Can You Get Punitive Damages in Massachusetts?

Massachusetts allows punitive damages only where a statute expressly authorizes them, so in an ordinary injury case, including a car crash caused by a drunk or reckless driver where the victim survives, no punitive damages are available at all. The Supreme Judicial Court put the rule in one sentence in Flesner v. Technical Communications Corp., 410 Mass. 805, 813 (1991): “Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute.” The statute that matters most in injury law is the wrongful death statute, M.G.L. c. 229, sec. 2, which allows punitive damages of not less than $5,000 when a death was caused by malicious, willful, wanton or reckless conduct or by gross negligence. A handful of other statutes allow punitive or multiplied damages for particular wrongs, the best known being the double and treble damages of the consumer protection law, chapter 93A.

If you are trying to understand what a claim after a serious injury or a death can include, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free. This page is general information about Massachusetts law, not legal advice about your situation.

A few terms come up throughout. Punitive damages are money awarded to punish a wrongdoer and deter similar conduct, on top of the money that makes up for the harm. Compensatory damages are the money that makes up for the harm itself: medical bills, lost wages, pain and suffering, and in a death case the value of the person to the family. Multiple damages are compensatory damages multiplied by a number the statute sets, usually two or three. Gross negligence is a degree of carelessness well beyond ordinary negligence but short of reckless conduct. Willful, wanton or reckless conduct is conduct that disregards a known or obvious risk of serious harm, a step beyond gross negligence.

The Rule: No Statute, No Punitive Damages

Most states let a jury award punitive damages in an ordinary lawsuit when the defendant’s conduct was bad enough, usually malicious or recklessly indifferent to others. Massachusetts does not. In Flesner, an employee sued over his firing and asked for punitive damages. The Supreme Judicial Court answered that punitive damages are not allowed “unless expressly authorized by statute,” and because no statute applied, his claim for them “cannot stand.”

That rule has practical consequences that surprise people:

• The conduct can be outrageous and still produce no punitive award. If no statute covers the claim, how badly the defendant behaved changes the compensatory damages only to the extent it changed the harm.
• A survivor and a family can be treated differently for the same crash. A person seriously injured by a drunk driver has no punitive claim. If the same crash kills someone, the wrongful death statute allows punitive damages, and the estate can seek them.
• The statute decides the measure. Some statutes set a floor, some multiply the actual damages by a fixed number, and some simply say “punitive damages” and leave the amount to the fact finder.
• Some defendants are shielded entirely. The Massachusetts Tort Claims Act bars punitive damages against a public employer.

The Statutes That Authorize Punitive or Multiple Damages

These are the Massachusetts statutes that come up most often for people hurt or wronged by someone else. Each was read at malegislature.gov.

Statute	What it covers	What it allows	The trigger
M.G.L. c. 229, sec. 2	Wrongful death	Punitive damages of not less than $5,000	Death caused by malicious, willful, wanton or reckless conduct, or by gross negligence
M.G.L. c. 93A, sec. 9	Consumers, including people affected by unfair insurance claim handling	Up to three but not less than two times actual damages	A willful or knowing violation, or a bad-faith refusal to grant relief after a written demand
M.G.L. c. 93A, sec. 11	Businesses harmed by another business	Up to three but not less than two times actual damages	A willful or knowing violation
M.G.L. c. 151B, sec. 9	Discrimination in employment, housing and other areas	”Actual and punitive damages”	A finding for the person who was discriminated against
M.G.L. c. 149, sec. 150	Unpaid wages under the Wage Act	Treble damages “as liquidated damages” for lost wages and benefits	A violation proved in a civil action
M.G.L. c. 111, sec. 199(b)	Lead paint poisoning of a child	Punitive damages “which shall be treble the actual damages found”	An owner who was notified of a dangerous level of lead and willfully failed to act
M.G.L. c. 272, sec. 99(Q)	Secret recording or interception of a conversation	Actual damages (at least $100 a day or $1,000), plus “punitive damages”	An interception not permitted by the statute

