Intentional Torts And Bankruptcy -
An Evaluation Of Kawaauhau v. Geiger
Bankruptcy law has developed around the public policy of permitting debtors
a fresh start by freeing those debtors from financial debt.
1 At the same time, however, bankruptcy law does not allow wholesale discharge
of all debt. Section 523 of the Bankruptcy Code
2 sets forth exceptions for discharge which "strikes at the very heart
of an individual debtor's fresh start."
3 Recent attention has focused particularly on Section 523(a)(6) of the
Code, which limits discharge for debt "for willful and malicious
injury by the debtor to another entity or to the property of another entity."
4 Simply stated, Section 523(a)(6) attempts to incorporate intentional tort
principles into bankruptcy law, thereby excepting from discharge any debts
the petitioner incurred as a result of their intentional wrongdoings.
Because of this interplay of separate legal doctrines, Section 523(6)
is also one of the most litigated exceptions in the Bankruptcy Code
5 and until recently, one on which the federal courts have remained neatly divided.
This article focuses on the debate to preserve the stability in both tort
and bankruptcy law, and in its discussion, notes the potential for an
erosion of the concept of "willful" as applied to cases of intentional
torts under tort law.
II. Section 523(a)(6)
A. Section 523(a)(6) Explained
As mentioned above, Section 523(a)(6) exempts from discharge all debts
"for willful and malicious injury by the debtor to another entity
or to the property of another entity."
7 Broken down into its component elements, Section 523(a)(6) focuses on
three significant points: the act subject of the discharge must be willful;
the act must be malicious; and the act must be intended to result in an
injury. The injury element is the most straightforward and most broad
element of the three,
8 resulting in little need for judicial interpretation. It includes physical
injury in tort as well as conversion of property.
9 However, the application of the willful and malicious component in Section
523 (a)(6) is not so straightforward and thus frequently subject to the
scrutiny of the bankruptcy court, who acts as both judge and jury throughout
Part of the difficulty in interpreting "willful" and "malicious"
in bankruptcy is that these elements are not defined within the Code,
and, as terms of art, are treated as separate elements to be proven.
10 Read alone, "willful" is generally taken to mean the same as
"deliberate or intentional," which requires something more than
11The standard for willful is whether the act was undertaken voluntarily.
12 In contrast, the "malicious" standard requires more than willfulness
but falls short of requiring personal animosity, spite, or ill will.
13 Although the three elements appear to be straightforward and easily understood,
this is not the case, particularly when the willful and malicious elements
are applied together. Until recently, bankruptcy courts have traditionally
been able to rely on tort litigation interpretations of "willful
and malicious," thereby creating an effective marriage of two otherwise
separate legal disciplines.
B. Intentional Torts
Although the concepts inherent in tort law lack precise definition as well,
14 the concept of intent, or lack thereof, undoubtedly forms the backbone
of this area of law.
15Accordingly, the concept of a tort involves action or inaction by one individual
against another. This is particularly true of the concept of intentional
torts, which is defined in part as a "[t]ort or wrong perpetuated
by one who intends to do that which the law has declared wrong."
16 The term "intentional torts" implies an intent or purpose to
injure, and involves both elements of purpose (intent) and malice.
17 Notice that in tort, malice does not have to be purposeful - malice can
be shown by "indifference to the safety of others, with knowledge
of their danger, or failure to use ordinary care to avoid injury after
acquiring such knowledge."
18 Further, whether a negligent act amounts to a willful and malicious injury
is a question of fact for trial,
19 is then decided by the jury according to the "reasonable person" standard.
In order for an act to constitute an intentional tort, the jury, acting
as fact finders, must decide whether or not the act was intentional. The
test for drawing such conclusion is whether or not the act was undertaken
with the intention of bringing about a harmful or offensive contact or
apprehension thereof to a particular person, or a third person, for the
purpose of causing the contact or apprehension, or with knowledge on the
part of the actor that such contact or apprehension is substantially certain
to be produced
20. Consequently, a petitioner's burden of proving an intentional tort
is limited to establishing the wrongdoer knew their action was substantially
certain to cause an injury, without regard to the wrongdoer's intent.
