United States Gypsum Co. v. Mayor and City Council of Baltimore9/12/1994
(Minn.), cert. denied, 449 U.S. 921, 101 S.Ct. 320, 66 L.Ed.2d 149 (1980)):
"'The punitive damages remedy concerns the vital state interest of protecting persons against personal injury . The interests implicated in strict liability actions for injury solely to property are not so great as to warrant extension of this controversial remedy to those actions.'"
The court concluded by reiterating this distinction (Ibid.):
"Punitive damages represent an extraordinary measure of deterrence. Denying their imposition in this case, after allowing punitive damages in strict liability actions for personal injury , reflects the higher value our society places on the safety of persons than it does on the security of property."
See also Independent Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 732 (Minn. 1994).
A concurring member of the Supreme Court of Missouri noted Minnesota's approach in Kansas City v. Keene Corp., 855 S.W.2d 360, 377 (Mo. 1993) (Holstein, J., concurring), another asbestos removal action involving damages identical to those claimed in the case at bar. Although the Kansas City v. Keene Corp. majority resolved the municipality's punitive
damages claim on traditional grounds, the concurring opinion discussed for future consideration the possibility of limiting punitive damages to personal injury claims in non-intentional tort cases. Citing the urgent need to place "reasonable restrictions on when and how punitive damages may be sought and obtained," the concurring opinion suggested that punitive damages be disallowed "where there is no personal injury or illness and the claim arises solely because of a latent defect in a product." Ibid., citing Eisert v. Greenberg Roofing & Sheet Metal Co., supra, 314 S.W.2d at 228.
On the other hand, the United States District Court for the District of New Jersey, in an asbestos removal case, rejected the defendant manufacturer's argument that punitive damages were unavailable, finding "no policy basis for denying an award of punitive damages in an economic loss products liability suit." Cinnaminson T. Bd. of Educ. v. U.S. Gypsum Co., 552 F.Supp. 855, 863 (D. N.J. 1982), aff'd without op., 882 F.2d 510 (3d Cir. 1989).
In the present case, the trial judge and all parties, both in the trial court and in this Court, proceeded on the basis that punitive damages were available under the actual malice standard set forth in Owens-Illinois v. Zenobia, supra, 325 Md. at 460-473, 601 A.2d at 653-659. Consequently, for purposes of this case, we shall assume that punitive damages are available in a non-intentional tort action involving only claims for property damages. See Nails v. S&R; supra, 334 Md. at 407-408 n. 3, 639 A.2d at 664-665 n. 3; Murphy v. Edmonds, 325 Md. 342, 375, 601 A.2d 102, 118 (1992); Boyer v. State, 323 Md. 558, 581 n. 15, 594 A.2d 121, 132 n. 15 (1991). See also Adams v. Coates, 331 Md. 1, 12, 626 A.2d 36, 41 (1993). Nonetheless, in our view, whether Maryland law permits the recovery of punitive damages in this type of action is an open question.
B.
As previously discussed, in order to obtain punitive damages in a non-intentional tort action, a plaintiff must establish that the defendant acted with "actual" and not "implied" malice. See Komornik v. Sparks, supra, 331 Md. 720, 629 A.2d 721; Owens-Illinois v. Zenobia, supra, 325 Md. at 460,
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