I know tort is not a crime. I was responding to ‘COYOTE BLOG’ where the term “crime” is used in the opening sentence. Marlboro? I thought we were discussing Vioxx.

Mark

Tort isn’t crime. The whole idea of tort boils down to a simple example: if I run into your car with my car, you sue me to fix your car.

If I bounced off of seven other cars in the process of running into your car, then you can still only recover for the damage to your own car. The other seven folks have to sue me themselves, and each can only be compensated for the damages that he suffered. There’s ways you all can sue me at once, but that isn’t what is going on in the Marlboro case.

Punitive damages are pretty tricky when introduced into Tort. The theory is that they are supposed to deter the bad conduct. So, I guess in the car example, if I was a really bad man who went around crashing my car with impunity, the theory would be that you could collect extra money from me to deter me from crashing into other people so often. Society is piggybacking on your lawsuit, I guess.

Why you get the money, I don’t know. It seems to me that if I am a danger to society, society should get it. That would be usually called a fine (e.g. a $10,000 fine for reckless driving). But this isn’t a fine, and since it is not a criminal proceeding, I don’t get all those criminal protections (e.g., beyond a reasonable doubt, 5th Amendment non-incrimination, etc.). Heck, in tort, you only have to prove more likely than not (i.e., 51% chance of being “guilty”).

It doesn’t seem to matter that the very word “punitive” means “punish” which is what the criminal law system is supposed to do.

So…now the other seven folks line up and sue me. Do they all get punitive damages, too? How many times do I get punished for the same crime…I mean, the same tort? And how do you decide the number when there are a whole bunch of victims, but you don’t really know how many, much less how many will eventually sue and ask for punitive damages?