The doctrine of transferred intent is deeply rooted into the fabric of
tort litigation, and further substantiates the idea that wrongdoers who
intentionally cause injury to others will be responsible for all injuries
arising out of their actions, despite the possible inability to foresee
the actual injury.
21 Perhaps this concept is best exhibited by the doctrine of transferred
intent. The doctrine of "transferred intent" is a legal mechanism
created for the sole purpose of holding wrongdoer's liable for injuries
caused to third persons when such injuries were not intended or foreseeable.
22 When a wrongdoer's actions rise to the level of intentional, the conduct
is malicious; indifference to the safety of others, with knowledge of
their danger, or failure to use ordinary care to avoid injury after acquiring
such knowledge the wrongdoer will be responsible for injuries caused whether
or not the actual injuries were intended or even foreseeable.
Liability to third parties for intentional infliction of emotional distress
is also evidence that tort law has traditionally held wrongdoers completely
responsible for their actions. A third party victim of intentional infliction
of emotional distress may recover damages against a tortfeasor, if the
third party was closely related to the intended target of the abuse, or
was within a reasonable proximity of the source of danger, allowing recovery
without determining the subjective intent of the tortfeasor.
A thorough exploration into the requirements needed to prove an intentional
tort is not complete without studying negligence theory, which continually
evolves closer to intentional tort theory in holding a wrongdoer liable
for injuries caused by their own behavior. Negligence is a legal mechanism
often used when either the wrongdoer's behavior does not constitute
an intentional act, or when the petitioner is incapable of meeting the
burden of proof for an intentional tort. Negligence is often viewed as
a product of intentional torts, separated only by the difference in the
probability of whether or not the act of the wrongdoer will cause injury
Despite the separation of the two disciplines, negligence has also remained
steadfast in attempting to hold wrongdoers liable for all consequences
of their actions as evidence by the "Eggshell" plaintiff doctrine,
as well as the "zone of danger" test for establishing liability
in negligent infliction of emotional distress cases. Perhaps the "Eggshell"
plaintiff doctrine is the most obvious attempt to extend liability for
negligence beyond the wrongdoer's intent, or foreseeability of a resulting
injury. This doctrine, like intentional tort law, requires the wrongdoer
to take the injured party as they are, and holds a negligent wrongdoer
liable for all injuries caused by their actions, despite the wrongdoer's
inability to predict the victim's actual injury
Negligence theory has also developed a mechanism for holding wrongdoer's
liable to third persons in negligent infliction of emotional distress
actions. A third party suffering emotional distress because of another
person's negligence can hold that wrongdoer liable for damages caused
by the emotional distress as long as the victim can prove they were in
the "zone of danger" created by the negligent behavior
In summary, intentional tort law has traditionally held wrongdoer's
liable for all consequences extending from their behavior without regard
to the wrongdoer being able to foresee the actual injury nor exploring
the wrongdoer's intentions. When the probability of a wrongdoer's
behavior decreases below the "substantially certain" standard
an injured party is afforded a civil remedy through negligence to hold
the wrongdoer liable for the injuries extending from their actions. Deeply
rooted into the fabric of tort litigation, whether the cause of action
is negligence or intentional tort law, is the understanding that persons
should be responsible for injuries actually and proximately caused to
other persons, and to provide a method of recovery for injuries without
regard to the wrongdoer's intent.
C. The Dilemma of Section 523(a)(6)
The Bankruptcy courts, however, act as judge and jury when evaluating actions
for bankruptcy, including whether an exception to discharge operates to
preclude a fresh start. Because lack of a jury requires the bench employ
a substantial certainty test, thereby requiring a decision in accordance
with the reasonable person standard, bankruptcy courts have continually
been split in their pursuit to find a standard defining "willful
and malicious" as required in Section 523 (a)(6). One source for
the lack of a precedent, and subsequently a split in interpretations,
is that until recently, there have been only guideposts at law for interpreting
Section 523 (a)(6). As previously stated, the split has occurred in interpreting
the combination of "willful and malicious" as provided in Section
26 This disagreement over interpretation of the "willful and malicious"
standard traveled one of two paths: either "willful and malicious"
was interpreted in the narrow sense which requires an actual intent to
cause the actual injury;
27 or, in the alternative, "willful and malicious" was given broader
connotations as used in tort cases, and requires merely the intent to
do the act that led to the subsequent injury.
