Punitive Damages and the Drunken Driver
Punitive Damages and the Drunken Driver
William C. Cooper 0 1
Commons 0 1
Motor Vehicles Commons 0 1
Remedies Commons 0 1
the Torts Commons 0 1
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Recommended Citation William C. Cooper Punitive Damages and the Drunken Driver, 8 Pepp. L. Rev. 1 (1981) Available at: http://digitalcommons.pepperdine.edu/plr/vol8/iss1/4
A discussionof the history and theory of punitive damages which results
in advocating their application in a drunk driving context after giving
due considerationto the pros and cons of such a sanction.
An analysisof case law will reveal the underlying rationalethat has mo
tivated certainjurisdictionsin applying this severe penal approachin an
attempt to deter and curtailthe senseless destruction on our
nation'shighways as well as exploring the impetus behind those otherjurisdictionsthat
do not utilize the remedy of punitive damages. The culminatingfocus is on
California'sposition in this regard.
Finally, there is an apropos discussion of the behind the scene, but per
vasive, role that policy considerationsregardinginsurance coverage play
in the question of subjecting insured drunk driversto the liability of
Charles Taylor, an exuberant and handsome eighteen year old
college student, climbed into his Volkswagen van to go to work.
When Taylor, an honors student and varsity athlete, was only a
short distance from his destination, an event took place that
irreversibly altered his life. An oncoming car suddenly swerved into
his lane and collided with him head-on. The brutal force of the
impact thrust the Volkswagen's steering wheel into Taylor's face
with gruesome results. The steering wheel rim tore into his
mouth, shattered his teeth, severed his tongue, and literally
amputated his lower jaw.' Today, Charles Taylor is a grossly
disfig1. Facts from the case of Taylor v. Sup. Ct. of Los Angeles County, 24 Cal. 3d
890, 598 P.2d 853, 157 Cal. Rptr. 693 (1979), as described in an address by Jerome
Jackson, counsel for the plaintiff, to the legal fraternity of Phi Delta Phi, initiation
banquet, Pepperdine University School of Law (Sept. 13, 1979). Taylor is
disured dental cripple who will never experience such simple and
normal pleasures as a loved one's kiss or a savory meal. On that
fateful day, Charles Taylor became a statistic2-one of thousands
of Americans who annually are killed or maimed by the drunken
The incalculable cost 4 of the slaughter, destruction and anguish
caused by the drunken driver has given vent to a public outcry of
cussed at length in Section III. C. Unfortunately, these facts are not altogether
uncommon. See, e.g., Aronsen, Let's Get the Drunk Out of the Driver'sSeat, TODAY'S
HEALTH, Dec. 1974, at 38; Morando, Smash-Up!, GOOD HOUSEKEEPING, June 1977, at
2. It is generally believed that a high percentage of all highway fatalities and
injuries are directly attributable to intoxicating beverages and drugs. See
generally, G. HALVERSON, STOP THE DRUNK DRIVER (1970); DRINKING, (J. Ewing & B.
Rouse eds. 1978) [hereinafter cited as DRINKING]; Cramton, The Problem of the
Drinking Driver, 54 A.B.A.J. 995 (1968) [hereinafter cited as The Problem of the
Drinking Driver];Little, Control of the Drinking Driver: Science ChallengesLegal
Creativity, 54 A.B.A.J. 555 (1968);  EDUCATION AND ACCIDENT REPORTS
DMiSION OF THE STATE OF NORTH CAROLINA DEP'T OF MOTOR VEHICLES; DEP'T. OF
CALIFORNIA HIGHWAY PATROL,  ANN. REPORT OF FATAL AND INJURY MOTOR
VEHICLE TRAFFIC ACCIDENTS 70. Some believe these statistics are only the tip of
the iceberg since they reflect only arrests. Coulter v. Superior Court, 21 Cal. 3d
144, 154, 577 P.2d 699, 675, 145 Cal. Rptr. 534, 540 (1978). Some sources dispute this
statistical data on the basis that it is incomplete and biased. See Hostile Drivers
and Alcohol Don't Mix, 12 TRIAL 60-2 (1976).
3. For the purpose of this comment, "drunken driver" may be defined as one
who is voluntarily intoxicated to the extent that his or her blood-alcohol (or drug)
level is sufficient to warrant their arrest in the jurisdiction where the accident
occurs. Normally, a blood-alcohol level of .10% is sufficient. See, e.g., CAL. VEH.
CODE § 23126(a) (3) (West 1971).
"Voluntary intoxication," as described above, refers not only to intoxication
resulting from excessive use of alcoholic beverages, but also to that intoxication
resulting from the use of drugs and narcotics. Thus, the psycho-biological issue of
whether alcohol and drugs are truly "voluntary" is overlooked for the purpose of
this comment. See generally, DRINKING, supra note 2, at 122-25; Cramton, Driver
Behavior and Legal Sanctions, 67 MICH. L. REV. 421, 437-38 (1969); PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE
REPORT: DRUNKENNESS 14 (1967).
It should also be noted that this comment is limited to cases in which the
defendant motorist was, in fact, intoxicated at the time of the accident, and does not
include cases in which a claim for punitive damages was rejected for the reason
that the evidence failed to establish the intoxication of the defendant motorist.
