The primary purpose of every personal injury case is to allow a plaintiff who
proves that they were injured by the wrongful acts of a defendant to recover
money, known as “compensatory damages,” from the defendant. Compensatory
damages are intended to restore the plaintiff to the position they would have
occupied if not for the defendant’s acts. They include all actual financial losses
suffered by the plaintiff because of the injury, such as medical bills and lost
wages, and amounts meant to compensate the plaintiff for other resulting losses
and hardships that do not have set monetary values, such as pain and suffering,
emotional distress and the failure of enjoyment of life.
In a personal injury case where the defendant’s wrongful acts are particularly
egregious, the plaintiff may also recover “punitive damages,” an amount of
money over what is necessary to reimburse or compensate for the plaintiff’s
losses. You should know the following essential things about recovering punitive
damages in North Carolina.
North Carolina’s punitive damages statute sets forth the two purposes of punitive
“Punitive damages may be awarded, in an appropriate case …, to punish a
defendant for egregiously wrongful acts and to deter the defendant and others
from committing similar wrongful acts”.
First, punitive damages, true to their name, are a means of punishing the defendant by requiring the payment of money in addition to the plaintiff’s compensatory damages – in effect, a penalty. In North Carolina, as in most states, the defendant pays it in full.
Second, punitive damages are awarded as a deterrent, warning the defendant and others of the possible consequences of committing certain types of “egregiously wrongful” acts. This is why punitive damages are often referred to as “exemplary damages”.
As the statute provides, punitive damages may be awarded in North Carolina
only “in an appropriate case.” Another section of the law explains what that
To recover punitive damages, the plaintiff must first prove that the defendant is
liable for the compensatory damages resulting from the plaintiff’s injury. More
importantly, the plaintiff must also prove that one of three specified “aggravating
factors”, either fraud, malice, or willful or wanton conduct, was “related to” those
compensatory damages. Furthermore, the aggravating factor must be proved by
“clear and convincing evidence,” a standard of proof that is higher than that
required from the plaintiff for any of the other facts at issue in the case.
The aggravating factor most often relied upon to support the recovery of punitive
damages in North Carolina personal injury cases is “willful or wanton conduct.”
In another section of the statute, it is defined as the defendant’s “conscious and
intentional disregard of and indifference to the rights and safety of others” and as
“more than gross negligence.”
Suppose a case that might result in an award of punitive damages is settled
before trial. In that case, the amount of any punitive damages paid to the plaintiff
will be negotiated between the plaintiff’s attorney, the defendant’s attorney, and
the insurance company. Such an agreed-upon amount will likely be based
primarily on the amount of the compensatory damages paid in the settlement and
jury verdicts awarding punitive damages in similar cases.
Absent any settlement, a jury will determine the amount of punitive damages. The North Carolina statute requires that, in deciding upon a dollar amount, the jury must consider the two purposes of punitive damages, to punish the defendant and to deter the type of misconduct at issue. Other factors that the jury may consider include the reprehensibility of the defendant’s conduct, the likelihood that serious harm to others would result from the defendant’s conduct, the degree to which the defendant was aware of the probable consequences of the behavior, any similar past conduct by the defendant and its frequency, the actual damages suffered by the plaintiff and the ability of the defendant to pay punitive damages.
Every state that allows plaintiffs to recover punitive damages at trial somehow
limits the dollar amount of any such award. The North Carolina statute “caps”
punitive damages generally at a maximum of either three times the amount of the
plaintiff’s compensatory damages or $250,000, whichever is higher. If the jury
returns a verdict for a higher amount, the court will reduce their award to the
applicable maximum. However, there is a critical exemption from the cap – it
does not apply in a case where a plaintiff’s injury is caused by a defendant
“driving while impaired” (by alcohol or drugs) in violation of North Carolina law.
Our experienced attorneys at Kelly & West have been helping clients with
personal injury cases for 40 years. If you or a loved one has been injured as the
result of the negligence or other misconduct of another, and you are considering
taking legal action against them, you can call us and arrange for a free
“Reggie Kelly is a fantastic attorney with fantastic paralegals. My wife and I have been using him and his firm since 1983 when we first purchased property in Harnett County 37 years ago. He offers excellent legal advice and guidance. He never gets in a hurry to get us out the door because of his next appointment. He always takes the time needed to check out all of the issues that might come up. Reggie Kelly is a proud American and he loves our country and he wants everyone to do well. Reggie Kelly is an even finer person than he is a fantastic attorney and we are very fortunate to also be able to call him and his wife Cheryl our friends. We give him a 10 STAR Review!”