G.J.D. ex rel. G.J.D. v. Johnson

OPINION ZAPPALA, Justice. We granted allocatur to determine whether punitive damages may be recovered from the estate of a deceased tortfeasor. We hold that such damages may be recovered, and therefore affirm. Appellee G.J.D. and Darwin Thebes were involved in an intimate relationship for approximately five years. During that time Thebes took sexually explicit photographs1 of G.J.D. which he then kept hidden. G.J.D. did not see the photographs until several years later after she had ended her relationship with Thebes. G. J.D. alleged that Thebes distributed photocopies of the photographs throughout the community when he learned she was ending their relationship. The photocopies included GJ.D.’s address and phone number as well as captions which implied that she was a prostitute. The distribution of the photocopies was calculated to ensure that they would be found by G.J.D.’s friends and relatives including her minor children, her mother, her brother, and her employer. The distribution of the photocopies ended when G.J.D. filed a complaint against Thebes containing counts of defamation, intentional infliction of emotional distress, false light invasion of privacy, and invasion of privacy by publicity given to private life. Before the ease came to trial, Thebes committed suicide and his sister Geraldine Johnson, Appellant, as executrix of his estate, was substituted as defendant. The case was then tried before a jury which awarded both compensatory and punitive damages to G.J.D. and to her children as co-plaintiffs.2 The Superior Court upheld the award of damages, holding that where a tortfeasor dies after the suit is instituted but before the completion of trial, punitive damages may be assessed against the estate of the deceased tortfeasor. On appeal, neither the decedent’s culpability nor the award of compensatory damages is at issue. Appellant argues only that the recovery of punitive damages against the decedent’s estate is improper because neither of the recognized policy objectives of punitive damages, punishment and deterrence, will be [1129] fulfilled when the person to be punished and deterred is deceased. In Pennsylvania, the “function of punitive damages is to deter and punish egregious behavior.” Martin v. Johns-Manville Corp., 508 Pa. 154, 169, 494 A.2d 1088, 1096 (1985) (citations omitted). Punitive damages may be imposed for “torts that are committed willfully, maliciously, or so carelessly as to indicate wanton disregard of the rights of the party injured.” Thompson v. Swank, 317 Pa. 158, 159, 176 A. 211, 211 (1934). Punitive damages are not awarded as additional compensation but are purely penal in nature. See Colodonato v. Consolidated Rail Corp., 504 Pa. 80, 470 A.2d 475 (1983); Int’l Electronics Co. v. N.S.T. Metal Prod. Co., 370 Pa. 218, 88 A.2d 40 (1952). Although the issue of whether the recovery of punitive damages is permitted against a deceased tortfeasor’s estate is an issue of first impression in our Commonwealth, it has been addressed by the courts and legislatures of thirty-three jurisdictions. In twenty-eight of these jurisdictions recovery is not allowed. Fourteen states 3 have enacted legislation explicitly precluding such a recovery, and in the states which have no statutory bar to recovery, the courts are split as to whether recovery will be allowed. The majority of courts that have addressed this issue have held that punitive damages may not be recovered from the estate of the tortfeasor.4 The reasoning behind these decisions is essentially that the primary purposes of imposing punitive damages are not furthered when the tortfeasor is deceased. See Allen v. Anderson, 93 Nev. 204, 562 P.2d 487 (1977); see also Woodner at 940 (D.C.); Thompson at 408 (Minn.). These courts have found that the general deterrent element depends upon a perception by others that the tortfeasor is being punished. See Parker at 525 (Wyo.); State Farm at 449 (N.M.); Lohr at 846 (Fla.). They further reason that if it is the innocent estate and beneficiaries that are punished and not the tortfeasor himself, the general deterrent element becomes diffused arid is speculative at best. See Quackenbush at 1521 (D.Kan.); State Farm at 449 (N.M.); Lohr at 846 (Fla.).5 Five states currently permit recovery of punitive damages from the estate of a deceased tortfeasor.6 Some of the courts have based their decisions on policy considerations other than, or in addition to, the policy objec [1130] tives recognized in Pennsylvania, those of punishment and deterrence of the tortfeasor. For example, Texas courts have held that punitive damages include reimbursement for inconvenience, for attorneys’ fees, and for losses too remote to be considered compensation. Hofer v. Lavender, 679 S.W.2d 470 (1984). In West Virginia, in addition to the traditional functions of punishment and deterrence, punitive damages are utilized to provide additional compensation to the victims of reckless and wanton conduct. Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8 (1982). In Alabama, recovery of punitive damages from a deceased tortfeasor’s estate is provided for by the Alabama Supreme Court’s interpretation of the state’s wrongful death statute. In Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954), the court held that the general deterrent effect of punitive damages was sufficient justification under the state’s wrongful death statute to allow such damages against a decedent’s estate. The court in Ellis v. Zuck, 546 F.2d 643 (5th Cir.1977), relied on the reasoning in Shirley to hold that the recovery of punitive damages from estates is not limited to wrongful death actions. The Ellis court stated that all damages recoverable under a wrongful death action in Alabama are punitive and survive the death of the tortfeasor. The court further determined that the legislature intended to allow the recovery of punitive damages against a deceased tortfeasor’s estate in order to deter others in similar situations. Therefore, the court concluded that punitive damages also survive the death of the tort-feasor and may be recovered from his estate in actions other than wrongful death actions. Most recently, the courts in Montana and Illinois have also allowed recovery of punitive damages from a deceased tortfeasor’s estate. The Montana Supreme Court interpreted that state’s punitive damages statute according to the plain language of the statute. It provides that “a jury may award ... punitive damages for sake of example and for the purpose of punishing the defendant.” Mont. Code Ann. § 27-1-220 (1995). The court held that the appropriateness of imposing punitive damages in order to set an example to the publie is a matter for the trier of fact to determine. Tillett v. Lippert, 275 Mont. 1, 909 P.2d 1158 (1996). Finally, in Illinois, the court allowed punitive damages to be imposed against the estate of a deceased tortfeasor in Penberthy v. Price, 281 Ill.App.3d 16, 216 Ill.Dec. 902, 666 N.E.2d 352 (1996). There the court noted that in Illinois punitive damages serve to punish the tortfeasor and to deter the tort-feasor and others from engaging in like conduct. Id. at 21, 216 Ill.Dec. 902, 666 N.E.2d at 356. The court noted that the conduct in Penberthy, driving under the influence, presents important policy reasons for allowing punitive damages. The court held that the general deterrent effect combined with strong public policy against drunken driving justified the imposition of punitive damages. Id. at 22, 216 Ill.Dec. 902, 666 N.E.2d at 357. A similar approach was taken by a Pennsylvania trial court in Schwab v. Bates, 12 Pa.D. & C.4th 162 (1991). In Schwab, the trial court granted punitive damages against the estate of a decedent who injured the plaintiff when he was driving while intoxicated. The Schwab court first noted that our courts have long recognized that the estate of a deceased plaintiff may recover punitive damages from a defendant. When determining whether the converse was true, the court weighed the possible harm that may be suffered by the family of the deceased defendant against the harm that could be prevented if driving while intoxicated is deterred. Finding that the interest in deterring drunk driving prevailed, the court concluded that the award of punitive damages was proper.7 We are persuaded by this approach. The interests involved here are distinct yet equally as significant as those in a case concerning drunk driving. By distribut [1131] ing photographs of G.J.D. performing sexual acts, Thebes unquestionably violated G.J.D.’s right to privacy, which is one of the most highly regarded rights in this Commonwealth. His distribution of these photographs, along with G.J.D.’s name, telephone number, and language indicating that she was a prostitute, is nothing short of outrageous. The dissemination of the materials followed a pattern of behavior whereby Thebes, while residing with G.J.D., physically and psychologically abused her and her children. Thebes’s acts of domestic violence are no less egregious than drunk driving. To the extent that it may reasonably be done, the law should be applied so as to have a deterrent effect on such conduct. We note, however, that whether the law allows punitive damages to be assessed against the estate of a deceased tortfeasor does not depend on the category of tortious conduct involved in the case. Rather, we hold that there is no per se prohibition against imposing such punitive damages against an estate. The question of whether punitive damages are appropriate in a particular case should be resolved by the trier of fact considering the nature of the acts committed. We base our decision on several reasons. First, the death of the tortfeasor does not completely thwart the purposes underlying the award of punitive damages. As noted, punitive damages are awarded to punish a defendant for certain outrageous acts and to deter him or others from engaging in similar conduct. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989).8 Although the decedent, Darwin Thebes, will not be punished or deterred from committing further perverse and egregious acts, the imposition of punitive damages upon his estate may serve to deter others from engaging in like conduct. The deterrent effect on the conduct of others is no more speculative in the instant case than in cases where the tortfeasor is alive. Second, we are not persuaded by the proposition that imposing punitive damages will punish only the innocent beneficiaries of the estate. The heirs of the decedent tortfeasor are in essentially the same financial position as if the tortfeasor were living at the time damages were awarded. When punitive damages are awarded against a living tort-feasor, the award reduces the amount of the tortfeasor’s assets, thus reducing the amount of funds available to the tortfeasor’s family and ultimately reducing the amount of his estate. When a tortfeasor is deceased at the time punitive damages are awarded, the award directly reduces the amount of the estate. The actual difference between the effect of the punitive damages award on the deceased tortfeasor’s heirs and a living tort-feasor’s family is minimal. To allow a tort-feasor’s estate to escape payment of punitive damages would be comparable to the injustice of allowing a defendant to transfer his wealth to his prospective heirs and beneficiaries prior to the trial of a case in which punitive damages are sought against him. Finally, safeguards exist to protect against the arbitrary imposition of punitive damages. The jury can be instructed, as was done in the instant case, that the award of punitive damages is being imposed against the estate. Pennsylvania Suggested Standard Jury Instruction (Civ.) § . 14.01 provides for the availability of punitive damages against the estate of a deceased tortfeasor. The jury can then consider the value of the deceased tortfea-sor’s estate in arriving at a proper assessment of punitive damages. In the event the award shocks the conscience of the court, the trial court may grant a remittitur. Accordingly, for the reasons set forth herein, the order of the Superior Court is affirmed.9 FLAHERTY, C.J., files a Dissenting Opinion. Footnotes [1] One photograph depicted G.J.D. performing fellatio; the other photo portrayed her lying nude from the waist up. [2] The jury awarded G.J.D. $6,015.00 in compensatory damages and $36,500.00 in punitive damages. Her children were awarded a total of $15,000.00 in compensatory damages and $40,-000.00 in punitive damages. [3] California, Cal.Civ.Proc.Code § 377.42 (West 1994); Colorado, Colo.Rev.Stat. § 13-20-101 (1987); Georgia, Ga.Code Ann. § 3-505 (1987); Idaho, Idaho Code § 5-327 (1990); Maine, Me. Rev.Stat. Ann. tit. 18-A, § 3-318 (West 1981); Massachusetts, Mass. Gen. Laws Ann. ch. 230, § 2 (West 1974); Mississippi, Miss.Code Ann. § 91-7-235 (1973); Nevada, Nev.Rev.Stat. § 41.100 (1979); New York, N.Y. Est. Powers & Trusts Law § 11-3.2(1) (McKinney 1981); Oregon, Or.Rev.Stat. §§ 30.080, 30.020 (1983); Rhode Island, R.I. Gen.Laws § 9-1-8 (1985); Vermont, Vt. Stat. Ann. tit. 14, § 1454 (1989); Virginia, Va.Code § 8.01-25 (1977); Wisconsin, Wis. Stat. Ann. § 895.01 (West 1983). [4] For the proposition that punitive damages may not be recovered from the estate of a deceased tortfeasor the following case law is representative of the jurisdictions that so hold: Doe v. Colligan, 753 P.2d 144 (Alaska 1988); Braun v. Moreno, 11 Ariz.App. 509, 466 P.2d 60 (1970); Woodner v. Breeden, 665 A.2d 929 (D.C.1995); Lohr v. Byrd, 522 So.2d 845 (Fla.1988); Rowen v. LeMars Mut. Ins. Co., 282 N.W.2d 639 (Iowa 1979); Fehrenbacher v. Quackenbush, 759 F.Supp. 1516 (D.Kan.1991)(predicting Kansas law); Johnson v. Levy, 122 La. 118, 47 So. 422 (1908); Thompson v. Estate of Petroff, 319 N.W.2d 400 (Minn.1982); Ford Motor Credit Co. v. Hill, 245 F.Supp. 796 (W.D.Mo.1965)(predicting Missouri law); State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M. 568, 761 P.2d 446 (App.1988); McAdams v. Blue, 3 N.C.App. 169, 164 S.E.2d 490 (1968); Morriss v. Barton, 200 Okla. 4, 190 P.2d 451 (1947); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (1965); Parker v. Artery, 889 P.2d 520 (Wyo.1995). [5] The Restatement (Second) of Torts also does not allow the imposition of punitive damages against the estate of a deceased tortfeasor, see § 908 comment a (1979); § 926(b) (1979). [6] New Hampshire, in addition to the five states discussed, is considered by some to allow such damages. However, there is no consensus among legal scholars as to whether these damages are- allowed or not. See Vratsenes v. N.H. Auto Inc., 112 N.H. 71, 289 A.2d 66 (1972)(re-jecting punitive damages in tort actions but allowing the award of liberal compensatory damages to compensate for the plaintiff's "vexation and distress" when the conduct in question was "wanton, malicious, or oppressive”)., See also Munson v. Raudonis, 118 N.H. 474, 387 A.2d 1174 (1978)(allowing the recovery of such damages against the estate of a deceased tortfeasor). [7] The court expressly stated that it was making no determination as to whether or not punitive damages should be imposed against the estate of a defendant in cases involving other forms of conduct. However, in another Pennsylvania trial court opinion, Morfesi v. Sherman, 13 Pa.D. & C.4th 552 (1991), the court did not permit punitive damages to be imposed in a medical malpractice case on the ground that the resulting deterrent effect would be speculative. [8] Punitive damages are also referred to as "exemplary damages” which have been defined as damages awarded “to punish the defendant for his evil behavior or to make an example of him.” Blacks Law Dictionary 390 (6th ed.1990). [9] We further deny Appellant’s "Motion to Strike the; Brief of Appellees for Making Reference to and Including Materials From Matters Not of Record in This Case in Violation of Pa.R.A.P. 1921.”