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  • Writer's pictureGregory Sandler


The Supreme Court of Virginia recently struck a blow for justice when it remanded a personal injury case to the trial court for further consideration of punitive damages. The appeal involved a jury instruction that may have caused the jury in the case to not appropriately consider its award of punitive damages. Cain v. Lee, (2015).

In the case, a drunk driver crashed into the rear end of a car driven by a woman and her two daughters. All three suffered injuries over which they sued. At the conclusion of the trial, as with all jury trials, the judge provided instructions to the jury as to the application of relevant laws to their deliberations. In this case, one such instruction was that under Virginia Law, punitive damages are not favored. The result was that the jury awarded compensatory damages to the plaintiffs, but awarded only $1,500 in punitive damages.

Virginia statutory law specifically allows punitive damages in personal injury suits when the circumstances allowed by law and by statute are satisfied. Virginia Code § 8.01-44.5 states that such damages are permitted where the “defendant’s conduct was so willful or wanton as to show conscious disregard for the rights of others”. There is no statement in the statute that indicates or even implies that such damages are not favored, as the trial court had instructed.

Where the trial court went wrong was that its’ “punitive damages are not favored” instruction was taken from language in another Supreme Court case, and was taken and used out of context. The statement about punitive damages not being favored was not a holding of the Supreme Court, it was merely language used in discussion of the case. Therefore, it was wholly inappropriate to instruct the jury that this language represented the law in Virginia.

In Virginia, the practice of the courts is to have plaintiff’s and defendant’s lawyers to propose jury instructions to the judge for his use. These instructions are then argued to the judge who makes the decision about which ones are appropriate in the case to guide the jury in its decision making. This requires close attention to detail by the plaintiff’s lawyer because the instructions are the law of the case.

At The Sandler Law Group, we are skilled at trying cases, and that involves presenting the appropriate jury instructions for consideration. If you have been injured in an accident or by another person’s actions, Call toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at or by email at

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