However, certain cases will be analyzed from jurisdictions refusing to assess
punitive damages against drunken drivers even though a possible reason for doing so
was inconclusive evidence; the court's language in these cases nevertheless
The above-mentioned definitions are certainly an improvement over the rough
and ready classification described in a recent California case: "Not drunk is he
who from the floor Can rise alone and still drink more; But drunk is he who
prostate lie Without the power to drink or rise." Cooper v. Nat. R.R. Passenger Corp.,
45 Cal. App. 3d 389, 394 n.1, 119 Cal. Rptr. 541, 544 n.1. (1975).
4. Coulter v. Superior Court, 21 Cal. 3d 144,154, 571 P.2d 699, 145 Cal. Rptr. 534
concern and outrage. Society has responded in a variety of ways
in its efforts to curb the senseless carnage attributable to drunken
driving. Such responses have included the institution of
rehabilitative programs, 5 legislation of increasingly severe penal laws 6
and in surprisingly few jurisdictions, the imposition of punitive
damages in civil actions. 7
This comment will focus exclusively on the last of these
responses and will be limited to an evaluation of punitive damages
5. See generally CALIFORNIA DEP'T OF MOTOR VEHICLES AND DEP'T OF
ALCOHOL AND DRUG ABUSE, AN EVALUATION OF ALCOHOL ABUSE TREATMENT As AN
ALTERNATIVE TO DRIVERS LICENSE SUSPENSION OR REVOCATION 7 (1978); DRINKING,
supranote 2, at 135; The Problem of the DrinkingDriver,supra note 2, at 998; Note,
Deterring the Drinking Driver: Treatment v. Punishment, 7 U.C.L.A.-ALA. L. REV.
244 (1978); Hornaday, Sentencing the Drinking Driver in Alaska: The Homer
Alternate Work Program, 7 U.C.L.A.-ALA. L. REV. 235 (1978); Ross & Blumenthal,
Sanctionsfor the Drinking Driver. An Experimental Study, 3 J. LEGAL STUD. 53 (1974);
Why Reducing Traffic DeathsProves Elusive, U.S. NEWS AND WORLD REPORT, April
24, 1978, at 47.
6. Many states are reacting to the increase in alcohol-automobile related
deaths and injuries by increasing fines and revoking driver's licenses. Other
states, however, have taken an even less lenient approach. Misner, Severe
Penaltiesfor Driving Offenses: A Deterrence Analysis, 1975 ARIZ. ST. L.J. 677. See, e.g.,
Note, Criminal Law: Murder by Auto, Kentucky's Hard Line Stance Against
Drunken Drivers,5 N. Ky. L. REV. 279 (1978).
7. To date only 25 jurisdictions have addressed the issue of whether punitive
damages may be assessed against intoxicated drivers; of these jurisdictions, a
majority of 20 have answered this issue in the affirmative. These jurisdictions
include: Arizona (Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929)); Arkansas (Miller v.
Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948)); California (Taylor v. Sup. Ct. of Los
Angeles, 24 Cal. 3d 890, 598 P.2d 853, 157 Cal. Rptr. 693 (1979)); Connecticut (Infeld
v. Sullivan, 151 Conn. 506, 199 A.2d 693 (1964)); Delaware (Walczak v. Healy, 280
A.2d 728 (Del. 1971)); District of Columbia (Giddings v. Zellan, 160 F.2d 585 (D.C.
Cir. 1947)) (applying Maryland law); Florida (Ingram v. Petit, 340 So. 2d 922 (Fla.
1976)); Georgia (Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939)); Illinois
(Madison v. Wigal, 18 Ill. App. 564, 153 N.E.2d 90 (1958)); Iowa (Sebastian v. Wood,
246 Iowa 94, 66 N.W.2d 841 (1954)); Kansas (Gesslein v. Britton, 175 Kan. 661, 266
P.2d 263 (1954)); Kentucky (Wiggington's Adm'r v. Rickert, 186 Ky. 650, 217 S.W.
933 (1920)); Maryland (Davis v. Gordon, 183 Md. 129, 36 A.2d 699 (1944));
Mississippi (Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So. 2d 572 (1951));
New Mexico (Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (1971)); New York
(Colligan v. Fera, 76 Misc. 2d 22, 349 N.Y.S.2d 306 (Sup. Ct. 1973)); North Carolina
(Brake v. Harper, 8 N.C. App. 327, 174 S.E.2d 74 (1970)); Ohio (Payne v. Daley, 51
Ohio Misc. 65, 367 N.E.2d 75 (1977)); Oklahoma (Ruther v. Tyra, 207 Okla. 112, 247
P.2d 964 (1952)); Oregon (Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (1973));
Pennsylvania (Focht v. Rabada, 217 Pa. Super. Ct. 35, 268 A.2d 157 (1970)); Tennessee
(Pratt v. Duck, 28 Tenn. App. 502, 191 S.W.2d 562 (1945)); Texas (Sears Roebuck &
Co. v. Jones, 303 S.W.2d 32, (Tex. Civ. App. 1957)); Virginia (Baker v. Marcus, 201
Va. 905, 114 S.E.2d 617 (1960)); Wisconsin (Ayala v. Farmers Mut. Auto Ins. Co., 272
Wis. 629, 76 N.W.2d 563 (1956)).
within the context of drunken driving.8 Before this evaluation can
be thoroughly understood and appreciated, a fundamental
knowledge of punitive damages is required. Therefore, the nature and
purposes of punitive damages will be discussed. Next, case law
will be analyzed from those states that have confronted the issue
of whether, and under what circumstances, punitive damages
may be properly assessed against drunken drivers. Special
emphasis will be given to California's approach to this issue.9
Finally, there will be a brief examination of the concurrent issue of
insurance and its impact on punitive damages.
II. THE DOCTRINE OF PUNITIVE DAMAGES
Punitive damages, also known as exemplary, vindictive
damages or "smart money," have been defined as a class of monetary
damages awarded in tort actions' 0 that traverse the concept of
fully compensating an injured plaintiff for harm actually caused."
