In Florida, punitive damages in personal injury cases are governed by statutory authority. Florida Statute 768.72 establishes when punitive damages are permitted and what the Plaintiff must prove.

F.S. 768.72 establishes that the Plaintiff must prove that the defendant was either personally guilty of intentional misconduct or gross negligence. Before ever getting the opportunity to establish that the Defendant is liable for punitive damages, the Plaintiff must first overcome the procedural hurdle of F.S. 768.72 and focus on “when” punitive damages are permitted.

Specifically, F.S. 768.72 provides that “in any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis” for the recovery of punitive damages. Thus, before the jury can ever weigh the evidence of a punitive claim the Plaintiff must petition the court for the right to put on a punitive case. As outlined in the statute, the Plaintiff must show to the court that there is a reasonable basis for the claim.

Although different civil courts have different procedural and administrative rules, establishing the reasonable basis comes in the form of a separate hearing before the judge who oversees the case. This hearing is done after the underlining cause of action has been instituted, and by and through a separate motion asking the court for leave to add the punitive claim. At the initial punitive hearing it is the Plaintiff’s obligation to produce enough evidence to establish a reasonable showing that there is a reasonable basis for the punitive claim.

If the Plaintiff is successful, the pleadings are generally amended, allowing the Plaintiff to move forward and place the punitive claim before the jury. At that point, the Plaintiff then must prove the second part of F.S. 768.72 and prove the defendant was guilty of intentional misconduct or gross negligence as defined by the statute.