However, this division has apparently been resolved by the recent decision
by the United States Supreme Court in Kawaauhau v. Geiger.
29 In their resolve, the Supreme Court, for purposes of evaluating intentional
tort claims for discharge in bankruptcy,
30effectively endorsed the narrow interpretation, which requires an injured
party to present evidence proving the alleged tortfeasor intended to cause
the resulting injury. Simply stated, the Geiger court has severed the
marriage between bankruptcy law and tort law in determining whether or
not 523(a)(6) should be employed to except from discharge the debtor's
Consequently, in defining the "willful and malicious" requirement
in Section 523(a)(6), the Supreme Court has potentially eroded the standard
for evaluating the "willful" prong in intentional tort litigation,
which traditionally has relied on the alternative path not followed by
the Supreme Court. Intentional tort law has traditionally required only
a showing the wrongdoer intended to undertake the act which caused the injury
D. Kawaauhau v. Geiger
The case of Kawaauhau v. Geiger
33 came before the Supreme Court for hearing in early 1998. Geiger originated
as an action for medical malpractice, in which the Kawaauhaus succeeded
in an action against Dr. Geiger for Geiger's negligent treatment of
Mrs. Kawaauhau's condition of thrombophlebetis, an infection which
cost Mrs. Kawaauhau her lower leg.
34 Geiger, who carried no medical malpractice insurance, petitioned for bankruptcy
after the Kawaauhaus began garnishing the doctor's wages to satisfy
their successful tort claim.
Upon review of some of the evidence presented at trial below, the bankruptcy
court found that Dr. Geiger's treatment of Mrs. Kawaauhau was "so
far below the standard of care that it can be categorized as willful and
malicious conduct for dischargeability purposes."
36 In reaching its decision, the court relied in part on Geiger's admission
at trial that he administered oral doses of penicillin instead of intravenous
doses. Specifically, Geiger recognized "in fact, that intravenous
penicillin was the appropriate standard of care for this type of problem
and yet he intentionally used something that was less effective for the
sake of cost."
37 The district court affirmed based on the suggestion of Geiger's admission
that "his conduct was certain or substantially certain to cause physical
harm," which the court found brought Geiger's conduct within
the meaning of "malicious" as used in § 523(a)(6).
38 The Eighth Circuit, sitting en banc, reversed, finding the judgment debt
did not come within the § 523(a)(6) discharge exception for willful
and malicious injury.
39 Specifically, the court found no suggestion that Geiger
desired to cause the very serious consequences that Mrs. Kawaauhau suffered
. . . If, therefore, he was an intentional tortfeasor as we have defined
that term, he would have to have believed that Mrs. Kawaauhau was substantially
certain to suffer harm as a result of his actions.
On March 3, 1998, the Supreme Court affirmed this narrow interpretation
by the Eighth Circuit in an unanimous opinion:
Because a debt arising from a medical malpractice judgment attributable
to negligent or reckless conduct does not fall within the section 523(a)(6)
exception, the debt is dischargeable in bankruptcy. Section 523(a)(6)'s
words strongly support the Eighth Circuit's reading that only acts
done with the actual intent to cause injury fall within the exception's
scope. The section's word "willful" modifies the word "injury,"
indicating that the nondischargeability takes a deliberate or intentional
injury, not merely . . . a deliberate or intentional act that leads to injury.
In reaching this holding, the Court has abandoned previous interpretations
of intentional tort law while noting that "[i]ntentional torts generally
require that the actor intend the consequence of the an act, not simply
the act itself
42." Simply stated, the Supreme Court has increased the burden of proof
for a petitioner alleging an intentional tort. The petitioner must now
prove the alleged tortfeasor intended the result of their actions; a tortfeasor
can only be held liable for the damages they could substantially foresee,
thereby constituting their intended result.
