If you have become injured in an accident, it goes without saying that taking care of your health should be your top priority. However, something you should keep in mind is whether or not you have the right to bring a legal claim against the person or entity who caused you harm. Assuming you do have that right, and you are unable to settle your claim within the applicable statute of limitations (generally two years from the date of injury), you may have no other option but to file a lawsuit. Should that happen, you are called the “plaintiff” in the suit.

In a personal injury claim, the plaintiff has a right to ask for various kinds of damages, including economic, noneconomic, and sometimes punitive damages. Even though the laws differ by state, punitive damages may be pursued in Oregon under certain circumstances. Unlike economic and noneconomic damages, which are meant to compensate the injured party for their losses, punitive damages are meant to punish the defendant for bad behavior.

The person filing suit must first prove a number of things to obtain the right to pursue punitive damages, as you must first get the Court’s permission to do so. Oregon has specific personal injury laws regarding liability and the division of damages, which are quite complicated. Rather than trying to teach yourself these rules and risk making a mistake that might cost you your right to compensation, it would benefit you to obtain the assistance of an experienced Oregon personal injury attorney to look into these issues and at least give you some advice.

Punitive Damages, Defined

Punitive damages are meant to deter those who consider participating in wrongdoing. For example, those thinking about committing a crime in the future may see others punished and feel discouraged from carrying out that crime.

However, punitive damages are not often awarded. Even if you can sue to obtain these damages, they are challenging to achieve. According to Oregon law (ORS 31.730), a party may only recover if the defendant “has acted with malice or has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with a conscious indifference to the health, safety, and welfare of others.” In other words, the defendant’s behavior must be grossly negligent, reckless, intentional, or malicious.

A few examples where courts have allowed the plaintiff to seek punitive damages include cases involving drunk driving (DUI), assault, arson, speed racing, and sexual abuse. Since the conclusions of judges considering punitive damages differ, the possibility of punitive damages is truly case-by-case. Your personal injury attorney can significantly support you in determining whether or not punitive damages might be available, gather the evidence necessary to prove a claim for punitive damages, convince the court to allow a claim for punitive damages, and ultimately prove to a jury your right to punitive damages. Only an experienced hand can help determine these issues and get you past the very high bar to obtain this element of damages in your personal injury case.

What do "gross negligence" and "malice" mean?

Gross negligence is a step above the common legal concept of “negligence.” To be negligent, an individual simply fails to act as a reasonable and prudent person would under the circumstances. For example, a person who is looking at their radio and runs a red light, causing them to crash into your car, is negligent but is not likely to be found grossly negligent.

On the other hand, if the person who caused your injuries knew that their behavior created a severe degree of risk, they may be found grossly negligent. For example, if the same person who ran the red light and hit you were drunk at the time, they would likely be considered grossly negligent and thereby subject to punitive damage liability. In this situation, the person did not mean to harm you, but their gross negligence resulted in the harm.

Not surprisingly, if a person did mean to harm you—for example, in an assault—their actions are considered intentional and with malice, making them liable for an award of punitive damages.

Sufficient evidence of gross negligence or malice must be presented to the court before a judge can decide that punitive damages are appropriate. At trial, the burden is higher to obtain an award for punitive damages (clear and convincing evidence) versus your compensatory damages (preponderance of the evidence). Because we know this area of law so well, our personal injury attorneys will compile evidence that proves the other person’s fault, and if it rises to the level of a claim for punitive damages, we are not afraid to prosecute that in addition to your compensatory damages.

What makes Punitive Damages Different?

While punitive damages are meant to discipline the defendant, economic and non-economic damages are intended to assist the plaintiff in moving on from their injury. The most common types of damages available in a personal injury lawsuit are economic and noneconomic—the compensatory damages mentioned above.

Economic damages are often numeric, set costs like property damage, medical expenses, or lost income. Noneconomic damages are a victim’s pain and suffering. In Oregon, there is generally no set cap on noneconomic compensation, and the victim is entitled to 100% of their compensatory damages.

On the other hand, Oregon’s laws regarding punitive damage require the State to receive 70% of any such award. This is because, unlike compensatory damages, punitive damages are meant to punish the at-fault party rather than compensate the victim.

Even if you decide not to pursue punitive damages in Oregon, we are well-versed in helping answer questions and assisting your future steps in moving on from this car accident. Moreover, we are adept at using the threat of punitive damages to increase the compensatory damage recovery of our clients, thereby preventing the State from taking any portion of our client’s recovery. Dwyer Williams Cherkoss is no stranger to winning personal injury cases and is happy to add your case to our long list of wins as you focus on healing.

How will my personal injury lawyer bill me?

At Dwyer Williams Cherkoss, our statewide lawyers understand that financial fears can prevent some from taking legal action. However, we genuinely want you to maximize your recovery as efficiently as possible. Thus, as we perfect your personal injury case, our attorneys will not send you bills for our time but instead will work on a contingency fee basis.

Our law firm will work on a percentage agreement instead of billing you by the hour or month. The percentage-based agreement is based on the financial award you receive from the court or by way of settlement. This means that you do not owe us attorney fees in the off-chance the case is lost. We operate this way because our attorneys genuinely want to achieve the same goal as you—to maximize your recovery in the most efficient way and with the least financial risk to you.

No matter what kind of accident you were in, DWC’s lawyers are well-versed in accidents and the injuries that come from them. A free consultation can help put you on the right track to obtaining the maximum financial compensation you need and, if the case calls for it, pursue punitive damages in Oregon. Contact us online now or at (541) 617-0555!