Key Concept 9: Understand the differences between compensatory and punitive damages1
Compensatory and Punitive Damages
Tort law involves civil liability between private parties. A plaintiff who wins a
tort suit usually recovers the actual damages or compensatory damages that she suffered
because of the tort. Depending on the facts of the case, these damages may be for direct
and immediate harms, such as physical injuries, medical expenses, and lost pay and
benefits, or for harms as intangible as loss of privacy, injury to reputation, and emotional
In cases where the defendant’s behavior is particularly bad, injured victims may
also be able to recover punitive damages. Punitive damages are not intended to
compensate tort victims for their losses. Instead, they are designed to punish flagrant
wrongdoers and to deter them and others from engaging in similar conduct in the future.
Theoretically, therefore, punitive damages are reserved for the worst kinds of
wrongdoing. Punitive damages have always been controversial, but they have grown
more so in recent years due to the size of some punitive damage awards and the
perception that juries are awarding them in situations where they are not justified.
The common law traditionally recognized two defenses to negligence:
contributory negligence and assumption of risk. In many states, however, one or both of
these traditional defenses has been superseded by new defenses called comparative
negligence and comparative fault.
Contributory negligence is the plaintiff’s failure to exercise reasonable care for
her own safety. Where it still applies, contributory negligence is a complete defense for
the defendant if it is a substantial factor in producing the plaintiff’s injury. Traditionally,
even a minor failure to exercise reasonable care for one’s own safety, only a slight
departure from the standard of reasonable self-protectiveness, gave the defendant a