734 A.2d 243 (1999) 160 N.J. 221

Harold E. SMITH, Executor of the Estate of Helen V. Robbins, Deceased, Plaintiff-Respondent,
v.
Alan L. WHITAKER, Jr., Defendant, and
Coastal Oil of New York, Inc. (incorrectly pled as Coastal Oil Company of New York, Inc. and formerly known as Belcher Company of New York, Inc.), Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 16, 1999. Decided July 20, 1999.

*245 John C. Eastlack, Jr., Turnersville, for defendant-appellant (Poplar & Eastlack, attorneys).

Theodore E. Baker, Bridgeton, for plaintiff—respondent (Lummis, Krell & Baker, attorneys).

*244 The opinion of the Court was delivered by STEIN, J.

This appeal concerns the availability of punitive damages under the Survivor's Act, N.J.S.A. 2A:15-3, and requires us to determine whether evidence of a plaintiff's conscious pain and suffering is necessary to sustain a cause of action under the Act. More precisely, because a plaintiff's pain, suffering and apprehension of impending death form the usual measure of damages under the Survivor's Act, the issue is whether a survival action will lie where, as here, the plaintiff's death appears to have been actually or nearly simultaneous with defendant's injury-causing conduct. We also must determine whether a claim for punitive damages may be asserted when no compensatory damages have been awarded for pain and suffering in the underlying survival action. In addition to those legal issues, we address factual disputes concerning whether defendant's conduct justified the imposition of punitive damages in this case and, if so, whether the amount of punitive damages awarded was excessive.

I

On January 4, 1990, Helen V. Robbins, a sixty-year-old widow, was killed when her 1979 Lincoln Town Car was hit by a 36,000-pound oil truck owned by defendant Coastal Oil Company of New York (Coastal) and driven by defendant Alan L. Whitaker, Jr. (Whitaker). At the time of the *246 collision, Robbins was driving north on County Route 649 in Commercial Township, Cumberland County, and Whitaker was traveling south on County Road 633. The southbound lane of County Route 633 is governed by two yield signs at the point where it intersects County Route 649. Due to maladjusted brakes, Whitaker was unable to stop the truck as he approached the intersection even though he was "standing" on the brakes. The truck crossed the intersection, struck Robbins's automobile, and "overtopped" it. A state trooper responded to the scene within approximately five minutes of the accident. The trooper observed that Robbins did not appear to be breathing and that she appeared to be unconscious. Robbins was transported to a nearby hospital, where she was pronounced dead.

In June 1990, Harold E. Smith,^[1] the nominal plaintiff and executor of Robbins's estate, filed an action against Whitaker and Coastal pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor's Act, N.J.S.A. 2A:15-3. Plaintiff claimed that the Coastal oil truck had been "improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order." By way of damages, plaintiff alleged direct pecuniary loss for support and maintenance, funeral expenses, pain and suffering and loss of enjoyment of life (hedonic damages). In addition, plaintiff sought punitive damages, alleging that defendants' negligent maintenance of the vehicle was "willful, wanton, and with knowledge of a high degree of probable harm to others."

The trial court bifurcated the trial of the compensatory and punitive damages claims. Before the jury was brought into the courtroom to begin the trial on plaintiff's compensatory damages claims, Coastal moved to bar plaintiff's presentation of evidence to support pain and suffering and hedonic damages. Coastal's attorney conceded that there was "no question" that Robbins had "died as a result of injuries sustained in the accident." In addition, Coastal conceded its liability for causing the accident. Coastal's attorney noted, however, that it "has candidly been admitted by [plaintiff's] counsel" that "there is not one single item of proof that exists or could be placed before this jury indicating that Mrs. Robbins suffered any conscious pain or endured any suffering at all," because, during discovery, no post-accident witness "indicated any consciousness at all by Mrs. Robbins."