The punitive aspect, which grants damages in excess of what the
8. Only a few comments discuss this narrow topic. See Franson, Exemplary
Damages in Vehicle Accident Cases, 50 CAL. ST. B.J. 93 (1975); Liabilityof An In
toxicated Driverfor Punitive Damages,25 FORDHAM L. REV. 493 (1956); Punitive
Damagesand the IntoxicatedDriver An Approach to Taylor v. Superior Court,31
HASTINGS L.J. 307 (1979); Comment, Punitive Damagesand TheirPossibleApplica
tion in Automobile Accident Litigation, 46 VA. L. REV. 1036 (1960); The Drinking
Driver and Punitive Damages,7 WAKE FOREST L.R. 528 (1971).
9. See Taylor v. Sup. Ct. of Los Angeles County, 24 Cal. 3d 890, 598 P.2d 853,
157 Cal. Rptr. 693 (1979).
10. By "tort actions" it must be remembered that the major emphasis is
placed on actions involving personal injuries. Many states, including. California,
do not allow punitive damages in wrongful death actions. This is also true of
actions brought under the Employer's Liability Act. 45 U.S.C. §§ 51-60 (1976). For
further information on this topic, including those jurisdictions that allow punitive
damages in death actions, see C. MCCORMICK, HANDBOOK ON THE LAw OF DAMAGES
§ 103, at 356 (1935) [hereinafter cited as C. MCCORMICK]. It must also be
remembered that punitive damages are not allowed in contract cases, unless
certain tort aspects are present. D. DOBBS, REMEDIES § 3.9, at 206-07 (1973)
[hereinafter cited as D. DOBBS].
It is indeed possible that in some states, one may be held liable in punitive
damages for acts that cause great bodily harm, but that the identical behavior is
sanctifled with immunity from punitive damages should the hapless victim die. This is
the converse of the criminal law wherein the severity of the penalty corresponds
with the severity of the act. Sadly enough, a drunken driver who kills a family
may not be held liable for punitive damages, while another drunken driver may be
held liable for breaking a limb.
11. THE RESTATEMENT (SECOND) OF T
), defines punitive damages as
Punitive damages are damages, other than compensatory or nomi.
nal damages, awarded against a person to punish him for his
outrageous conduct and to deter him and others like him from similar
conduct in the future.
injuries actually merit, is an anomaly 2 in tort law, which is
viewed as primarily compensatory in nature.13 The incongruity of
punitive damages, which is more closely aligned with the criminal
law rather than the civil law, has led some courts to sharp
criticism and others to high praise. The Supreme Court of New
Hampshire said: "The idea is wrong. It is a monstrous heresy. It
is an unsightly and unhealthy excrescense, deforming the
symmetry and body of the law."'14 The Supreme Court of Wisconsin,
on the other hand, noted, "The law giving exemplary damages is
an outgrowth of the English love of liberty regulated by law."1 5
The doctrine of punitive damages continues to be the subject of
heated, often vitriolic, debate among legal scholars 16 as well.
The doctrine of punitive damages has been an integral aspect of
the canon laws of numerous religions for centuries. The doctrine
has been found as early as 2000 B.C. in The Code of Hammurabi,
and 1400 B.C. in the HittiteLaws. The Hindu Code ofManu,
written in 200 B.C., makes reference to exemplary damages as does
the Judeo-Christian and Hebrew law.' 7 Classic Roman law is also
replete with punitive provisions beginning with the Twelve
Tables, which have been dated to 450 B.C. Similarly, punitive
damages were also extant in the writings of ancient Greek scholars.18
The fact that punitive damages may be found in the writings of
literally every ancient civilization of note, attests to both the
doctrine's durability as well as its controversial nature.
Early English common law initially makes statutory reference
to the concept of punitive damages in the sixty-five English Acts
of parliament, with judicial recognition arising in the case of
Huckle v. Money.19 It has been suggested that Huckle was the
result of the inability of courts of the period to set aside jury
awards.20 However, by the time Huckle came to the fore, courts
had begun to set aside verdicts they considered excessive.21
However, despite this relatively new found authority, the court in
Huckle upheld the jury's award,22 reasoning that the defendant's
onerous conduct 23 gave the jury ample justification to award
punitive damages, despite only the slight injury suffered by the
plaintiff.24 In recent years, however, England has placed considerable
restrictions on the use of punitive damages. 25
Twenty one years following the decision of Huckle, punitive
damages became an aspect of American common law. 26 Later, the
doctrine survived constitutional attack in Day v. Worth27 where
the defendant's conduct was "wanton and malicious, or gross and
outrageous. '28 Since 1851, the vast majority of American states 29
and the federal government 30 have adopted the doctrine of
punitive damages, with only a handful of states modifying3l or
rejecting32 the doctrine.
The Nature and Purpose of Punitive Damages
Superficially, punitive damages are a response to a defendant's
flagrant and outrageous misconduct. 33 There are several
justifications for punitive damages. The most commonly cited objectives
are the punishment of the defendant, the deterrence of the
defendant from further offense, the deterence of others from similar
conduct and the vindication of society.34 Yet another objective is
reimbursement for the plaintiff's noncompensable injuries. 35
Whatever justification is advanced, the general consensus is that
punitive damages constitute a windfall to the plaintiff, and are not
a matter of right. Instead, courts with such views construe the
award of punitive damages as lying wholly as a matter within the
discretion of the trier of fact. 36 Moreover, even the jury's
predilections are bridled by the prerequisite that compensatory damages
30. Scott v. Donald, 165 U.S. 58, 86 (1896).
31. Several states view punitive damages as serving a compensatory function;
Michigan (Wise v. Daniel, 221 Mich. 229, 190 N.W. 746 (1922)); New Hampshire
(Bixby v. Dunlop, 56 N.H. 456 (1876)). Connecticut limits punitive damages to the
expenses of litigation, which must be proved. Tedesco v. Maryland Cas. Co., 127
Conn. 533, 18 A.2d 357 (1941).
