RE: Confusion about vicarious liability

[Rip Verkerke <ripv@virginia.edu>]

A student asked:

One more simple point that I am getting lost on...

Can punitive damages be awarded on a negligent theory, or
only on a willful and wanton theory?  The way I read the
Livigni case suggested that "willful and wanton"
(hiring, retention, or supervision) had to be alleged in
order to get punitive damages, and that an allegation of
"negligence" (in hiring, retention, or supervision) would
only result in compensatory damages. Is that a legal rule,
just the way things typically work, or wrong altogether?

Thanks!

Rip responded:

You are absolutely correct that Livigni requires "willful and wanton"
retention in order to award punitive damages.  That's an unusual term for
it, but all other jurisdictions require some heightened level of fault to
support punitives.  Most jurisdictions look for recklessness or some
similarly egregious failure to take care.

As in Livigni, however, the facts that support a finding of negligence often
will suffice to meet the higher fault standard as well.  In particular,
courts seem more than willing to allow punitives when high-risk employers
fail to take needed precautions in screening employees or responding to
notice of dangerous propensities.

I hope that is helpful.

Warm regards,

Rip