Over plaintiff's objection, the trial court dismissed plaintiff's damage claim "with respect to the pain and suffering," finding that evidence of conscious pain and suffering was required to present to the jury the issue of compensatory damages under the Survivor's Act. The court noted that "there is nothing in the medical reports or in the observations of doctors, nurses, emergency personnel, or any of those people that would suggest that there was conscious pain and suffering." For the same reason, the court, over plaintiff's objection, dismissed plaintiff's damages claim for hedonic damages, because "hedonic damages would have to be based on the victim's own loss of enjoyment" and were therefore not available in this case. The court ruled that plaintiff's claim for punitive damages could go forward in the second phase of the trial.

In that procedural posture, the first phase of the jury trial commenced in May 1995, restricted to only the claims asserted in the wrongful death action. After all sides rested, the parties agreed to the court's suggestion that a different jury be empaneled to decide the issue of punitive damages. The jury returned a unanimous verdict finding defendants liable for $40,178 in actual pecuniary or financial damages. In addition, the parties consented to the addition of $3939, reflecting the net funeral bill and related expenses, for a total judgment of $44,117. On May 26, *247 1995, the court entered a judgment against defendants reflecting that the jury had "rendered a verdict in the amount of $40,178 pursuant to the Wrongful Death Act, N.J.S.A. 2A:15-3 et seq.," and that the court had "molded the verdict as to funeral and burial expenses pursuant to the Survivor's Act, N.J.S.A. 2A:31-1 to include the sum of $3,939.00."

After the conclusion of the first trial, Coastal filed a motion to dismiss plaintiff's punitive damages claim and plaintiff crossmoved for a new trial of the wrongful death claim. In support of its motion, Coastal noted that punitive damages are not recoverable under the Wrongful Death Act, and that any award of punitive damages pursuant to the Survivor's Act would have to be supported by a valid underlying judgment of compensatory damages. Coastal argued that no compensatory award under the Survivor's Act was sustainable due to plaintiff's conceded inability to produce evidence that Robbins experienced conscious pain and suffering before dying.

The trial court denied both Coastal's motion to dismiss the punitive damages claim and plaintiff's new-trial motion. The court agreed with Coastal that there was "no question that in this case, as least insofar as the proofs are concerned, the decedent died instantly and there was no proof to the contrary." Nonetheless, the court ruled that plaintiff's claims for punitive damages could go forward under the authority of the Survivor's Act. In addition, at Coastal's request, the court clarified that the award for funeral expenses of $3939 "would properly be included in the wrongful death aspect of the case."

In July 1996 the punitive damages trial began before a new jury. Plaintiff and Coastal consented to the dismissal of the punitive damages claims against Whitaker. The evidence adduced in that proceeding showed that one month prior to the accident the State Police, after inspecting Whitaker's vehicle, had cited Coastal with numerous safety violations, including two "out-of-service" conditions that indicated the vehicle would not be considered safe to operate until those conditions were corrected. There was no evidence that the necessary repairs were made; rather, it appeared Coastal knowingly and deliberately operated the vehicle in its "out-ofservice" condition for several weeks. Evidence also was presented that in the weeks leading up to the accident both Whitaker and Coastal were aware that the brakes were not working properly. An inspection at the time of the accident revealed that both rear brakes were so far out of adjustment as to render the vehicle unsafe to drive. Finally, the evidence suggested that Coastal provided no instruction or training for its drivers regarding proper brake safety or maintenance and that Coastal simply ignored regulatory recordkeeping requirements regarding its vehicle maintenance.

At the conclusion of that trial, the jury found Coastal liable for punitive damages in the amount of $1,250,000. In September 1995, the court entered an order denying Coastal's new-trial motion. In that order, at Coastal's request, the court amended the May 26, 1995, judgment, reallocating the award of funeral expenses to reflect that the "molded verdict including funeral and burial expenses were recovered pursuant to the Wrongful Death Act." Both parties then appealed.

The Appellate Division affirmed, concluding that plaintiff's punitive damages claims were sustainable even in the absence of an underlying award of compensatory damages. 313 N.J.Super. 172, 175-90, 713 A.2d 20 (1998). The Appellate Division also rejected Coastal's contentions that its conduct was not sufficiently egregious to justify an award of punitive damages and that the amount of the award was excessive. Id. at 190-98, 201-03, 713 A.2d 20. We granted Coastal's petition for certification. 156 N.J. 410, 719 A.2d 642 (1998).