E. Geiger Evaluated
While the Supreme Court's observation is not inaccurate, it comprises
a limited perspective on the standard for intentional torts. In other
words, while the standard set forth by the Supreme Court in Geiger is
not wrong, it only tells half the story. As noted in a leading treatise
on Tort law,
the distinction between intent and negligence obviously is a matter of
degree. Apparently the line has been drawn by the courts at the point
where the known danger ceases to be only a foreseeable risk which a reasonably
man would avoid, and becomes a substantial certainty.
This approach is further explained in the Restatement of Torts:
Intent is not . . . limited to consequences which are desired. If the actor
knows that the consequences are certain, or substantially certain, to
result from his act, and still goes ahead, he is treated by the law as
if he had in fact desired to produce the result. As the probability that
the consequences will follow decreases, and becomes less than substantial
certainty, the actor's conduct loses the character of intent and becomes
In Geiger, the Supreme Court did not include the concept of substantial
certainty in its evaluation of "intent" despite the fact the
Court relied on the very same provision of the Restatement in defining
"intent" with relation to "willful."
Without going the distance to embrace tort law concepts in full, the Supreme
Court in Geiger may have inadvertently diluted the concept of "willful
injury" as it applies in tort. If we follow the suggestion of the
Court, an act will be judged to be "willful" only if the tortfeasor
intended to produce the harm that results. Few acts will meet this high
standard. Thus, the core concept of tort law, to compensate those who
have been harmed according to the degree of that harm, will inevitably
be diluted due to the inevitable transfer of this new concept into tort
Expanding the ability of a debtor to gain a fresh start by increasing the
debtor's ability to discharge debts previously excepted from discharge,
the Supreme Court most likely did not intend to abrogate the rights of
the those injured in tort in favor of those who have substantially caused
the injury. Despite the intentions of the Supreme Court, the ramifications
which surely will flow from Geiger are real, and will result in diminishing
the liability of many alleged tortfeasors who should be held liable for
the consequences which flow from their actions.
As stated earlier, tort law has traditionally emphasized that intentional
wrongdoers should be responsible for all damages which arise as a result
of their ill behavior, as best evidenced by the doctrine of transferred
intent, which extends liability to injured third party persons.
46 To charge a third party victim with the burden of proving an alleged wrongdoer
intended to harm a person other than the intended victim is an almost
insurmountable task, thereby allowing intentional wrongdoers to escape
any liability to third persons despite violating a writ of trespass
Perhaps the most concern arising out of Geiger is whether bankruptcy courts
will uphold punitive damages awarded against the debtor, or will punitive
damages be nullified for failing to pass the malicious standard as provided
in Geiger. Because punitive damages were never awarded by the district
court adjudicating Kawaauhaus' tortuous injury, the Geiger court failed
to consider whether or not the increased malicious standard would absolve
a wrongdoer's liability for punitive damages. While Geiger has instructed
bankruptcy courts to abandon traditional tort mechanisms in assessing
the presence of "willfull and malicious", the inconsistency
of the two doctrines should not permeate to punitive damages awards. In
order to preserve the punishing and rehabilitative goal of exemplary damage awards,
48 and to promote judicial economy
49 bankruptcy courts must be afforded the opportunity to ignore Geiger's
interpretation of 523(a)(6).
The concern as to whether Geiger will diminish punitive damage awards is
well-founded. Punitive damages awards are inextricably intertwined with
intentional torts. If the jury impaneled in the tort action determines
the wrongdoer's behavior was malicious, substantially certain to cause
injury, then the wrongdoer's behavior is considered intentional.
50 Punitive damages are awarded when the wrongdoer acted with severe recklessness,
malice, or deceit.
51 Punitive damages are specifically intended to punish, thereby deterring
blameworthy conduct. Because malicious behavior is a requirement in proving
the presence of an intentional tort, as well as a justification for awarding
punitive damages, it necessarily follows that "blameworthy"
is in the least malicious conduct. It necessarily follows, that when a
wrongdoer acts maliciously the wrongdoer will be held liable for an intentional
tort, and subsequent punitive damages.
