Punitive damages
Damages awarded over and above compensatory damages to punish particularly egregious conduct and deter similar conduct in future.
What it means in practice.
Available in the United States and (rarely) in some Commonwealth jurisdictions. Caps, ratios to compensatory damages, and the standard of conduct required all vary by state.
Punitive damages punish a defendant and deter others. They are not compensation for the injury, which is why they need more than ordinary carelessness: conduct such as driving on drugs or drunk, fraud, or a deliberate disregard for safety.
States treat them very differently. Some cap them by statute; Arkansas’s Supreme Court struck its cap down because the state constitution forbids laws limiting recovery for injury. Juries must also be instructed correctly: Virginia’s Supreme Court sent a drunk driving case back because the jury was told punitive damages are “generally not favored.”
Punitive damages are also taxed differently. The federal exclusion for injury damages in IRC §104(a)(2) expressly covers damages “other than punitive damages,” so a punitive award is generally taxable income.
How it works in different places.
| Where | How it works | Source |
|---|---|---|
| Arkansas | The statutory cap on punitive damages was struck down and a $42 million punitive award upheld. | Bayer CropScience v. Schafer (Ark. 2011) |
| Ohio | Statutory limits apply; courts have cut punitive awards in malpractice cases to the limit. | Potts v. Durrani (Ohio Ct. App. 2023) |
| Kansas | A driver who tested positive for marijuana and cocaine and admitted the drugs contributed to the crash could face a punitive claim. | Adamson v. Bicknell (Kan. 2012) |
| Virginia | After a DUI rear end crash the jury awarded $500 each in punitive damages; the case was sent back because the jury had been wrongly told punitive damages are generally not favored. | Cain v. Lee (Va. 2015) |
| South Dakota | An insurer that underpaid an underinsured motorist claim owed the claim value, bad faith damages and $890,000 in punitive damages. | Fiechtner v. American West Ins. (S.D. 2025) |
| Arizona | An inmate beaten at a county jail won $440,532 in compensatory and $195,000 in punitive damages; affirmed. | Flanders v. Maricopa County (Ariz. Ct. App. 2002) |
A worked example.
A $26 million punitive verdict and the Ohio limits: Potts v. Durrani (2023)
- What happened
- The colon was pierced by a trocar during surgery; sepsis followed
- Compensatory damages
- Over $9 million
- Punitive damages found
- $26 million
- Punitive damages after the cap
- $350,000
- Loss of consortium
- $4 million cut to $250,000
The jury found fraud and a catastrophic injury. The trial court applied Ohio’s statutory limits, and the appeals court affirmed in part and sent back only the interest calculation.