Punitive damages or exemplary damages are damages intended to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. Although the purpose of punitive damages is not to compensate the plaintiff, the plaintiff will in fact receive all or some portion of the punitive damage award.

Punitive damages are often awarded where compensatory damages are deemed an inadequate remedy. The court may impose them to prevent under-compensation of plaintiffs, to allow redress for undetectable torts and taking some strain away from the criminal justice system.^[1] However, punitive damages awarded under court systems that recognize them may be difficult to enforce in jurisdictions that do not recognize them. For example, punitive damages awarded to one party in a US case would be difficult to get recognition for in a European court, where punitive damages are most likely to be considered to violate ordre public.^[2]

Because they are usually paid in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, where the defendant's conduct was egregiously insidious. Punitive damages cannot generally be awarded in contract disputes. The main exception is in insurance bad faith cases in the United States, where the insurer's breach of contract is alleged to be so egregious as to amount to a breach of the "implied covenant of good faith and fair dealing," and is therefore considered to be a tort cause of action eligible for punitive damages (in excess of the value of the insurance policy).^[3]

National applications[link]

Australia[link]

In Australia, punitive damages are not available for breach of contract,^[4] but are possible for tort cases.

The law is less settled regarding equitable wrongs. In Harris v Digital Pulse Pty Ltd,^[5] the defendant employees knowingly breached contractual and fiduciary duties to their employer by diverting business to themselves and misusing its confidential information. The New South Wales Court of Appeal held that punitive damages are not available both for breach of contract and breach of fiduciary duty. Heydon JA (as he then was) said there is no power to give punitive damages in respect of a claim in equity, although he was content to decide the case on the narrower ground that there is no power to award punitive damages for the specific equitable wrong in issue. Spigelman CJ concurred, although he emphasized that the contractual character of the fiduciary relationship in question, and refrained from deciding on whether punitive damages would be available in respect of equitable wrongs more analogous to torts. Mason P dissented and opined that there was no principled reason to award punitive damages in respect of common law torts but not analogous equitable wrongs.

England and Wales[link]

In England and Wales, exemplary damages are limited to the circumstances set out by Lord Devlin in the leading case of Rookes v. Barnard:^[6]

1. Oppressive, arbitrary or unconstitutional actions by the servants of government.
2. Where the defendant's conduct was 'calculated' to make a profit for himself.
3. Where a statute expressly authorises the same.

Rookes v Barnard has been much criticised and has not been followed in Canada or Australia or by the Privy Council.^[7]

Another case that could arguably be seen as an example of punitive damages was that of Attorney-General v Blake^[8] in which the defendant profited from publishing a book detailing his work for MI5. The details were very old and therefore did not cause loss to the state. The publishing was, however, in breach of the contract of employment (and incidentally criminally in breach of the Official Secrets Act 1911). The defendant was required to give an account of his profits gained from writing the book.

The courts have been very reluctant to follow this approach,^[9] emphasising the materiality of the criminal element required for these damages to be considered.

New Zealand[link]

In New Zealand it was held in Donselaar v. Donselaar ^[10] and confirmed in Auckland City Council v. Blundell ^[11] that the existence of the Accident Compensation Corporation did not bar the availability of exemplary damages. In Paper Reclaim Ltd v Aotearoa International ^[12] it was held that exemplary damages are not to be awarded in actions for breach of contract but the Court left open the possibility that exemplary damages might be available where the breach of contract is a tort.

More recently in Couch v Attorney-General the New Zealand Supreme Court barred exemplary damages for cases of negligence unless the defendant acts intentionally or with subjective recklessness ^[13].

Punitive damages can also be awarded for equitable wrongs. In Acquaculture Corporation v New Zealand Green Mussel Co Ltd,^[14] the majority of the New Zealand Court of Appeal held that in addition to compensation, punitive damages could be awarded for breach of confidence, albeit that, on the facts, they were not merited. Similarly, in Cook v Evatt (No.2),^[15] Fisher J in the New Zealand High Court added exemplary damages of NZ$5,000 to an account of profits of over NZ$20,000 for breach of fiduciary duty.