The "malicious" requirement in establishing both intentional
torts and punitive damage awards in the same action, as previously discussed,
leaves punitive damage awards, in the minimum, dependent on establishing
the wrongdoer's behavior was intentional. Therefore, we are naturally
led to the epicenter of anxiety caused by Geiger. Because intentional
torts and punitive damage awards, in a tort action, are based on the wrongdoer's
malicious conduct, it follows that in a bankruptcy action Geiger's
increased standard of malicious behavior will require punitive damages
based on the wrongdoer's malicious conduct to be dismissed with actual
damages based on the debtor's intentional wrongdoing.
Section 523(a)(6)'s exception for discharge is based on malicious or
53 Geiger's inconsistency with district courts denies bankruptcy courts
the ability to apply the jury's tort action finding of an intentional
tort and a punitive damages award based on malicious conduct. The same
malicious element which fuses the doctrine of intentional wrongdoings
together with punitive damages separates the marriage between tort actions
and bankruptcy litigation. Therefore, if the malicious element is the
ground for the intentional wrongdoing in the tort action, but the intentional
wrongdoing is dismissed, as provided in 523(a)(6) for failing Geiger's
malicious standard, punitive damages must also be dismissed.
Obviously, the Supreme Court, in Geiger, did not intend to sacrifice punitive
damage awards to increase the likelihood debtor's will be afforded
a fresh start.
55 However, the increased standard of proving the malicious element required
in punitive damages will deny many punitive damage awards awarded in previous
similarly situated tort actions. In order to avoid undermining the punitive
and rehabilitative benefits enjoyed through punitive damages, bankruptcy
courts must limit Geiger to discharging debtor's actual damages.
The bankruptcy court's ability to ignore Geiger when determining whether
or not to discharge punitive damages as opposed to excepting the debt
from discharge, as provided in 523(a)(6), is not without merits. Firmly
rooted legal theories such as judicial economy, and the inherent goal
of punitive damages justify ignoring Geiger. Failing to ignore Geiger
will allow wrongdoer's to escape the liability created through their
own actions, thereby contradicting both tort
56 and bankruptcy law.
Bankruptcy courts, as a matter of judicial economy, will be just in failing
to discharge punitive damages incurred as a result of malicious behavior
even after actual damages from the same wrongdoing have been discharged.
Courts continually attempt to decrease excess litigation. Legal rules
such as res judicata and collateral estoppel are only two of the countless
attempts at reaching a finality of a decision, and thereby not overburdening
the judicial system.
58 Of particular interest here, issue preclusion is also a long-standing
rule available in bankruptcy actions.
Failure to assert issue preclusion will only burden the bankruptcy courts
by expanding their traditionally equitable nature into fact finders. Bankruptcy
courts can accept the jury's determination in the tort action as to
whether or not the wrongdoer's behavior was malicious, and justified
punitive damages. However, failing to ignore Geiger when assessing the
dischargeability of the debtor's punitive liabilities results in the
court being forced into re-litigating previously decided factual decisions.
Because "malicious" in tort actions is a much lower standard
than the bankruptcy courts have been ordered to apply, bankruptcy courts
must independently prove whether or not the debtor's behavior constituted
"malicious," as provided in Geiger.
60 In order to escape this burden, bankruptcy courts must employ the readily
available issue preclusion doctrines previously discussed.
Simply stated, Bankruptcy Courts should avoid dismissing punitive damages.
Punitive damages serve a vital function in our judicial system; acting
as a method of punishing malicious wrongdoers as well as deterring similar
future acts. No doubt, if bankruptcy courts employ the same increased
malicious standard to punitive damages as Geiger applied to actual damages,
wrongdoer's attempts to enter bankruptcy for the sole purpose of escaping
the consequences of their malicious behavior will increase. This unfortunate
and obviously unintended result of Geiger would change the fabric of tort
litigation, as well as the charitable nature of bankruptcy law to afford
innocent debtors a fresh start.
1See George S. Singer, Section 523 of The Bankruptcy Code: The Fundamentals
of Nondischargeability in Consumer Bankruptcy, 71 Am. Bankr. L.J. 325
(1997) [hereinafter Singer]. See also, Local Loan Co. v. Hunt, 292 U.S.