32. The punitive damages doctrine has been rejected in several states;
Massachusetts (Boott Mills v. Boston & Me. R. Co., 218 Mass. 582, 106 N.E. 680 (1914));
Nebraska (Wilfong v. Omaha & Council Bluffs St. R. Co., 129 Neb. 600, 262 N.W. 537
(1935)); Washington (Anderson v. Dalton, 40 Wash. 2d 894, 246 P.2d 853 (1952)).
Louisiana is occasionally listed in this category, and it is true that Louisiana
decisions sometimes say that punitive damages are not awarded in the absence of
statute, see Post v. Rodigue, 205 So. 2d 67 (La. App. 1967); but a good imitation of
punitive damages is granted, if not the genuine thing, on the theory that they are
compensatory in some fashion, even though based upon wrongs "aggravated by
circumstances of violence, oppression, malice, fraud or wanton and wicked
conduct.. " Loeblich v. Gamier, 113 So. 2d 95 (La. App. 1959). Presumably a thorn
by any other name will hurt as much.
33. See Note, Punitive Damages and the ReasonableRelation Rule: A Study in
Frustrationof Purpose,9 PAC. L.J. 823, 828 (1978).
34. Punitive damages have been held to serve a compensatory purpose as
well. See generally cases cited note 32 supra.
35. W. PROSSER, § 2, supranote 12, at 9. Many writers are extremely critical of
this, arguing that if the compensatory damages system in American jurisprudence
is deficient, it should be directly remedied, and not be supplemented by twisting
punitive damages into serving a purpose for which they were not intended. See
section IV. A. and note 74 infra and accompanying text.
36. W. PROSSER, supra note 12, at 13; C. MCCORMICK, supra note 10, § 84, at 296.
must exist before punitive damages may be imposed.3 7
Punitive damages are parasitic in nature and courts will not
award them in the absence of compensatory damages. 38 This
concept is complex in its application. The rule's intricacy has so
perplexed those seeking punitive damages that one notable author
was moved to comment that there is "a conspicuous amount of
confusion and of conflict, some apparent and some real, . . . on
the subject of ... compensatory damages as a prerequisite to an
award of exemplary damages." 39 Thus, while it is understood that
compensatory damages are required before punitive damages can
be assessed, there remains considerable speculation as to how
this requirement is fulfilled. One expert astutely capsulized the
The problem derives in part from the ambiguity of the word "damages."
Sometimes the term has meant pecuniary loss; at other times it has
included substantial non-pecuniary losses, as where the plaintiffs good
name is injured by libel without costing him his job or any other
measurable advantage; and sometimes it has included purely nominal damages,
where neither pecuniary nor substantial dignitary losses have occurred.
The problem also derives in part from the fact that in some instances, the
plaintiff has no valid claim at all, that is, none for any kind of damages,
unless he can show a measurable injury, while in other cases, the
defendiafntth'se apcltaignitvifefs hraissestuoffaerceadusneo ohfaramctioant aflolr.4 0at least nominal damages even
This uncertainty as to what constitutes damages adds a
considerable measure of difficulty to many cases in which punitive
damages are sought. Perhaps nowhere is this quagmire so acutely
apparent as in cases where nominal damages are the sole
compensation a plaintiff receives. Ironically, instances where nominal
damages are the only compensation awarded are the instances
where punitive damages become most desirable. 41 Differences
37. D. DOBBS, supra note 10, § 3.9, at 208. There are other limitations on the
assessment of punitive damages, which will not be addressed here: punitive
damages must be commensurate with the amount of compensatory damages, as well
as the defendant's wealth and equity will not entertain claims for punitive
damages. See generally Note, Punitive Damages and the Reasonable Relation Rule: A
Study in Frustrationof Purpose, 9 PAC. L.J. 823 (1978); D. DOBBS,supra note 10,
§ 3.9, at 211-14.
38. C. MCCORMICK, supranote 10 § 83, at 293. Another description of this
parasitic nature is "that the allowance of exemplary damages does not widen the range
of actionable wrongs." Id.
40. D. DOBBS, supra note 10, § 3.9, at 208 (footnote omitted) (emphasis in
41. See text accompanying notes 67-72 infra. See also, W. PROSSER, supra
note 12, § 2, at 14. While it may be argued that the large compensatory awards that
many drunken drivers could be held liable for is a sufficient incentive alone, there
could be instances where actual damages are minimal, and in those instances
punitive damages would prove a viable incentive. Additionally, punitive damages are
not insurable, and thus arguably would provide a strong deterrent to drinking and
driving. This will be discussed further in section IV.
exist among the various jurisdictions regarding whether or not
exemplary damages may be imposed in nominal damages cases.