United States[link]

Punitive damages are a settled principle of common law in the United States.^[16] They are generally a matter of state law (although they can also be awarded under Federal maritime law), and thus differ in application from state to state. In many states, including California and Texas, punitive damages are determined based on statute; elsewhere, they may be determined solely based on case law. Many state statutes are the result of insurance industry lobbying to impose "caps" on punitive damages; however, several state courts have struck down these statutory caps as unconstitutional.^[17]

The general rule is that punitive damages cannot be awarded for breach of contract. But if an independent tort is committed in a contractual setting, punitive damages can be awarded for the tort.^[18] Punitive damages are usually reserved for when the defendant has displayed actual intent to cause harm (such as purposefully rear-ending someone else's car), rather than in cases of mere negligence.^[19]

Punitive damages are a focal point of the "tort reform" debate in the United States, where numerous highly-publicized multi-million dollar verdicts have led to a fairly common perception that punitive damage awards tend to be excessive. However, statistical studies by law professors and the Department of Justice have found that punitive damages are only awarded in two percent of civil cases which go to trial, and that the median punitive damage award is between $38,000 and $50,000.^[17]

There is no maximum dollar amount of punitive damages that a defendant can be ordered to pay. In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is high enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional.

In Liebeck v. McDonald's Restaurants (1994), a very high and therefore often criticized amount of damages were awarded to a woman who burned herself with hot coffee she purchased from McDonald's.

In BMW of North America, Inc. v. Gore (1996), the Court ruled that an excessive punitive award can amount to an arbitrary deprivation of property in violation of due process. The Court held that punitive damages must be reasonable, as determined by the degree of reprehensibility of the conduct that caused the plaintiff's injury, the ratio of punitive damages to compensatory damages, and any comparable criminal or civil penalties applicable to the conduct. In State Farm Auto. Ins. v. Campbell (2003), the Court held that punitive damages may only be based on the acts of the defendants which harmed the plaintiffs. The Court also elaborated on the factors courts must apply when reviewing a punitive award under due process principles.

Most recently, in Philip Morris USA v. Williams (2007), the Court ruled that punitive damage awards cannot be imposed for the direct harm that the misconduct caused others, but may consider harm to others as a function of determining how reprehensible it was. More reprehensible misconduct justifies a larger punitive damage award, just as a repeat offender in criminal law may be punished with a tougher sentence. Dissenting in the Williams case, Justice John Paul Stevens found that the "nuance eludes me," suggesting that the majority had resolved the case on a distinction that makes no difference.

People's Republic of China[link]

In very few industries, punitive damages could be awarded in either contractual or tort case, except a tort relevant to product defraud or defect. Article 49 of the PRC Law on Protection of Consumer's Rights and Interests enacted on October 31, 1993 provides the rule that any consumer is entitled to a recovery of double the purchase price of products or service from the seller or service provider against their defraud. Successful cases have been reported in wide in this regard.

Article 96 of the PRC Law on Food Safety adopted on February 28, 2009 raises the punitive damages to ten times the purchase price additional to the compensatory damages that the victim has already claimed from the producer or seller for food with poor quality not compliant to food safety standards. Such a huge statutory amount considered by the legislative organ is based on several extremely serious food quality incidents in the past two years, such as the notorious Sanlu tainted milk powder case.

Application of the punitive damage rule is further expanded with the enactment of the PRC Law on Tort Liability effective as of July 1, 2010. This new law sets forth that a victim is entitled to claim punitive damages from any manufacturer or seller expressly aware of the defects in products but still produces or sells them if the it results in death or heavy injuries. Since this is a rather new law so far, no further explanatory regulation regarding a detailed amount and applicable scope is promulgated guiding the application of this rule, so a court judge may have discretional power to decide punitive damages case by case under this new law.

Japan[link]

Japanese courts do not award punitive damages as a matter of public policy, and Japanese law prohibits the enforcement of punitive damage awards obtained overseas.^[20]

In Japan, medical negligence and other species of negligence are governed by the criminal code, which may impose much harsher penalties than civil law. For instance, many causes of action which would subject a defendant to a potential punitive damage award in the U.S. would subject the same individual to prison time in Japan.

See also[link]

• Non-economic damages caps

References[link]

The Jerky Boys is an American comedy act from Queens, New York, whose routine consists of prank telephone calls and other related skits. Formed in 1989, The Jerky Boys were made up of childhood friends Johnny Brennan and Kamal Ahmed.^[1] After Kamal left the act in 2000, The Jerky Boys continued on as a solo act featuring only Brennan, before going on hiatus after the 2001 release of their final album, The Jerky Tapes. The project was resurrected in 2006 and remains active today.

The calls were made by ringing up unsuspecting recipients, or in response to classified advertisements placed in local New York-based newspapers. Each call was made in character, usually with over the top voices influenced by the duo's family members.^[1]

According to their current record label, Laugh.com, the act has sold over 8,000,000 CDs since their 1993 debut.

