The tragic events of O’Donnell Park have come to a close with a Milwaukee County Jury awarding $39 million to the people injured or killed by the falling concrete panel. When verdicts like these are reported, there are frequently those who comment about the idea that “money won’t bring them back” and therefore argue that (somehow) that means the verdict is unjust or inappropriate. Let’s consider that argument for a moment.
The ability to return the dead to life is the stuff of religion and science fiction – both topics that do not belong in a courtroom. Civil courts are limited in what they can do – they can proscribe behavior in the future (you may never do X again / you must do Y every month/year/etc.) or they can award money as damages for past behavior. While we frequently see courts as all-powerful, civil courts are truly limited to these two basic functions. Thus, in cases of unspeakable tragedy like what befell the innocent victims of the O’Donnell Park catastrophe, we are limited to assessing monetary damages for what happened.
Why do we do this? First, there must be some compensation for what happened to innocent victims. They have endured expenses but, more than that, they have had their lives altered in incredible ways. We cannot restore their previous life paths, but we can smooth out the future. What do we say to someone who has lost their leg due to another’s actions? That the change in their life plan is of no value?
Second, there must be accountability for the wrongdoers – they must be held responsible. We could think of nothing more callous than a person who says “Sorry about your dead kid but, hey, can’t bring him back.” Yet refusing to award damages sends precisely that message. The only measure of damages is money.
Third, we need to deter actions in the future. The only way to affect the actions of corporations, workers, drivers – all of us who have incentives to take dangerous actions – is to make the cost of those dangerous actions very high. Why don’t we all speed? Most commonly, because the tickets are so high as to make the ticket (money) an effective deterrent. Why do we stop at stop signs? Again, there’s a risk of a ticket, but also the risk of harming someone. And what is the cost of harming someone? Well, there is a psychic cost but also a monetary one – if I crash into someone’s car I will need to pay for it.
It is this deterrence that leads to punitive damages – money damages meant to punish the wrongdoer. These damages are important because there will be times where the arithmetic of preventing harm will be on the side of NOT preventing it. Recall the Ford Pinto – an important part of that case was that Ford had calculated that a certain number of people would die in fiery crashes, but that the cost of paying for them was less than re-tooling the vehicle for safety. In such a case, how does one reach the corporation and alter that equation? Punitive damages. Damages designed to make the analysis so costly as to encourage people to avoid it in the future.
Finally, when one considers damages, and those who claim to be against them, one must ask “what is the alternative”? We cannot, and should not, return to an eye-for-an-eye. Which leaves us only with economic (money) damages. It is the price of our civilization.