death action unless the governing provision expressly or by clear implication confers the right to such damages. The reason given for this rule is that punitive damages are mere incidents to the cause of action, a windfall to the decedent’s representative who suffered no personal injury. American courts have universally accepted the rule that a civil action for wrongful death was not recognized at common law and that no such cause of action may be maintained except under statute. Furthermore, the statutes creating such a cause of action have been construed as not authorizing the imposition of exemplary damages. As a result of this construction, it may be cheaper for the defendant to kill, rather than injure, the victim. A defendant who willfully or wantonly injures a victim may be forced to pay punitive damages in addition to compensating the victim for any injury incurred; whereas, a defendant who kills a victim while engaged in the same willful or wanton act will not be required to pay punitive damages.

This anomaly will be examined by focusing specifically upon Ohio law. The historical setting of wrongful death actions must first be analyzed, however, because the present status of punitive damages in wrongful death actions can be properly understood only in light of past developments. An explanation of the Ohio approach to this area will follow. Additionally, current trends in this area will be examined in order to compare and contrast the Ohio position and to develop grounds for liberalization and reform. Finally, a preferred approach to the area will be offered: an approach that appears more logical considering the purposes behind an award of punitive damages.


James J. Ross is an Associate with Evans, Steege and McNees, Beaver Falls, Pa. B.A., Baldwin-Wallace College, 1976; M.P.A., University of Tennessee at Knoxville, 1977; J.D., Ohio Northern University, 1980.

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