Damages for Dignitary Torts What is a dignitary tort? Torts that assault or impair our dignity but don’t necessarily cause physical or pecuniary harm. Examples: Assault, Defamation, False Imprisonment, IIED, NIED, Malicious prosecution, Invasion of privacy As with pain & suffering damages, difficult valuation issues arise Levka v. City of Chicago P sues for emotional distress resulting from illegal search after misdemeanor arrest. Awarded $50,000 for emotional distress but 7th Circuit remits to $25,000.

What could Levka’s attorney have done differently to convince the appellate court of her emotional distress? Focus on plaintiff’s harm Emphasize particular frailty Reframe inferences court drew from evidence Bolster psychological evidence Focus on defendant’s conduct Try to frame it as more outrageous than court characterized it

How courts generally approach damages with dignitary torts: In these types of torts, courts generally attempt to gauge damages in light of the two factors we just discussed: 1) Plaintiff’s injury (especially if particular frailty) and 2) Defendant’s conduct (how outrageous?) These are applied as a sliding scale Are there problems w/ focusing on D’s conduct? Are there problems w/ focusing on P’s frailties?

How relevant are other jury verdicts to determining “excessiveness”? o Levka court used “remittitur” – a practice where district or appellate courts order a reduction in damages because they are “grossly excessive.” Most courts use remittitur at some point and they have a lot of discretion. Court usually gives the option of a new trial so P can choose between new trial and reduction of damages. See Mo SCT Rules 78.10

Remittitur and Comparator Verdicts o Some courts, like Levka, are starting to use comparator verdicts to make remittitur decisions (i.e., re whether a particular decision is grossly excessive). o Are such verdicts relevant to the issue of excessiveness? o What kind of mathematical precision do we want judges to engage in here?

Damage awards for constitutional violations – the rule in Carey v. Piphus o Why does P only get $1 in damages? o Why won’t SCT presume damages for a procedural due process violation (or for any constitutional violation for that matter)? o What kind of damages could P try to recover?

The Value of Constitutional Rights? The Court dances around the question of whether constitutional rights have an innate value – do they? If so, shouldn’t we compensate for the mere violation of a right? What issues arise if we compensate for a right violation without actual damages (like those the plaintiff suffered in Levka)? Note that SCT takes same approach in Stachura (p. 149 n.1) that it did in Carey v. Piphus.

Goals of Punitive Damages Punishment Notions of public morality and “just deserts” require that Ds “pay” for their bad actions Deterrence Compensatory damages, criminal sanctions and/or government safety standards don’t sufficiently deter the conduct at issue so punitive damages are necessary. Focus is on D’s behavior not P’s losses

Why don’t compensatory damages, criminal fines, safety standards sufficiently deter? Difficulty of measuring some damages may cause under-compensation & under deterrence Some wrongs are small but nevertheless outrageous (damage awards may not deter) E.g., Levka – strip search of all female arrestees Some behavior is extremely profitable (beyond awards of compensatory damages) Some Ds profit in ways that compensatory damages can’t account for – i.e., pleasure at causing another pain Criminal fines are usually quite small (even smaller than compensatory awards) Safety standards are often not enforced by administrative officials & fines are often small