In Illinois, at least, a person who is suing another person in an automobile accident cannot just “jump” and demand “punitive damages”—or those meant to “punish” and deter a wrongdoer. The person suing (known as the “plaintiff”) must seek leave of Court and ask for permission to do so and follow proper protocol.
The law can be found in the Illinois Code of Civil Procedure at 735 ILCS 5/2-604.1:
“In all actions on account of bodily injury or physical damage to property, based on negligence . . . where punitive damages are permitted no complaint shall be filed containing a prayer for relief seeking punitive damages. However, a plaintiff may, pursuant to a pretrial motion and after a hearing before the court, amend the complaint to include a prayer for relief seeking punitive damages. . .”
Further, the plaintiff must also establish at such a hearing that there is a “reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” See id. Certain timing issues also exist. Thereafter, at trial the plaintiff must prove the case as well of course.
Courts have found that “punitive or exemplary damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others ***." See e.g. Barton v. Chicago & N. W. Transp. Co., 325 Ill. App. 3d 1005, 1030 (1st Dist. 2001). Driving while intoxicated or under the influence (often referred to as a “DUI”) may very well warrant imposition of punitive damages.
As texting and driving is becoming ever more dangerous—especially by younger, teen drivers—more punitive damages may yet be seen by plaintiffs injured as a result. At least one jurisdiction has even considered the potential liability of a person who perhaps knowingly texted a person who was driving (as opposed to being the actual driver).