Elder-Law-Advocate

Punitive Damages

In elder financial abuse cases, punitive damages are recoverable under California’s Elder Abuse and Dependant Adult Civil Protection Act (EADACPA).  These damages are in addition to pain and suffering, or actual out-of-pocket losses.  Punitive damages are “exemplary” – they are to punish the wrongdoer and set an example to society that egregious acts of elder or senior financial abuse will not be tolerated in a civilized society.

The acts must truly be egregious.  Negligence will not warrant the imposition of punitive damages.  Generally, the court will require a finding that the defendant acted with oppression, fraud or malice, and that finding must be shown by clear and convincing evidence.  In most civil trials, the plaintiff’s burden of proof is a mere “preponderance” of the evidence.  If the jury determines that the evidence tips just slightly in favor of the plaintiff, then that is enough to render a verdict.

“Clear and convincing” evidence is more akin to the “beyond a reasonable doubt” requirment that exists in criminal cases.  The evidence must be overwhelming.

There exists another element in EADACPA cases regarding punitive damages: “Recklessness”.  However, the courts have recently ruled that a finding of recklessness, even using a clear and convincing standard, is not enough to warrant punitive damages unless either oppression, fraud or malice is also shown to have occurred.

With a strong factual case, the threat of a jury imposing punitive damages can often force the defendant to give up the fight early.  Punitive damages, like a fraudulent act, generally cannot be discharged in bankruptcy.   A punitive damages judgment will follow the defendant the rest of his or her life until paid in full.

The court may have the discretion to reduce the amount of punitive damages awarded, but the jury is not restricted in determining a proper amount to punish the defendant and set an example to society.  The jury has the responsibility, where the facts warrant such an award, to include those damages as part of its verdict.

If you or a loved one have been the victim of senior abuse, or elder financial abuse, then pick up the phone and give us a call.  We’re here to help.  The initial telephone consultation is always free.

Copyright.  2007 – 2012.  Law Office of George F. Dickerman.  All rights reserved.

Elder-Law-Advocate