of the ability to offset an award with any comparative negligence of Brewer or White. The Government concludes that such a denial amounts to punitive damages. To resolve this issue, the court must analyze both the concept of punitive damages and the doctrine of willful and wanton misconduct.
The definition of the term "punitive damages" as used in 28 U.S.C. § 2674 (1988) is a federal question. Molzof v. United States, 502 U.S. 301, 112 S. Ct. 711, 715, 116 L. Ed. 2d 731 (1992). In Molzof, the United States opposed a damage award for future medical expenses and for loss of enjoyment of life. Id. at 714. The United States argued that all awards which were not "compensation" for actual loss were "punitive damages." Id. at 715. The Molzof Court disagreed reasoning that "Section 2674 prohibits awards of 'punitive damages,' not 'damage awards that may have a punitive effect.'" Id. The Court preferred the petitioner's definition of punitive damages: the term "punitive damages" should be defined "by reference to traditional common law, leaving plaintiffs free to recover any damages that cannot be characterized as 'punitive' under that standard." Id.
Furthermore, the Court recognized that the notion of "punitive damages" has a significant history in the common law. Id. Traditionally, juries assess punitive damages in reference to "the enormity of defendant's offense rather than the measure of compensation to the plaintiff." Id. (citing Day v. Woodworth, 54 U.S. 363, 13 How. 363, 14 L. Ed. 181 (1852); see Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 1042, 113 L. Ed. 2d 1 (1991)). Hence, the proper common law definition of punitive damages will distinguish between compensation (both actual loss and intangible loss) and punishment. Referring to the third edition of Black's Law dictionary, the Court defined the term "punitive damages" as referring to damages granted for the sole purpose of punishing. Molzof, 112 S. Ct. at 715. "As a general rule, the common law recognizes that damages intended to compensate the plaintiff are different in kind from 'punitive damages.'" Id. at 716.
The Molzof Court concluded "that § 2674 bars the recovery only of what are legally considered 'punitive damages' under traditional common-law principles." Id. at 718 (emphasis in original). The Court held that the damages sought in Molzof were not "punitive damages" because they did not satisfy a two-part test: the recoverability of damages must depend upon proof that the defendant has engaged in intentional or egregious misconduct, and the purpose of the damages must be to punish. Id.; see Reiser v. United States, 786 F. Supp. 1334, 1336 (N.D. Ill. 1992) (echoing the two-part test of Molzof). This court must adhere to that two-part definition. Having defined the term "punitive damages," the next question is whether an allegation of willful and wanton misconduct would necessarily bring the Estates' complaint within the prohibitory language of § 2674.
The definition of willful and wanton misconduct is not a federal question and will be defined according to Illinois law. 28 U.S.C.A. § 1346(b) (Supp. 1994) (providing that a district court has jurisdiction "where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred"); see Savic v. United States, 918 F.2d 696, 699 (7th Cir. 1990) (holding that Illinois law applied to an FTCA suit); Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993) (finding that questions of tortious liability under the FTCA are determined according to state law); Douglas v. United States, 658 F.2d 445, 449 n.5 (6th Cir. 1981) (finding that compensatory damages are assessed according to state law, and acknowledging that state collateral source rules are applied in FTCA actions); Yeary v. United States, 754 F. Supp. 546, 549 (E.D. Mich. 1991) (applying Wisconsin's version of comparative negligence to an FTCA suit).
The history of the doctrine of willful and wanton misconduct in Illinois discloses how the Illinois courts currently interpret it. The doctrine originated as one tool for curbing the harsh effects that the contributory negligence defense visited on plaintiffs. Dan Groth, Jr., Note, The Long, Strange Trip of Willful and Wanton Misconduct and a Proposal to Clarify the Doctrine, 26 J. Marshall L. Rev. 363, 376 (1993). In cases where defendants were found to be willful, the courts thought it inequitable to dismiss the entire case based on plaintiff's contributory negligence. As a result, Illinois courts did not allow willful and wanton defendants to raise the defense of contributory negligence. Id. (citing, e.g., Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N.E. 131 (1899)). With the advent of both comparative negligence and modified comparative negligence doctrines, the Illinois appellate courts reexamined the doctrine and arrived at different conclusions. See Groth, supra. Then the Illinois Supreme Court, in the seminal case of Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 593 N.E.2d 522, 170 Ill. Dec. 633 (Ill. 1992), clarified that the doctrine of willful and wanton misconduct remained a viable theory under the modified comparative negligence system. Id. at 532. The Burke court explained that there was a "qualitative difference" between negligent acts and willful and wanton misconduct which could not be compared. Id. at 462. As such, a willful and wanton defendant must still pay a plaintiff's full compensatory damages, regardless of the plaintiff's own contributory negligence. Id.
Illinois' Local Governmental and Governmental Employees Tort Immunity Act ("Act"), 745 ILCS 10/1-101 et seq., furnishes a definition of willful and wanton misconduct that is very similar to the common-law definition. Hampton v. Cashmore et al., 265 Ill. App. 3d 23, 637 N.E.2d 776, 202 Ill. Dec. 237, 1994 WL 374651, at *5 (Ill. App. Ct. 1994). The Act, in pertinent part, provides as follows: "[Willful and wanton misconduct is] a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property." 745 ILCS 10/1-210; see also Illinois Pattern Jury Instructions § 14.01 (July 1993).
In the recent Illinois Supreme Court Opinion of Ziarko v. Soo Line R.R., 161 Ill. 2d 267, 641 N.E.2d 402, 204 Ill. Dec. 178, 1994 WL 265083 (Ill. 1994), the court reviewed the doctrine as it currently stands in Illinois. The Ziarko case discussed whether a defendant guilty of willful and wanton misconduct could seek contribution from another defendant guilty of ordinary negligence under Illinois' Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01. In its analysis, the court recounted, "It is well established that willful and wanton acts may be found where the tortious conduct was intentional." Ziarko, 161 Ill. 2d 267, 274, 1994 WL 265083, at *4 (citing, e.g., Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293 (1946)). Yet, the Ziarko court articulated that there remains some confusion on the similarity between willful and wanton misconduct and negligent acts. Ziarko, 1994 WL 265083, at *4; see also id. *14-15 (Nickels, J., dissenting) (arguing that the majority's decision acts as a super legislature and further blurs the definition of willful and wanton misconduct). The Illinois Supreme Court determined that "under the facts of one case, willful and wanton misconduct may be only degrees more than ordinary negligence, while under the facts of another case, willful and wanton acts may be only degrees less than intentional wrongdoing." Id. In this way, "willful and wanton conduct may be grounds not only for punitive damages, but compensatory damages as well." Id.
The Burke court, though, distinguished between the punitive nature of the doctrine of willful and wanton misconduct and the concept of "punitive damages." The Illinois Supreme Court reasoned as follows:
Ordinarily, punitive damages may be awarded when the defendant has acted willfully or with wanton disregard for the rights of others. Such damages are allowed as a warning and example to deter the defendant and others from committing like offenses in the future. However, the legislature has immunized municipal defendants against the payment of punitive damage. We believe that, in the absence of punitive damages, disallowing a setoff for the plaintiff's contributory negligence can serve as an effective deterrent to a municipal defendant's willful and wanton conduct.