The United States Supreme Court, however, recently decided
otherwise. In Smith v. Wade, ___ U.S. ___, 103 S.Ct. 1625, 75
L.Ed.2d 632 (1983), the Court affirmed the Eighth Circuit's
decision in Wade v. Haynes, supra, and held that reckless or
callous disregard for a person's rights, as well as intentional
disregard thereof, is sufficient to support a jury's
determination that punitive damages should be awarded. ___ U.S.
at ___, 103 S.Ct. at 1637. The Court rejected defendant's
argument there that the deterrent and punitive purposes of
punitive damages are served only if the threshold for punitive
damages is higher than the underlying standard of liability in
the first instance. Id. The Court specifically held that even
when the underlying standard of liability for compensatory
damages is one of recklessness, that same threshold applies to
permit a jury to assess punitive damages in a § 1983 action. Id.
at ___, 103 S.Ct. at 1639. Moreover, the Court noted that
reckless misconduct would dissipate a defendant's qualified
immunity. Id. Thus, defendant's argument that the jury was
incorrectly instructed on the appropriate standard to be applied
to the punitive damage question must be rejected.
Another issue which concerns the Court in regard to the award
of punitive damages is the relationship between the size of the
award and defendant's financial worth. Although counsel for the
defense has made passing reference to the problem, the parties
have not briefed this issue. However, because of the size of the
punitive damage award, the Court feels compelled to raise the
matter sua sponte.
The purpose of a punitive damage award is to punish a
wrongdoer. Additionally, punitive damages serve to deter others
who might commit a similar wrong. Shimman v. Frank, 625 F.2d 80,
101-102 n. 44 (6th Cir. 1980); Zarcone v. Perry, 572 F.2d 52, 56
(2d Cir. 1978); Bucher v. Krause, 200 F.2d 576, 578, 587 (7th
Cir. 1953). Although the purpose of punitive damages is to punish
and deter, such damages are not intended to destroy the
defendant. Shimman v. Frank, 625 F.2d 80, 101 (6th Cir. 1980).
In Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979), cert.
denied, 445 U.S. 938, 100 S.Ct. 1331, 63 L.Ed.2d 772 (1980), a
jury assessed $200,000 in punitive damages against a county judge
who had seriously abused his judicial power because of racial
animus. Although the defendant did not attack the size of the
award on appeal and despite the defendant's failure to introduce
evidence at trial of his financial worth, the United States Court
of Appeals for the Seventh Circuit directed the trial judge to
consider reducing the $200,000 award if the defendant could show
financial hardship. Accordingly, in light of defendant's
employment as an information clerk with the Decatur Police
Department and, in light of the magnitude of the punitive damage
award in this case, a hearing will be held on Thursday, August 4,
1983, at 10:00 a.m., to determine defendant's financial worth.
Thereafter, the Court will determine whether a reduction in the
amount of punitive damages is mandated.
Loss of Society
As noted above, defendant's other primary contention is that
Illinois does not recognize a cause of action for loss of a
parent's society by a child. Although there are conflicting
authorities on this issue, this Court concludes that Illinois
does indeed recognize a cause of action on behalf of a child for
the loss of a parent's society when the parent dies due to the
wrongful act of another.
In Allendorf v. Elgin, Joliet and Eastern Railway Co., 8 Ill.2d 164,
179-80, 133 N.E.2d 288 (1956), the Illinois Supreme Court
recognized that the loss of a decedent's felicity, care,
attention and guidance as a father was compensable as an element
of damages in an action brought in part on behalf of his
children. Two years later, the court in Hall v. Gillins,
13 Ill.2d 26, 147 N.E.2d 352 (1958), recognized a cause of action on
behalf of a child for the loss of the support, companionship,
and affection of a father under the Wrongful Death Act. In that
case, the widow and child of the deceased attempted to bring a
common law cause of action for "destruction of the family unit"
in an attempt to avoid the limit imposed on recoverable damages
by the Wrongful Death Act in effect at that time. Ill.Rev.Stat.
ch. 70 §§ 1, 2 (1957). In refusing to recognize a separate common
law action, the court stated as follows:
The gap between the "damages for destruction of the
family unit" that plaintiffs claim, and the "just
compensation with reference to the pecuniary injuries
resulting from such death" that the statute allows,
is not as wide as the words used would suggest. The
term "pecuniary injuries" has received an
interpretation that is broad enough to include most
of the items of damage that are claimed by the
plaintiffs in this case. Each plaintiff alleges
deprivation of support as well as deprivation of the
companionship, guidance, advice, love and affection
of the deceased. . . . The broad scope of the phrase
"pecuniary injuries" is further shown by those cases
which hold that in the case of a child the jury may
taken (sic) into account the loss of instruction and
moral, physical and intellectual training brought
about by the death of the father. Goddard v. Enzler,
222 Ill. 462 [78 N.E. 805]; Ittner Brick Co. v.
Ashby, 198 Ill. 562 [64 N.E. 1109]; Illinois Central
Railroad Co. v. Weldon, 52 Ill. 290.
Most recently, the Illinois Supreme Court, relying on Hall v.
Gillins, 13 Ill.2d 26, 147 N.E.2d 352 (1958) and Allendorf v.
Elgin, Joliet & Eastern Railway Co., 8 Ill.2d 164, 133 N.E.2d 288
(1956), recognized that Illinois law provides a cause of action
for a child's loss of society when a parent is killed. Elliott v.
Willis, 92 Ill.2d 530, 535-37, 65 Ill.Dec. 852, 855-56,
442 N.E.2d 163, 166-67 (1982). Having recognized the felicity and
care of a parent to be capable of evaluation as "pecuniary
injuries" under the Wrongful Death Act, the court felt compelled
in Elliott to hold that the loss of society of a spouse is
equally compensable as "pecuniary injuries." Id. at 537, 65
Ill.Dec. at 856, 442 N.E.2d at 167. The court specifically found
IPI Civil No. 31.07(2), which excluded loss of society by the
widow and next of kin as an element of damages, to no longer be
valid. Id. at 539, 65 Ill.Dec. at 857, 442 N.E.2d at 168.
Further support for plaintiff's position can be found in the
introduction to the Illinois Pattern Jury Instructions on
Wrongful Death, IPI Civil (2d ed.) § 31.00 at 161. "`Pecuniary
injuries' has been interpreted to include injury to the support,
guidance, companionship, advice, and affection received by the
wife and children of the deceased," relying on Hall v. Gillins,
supra. Moreover, even prior to the court's holding in Elliott,
the notes following IPI Civil No. 31.07 provided that
[b]ecause children can recover for loss of their
father's moral training, instruction and
superintendence of education, IPI 31.04, element 4,
the bracketed phrase referring to next of kin should
not be used in connection with children because
`society' overlaps the elements listed in element 4
of IPI 31.04 to such a marked extent.
Additionally, the comment to IPI Civil No. 31.01 indicates that a
presumption of loss applies even where the decedent was an adult
and the next of kin are also adults.