History[link]

Duo[link]

Brennan began making and recording prank telephone calls in the 1970s, and teamed up with the younger Kamal, in the late 1980s/early 1990s in their Queens neighborhood.^[2] The duo made a number of bootleg tapes of their recorded phone calls that eventually found their way to New York-based radio personality Howard Stern, who played the duo's tracks on the air.^[2]

The pair gained notoriety from their exposure on the popular The Howard Stern Show, and released their first album, The Jerky Boys, in 1993. The album topped the Billboard charts and was eventually certified double platinum by the Recording Industry Association of America.

The duo released the double platinum, The Jerky Boys 2 in 1994, followed by The Jerky Boys 3 in 1996, The Jerky Boys 4 in 1997, Stop Staring at Me! in 1999, and The Jerky Tapes in 2001.

In 1995, the duo appeared in Touchstone Pictures' Jerky Boys: The Movie. The movie was filmed in 1993–94, and although it was almost universally panned by critics, the film has achieved cult status among The Jerky Boys' loyal fan base.

Solo act[link]

In 2000, tension between the two developed.^[2] The duo appeared in the Psychopathic Records film Big Money Hustlas, but because Brennan and Kamal were unable to get along with each other, they did not share any scenes in the film; Brennan played a supporting role as the police chief, and Kamal appeared in a cameo as Frank Kissel, an audience member at the strip club.^[3] By the end of the year, Kamal passed a note down to the manager, who passed it to Brennan: Kamal had decided to quit the group.^[4]

Kamal released a solo album, Once a Jerk, Always a Jerk, in 2000.

On March 20, 2007, Brennan, who is now the only constant member of the group, kept The Jerky Boys name and released a solo album, Sol's Rusty Trombone, a collection of mostly ring tones and skits.^[2] As of late 2008, the "About" page on the Jerky Boys website did not mention Kamal in discussing the history of the group and its recordings. On March 5, 2010, Brennan, in conjunction with Inner Four, released two apps for the iPhone and iPod Touch platform: The Jerky Boys Prank Caller, and The Jerky Boys Pinball. In late 2011, Brennan started a weekly podcast titled The Jerky Boys Show with Johnny Brennan in which he discusses the history of the calls, how the characters came about, and other hijinks. The podcast also gives the opportunity to fans to speak to Brennan directly.

Regular characters[link]