Some jurisdictions clearly favor them,42 and others disallow them
Unfortunately, this confusion has extended itself into the jury
room as well. In those instances where a jury is instructed on
both compensatory and punitive damages, it is quite possible that
the jury will blur the two, particularly where damages are
vague, 44 and award nominal damages and a large punitive award
-a punitive award that is largely compensatory under the
evidence. 45 Therefore, many attorneys are understandably reluctant
to request an instruction on punitive damages. 46
Another important consideration, perhaps the most significant
in terms of the drunken driver, is the defendant's state of mind at
the time the tort is committed. One must establish that a
defendant motorist, while under the influence of alcohol, nevertheless
manifested a state of mind justifying the imposition of punitive
damages.47 The discussion of case law in the subsequent sections
will demonstrate that this is the greatest hurdle facing the
Professor Prosser concisely emphasized the need for a requisite
state of mind when he stated that "something more than the mere
commission of a tort is always required for punitive damages" 48
and that "it is not so much the particular tort committed as the
defendant's motives and conduct in committing it which will be
important as the basis of the award."49 One's motives or state of
mind and the subsequent conduct exhibited in furtherance of that
mental posture are, for the most part, literally inseparable, and
any attempts to distinguish them are essentially academic. It is a
rare instance when an individual's state of mind can be examined
in a vacuum, without a simultaneous examination of the conduct
which is the physical manifestation of the particular thought
proc42. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970);
Landur v. Livingston, 394 S.W.2d 573 (Mo. App. 1965).
43. Stacy v. Portland Pub. Co., 68 Me. 279 (1878). "If all the individual injury is
merely technical and theoretical, what is the punishment to be inflicted for?" Id.
44. D. DOBBS, supra note 10, § 3.9, at 209.
47. See note 57 supra and accompanying text. See also Clarkson,
Drunkenness, Constructive Manslaughterand Specific Intent,41 MOD. L. REV. 478 (1978).
48. W. PROSSER, supra note 12, § 2, at 7.
49. Id., at 11 (emphasis added).
ess. Usually, a state of mind is imputed to a defendant based on
his conduct and the circumstances underlying that specific
behavior. In effect, one's mental state is determined on the basis of
circumstantial evidence. It will subsequently be demonstrated that
disagreement exists among the numerous states that have
addressed these considerations, with states currently opposing the
imposition of punitive damages demanding that the requisite
state of mind be established independently of the defendant's
conduct, and states favoring the imposition of punitive damages
concentrating primarily on the conduct under scrutiny.50
When considering an award of exemplary damages 5 1 many
terms have evolved from repeated judicial attempts to precisely
define the imperative mental state52 and accompanying conduct.
Such attempts have included such words as "malicious,"53
"oppressive," "evil," "wicked," "wanton," "morally culpable" and
"conscious disregard."54 While jurisdictions differ in their
preferences for these descriptive words and the burden of proof
attached to each, it is generally agreed that the defendant's actions
must fall somewhere among these adjectives before the question
of punitive damages may be submitted to a jury.55 In addition,
50. See notes 95-142 infra and accompanying text.
51. D. DOBBS, supra note 10, § 3.9, at 205; W. PROSSER, supra note 12, § 2, at 10.
52. Since these damages are assessed for punishment and not for
reparation, a positive element of conscious wrongdoing is always required. It
must be shown either that the defendant was actuated by ill will, malice,
or evil motive (which may appear by direct evidence of such motive, or
from the inherent character of the tort itself, or from the oppressive
character of his conduct, sometimes called "circumstances of aggravation"), or
by fraudulent purposes, or that he was so wanton and reckless as to
evince a conscious disregard of the rights of others.
C. MCCORMICK, supra note 10, at 280.
53. W. PROSSER, supra note 12, § 2, at 9-10. Malice has also been defined as:
The intentional doing of a wrongful act without just cause or excuse, with
an intent to inflict an injury or under circumstances that the law will
imply an evil intent. A condition of mind which prompts a person to do a
wrongful act willfully, that is, on purpose to the injury of another, or to do
intentionally a wrongful act toward another without justification or
excuse. A conscious violation of the law (or the prompting of the mind to
commit it) which operates to the prejudice of another person. A condition
of the mind showing a heart regardless of social duty and fatally bent on
mischief. Cockrell v. State, 135 Tex. Cr. R. 218, 117 S.W.2d 1105, 1109, 1110.
BLACK'S LAw DICTIONARY 862 (5th ed. 1979).
54. Conscious disregard may be defined in terms of the definition of the word
"reckless." One is reckless or in conscious disregard of the rights and safety of
others when he or she performs an act or fails to perform an act which he or she
knows or has reason to know will unreasonably increase the risk of physical harm
to another. RESTATEMENT (SECOND) OF TORTS § 500 (1965); W. PROSSER, supra
note 12, § 34, at 185.
55. See Smith v. Glemmons, 216 Ala. 52, 112 So. 442 (1927), where the court
defined reckless as "very negligent," but when discussing punitive damages the
court speaks of reckless and wanton acts. In Bailey v. Smith, 132 S.C. 212, 128 S.E.
423 (1925), the court said:
punitive damages are not recoverable where a certain course of
action is pursued innocently or on the advice of counsel. 56
Just as confusion exists with respect to the issue of damages, it
also exists with regard to the defendant's state of mind and the
phraseology used to describe it. Many courts have employed the
"gross negligence" in
describing the mental state and conduct warranting the
assessment of punitive damages. 5 7 Most authorities, however, feel this
term easily implies more than simply a high degree of negligence,
but rather, is negligence that is manifested through behavior so
callous, careless or indifferent as to amount to a conscious
disregard of the rights of others.5 8
While much has been written on the issue,5 9 courts have relied
primarily on the terms "malice" and "conscious disregard" in
addressing the question of whether or not a drunken driver should
be held liable for exemplary damages. As the jurisdictional
analysis of case law in the pages to follow will show, states presently
allowing the assessment of punitive damages in drunken driving
cases favor the term "conscious desregard" to describe the
defendant's conduct, while states disallowing the imposition of
punitive damages have taken an affinity to the term "malice" and the
stricter more conservative application the term normally
But, as we have seen, a party may not realize that he is invading the
rights of another, yet his conduct may be such that a person of ordinary
prudence and reason would say that it constitutes a reckless disregard of
the rights of others. In such a case the jury would be justified in awarding
Id. at 225, 112 S.E. at 428. But see, Hicks v. McCandlish, 221 S.C. 410, 70 S.E.2d 629
(1952). See also, cases cited in note 2 supra.