*248 II

A

At common law, no civil remedy was available for a personal injury resulting in death, either to the decedent's estate or the decedent's dependents. Kern v. Kogan, 93 N.J.Super. 459, 470, 226 A.2d 186 (Law Div.1967). The common law's nonrecognition of claims for wrongful death is traceable to "the pronouncement in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (1808), that `in a civil Court, the death of a human being could not be complained of as an injury and ... the damage, as to the [deceased], must stop with the period of her existence.'" Giardina v. Bennett, 111 N.J. 412, 422, 545 A.2d 139 (1988) (alteration in original).^[2] The "rigors of this harsh and technical rule were relaxed and ameliorated," Kern, supra, 93 N.J.Super. at 465, 226 A.2d 186, first in 1848 by the Wrongful Death Act, now codified as N.J.S.A. 2A:31-1 to -6, and later in 1855 by the Survivor's Act, now codified as N.J.S.A. 2A:15-3. Soden v. Trenton & Mercer County Traction Co., 101 N.J.L. 393, 394, 127 A. 558 (E. & A.1925).

Although both types of actions arise from the identical occurrence, i.e., the death of the plaintiff, they serve different purposes and are designed to provide a remedy to different parties. Id. at 398-99, 127 A. 558. "The fundamental purpose of a wrongful death action is to compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others." Alexander v. Whitman, 114 F. 3d 1392, 1398 (3d Cir.1997) (citing Alfone v. Sarno, 168 N.J.Super. 315, 403 A.2d 9 (App.Div.1979)), modified on other grounds, 87 N.J. 99, 432 A.2d 857 (1981), cert. denied, — U.S. ___, 118 S.Ct. 367, 139 L.Ed.2d 286 (1997).

An award of damages in a wrongful death action "is not a matter of punishment for an errant defendant or of providing for decedent's next of kin to a greater extent than decedent himself would have been able, but is rather a replacement for that which decedent would likely have provided and no more." The amount of recovery is based upon the contributions, reduced to monetary terms, which the decedent might reasonably have been expected to make to his or her survivors.

[Alexander, supra, 114 F.3d at 1398 (citation omitted).]

Consistent with its remedial purpose, damages under the Act are expressly limited to "the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased." N.J.S.A. 2A:31-5.

Further, courts interpreting the Act have consistently held that it permits recovery only of a survivor's calculable economic loss and that the Act does not support an award of punitive damages. See Meehan v. Central R.R. Co., 181 F.Supp. 594, 598 (S.D.N.Y.1960) (dismissing claim for punitive damages under New Jersey Wrongful Death Act); Carey v. Lovett, 132 N.J. 44, 67, 622 A.2d 1279 (1993) ("Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters."); Graf v. Taggert, 43 N.J. 303, 311, 204 A.2d 140 (1964) ("Our [Wrongful] Death Act was not intended to grant damages against a tortfeasor merely to punish him."); DeFelice v. Beall, 274 N.J.Super. 592, 599, 644 A.2d *249 1136 (App.Div.) ("The purpose of New Jersey's Wrongful Death Act is to provide compensation for pecuniary losses suffered by survivors of those killed by wrongful acts."), certif. denied, 138 N.J. 268, 649 A.2d 1288 (1994); Goss v. American Cyanamid, Co., 278 N.J.Super. 227, 241, 650 A.2d 1001 (App.Div.1994) ("An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided."); Turon v. J. & L. Constr. Co., 8 N.J. 543, 555-56, 86 A.2d 192 (1952) (noting remedial purpose of Wrongful Death Act and observing that from Act's inception damages recoverable thereunder intended to be limited to "pecuniary injuries" sustained by qualified beneficiaries).