234, 244 (1934) (Stating "one of the primary purposes of the bankruptcy
[law] is to relieve the honest debtor from the weight of oppressive indebtedness,
and permit him to start afresh free from the obligations and responsibilities
consequent upon business misfortunes. This purpose . . . has again and
again been emphasized by the courts as being of public as well as private
interest, in that it gives to the honest but unfortunate debtor . . .
a new opportunity in life and a clear field for future effort, unhampered
by the pressure and discouragement of pre-existing debt.") (punctuation
omitted) (citations omitted).
211 U.S.C. § 523 (1994).
3Singer, supra note 1, at 326.
411 U.S.C. § 523(a)(6) (1994).
5See Singer, supra note 1, at 375.
6Rachel A. Hayes, Note, Geiger v. Kawaauhau: The Eight Circuit's Interpretation
of "Willful" Under Section 523(a)(6) of The Bankruptcy Code,
66 U.M.K.C. L. Rev. 451, 452 (1997) [hereinafter Hayes].
711 U.S.C. § 523(a)(6) (1994).
8See Singer, supra note 1, at 376.
10See Singer, supra note 1, at 376, citing Barclays Am./Bus. Credit, Inc.
v. Long, 774 F.2d 875, 882 (8th Cir. 1985) (holding debtors who breach
security agreements "are testing the outer bounds of their right
to a fresh start").
11See, Singer, supra note 1, at fn 293, citing H.R. Rep. No. 95-595, at 365
(1977), reprinted in 1978 U.S.C.A.N.N. 5963, 6320; S. Rep. No. 95-989,
at 77-79 (1978), reprinted in 1978 U.S.C.A.N.N. 5787, 5865.
12See Long v. Long, 774 F.2d at 881 (8th Cir. 1985).
13See, Singer, supra note 1, at 377, citing Hope v. Walker, 48 F.3d 1161,
1164 (11th Cir. 1995).
14See, PROSSER ON TORTS , at 1 (4th Ed.1971) [hereinafter PROSSER], citing
MILES, DIGEST OF ENGLISH CIVIL LAW (1910).
15See, PROSSER, supra note 14, at 1, citing COOKE, A PROPOSED NEW DEFINITION
OF A TORT, 12 Harv. L. Rev. 335, 336 (1899) (defining a tort in part as
"an act or omission, not a mere breach of contract, and producing
injury to another, in the absence of any existing lawful relation of which
such act or omission is a natural outgrowth or incident").
16BLACKS LAW DICTIONARY 1489 (6th Ed. 1990).
17BLACKS LAW DICTIONARY 1600 (6th Ed. 1990).
18BLACKS LAW DICTIONARY 1600 (6th Ed. 1990).
19See Caccamo v. Pouliot, 196 B.R. 641 (B.C.S.D. Fla. 1996).
20See Garrett v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955).
21See Talmage v. Smith, 101 Mich. 370, 59 N.W. 656 (1894).
22See Clark v. Gay, 112 Ga. 777, 38 S.E. 81 (1901). (stating, "on the
other hand, when either the tort intended or the one accomplished does
not fall within the trespass action, the doctrine does not apply").
23BLACKS LAW DICTIONARY 1489 (6th Ed. 1990).
24See Howe v. Thompson, 186 W.Va. 214, 217, 412 S.E.2d 212, 215 (1991).
25See Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 117 S.Ct.
26See Singer, supra note 1, at 377.
27See Hayes, supra note 6, at 459 (stating, "the Third, Fifth, Tenth
and Eleventh Circuits have adopted a narrow "willful" standard),
citing Corley v. Delaney, 97 F.3d 800, 802 (5th Cir. 1996) (per curiam),
In re Walker, 48 F.3d at 1165, Conte v. Gautam, 33 F.3d 303, 308 (3d Cir.
1994), Farmer's Ins. Group v. Compos, 768 F.2d 1155, 1159 (10th Cir. 1985).
28See Singer, supra note 14. See also, Hayes, supra note 6, at 458. See id.
at footnotes 78-79 citing Printy v. Dean Witter Reynolds, 110 F.3d 853,
859 (1st Cir. 1997); Perkins v. Scharffe, 817 F.2d 392, 393 (6th Cir.
1987); Impulsora del Territorio Sur, S.A. v. Cecchini, 780 F.2d 1440,
1443 (9th Cir. 1986).