C. The Advantages of Punitive Damages
Legal scholars who have embroiled themselves in the ongoing
controversy surrounding the use of exemplary damages have
isolated what they perceive to be the doctrine's strengths and
weaknesses. 61 While the determination of what is an advantage or
disadvantage to the use of punitive damages is clearly a
subjective matter, with certain aspects of the doctrine sharing both
descriptions positive and negative qualities, it can be safely stated
that punitive damages do not present any strengths or
weaknesses unique to drunken driving. Nevertheless, an analysis of
the perceived advantages and disadvantages of punitive damages
will show the benefit that the public can expect to gain as well as
the risks that the tortfeasor may expect to encounter.
The most commonly noted advantage to the utilization of
punitive damages has been that of deterrence. 62 The doctrine's
opponents also cite deterrence, or the lack thereof, as its principal
disadvantage. 63 Proponents of punitive damages suggest that the
average juror is aware of the theory of punitive damages.64
Critics, to the contrary, argue that most people are ignorant of
punitive damages; they argue that the public has undergone a
sociological orientation to enjoy liquor and then drive. Critics
believe the high incidence of undetected drunk driving and the
drunken driver's inability to rationally choose to drive once he
has become intoxicated effectively undermine the argument that
punitive damages deter.65
In order to resolve this debate, a strong analogy may be drawn
between punitive damages and penal laws. Based on the
recidivism rates of offenders, many argue that our penal laws fail to
deter criminal conduct. Similarly, critics urge that the high
incidence of drunken driving clearly establishes that punitive
damages lack any deterrence value. The counter argument is that
such conclusions are erroneous or, at a minimum, biased and
incomplete. One can not focus on a minority's failure to abide by a
certain rule and use this as a basis to conclude that the majority
also is not deterred by existing sanctions.66
Another argument is that punitive damages have no greater
deterrent value than actual or compensatory damages. However,
this overlooks the fact that punitive damages probably serve as a
greater deterrent because they can not be absolved through
bankruptcy,67 and in many states are uninsurable. 68 Another principal
advantage inherent in the use of punitive damages that relates
directly to drunken driving is that they punish wrongs rarely
prosecuted.69 Punitive damages are best suited for those wrongs that
are theoretically punishable, but which in actuality go unnoticed
or are ignored by prosecutors who are preoccupied with more
serious crimes. 70 Until recently, drunken driving was not as
diligently prosecuted as other crimes, and the defendant was often
given only a suspended sentence or sent to traffic school.71
Obviously, where a drunken driver is involved in an accident involving
serious injury or death, prosecution usually results. Punitive
damages, however, provide a would-be plaintiff with far more
incentive to bring suit in the minor case, such as where a collision
occurs involving only slight property damage. An innocuous
result, such as a bent fender, does not and should not immunize the
drunken driver from being punished for his wrongful conduct. 72
Other advantages routinely espoused in support of punitive
damages include the following: that they combine public law
enforcement with private vengeance, thus discouraging the
lawlessness of self-help; 73 they cover actual expenses not covered by
undetectable and therefore immeasurable. Since this large but statistically
elusive portion of the population is an indispensable factor to any analysis attempting
to determine the validity or invalidity of the deterrent value of exemplary
damages or penal laws, such an analysis is necessarily incomplete. Consequently, any
conclusions drawn from that partial analysis are conjectural. Both the doctrine's
critics and supporters argue that the other should prove either the viability or
non-viability of the doctrine's deterrent value. Whoever is forced to carry this
burden of proof will fail.
67. See, e.g., U.S. Credit Bureau, Inc. v. Digoras, 169 Cal. App. 2d 673, 337 P.2d
866 (1959); Morris v. Drubin, 165 Cal. App. 467, 332 P.2d 371 (1959); O'Brien v.
Appling, 133 Cal. App. 2d 40, 283 P.2d 289 (1955).
68. See, e.g., CAL. INS. CODE § 533 (West 1972).
69. C. MCCORMICK, supra note 10, § 77, at 276; W. PROSSER, supra note 12, § 2,
71. Supra note 2.
72. Of course, the prerequisite of compensatory damages must still be met.
73. D. DOBBS, supra note 10, § 3.9, at 205. C. MCCORMICK, supra note 10, § 77,
at 277; Note, Insurancefor Punitive Damages: A Re-evaluation, 28 HASTINGS L.J.
