^ One might suggest that the defendant’s killing of B constitutes extreme mistreatment of her, so as to warrant punitive damages, because the defendant had no even minimally good reason to impose a risk of death upon her. But that cannot be right. Suppose that some defendant negligently plays around with a gun in such a way that foreseeably imposes a very small but nontrivial risk of death on a bystander. If that risk materializes, the defendant will be liable in negligence to the bystander’s estate, but he will not be vulnerable to punitive damages. See Restatement (Third) of Torts: Remedies § 39 cmt. b (A.L.I., Tentative Draft No. 3, 2024) (“[N]egligence alone is not sufficient to justify punitive damages.”). The cases are similar in that, in both, the defendant has a very weak reason for exposing the victim he ends up killing to a risk of death. They are distinguished by the defendant’s level of holistic culpability. See id. § 39(a)(2) (noting that a plaintiff may be entitled to punitive damages if she “establishes by clear-and-convincing evidence that the defendant intended to harm the plaintiff or others, recklessly disregarded a substantial risk of harm to the plaintiff or others, or otherwise acted in an outrageous or malicious manner” (emphases added)).
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