413 S.E.2d 897 (W.Va. 1991), 20284, Garnes v. Fleming Landfill, Inc.

Docket Nº20284.
Citation413 S.E.2d 897, 186 W.Va. 656
Opinion JudgeNEELY, Justice:
Party NameJulian GARNES and Sharon Garnes, Plaintiffs Below, Appellees, v. FLEMING LANDFILL, INC. and John T. Fleming, Defendants Below, Appellants.
AttorneyArden J. Curry, Arden J. Curry, II, David K. Schwirian, Pauley, Curry, Sturgeon & Vanderford, Charleston, for appellants., Benjamin N. Snyder, Clendenin, for appellees. Arden J. Curry, Arden J. Curry, II, David K. Schwirian, Pauley, Curry, Sturgeon & Vanderford, Charleston, for appellants. Benja...
Judge PanelGreen Oil v. Hornsby, 539 So.2d 218, 223-224 (1989) (quoting Houston, J., concurring specially in Aetna Life Ins. Co. v. Lavoie, 505 So.2d 1050, 1062 (Ala.1987)).
Case DateDecember 05, 1991
CourtSupreme Court of Appeals of West Virginia

Page 897

413 S.E.2d 897 (W.Va. 1991)

186 W.Va. 656

Julian GARNES and Sharon Garnes, Plaintiffs Below, Appellees,


FLEMING LANDFILL, INC. and John T. Fleming, Defendants

Below, Appellants.

No. 20284.

Supreme Court of Appeals of West Virginia.

December 5, 1991

Page 898

Submitted Oct. 1, 1991.

Rehearing Denied Feb. 13, 1992.

Page 899

[186 W.Va. 658] Syllabus by the Court

1. Syllabus Point 3 of Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), allowing a jury to return punitive damages without finding compensatory damages is overruled. Punitive damages must bear a reasonable relationship to the potential of harm caused by the defendant's actions.

2. Under our system for an award and review of punitive damages awards, there must be: (1) a reasonable constraint on jury discretion; (2) a meaningful and adequate review by the trial court using well-established principles; and (3) a meaningful and adequate appellate review, which may occur when an application is made for an appeal.

3. When the trial court instructs the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:

(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the defendant's actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater.

(2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant's conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.

(3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.

(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.

Page 900

[186 W.Va. 659] (5) The financial position of the defendant is relevant.

4. When the trial court reviews an award of punitive damages, the court should, at a minimum, consider the factors given to the jury as well as the following additional factors:

(1) The costs of the litigation;

(2) Any criminal sanctions imposed on the defendant for his conduct;

(3) Any other civil actions against the same defendant, based on the same conduct; and

(4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff.

Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the jury know them, but that will require downward adjustment by the trial court through remittitur because of factors that would be prejudicial to the defendant if admitted at trial, such as criminal sanctions imposed or similar lawsuits pending elsewhere against the defendant. However, at the option of the defendant, or in the sound discretion of the trial court, any of the above factors may also be presented to the jury.

5. Upon petition, this Court will review all punitive damages awards. In our review of the petition, we will consider the same factors that we require the jury and trial judge to consider, and all petitions must address each and every factor set forth in Syllabus Points 3 and 4 of this case with particularity, summarizing the evidence presented to the jury on the subject or to the trial court at the post-judgment review stage. Assignments of error related to a factor not specifically addressed in the petition will be deemed waived as a matter of state law.

Arden J. Curry, Arden J. Curry, II, David K. Schwirian, Pauley, Curry, Sturgeon & Vanderford, Charleston, for appellants.

Benjamin N. Snyder, Clendenin, for appellees.

NEELY, Justice:

Julian Garnes and Sharon Garnes brought an action against Fleming Landfill and John T. Fleming in the Circuit Court of Kanawha County alleging that Mr. Fleming's operation of a solid waste disposal facility constituted a nuisance. A jury awarded the Garnes $105,000 in punitive damages, but no compensatory damages. After the circuit court denied Mr. Fleming's motions for judgment notwithstanding the verdict, a new trial, and remittitur, Mr. Fleming petitioned this Court for an appeal. Among other assignments of error, Mr. Fleming alleged that the award of punitive damages in this case violated due process of law. On 10 January 1991, this Court denied the petition. Mr. Fleming then filed a petition for a writ of certiorari in the U.S. Supreme Court and the U.S. Supreme Court remanded the case to us for reconsideration in light of its opinion in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). We reverse based on Haslip.


In 1978, Mr. Fleming opened a landfill on Mundy Hollow Road in Kanawha County, near the house of Mr. and Mrs. Garnes. Both plaintiffs and defendants offered numerous witnesses who testified about the problems (or lack thereof) caused by the landfill. The jury awarded Mr. and Mrs. Garnes no compensatory damages, but $105,000 in punitive damages. 1

Page 901

[186 W.Va. 660] II.


Courts have long awarded punitive damages in tort cases. For just as long, commentators have questioned the justice of punitive damages. Notwithstanding commentators' questions, punitive damages have stood the test of time. Professor Sedgwick traces punitive damages to the earliest days of civil jury trials. He says that when courts developed a rule for punitive (or exemplary) damages "nothing was further from the mind of the judges than that they were establishing a new doctrine; they founded the decision entirely on existing precedent." T. Sedgwick, A Treatise on the Measure of Damages, § 350 (9th ed. 1913). The doctrine has existed since the earliest days in American jurisdictions. Id. at § 351.

The U.S. Supreme Court has approved punitive damages on numerous occasions. In Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852), the Court said:

We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured.

See also Missouri Pacific R. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885); Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729 (1886); Minneapolis and St. Louis R. Co. v. Beckwith, 129 U.S. 26, 9 S.Ct. 207, 32 L.Ed. 585 (1889); and Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). In fact, the U.S. Supreme Court has overseen the expansion of punitive damages. See, e.g., Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) (affirming the assessment of punitive damages under 42 U.S.C. § 1983, and the use of the common law method to determine the amount of the award.)

Recent newspaper headlines and law review articles about the record size of punitive damages awards suggest that something is changing. Juries are awarding punitive damages more frequently and in larger amounts. See M. Wheeler, "A Proposal For Further Common Law Development of the Use of Punitive Damages in Modern Product Liability Litigation," 40 Ala.L.Rev. 919 (1989). However, this is not a completely new phenomenon; commentators have decried the problem of large and unpredictable punitive damages awards for years. See, e.g., C. Morris, "Punitive Damages in Tort Cases," 44 Harv.L.Rev. 1173 (1931). The U.S. Supreme Court addressed punitive damages awards in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989) and held that punitive damages awards in civil cases between private parties could not violate the excessive fines clause of the Eighth Amendment; however, the Court expressly reserved judgment on the due process challenge to punitive damages awards. In Haslip, the Court finally held that punitive damages awards could violate due process in some cases, and the Court attempted to establish criteria for determining whether a particular punitive damages award is outside legitimate due process boundaries.


Although law and economics is a "new" trend in law schools, commentators have long recognized the "law and economics" effect of punitive damages. In 1931, Professor Morris noted that damages generally are reparative and admonitory. Morris, supra, at 1177. Punitive damages are necessary

Page 902

[186 W.Va. 661] when compensatory damages are not large enough to convince a defendant or future defendants to take precautions against similar problems. For instance, a man wildly fires a gun into a crowd. By sheer chance, no one is injured and the only damage is to a $10 pair of glasses. A jury reasonably could find only $10 in compensatory damages, but thousands of dollars in punitive damages to...

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