Plaintiff does not dispute the unavailability of punitive damages under the Wrongful Death Act, acknowledging that plaintiff's claims for punitive damages clearly were asserted under the Survivor's Act. Coastal contends, however, that because the only compensatory award below was rendered in the wrongful death action, and because no separate judgment awarding compensatory or even nominal damages was entered pursuant to the Survivor's Act prior to the punitive damages phase, the punitive damages action necessarily, and impermissibly, arose under the Wrongful Death Act.

As the Appellate Division found, however, the contemplation of both the court and the parties unquestionably was that plaintiff's punitive damages claims were to be addressed as the sole measure of relief available to plaintiffs under the survival action, plaintiff's claims for pain and suffering having been dismissed. Therefore, the critical issue before this Court is whether plaintiff established a valid claim for punitive damages under the Survivor's Act in the absence of an underlying award of compensatory damages for pain and suffering.

B

Survival actions, like wrongfuldeath actions, were unknown at common law. Kern, supra, 93 N.J.Super. at 470, 226 A.2d 186. The death of the plaintiff gave his representative no remedy against the tortfeasor. Soden, supra, 101 N.J.L. at 395, 127 A. 558. In 1855, New Jersey passed the Executors and Administrators Act, or Survivor's Act, now codified as N.J.S.A. 2A:15-3, allowing a decedent's representatives the right to bring an action for trespass to person or property in the same manner as if the decedent had been living. Soden, supra, 101 N.J.L. at 395, 127 A. 558. Unlike a wrongful death action, which is a derivative action arising in favor of beneficiaries named under that act, Giardina, supra, 111 N.J. at 423-24, 545 A.2d 139, the Survivor's Act preserves to the decedent's estate any personal cause of action that decedent would have had if he or she had survived.

N.J.S.A. 2A:15-3 provides:

Executors and administrators may have an action for any trespass done to the person or property, real or personal, of their testator or intestate against the trespasser, and recover their damages as their testator or intestate would have had if he was living.

In those actions based upon the wrongful act, neglect, or default of another, where death resulted from injuries for which the deceased would have had a cause of action if he had lived, the executor or administrator may recover all reasonable funeral and burial expenses in addition to damages accrued during the lifetime of the deceased.

The Survivor's Act was intended to be supplementary to the Death Act and to "afford[ ] complete and adequate redress to the estates of those who were injured in person or property by injuries causing death," Kern, supra, 93 N.J.Super. at 472, 226 A.2d 186, by allowing the decedent's estate to recover any loss to the decedent that accrued between injury and death, id. at 471, 226 A.2d 186. The Act was designed *250 to eliminate the arbitrary rule that "grounded a man's right to recover for an injury to his person or estate, inflicted by a tortious act, on the contingency of the party injured surviving to the date of trial." Id. at 471, 226 A.2d 186. Consistent with that purpose, the Act has been broadly construed "as to suppress the mischief and advance the remedy." Ibid. (quoting 1 Bl. Com. 87).