431, 133 (1976). This has been labeled the "private attorney general" argument.
compensatory damages such as attorney's fees and court costs; 74
and they allow the caprice of the jury to be reduced and its anger
D. The Disadvantagesof Punitive Damages
Of the numerous criticisms that have been levied against the
doctrine of punitive damages, perhaps the most strongly voiced
has been that punitive damages contravene the rule against
double jeopardy 76 and violate the spirit if not the letter of the
Constitution.7 7 A defendant may be held liable for punitive
damages irrespective of any prior or subsequent criminal proceeding,
thereby moving some critics to claim that the defendant is
punished twice for the same offense. 78 Proponents of punitive
damages counter this criticism by noting that, while constitutional
immunity from double jeopardy is not limited solely to threats to
life or limb,79 it does seem clearly limited to criminal
proceedings.80 Proponents further point out that the prohibition against
double jeopardy was taken from English law, which allowed
punitive damages. This occurred before the United States
Constitution was adopted in 1789.81
A second disadvantage cited by critics of punitive damages is
that such damages ignore significant procedural safeguards such
as proof of guilt beyond a reasonable doubt and the privilege
against self-incrimination. 82 Supporters of punitive damages
attempt to circumvent the deprivation of these particular
procedural safeguards by enumerating the safeguards that are available
to a defendant. Proponents urge that "the verdict may be twice
submitted by the complaining defendant to the common sense of
trained judicial minds, once on motion for new trial and again on
appeal, and it must be a rare instance when an unjustifiable
award escapes corrections."8 3 Therefore, it is readily apparent
that the drunken driver is in a considerably stronger position
procedurally within a civil context, than he is within a criminal one.
Other criticisms directed against the doctrine of punitive
damages have been that they are limited solely by the passion,
prejudice, and caprice of the jury;8 4 damages are an undeserved
windfall;8 5 twisted to buttress an inadequate compensatory
damages system; 86 and finally, as alluded to earlier, punitive damages
serve no deterrent function.8 7
Whatever one's opinion may be respecting punitive damages
the odds are remote, based on their widespread popularity and
use, that they will be abolished in the forseeable future. The
practitioner is simply advised to develop a sufficient grasp of
punitive damages in order that he may best represent his client,
either by pursuing or defending against such damages. With this
background on punitive damages in mind, case law from the
various states that have addressed the issue of whether, and under
what circumstances, a drunken driver may be held liable for
punitive damages, will now be scrutinized.
III. AN ANALYSIS OF CASE LAW
Of the twenty-five 8 jurisdictions that have addressed the issue
of whether or not a drunken driver may be held liable for punitive
damages, eighteen8 9 have either expressly ruled without
reservation in favor of punishing drunken drivers,90 or have done so
subject to certain restrictions. 91 The remaining seven jurisdictions92
have not ruled, as a matter of law, that punitive damages may not
be assessed against drunken drivers, but have imposed such a
strict burden of proof upon those requesting exemplary damages
that, for all practical purposes, they are effectively precluded.93
Decisions from those states allowing the imposition of punitive
damages will be scrutinized in order to determine the underlying
reasons those courts have ruled as they have. This analysis will
be followed by a study of cases from states that, in light of
practical considerations, have denied punitive damages. Finally, the
recent California decision of Taylor v. Superior Court94 will be
A. JurisdictionsApproving the Assessment of Punitive Damages
Against Drunken Drivers
Unfortunately, judicial reasoning given for holding drunken
drivers liable for punitive damages has not been entirely
consistent. Older decisions summarily granted punitive damages
without analysis and on the apparent assumption that the facts alone
justified their imposition. 95
Other more recent decisions have
adopted an extreme position and maintained that evidence of
intoxication alone is conclusive proof of the conduct which justifies
the application of punitive damages. 96 The majority of decisions,
however, have followed a more moderate approach and have
allowed the imposition of exemplary damages by emphasizing the
"conscious disregard" element, to the almost virtual exclusion of
requisites to the assessment of punitive damages, particularly that of causation; a
nexus must be established between the defendant's wrongful conduct and his
92. The seven jurisdictions that consist of the minority are: District of
Columbia, Kansas, Maryland, North Carolina, Oklahoma, Texas, and Virginia. The
District of Columbia case that addressed the issue is Giddings v. Zellan, 160 F.2d 585
(D.C. Cir. 1947). Giddings applied Maryland law as a result of a conflict in that
particular case. Thus, it is clear that the District of Columbia in future cases
would apply the opposite rules where applicable.
93. It will be subsequently established that the primary cause of this
increased burden of proof upon plaintiffs requesting damages is the terminology and
the problems that are concurrent with that terminology. Minority jurisdictions
favor the term "malice" which requires the implication of a highly particularized
state of mind.
94. 24 Cal. 3d 890, 598 P.2d 853, 157 Cal. Rptr. 693 (1979).
95. A number of older cases follow that have held defendant motorists liable
for punitive damages without a thorough analysis of the rationale: Chitwood v.
Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939); Madison v. Wigal, 18 InI. App. 2d 564,
153 N.E.2d 90 (1950); Wiggington's Adm'r v. Rickert, 186 Ky. 650, 217 S.W. 933
(1920); Southland Broadcasting Co. v. Tracy, 210 Miss. 836, 50 So. 2d 572 (1951);
Ruther v. Tyra, 207 Okla. 112, 247 P.2d 964 (1952); compare Ross v. Clark, 35 Ariz.
60, 274 P. 639 (1929) with Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977); Pratt
v. Duck, 28 Tenn. App. 502, 191 S.W.2d 562 (1945).
96. See cases cited note 90 supra.
other terms. 97
The first of these latter cases was Miller v. Blanton.98 The
Arkansas court, in discounting the need for malice or wilfulness,
implicitly stated that all of the traditional prerequisites to punitive
damages were not collectively required, but that any one element
or a combination thereof would suffice. 99 The Miller court
enunciated the sole element it considered important when it espoused
When Miller imbibed alcoholic liquor he knew he was taking into his
stomach a substance that would stupify his senses, retard his muscle and
nervous reaction, and impair, if not destroy, the perfect co-ordination of
eye, brain and muscles that is essential to safe driving. After Miller
voluntarily rendered himself unfit to operate a car properly he undertook to
drive his automobile, a potentially lethal machine, down a well traveled
highway. His conduct in doing that was distinctly anti-social, and the jury
was amply authorized in saying by their verdict that he was exhibiting a
"wanton disregard of the rights and safety of others." 10 0
Thus, Miller is clearly of that genre of cases that place primary
emphasis on the defendant's conduct, and which subsequently
impute a state of mind they believe to be consistent with that
conduct. Here, the court concentrated on Miller's actions of
drinking until he was physically unfit to drive and subsequently
driving with impaired faculties. The court concluded he had
voluntarily made himself an extremely dangerous person to the
potential harm of everyone. This conduct became the foundation
upon which the court placed its finding that Miller acted in
wanton disregard to the rights and safety of the general public. Most
jurisdictions which allow punitive damages have followed these
same reasons.' 0 ' While few dispute the soundness of these
decisions, they are, in a sense, incomplete and potentially confusing.