29See Kawaauhau v. Geiger, 118 S.Ct. 974, 523 U.S. 57 (1998) [hereinafter Geiger].
30See Geiger, supra note 29, at 978 (declaring that, "we hold that debts
arising from recklessly or negligently inflicted injuries do not fall
within the compass of § 523(a)(6)").
31See Garrett v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955).
32See Geiger, supra note 29, at 974.
34See Geiger v. Kawaauhau, 113 F.3d 848, 849-50 (8th Cir. 1997).
35See Geiger v. Kawaauhau, 113 F.3d 848, 850 (8th Cir. 1997).
36In Re Geiger, 172 B.R. 916, 923 (Bankr. E.D.Mo. 1994).
37Geiger v. Kawaauhau, 113 F.3d 848, at 850 (8th Cir. 1997).
38See id at 851.
39See id at 852.
40Id at 852.
41Geiger, supra note 29, at 975 [emphasis added].
42See Geiger, supra note 29, at 977, citing RESTATEMENT (SECOND) OF TORTS,
§ 8A (1964).
43PROSSER, supra note 15, at 32.
44Conte v. Gautam, 33 F.3d 303, 308 (3rd Cir. 1994), citing RESTATEMENT (SECOND)
OF TORTS, § 8A (1979).
45See Geiger, supra note 29, at 977.
46See Talmage v. Smith, 101 Mich. 370, 59 N.W. 656 (1894).
48See Charles v. Texas Co., 18 S.E.2d 719, 199 S.C. 156 (1942) (holding punitive
damages are allowed to punish the wrongdoer and to discourage repetition
of tort by him or another).
49See Smith v. Coughlin, 727 F.Supp. 834 (S.D.N.Y. 1990) (holding prior adjudication
bars later proceeding when earlier decision was made on merits in to increase
50See Anderson v. Atlantic Coast Line R. Co., 184 S.E. 164, 179 S.C. 367 (1936).
51See Gilbert v. Duke Power Co., 179 S.E.2d 720, 255 S.C. 495 (1971).
52See Laird v. Nationwide Ins. Co., 134 S.E.2d 206, 243 S.C. 388 (1964) (holding
"compensatory" or "actual damages" are synonymous
and are based on the loss suffered by the injured party due to the wrongdoer's
intentional or unreasonable behavior).
5311 U.S.C. § 523(a)(6) (1994).
54See Enis v. Brawley, 41 S.E.2d 680, 129 W.Va. 621 (1947) (holding punitive
damages are arrived at by fixing an amount, which together with and in
reasonable proportion to the amount of compensatory damages, in the judgment
of the jury, will be sufficient to deter others from pursuing a like course
of conduct and such damages are not in addition to, but are inclusive
of, compensatory damages).
55See Singer, supra note 1, at 326.
56See Cavin's Inc. v. Atlantic Mut. Ins. Co., 220 S.E.2d 403, 27 N.C.App.
698 (1975) (holding the purpose of punitive damages are to punish the
wrongdoer above and beyond compensatory damages because of the outrageous
nature of their behavior. "Punitive damages are never awarded as
compensation or merely because of a personal injury infliction" they
are awarded to punish and to deter future similar acts).
57See Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934) (holding, "one
of the primary purposes of the bankruptcy [law] is to relieve the honest
debtor from the weight of oppressive indebtedness...this purpose...has
again and again been emphasized by the courts as being of public as well
as private interest...it gives to the honest...debtor" the ability
to discharge their debts).
58See U.S. v. White, 936 F.2d 1326 (C.A.D.C. 1991).
59See In re Bono, 70 B.R. 339 (E.D.N.Y. 1987) (holding that the doctrines
of collateral estoppel and res judicata apply with full force to proceedings
in bankruptcy courts).
60See Geiger v. Kawaauhau, 113 F.3d at 852 (8th Cir. 1997) (holding bankruptcy
courts will discharge any debts arising out of wrongful actions provided
the debtor's wrongful act was not malicious; intended to cause the
very serious consequences that Mrs. Kawaauhau suffered. This is different
from traditional theories of tort law which hold intentional wrongdoer's
liable for all the consequences of their malicious conduct).
61See Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934).