• Big Ole Badass Bob The Cattle Rustler – an American Westerner/Texan who drives a semi-truck; has appeared on "Lawnmower Sale" and "Bad Ass Massage", both from The Jerky Boys 3 album, "Flower Lady #4" from The Jerky Tapes album, and is a featured character on Sol's Rusty Trombone (voiced by Johnny Brennan).
• Curly G., Cradle Rock – a throwback rap artist trying to catch a break; appeared on one track to date ("Bamm!" from The Jerky Boys 3 album) (voiced by Kamal Ahmed).
• Sammy Cox – older man with a pronounced lisp; appeared on one track to date ("Herman" from The Jerky Boys 4 album) (voiced by Johnny Brennan).
• Mike Derucki – an out-of-work painter (voiced by Brennan). Has appeared on several tracks including "Hello Ray" and "Dead Pet Removal"
• Harry Getzov – A name from the "Flower Lady" and "Moonlight Matinee" tracks from The Jerky Tapes album. The character is perennially away from the telephone, and unable to be reached by the unsuspecting caller who is pranked by either Jack Tors (Brennan), Tarbash (Kamal), or Big Ole Badass Bob The Cattle Rustler (Johnny Brennan). In the Jerky Boys CDs, Getzov is credited as the Jerky Boys manager.
• Jake – handles in-coming calls for Mr. Silverman, the phony sports agent ("Silverman baby" track from (The Jerky Tapes) and "Big Hock" track from the Stop Staring at Me! album) (voiced by Johnny Brennan).
• Jocko Johnson – voice and behavior similar to Frank Rizzo; wanted his wife's house demolished while she was out of town, as punishment for her infidelity. ("The Home Wrecker" track from The Jerky Boys album) (voiced by Kamal).
• Frank Kissel – an aged World War II veteran and ex-singer who uses a wheelchair. The character normally refers to himself only as Kissel. He sometimes complains about or is heard arguing with his wife. Kamal, who voices the character, appeared in full old-man makeup as Kissel in the Insane Clown Posse movie Big Money Hustlas.
• Anthony Kissel – Frank Kissel's son; appeared on two tracks to date ("Uncle Freddie" from The Jerky Boys' album, and "Laundromat" from the The Jerky Boys 4 album). Anthony is also mentioned in "Husband Beating" (from The Jerky Boys 2 album), where Kissel said "I got a couple children, they're a little older right now", but he did not mention his real name (voiced by Brennan).
• Martha Kissel – Frank Kissel's wife; often appears with Kissel. Her voice can be heard in calls such as "Uncle Freddie", "Husband Beating" and "Kissel Sails". On "Uncle Freddie" (from The Jerky Boys album), Kissel reveals his wife's name before he begins arguing with the person who answered the phone about whether Uncle Freddie had died (voiced by Johnny Brennan).
• Nikos – an immigrant Greek delicatessen owner; appeared on one track to date. Nikos often mumbles incoherently, interspersing a few real Greek words within all his gibberish ("Bad Tomatoes" from The Jerky Boys 3 album) (voiced by Johnny Brennan).
• Pico – an abused Mexican immigrant; often hired as Kissel's personal assistant, which invariably has disastrous consequences. When Kissel hires Pico to repair a broken television, the pair end up getting electrocuted. (voiced by Johnny Brennan).
• Frank Rizzo – an extremely abrasive, foul-mouthed blue-collar Italian-American New Yorker with bizarre complaints and requests (voiced by Johnny Brennan). Frank curses repeatedly at a potential employer during an inquiry about a job, and accuses the Mickey Mouse character at Disney World of molesting his children.
• Sol Rosenberg – a frail, insecure, male 50-something New York Jew who often suffers from various and often comical problems and ailments. Somewhat childish in his demeanor, Sol seeks treatment for problems ranging from genital warts to a fear of his own shadow (voiced by Johnny Brennan).
• Rosine – a flamboyant, flirtatious Puerto Rican transvestite who often slaps herself for sexual gratification (voiced by Johnny Brennan). She also plays the flute.
• Silverman – a phony sports agent ("Silverman Baby!!" track from The Jerky Tapes album) (voiced by Johnny Brennan).
• Tarbash, the Egyptian Magician – a Middle-Eastern man with a repertoire of dangerous stage tricks who mutilates himself or is attacked by various wild animals used in his act. His last appearance in the Jerky Boys albums was in The Jerky Tapes (voiced by Kamal).
• Ali Kamal – a Middle-Eastern cab driver victimized by a sadistic dentist. Assaulted and possibly molested, Ali seeks the aid of a lawyer specializing in "dental malpractice." On another occasion, Kamal seeks the assistance of an attorney after being brutally beaten by a tenant for delivering pizza to an incorrect address (voiced by Kamal).
• Jack Tor s – a flamboyant homosexual man who frequently takes part in bizarre sexual activities and is looking for assistance or supplies related to this. Also a musician and a dancer (voiced by Johnny Brennan).
• Brett Weir – a name that comes up in classic call "Super Across The Way" (from The Jerky Boys album) and is also mentioned in "The Gay Model" ; actually Johnny Brennan's brother-in-law's name.^[4] The character, portrayed by actor James Lorinz, also appeared in 1995's Jerky Boys: The Movie.

Discography[link]

Albums[link]

Apple iPhone and iPod Touch Apps[link]

Johnny B.[link]

Kamal[link]

Soundtrack albums[link]

Compilation albums[link]

Film and TV appearances[link]

• Space Ghost Coast to Coast (1994)
• Don't Hang Up, Tough Guy! (1995)
• Jerky Boys: The Movie (1995)
• Big Money Hustlas (2000)

Allusions[link]

• The Jerky Boys were sometimes referenced on Arrested Development as one of the only albums the character George Michael owns. On a couple of occasions he is seen placing prank calls in an attempt to imitate them.
• The duo frequently incorporated references to The Howard Stern Show in several calls ("Food & Drug Complaint" from 1997's The Jerky Boys 4 album; "You Wanna Scrap?" from 1999's Stop Staring at Me! album; "Moonlight Matinee" from 2001's The Jerky Tapes album).
• Brennan's Sol Rosenberg voice is the voice of pharmacist Mort Goldman on Family Guy
• In 2008, comedian Peter Kay included a version of the Free Nelson Mandela song by The Jerky Boys in his parody show Peter Kay's Britain's Got the Pop Factor... and Possibly a New Celebrity Jesus Christ Soapstar Superstar Strictly on Ice for Channel 4 in the UK. It was part of a medley and mixed the last two syllables of Mandela into the Rihanna hit Umbrella.
• The Jerky Boys are referenced in How I Met Your Mother, "False Positive," when Lily mistakenly plays a track to her unborn child instead of classical music.

References[link]

External links[link]

• Jerky Boys Official Myspace Page
• TheJerkyBoys.com – Official Site
• Laugh.com – Official Record Label Site
• AllMusic.com Biography – The Jerky Boys

See also[link]

• Crank Yankers
• The Happy Telephone
• Touch-Tone Terrorists
• Tube Bar prank calls

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