The Survivor's Act, in contrast to the Wrongful Death Act, contains no express limitation on the types of damages recoverable under the statute. A majority of states have decided that punitive damages are recoverable in a survival action, see Jay M. Zitter, Annotation, Claim for Punitive Damages in Tort Action as Surviving Death of Tortfeasor or Person Wronged, 30 A.L.R.4th 707 § 5 (1984), the typical reasoning being that "[l]ogic dictates that if a wrongdoer may be punished if his victim lives, then surely he should not escape retribution if his wrongful act causes a death," Leahy v. Morgan, 275 F.Supp. 424, 425 (N.D.Iowa 1967). This Court, however, has not had occasion to address that question. In Kern, supra, the Law Division observed that "[n]owhere do the cases in this area indicate that actions for pain and suffering brought under N.J.S.A. 2A:15-3 be restricted to compensatory redress, as is indicated by the cases dealing with the Wrongful Death Act." 93 N.J.Super. at 475, 226 A.2d 186. To the contrary, the Kern court noted, the Legislature in enacting the Survivor's Act broadly intended to afford "executors or administrators an action for any trespass done to the person or property of their testator or intestate." Id. at 472, 226 A. 2d 186. Further, the court observed, prior reported cases involving survival actions appeared to recognize, without expressly so holding, that punitive damages were in fact a permissible form of recovery under the Survivor's Act. Id. at 474-75, 226 A.2d 186 (citing Meehan, supra, 181 F.Supp. 594 (upholding punitive damages of $1000 for reckless and wanton conduct that brought about conscious pain and suffering of decedent as well as death), and Messina v. Petroli, 11 N.J. Misc. 583, 587, 167 A. 767 (Cir.Ct.1933) (holding pain and suffering compensable under survival statute and impliedly recognizing availability of punitive damages in action under Executors and Administrators Act)). Thus, in Kern, supra, the plaintiff's claims for punitive damages under the Survivor's Act were allowed to stand. 93 N.J.Super. at 475-76, 226 A.2d 186. Significantly, although the Legislature amended the Survivor's Act in 1969 to allow recovery of funeral expenses, L. 1969, c. 266, § 1, no action was then taken to overrule Kern`s holding regarding the availability of punitive damages in a survival action. See Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J.Super. 67, 77, 692 A.2d 68 (App.Div.) (noting principle that when legislature reenacts statute that has been judicially construed there is strong presumption that Legislature intended to leave that interpretation intact), certif. denied, 151 N.J. 77, 697 A.2d 548 (1997). Nor has there been any further modification to the statute in the thirty years since funeral expenses were made available.

C

As a rule, a claim for punitive damages may lie only where there is a valid underlying cause of action. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 45, 477 A. 2d 1224 (1984). In a negligence action, the maintenance of a valid claim requires the plaintiff to show a breach of duty and resulting damage. Ibid. (citing Stanley Co. v. Hercules Powder Co., 16 N.J. 295, 315, 108 A.2d 616 (1954) (other citations omitted)). In this case, Coastal stipulated negligence and causation, leaving only the issue of damages for the jury's determination. Coastal argues that because pain and suffering comprise the sole compensable injury in a survival action, no punitive damages may be awarded in the absence of an underlying *251 award of compensatory damages for such pain and suffering.

As Coastal notes, the primary damages recoverable in a survival action sounding in tort are for the decedent's pain and suffering between the time of injury and death. See Foster v. Maldonado, 315 F.Supp. 1179, 1180 (D.N.J.), petition denied, 433 F.2d 348 (1970). Damages for pain and suffering are permitted only for pain and suffering that is conscious. Carey, supra, 132 N.J. at 66, 622 A.2d 1279. Many states, including New Jersey, have allowed recovery for conscious pain and suffering whenever it can be shown the injured person survived her injuries, however briefly.^[3]See Kellow v. Central Iowa Ry. Co., 68 Iowa 470, 23 N.W. 740, 745 (1885) (holding that survival cause of action accrues to injured person who survives injury for brief moment "as certainly as it would have done if he had lived for a month or a year thereafter"), reh'g denied, 68 Iowa 470, 27 N.W. 466 (1886); Starkenburg v. Montana, 282 Mont. 1, 934 P.2d 1018, 1031 (1997) (holding that plaintiff in survival action bears burden of proving that death was not instantaneous, although a few second's survival constitutes sufficient amount of time to vest accrual of cause of action); Tirrell v. Navistar Int'l, Inc., 248 N.J.Super. 390, 407, 591 A.2d 643 (App.Div.) (upholding $50,000 award for pain and suffering of oiler who "died practically instantaneously" after truck crushed his chest and hypothesizing that decedent's raising his head before dying was "spasmatic reaction after death;" observing that nevertheless "for some finite period the slowlymoving truck dragged decedent under its wheels and the jury was free to infer that decedent had some brief but distinct anticipation of his impending death as well as physical pain and suffering"), certif. denied, 126 N.J. 390, 599 A.2d 166 (1991).