And one statute that points the other way:

Statute	What it covers	What it says about punitive damages
M.G.L. c. 258, sec. 2	Claims against a city, town or state agency for an employee’s negligence	Public employers “shall not be liable… for punitive damages,” and compensatory damages are capped at $100,000, with an exception for serious bodily injury claims against the MBTA

Punitive Damages in a Wrongful Death Case

Chapter 229, sec. 2 lists what a person who wrongfully causes a death is liable for. There are three parts:

1. The fair monetary value of the person who died to the family members entitled to the recovery, including lost income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice.
2. Reasonable funeral and burial expenses.
3. Punitive damages “in an amount of not less than five thousand dollars” where the death “was caused by the malicious, willful, wanton or reckless conduct of the defendant or by the gross negligence of the defendant.”

Separately, c. 229, sec. 6 allows recovery for the conscious suffering of the person before death, and that money is held by the executor or administrator as part of the estate. Conscious suffering is compensation, not punishment.

Ordinary negligence is not enough

The punitive part of sec. 2 needs more than carelessness. Ordinary negligence, such as a moment of inattention that causes a rear-end crash, supports the compensatory parts of a death claim but not the punitive part. The statute names two levels of fault that do:

• Gross negligence. The Supreme Judicial Court’s long-standing description, from Altman v. Aronson, 231 Mass. 588, 591 (1919), calls it “very great negligence, or the absence of slight diligence, or the want of even scant care,” and adds that it is “something less than the wilful, wanton and reckless conduct” that the law treats as a different kind of wrong.
• Malicious, willful, wanton or reckless conduct. This is the higher category: conduct that goes beyond inattention to a disregard of the probable consequences.

Because the statute lists both, a death claim does not have to prove recklessness to reach punitive damages. Gross negligence is enough.

A floor, and no ceiling written into the statute

Section 2 sets a minimum of $5,000 when the punitive standard is met. It does not state a maximum. Nothing in the section describes how the amount above the floor is to be measured, and this page does not supply a formula the statute does not contain.

Who brings the claim, and how long there is

Under sec. 2, the damages “shall be recovered in an action of tort by the executor or administrator of the deceased.” The family does not sue in their own names; the personal representative of the estate does. The action must be commenced within three years from the date of death, or within three years from when the executor or administrator knew, or in the exercise of reasonable diligence should have known, of the factual basis for the claim.

Sec. 2 also carves out one important case: “the liability of an employer to a person in his employment shall not be governed by this section.” A death at work is generally handled through workers’ compensation instead.

For how the money in a death case is divided among family members under c. 229, sec. 1, see wrongful death claims in Massachusetts.

Compensatory, Punitive and Multiple Damages Compared

The three kinds of damages work differently, and a single case can involve more than one.

Question	Compensatory damages	Punitive damages	Multiple damages (93A)
Purpose	Make up for the harm	Punish and deter	Punish a willful, knowing or bad-faith violation
Available in any injury case?	Yes	Only where a statute authorizes them	Only in a 93A claim
How the amount is set	Proof of the actual loss	By the statute: a floor, a multiple, or left to the fact finder	Two to three times the actual damages
Example in Massachusetts	Medical bills and pain and suffering after a crash	Not less than $5,000 under c. 229, sec. 2 in a death caused by gross negligence	Double or treble the judgment after unfair insurance claim handling
Taxed by the IRS?	Generally not, when received on account of physical injury	Generally yes	Depends on the claim; ask a tax adviser

A Crash Survivor Has No Punitive Claim

This is the point most people do not expect. Suppose a drunk driver runs a red light and causes serious injuries. The driver’s conduct may be criminal. The injured person can recover compensatory damages: medical expenses, lost earnings, and pain and suffering if the injury meets the threshold in M.G.L. c. 231, sec. 6D. But no Massachusetts statute authorizes punitive damages for injuring a person who survives, so under Flesner there are none.

