The Volokh Conspiracy
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From an opinion by Judge Katherine Polk Failla in Doe v. Indyke (S.D.N.Y.), decided in late June, but just mentioned in the Westlaw Bulletin:
To begin, Defendants seek dismissal of Plaintiff's punitive damages claim on the ground that New York law bars such claims in personal injury suits against representatives of a decedent's estate. The statute in question, § 11-3.2(a)(1) of New York's Estates, Powers and Trusts Law ("EPTL"), provides:
"No cause of action for injury to person or property is lost because of the death of the person liable for the injury. For any injury, an action may be brought or continued against the personal representative of the decedent, but punitive damages shall not be awarded nor penalties adjudged in any such action brought to recover damages for personal injury."
As three recent cases in this District, presenting similar claims against the same Defendants, have recognized, this provision clearly prohibits the award of punitive damages in the situation at hand. See Mary Doe v. Indyke, 2020 WL 2036707 (S.D.N.Y. Apr. 28, 2020); Lisa Doe v. Indyke, 2020 WL 3073219 (S.D.N.Y. June 9, 2020); Doe 15 v. Indyke, 2020 WL 2086194 (S.D.N.Y. Apr. 30, 2020) ("New Mexico common law as announced by the state supreme court, like EPTL § 11-3.2(a)(1), bars punitive damages in a personal injury action against a tortfeasor's estate."). Both federal courts addressing constitutional-tort claims under New York law, and state courts in personal injury actions governed by New York law, have concluded similarly. See Mary Doe, 2020 WL 2036707, at *2 (collecting New York federal and state cases).
This position is also reflected in the majority of United States jurisdictions, as the Restatement (Second) of Torts indicates. See Restatement (Second) of Torts § 908 cmt. a (Am. Law Inst. 1979) ("Punitive damages are not awarded against the representatives of a deceased tortfeasor."). The common justification for the majority rule is that "punishment and deterrence—the recognized bases for imposing punitive damages on a tortfeasor—are not advanced by imposing punitive damages on his or her estate." Mary Doe, 2020 WL 2036707, at *3; see also Blissett v. Eisensmidt, 940 F. Supp. 449, 457 (N.D.N.Y. 1996) (brackets and citation omitted) ("There is a strong policy against the assessment of punitive damages against an estate on account of wrongful conduct of the decedent.").
The court also held, consistently with past decisions, that New York law applied, because
Plaintiff was domiciled in New York. All of the alleged torts took place in the home Epstein maintained in New York. Further, Plaintiff chose to sue in New York, where her causes of action are timely pursuant to the New York Child Victims Act…. These facts, taken together, demonstrate that New York's interest in applying its punitive damages rules to this case outweighs the USVI's interest, which exists only because of Epstein's decision to probate his estate there. If anything, it is the USVI, and not New York, that has a "merely fortuitous relationship with the case," minimizing its interest in governing punitive damages.
(The court also concluded that Virgin Islands law would likely also preclude punitive damages against dead tortfeasors, but in any event New York law definitely precluded such damages, and it was New York law that applied.)