Imposing Punitive Damage Liabiliity on the Intoxicated Driver
IVol.
Imposing Punitive Damage Liabiliity on the Intoxicated Driver
Martin A. Kotler 0 1
0 Kotler, Martin A. (1985) "Imposing Punitive Damage Liabiliity on the Intoxicated Driver," Akron Law Review: Vol
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by
MARTIN A. KOTLER'
I. INTRODUCTION
DRIVING WHILE UNDER the influence of intoxicants is, without question, a
universally condemned practice. The spokesmen for the "if you drink, don't
drive" message include not only such anti-drunk driving advocates as the
Mothers against Drunk Driving (MADD), Students against Drunk Driving
(SADD), and the Physicians against Drunk Driving (PADD),' but also the
makers of Seagrams and Bacardi liquors and the liquor industry association,
Distilled Spirits Council of the U.S. (DISCUS).'
The reasons for the unanimity are obvious. Study after study, has established a direct correlation between driving while intoxicated and the occurrence of traffic accidents with their resultant property damage, personal injury and death to both the drinking driver and others.'
In response to this problem, various solutions have been proposed and
implemented. Most commonly, these solutions involve modification of law
enforcement techniques in order to facilitate the apprehension of drinking
drivers, increasingly severe criminal sanctions imposed against those who have
been convicted, and public education programs.' In addition, however, a
growing number of courts are permitting the recovery of punitive or exemplary
damages in civil actions brought against the intoxicated driver. It is this
expansion of civil liability with which this article deals.
*LL.M., New York University School of Law, 1984: J.D., University of California, Hastings College of
Law, 1975; B.A. The George Washington University, 1972. Admitted to State Bar of California, 1975;
presently completing course work required to obtain J.S.D. at New York University. The author wishes to
express his gratitude to Professor William E. Nelson of the New York University School of Law for having
taken the time to read and offer valuable suggestions regarding the revision of earlier drafts of this article.
'For a partial listing of anti-drunk driving organizations, see N.Y. Times, Aug. 9, 1983, at A 12. See also.
How to Save Lives and Reduce Injuries: A Citizen's Guide to Effectively Fight Drunk Driving.
DEPARTMENT OF TRANSPORTATION. NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION. APPENDIX A (Nov.
1982).
2Gay Jervey, Spirit MarketersGet Word: 'Tis the Timefor Caution. Advertising Age, December 26, 1983, at
3.
'See. e.g. Presidential Commission on Drunk Driving. Final Report (Nov. 1983); Alcoholand Highway
Safety: A Review of the State of Knowledge - Summary Volume. Department of Transportation. National
Highway Traffic Safety Administration (1978).
'N.Y. Times, Feb. 6, 1984, at A 17; See also Presidential Commission on Drunk Driving. Final Report (Nov.
1983) whose recommendations include: programs to increase public awareness of both the danger of injury
and apprehension; increased training of police and prosecutors; use of roadblocks; elimination of plea
bargaining; mandatory sentencing; and so on.
It is important to keep in mind throughout this discussion that awareness
and acknowledgement of the existence of a problem, even a very serious
problem, should not make us overreact and thereby accept an unworkable solution
in our zeal to do something. The imposition of punitive damages is, for the
most part, just such an unworkable solution. More specifically, I will attempt
to demonstrate that, with the possible exception of the case of the recidivist,
non-alcoholic defendant, the imposition of punitive damages simply cannot be
justified. That being the case, we must look elsewhere for a solution to an
admittedly severe problem.
Section I1 will analyze the case law pertaining to the imposition of
punitive damages for unintentional torts generally and for drunk driving
specifically. Section III will discuss the various rationales commonly asserted for
the imposition of punitive damages. Section VI will examine some of the major
objections to and problems created by the imposition of punitive damage
liability against the intoxicated driver, and section V will propose a standard.
11. AN ANALYSIS OF THE CASES
Anyone who attempts to read or analyze the cases involving the
imposition of punitive damages in the unintentional conduct cases will immediately
realize that little understanding is to be gained by focusing on the court's
descriptio (...truncated)