The criminal case is where punishment happens, through the penalties the court imposes. The civil case is limited to making the injured person whole. If the same crash had caused a death, c. 229, sec. 2 would open the door to punitive damages because driving drunk is the kind of conduct a jury could find grossly negligent or reckless. That depends on the evidence in the particular case.

For the full picture of a claim against an impaired driver, including claims against a bar that over-served, see drunk driving accident claims in Massachusetts.

Multiple Damages Against an Insurance Company

Chapter 93A is a consumer protection law, but it matters in injury cases because of one sentence. Section 9(1) gives a right of action to “any person whose rights are affected by another person violating the provisions of clause (9) of section three of chapter one hundred and seventy-six D,” which is the list of unfair claim settlement practices insurers are forbidden to use. That lets a person hurt by someone else bring a claim against the other side’s insurer over how the claim was handled.

If the court finds for that person, sec. 9(3) provides for actual damages, “or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation” or that a refusal to grant relief after a written demand “was made in bad faith with knowledge or reason to know” of the violation. The same paragraph says what gets multiplied: “the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim.”

Three points keep this in proportion:

• It is not automatic. Multiple damages depend on a court’s finding of a willful or knowing violation, or bad faith after a demand.
• It starts with a demand letter. At least 30 days before suing, a written demand for relief must be mailed or delivered. See the 93A demand letter.
• It has its own deadline. M.G.L. c. 260, sec. 5A gives consumer protection actions four years from when the cause of action accrues, but the underlying injury claim usually has three years under c. 260, sec. 2A.

Steps When Conduct Might Support Punitive Damages

When a death or a statutory claim is involved and the conduct behind it was extreme, these steps keep the punitive question open:

1. Identify the statute first. Without one, there is no punitive claim. For a death, it is c. 229, sec. 2. For unfair claim handling, it is c. 93A. For discrimination, c. 151B.
2. Have a personal representative appointed in a death case. Only the executor or administrator can bring the wrongful death action.
3. Preserve the evidence of the conduct itself. Punitive damages turn on how the defendant behaved, so police reports, toxicology results, phone records, maintenance records and witness statements matter more than they would in an ordinary claim.
4. Track the deadlines separately. Three years from death (with the knowledge rule) under c. 229, sec. 2; three years for injury claims under c. 260, sec. 2A; and four years for 93A under c. 260, sec. 5A.
5. Check whether the defendant is a public employer. If so, c. 258, sec. 2 bars punitive damages against it.
6. Send the 93A demand before suing an insurer. The 30-day demand is a requirement, and how the insurer answers it is part of what a court weighs.

Answer Capsule

Massachusetts allows punitive damages only where a statute expressly authorizes them; the Supreme Judicial Court said so in Flesner v. Technical Communications Corp., 410 Mass. 805, 813 (1991). In personal injury law, the main statute is the wrongful death law, M.G.L. c. 229, sec. 2, which allows punitive damages of not less than $5,000 when a death was caused by malicious, willful, wanton or reckless conduct or by gross negligence; ordinary negligence is not enough, and the claim is brought by the executor or administrator within three years. A person who survives an injury, even one caused by a drunk driver, has no punitive claim, because no statute authorizes one. Other statutes allow punitive or multiplied damages for specific wrongs: c. 93A double or treble damages for willful or knowing violations, including unfair insurance claim handling; c. 151B punitive damages for discrimination; treble damages under the Wage Act, c. 149, sec. 150; treble damages for willful lead paint violations under c. 111, sec. 199(b); and punitive damages for illegal recording under c. 272, sec. 99(Q). Public employers cannot be made to pay punitive damages under c. 258, sec. 2.

Punitive Damages and Taxes

Federal tax law treats punitive damages differently from compensation. Under 26 U.S.C. sec. 104(a)(2), gross income excludes damages received on account of personal physical injuries or physical sickness, “other than punitive damages.” Section 104(c) makes a narrow exception for wrongful death actions in states whose law, as of September 13, 1995, provided that only punitive damages could be awarded in such an action. Massachusetts law provides compensatory damages in a death case, so that exception does not describe it. For the details, see whether a personal injury settlement is taxable and whether a wrongful death settlement is taxable.