In this case, plaintiff was unable to establish compensable pain and suffering due to the unfortunate circumstance that Robbins apparently was killed immediately upon impact with Coastal's vehicle. The question is whether a plaintiff's inability to establish conscious pain and suffering in a survival action involving instantaneous death bars a claim for punitive damages. See Nappe, supra, 97 N.J. at 45, 477 A.2d 1224 (noting general rule that punitive damages may lie where valid underlying cause of action exists).

As the Appellate Division observed, the irony of a rule requiring conscious pain and suffering is that it makes the recoverability of punitive damages for egregious conduct resulting in death dependent on whether or not the victim died instantaneously. See Ford Motor Co. v. Superior Court, 120 Cal.App.3d 748, 753, 175 Cal. Rptr. 39 (1981) (Poche, J., dissenting) (noting that "malicious actor is subject to [punitive damages] when he harms property, when he causes personal injury or nonimmediate death, but not when he dispatches you straightaway"). Nevertheless, some jurisdictions do consider conscious pain and suffering essential to any recovery of punitive damages, reasoning that any recovery arising directly from a person's death has traditionally, and statutorily, been relegated to actions for wrongful death in which punitive damages are not available. See, e.g., Ford Motor Co., supra, 120 Cal.App.3d at 749, 175 Cal. Rptr. 39; Rubeck v. Huffman, 54 Ohio St.2d 20, 374 N.E.2d 411, 413 (1978); Wangen v. Ford Motor Co., 97 Wis.2d 260, 294 N.W.2d 437, 463-64 (1980).

*252 We previously have held that in some cases involving egregious conduct, a punitive damages claim may constitute plaintiff's sole basis for recovery, "at least where some injury, loss, or detriment to the plaintiff has occurred." Nappe, supra, 97 N.J. at 51, 477 A.2d 1224. In Nappe, we observed that the true "loss, injury, and detriment" suffered by plaintiff, in this case her death, is not necessarily coextensive with the "compensatory damages" awarded, which is merely "a monetary amount awarded in court to compensate or indemnify a plaintiff." Id. at 41 n. 1, 477 A.2d 1224. When the value of a real legal injury cannot be measured in money, id. at 56, 477 A.2d 1224 (O'Hern, J., concurring), a plaintiff who has been substantially harmed may not be able to establish an entitlement to compensatory damages. Under such circumstances, we held in Nappe that a defendant should not be freed of responsibility for aggravated conduct because of the fortuitous circumstance that an injured plaintiff cannot prove compensatory damages. Id. at 50, 477 A.2d 1224. Rather, where a plaintiff suffers substantial legal injury due to a defendant's egregious conduct, nominal damages, supporting a claim of punitive damages, may be awarded to vindicate the invasion of plaintiff's rights. Id. at 48, 477 A.2d 1224.

Employing similar reasoning, in Potomac Electric Power Co. v. Smith, the Maryland Court of Appeals held that recovery of punitive damages in a survival action does not require proof of conscious pain and suffering:

Under the unique circumstances before us, there has been proof of an "actual loss" or a "showing of compensable injuries" although, aside from the award for funeral expenses, no compensatory damages were awarded in the survivorship action. In arguing that no punitive damages may be awarded, appellant shall not be permitted to rely on the fact that its reckless act instantaneously caused the death of the 15-year-old decedent. Because punitive damages are not recoverable under the wrongful death statute, in cases of instantaneous death punitive damages would be precluded under appellant's theory. Such a result would thwart the policy of punitive damages "to punish the wrongdoer for misconduct and to deter future egregious conduct by others." To establish a policy rewarding defendants otherwise liable for punitive damages for their expediency in causing an innocent person's death would be absurd. We refuse to do so, and we uphold the jury's award of punitive damages in the survivorship claim.

[79 Md.App. 591, 558 A.2d 768, 793 (citations omitted), cert. denied, 317 Md. 393, 564 A.2d 407 (Md.1989), overruled on other grounds, United States v. Streidel, 329 Md. 533, 620 A.2d 905 (1993).]

Similarly, the trial court in this case refused to accept Robbins's instant death as a basis for precluding a claim for punitive damages: