In-House Defense Quarterly

A recurrent issue in the defense of punitive damages claims -- one that gets less attention than it deserves -- is how much increased risk is enough to justify an award of punitive damages? In many cases, plaintiffs allege that the defendant's conduct increased the relative risk of injury two, ten, even a hundred times over, but the absolute risk remains very small, such as from one in ten million to one in a million. The Second Restatement of Torts addresses risk criteria in sections that define "recklessness" as required for punitive damages purposes in terms of a "high degree of risk" Restatement (Second) of Torts §§500, 908 (1975). To put the question in the affirmative, to what extent can punitive damages claims be defeated, despite a large relative increase in serious risk, where the absolute increase in risk remains minuscule.

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