Key terms

• Punitive damages: money awarded to punish a defendant and deter similar conduct, available in Massachusetts only where a statute authorizes it.
• Compensatory damages: money that makes up for the actual harm, such as medical bills, lost wages and pain and suffering.
• Multiple damages: actual damages multiplied by a number a statute sets, such as the double or treble damages of chapter 93A.
• Gross negligence: in the words of Altman v. Aronson, “very great negligence, or the absence of slight diligence, or the want of even scant care.”
• Willful, wanton or reckless conduct: conduct that disregards the probable consequences to others, a category above gross negligence.
• Personal representative: the executor or administrator of an estate, the only person who can bring a Massachusetts wrongful death action.

Frequently Asked Questions

Q: Does Massachusetts allow punitive damages?

A: Only where a statute expressly authorizes them. The Supreme Judicial Court held in Flesner v. Technical Communications Corp., 410 Mass. 805 (1991), that “Punitive damages are not allowed in this Commonwealth unless expressly authorized by statute.” Statutes that authorize them include the wrongful death law, c. 229, sec. 2, and the anti-discrimination law, c. 151B, sec. 9.

Q: Can I get punitive damages after a car accident in Massachusetts?

A: Not if the injured person survives. No statute authorizes punitive damages for an ordinary injury claim, even when the other driver was drunk or reckless. If the crash caused a death, the wrongful death statute allows punitive damages of not less than $5,000 when the death was caused by gross negligence or by malicious, willful, wanton or reckless conduct.

Q: What is the minimum punitive damages award in a Massachusetts wrongful death case?

A: Five thousand dollars. M.G.L. c. 229, sec. 2 provides for punitive damages “in an amount of not less than five thousand dollars” when the standard is met. The section does not state a maximum.

Q: Is gross negligence enough for punitive damages in a death case?

A: Yes. Section 2 lists “the gross negligence of the defendant” alongside malicious, willful, wanton or reckless conduct. Ordinary negligence is not enough. The Supreme Judicial Court has described gross negligence as “very great negligence, or the absence of slight diligence, or the want of even scant care.”

Q: Are 93A triple damages the same as punitive damages?

A: They serve a similar purpose but work differently. Chapter 93A does not use the word punitive; it provides for up to three but not less than two times actual damages when a court finds a willful or knowing violation, or a bad-faith refusal of relief after a written demand. In a claim over unfair insurance claim handling, the amount multiplied is the judgment on the underlying claims.

Q: Can you get punitive damages against a city or town in Massachusetts?

A: No. Under M.G.L. c. 258, sec. 2, public employers are not liable for punitive damages or for interest before judgment, and compensatory damages are capped at $100,000, except that serious bodily injury claims against the MBTA are not subject to that cap on compensatory damages.

Q: Who receives punitive damages in a Massachusetts wrongful death case?

A: The action is brought by the executor or administrator, and sec. 2 ties the damages to the persons entitled to receive them as provided in c. 229, sec. 1, which sets shares for a surviving spouse, children and next of kin. The conscious suffering of the person before death is different: under c. 229, sec. 6 that money is held as an asset of the estate.

Q: Are punitive damages taxable?

A: Generally yes. Under 26 U.S.C. sec. 104(a)(2), the exclusion for damages received on account of personal physical injuries does not cover punitive damages. A tax adviser should review any award or settlement that includes them.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This page is general information about Massachusetts law for educational purposes. It is not legal advice for your situation and does not create an attorney-client relationship. For advice about your own case, call Jim Glaser Law at (617) JIM-WINS.

Talking to a Lawyer

Whether punitive damages are possible starts with a single question, which statute applies, and the answer changes what evidence matters from the first week. If you lost a family member, or you are dealing with an insurer whose handling of a claim seems unfair, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free.