# Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc.

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## Concurring Opinions

    Brennan
    O'Connor
United States Supreme Court
492 U.S. 257
Browning-Ferris Industries of Vermont Inc. v. Kelco Disposal Inc.
No. 88-556 Argued: April 18, 1989. --- Decided: June 26, 1989
Syllabus
Respondents Joseph Kelley and Kelco Disposal, Inc., filed suit against petitioners (collectively BFI) in Federal District Court, charging BFI with antitrust violations and with interfering with Kelco's contractual relations in violation of Vermont tort law. A jury found BFI liable on both counts, and awarded Kelco, in addition to $51,146 in compensatory damages, $6 million in punitive damages on the state-law claim. Denying BFI's post-trial motions, the District Court upheld the jury's punitive damages award. The Court of Appeals affirmed as to both liability and damages, holding that even if the Eighth Amendment were applicable, the punitive damages awarded were not so disproportionate as to be constitutionally excessive.
Held:
1. The Excessive Fines Clause of the Eighth Amendment does not apply to punitive damages awards in cases between private parties; it does not constrain such an award when the government neither has prosecuted the action nor has any right to recover a share of the damages awarded. Pp. 262-276.
(a) The primary concern which drove the Framers of the Eighth Amendment was the potential for governmental abuse of "prosecutorial" power, not concern with the extent or purposes of civil damages. Nothing in English history suggests that the Excessive Fines Clause of the English Bill of Rights of 1689, the direct ancestor of the Eighth Amendment, was intended to apply to damages awarded in disputes between private parties. Pp. 264-268.
(b) The history of the use and abuse in England of amercements, including the fact that Magna Carta placed limits on the Crown's use of excessive amercements, is no basis for concluding that the Excessive Fines Clause limits a civil jury's ability to award punitive damages. Magna Carta was aimed at putting limits on the excesses of royal power, purposes which are clearly inapposite in a case where a private party receives exemplary damages from another party, and the government has no share in the recovery. Any overlap between civil and criminal procedure at the time of Magna Carta is insignificant when all indications are that English courts never have understood Magna Carta's amercements clauses to be relevant to private damages of any kind. Pp. 268-273.
(c) The language of the Excessive Fines Clause and the nature of our constitutional framework make it clear that the Eighth Amendment places limits on the steps a government may take against an individual. The fact that punitive damages are imposed through the aegis of courts and serve to advance governmental interests in punishment and deterrence is insufficient to support applying the Excessive Fines Clause in a case between private parties. Here, the government of Vermont has not taken a positive step to punish, as it does in the criminal context, nor used the civil courts to extract large payments or forfeiture for the purpose of raising revenue or disabling some individual. Pp. 273-276.
2. Because BFI failed to raise before either the District Court or the Court of Appeals the question whether the punitive damages award was excessive under the Due Process Clause of the Fourteenth Amendment, this Court will not consider the effect of due process on the award. Pp. 276-277.
3. Federal common law does not provide a basis for disturbing the jury's punitive damages award. In performing the limited function of a federal appellate court, this Court perceives no federal common-law standard, or compelling federal policy, that convinces the Court it should not accord considerable deference to a district court's decision not to order a new trial. The District Court in this case properly instructed the jury on Vermont law and applied the proper state-law standard in considering whether the verdict was excessive, and the Court of Appeals correctly held that the District Court did not abuse its discretion. Pp. 277-280.
845 F.2d 404 (CA2 1988), affirmed.
BLACKMUN, J., delivered the opinion for a unanimous Court with respect to Parts I, III, and IV, and the opinion of the Court with respect to Part II, in which REHNQUIST, C.J., and BRENNAN, WHITE, MARSHALL, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 280. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined, post, p. 282.
Andrew L. Frey, Washington, D.C., for petitioners.
H. Bartow Farr, III, Washington, D.C., for respondents.
Justice BLACKMUN delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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