The majority of these decisions have implicitly accepted the
requirement of causation. It must be remembered that punitive
damages may be imposed only after establishing that the
defendant's intoxication was the cause of the accident.10 2 To allow the
97. See notes 7, 89 supra.
98. 213 Ark. 246, 210 S.W.2d 293 (1948).
99. Id. at 248-49, 210 S.W.2d at 294.
100. Id. at 249, 210 S.W.2d at 294-95.
101. See note 89 supra.
102. This is not necessarily as easy to accomplish as may appear at first glance.
It would be possible for a drunken driver to commit a negligent act in such a
manner as to not indicate intoxication. For example, a drunken driver could be well
within the speed limit, drive a straight line and have a rear-end collision with a car
stopped at an intersection. Rear-end collisions are very common and are mostly
due to inattention, not intoxication. In such an instance, it is extremely unlikely
assessment of exemplary damages on the evidence of intoxication
alone would be arguably unconstitutional as it would be
punishing the defendant simply because he was drunk. 103 Admittedly,
causality will usually be so obvious that an analysis of it may be
summarily conducted. Nevertheless, it is essential to force the
plaintiff to present a prima facie case. The causality requirement
would play a prominent role in those rare instances where a
defendant's intoxication has a nominal or completely immaterial
impact on the causation of an accident.1 0 4
The Wisconsin decision of Ayala v. Farmer's Mut. Auto. Ins.,
Co. 105 gave a definitive explanation of the balance that must be
struck between evidence of intoxication and proof that such
intoxication had a marked effect in producing a given accident.
Intoxication, standing by itself, does not constitute either gross
negligence or ordinary negligence. While a person's driving of a motor vehicle
when intoxicated, is prohibited by statute, and is a criminal offense,
nevertheless, an intoxicated driver of a motor vehicle may become involved in a
collision and yet be free from negligence, and, therefore, not liable to
respond in damages . . . . However, when there is concurrence of
intoxication and causal negligence as to items such as speed, management and
control, posi0ti6on of the highway, lookout, etc., the same constitutes gross
According to this explanation, intoxication may become the
basis for exemplary damages if the evidence of intoxication
additionally manifests itself circumstantially107 through the
one could get punitive damages and it is arguable that one should not. See
Zylman, Hostile Drivers and Alcohol Don't Mix, TRIAL, Oct. 1976, at 60.
103. To assess punitive damages against a drunken driver without having
established a causal connection between the collision and the defendant's
intoxication would be tantamount to punishing the defendant because he was drunk,
which arguably would make him a status offender. Under the United States
Supreme Court's ruling in Robinson v. California, 370 U.S. 660 (1962), it is
unconstitutional to punish a person solely for being an alcoholic. DRINKING, supra note
2, at 317. However, as recognized by the Supreme Court in Powell v. Texas, 392
U.S. 514 (1968), the fact that a person is an alcoholic does not absolve him or her
from liability for criminal acts while in an intoxicated state. Appellant was
convicted not for being a chronic alcoholic, but for being in public while drunk on a
particular occasion. The State of Texas thus has not sought to punish a mere
status, as California did in Robinson; nor has it attempted to regulate appellant's
behavior in the privacy of his own home. Rather, it has imposed upon appellant a
criminal sanction for public behavior which may create substantial health and
safety hazards, both for appellant and for members of the general public, and
which offends the moral and esthetic sensibilities of a large segment of the
community. Id. at 532. For a general discussion of both the Robinson and Powell
decisions, see DRINKING, supra note 2, at 316-20.
104. Supra, note 102.
105. 272 Wis. 629, 76 N.W.2d 563 (1956).
106. Id. at 640, 76 N.W.2d at 570 (citation omitted).
107. Direct evidence as opposed to circumstantial evidence, that would
establish intoxication is the various chemical tests that law enforcement officials
administer, such as breathanalyzer tests. Most jurisdictions hold that a blood-alcohol
content of .10% is legal, and most states also hold that violation of that statute is
negligence per se. See e.g., CAL. VEH. CODR 23126(a)(3) (West 1971).
defendant's erratic or abnormal driving. In effect, the Ayala
court, as well as others, rely on the logical syllogism that
intoxication impairs the senses; 0 8 impaired senses lead to irregular and
dangerous driving; irregular and dangerous driving leads to
collisions. This is fundamentally sound logic that achieves two
distinct objectives. First, it forces the plaintiff to present a prima
facie case, which will not always be easily accomplished. Second,
it serves as a protective measure in those instances where a
drunken driver is innocent of any causation respecting a collision.
An example of this would occur where a drunken driver reacts to
an impending collision as a negligent non-intoxicated driver
would react. This second point prevents a drunken driver and his
insurer from being held strictly liable for a collision simply
because of intoxication.
A more recent decision to echo this same concern is Focht v.
Rabada.019 In Focht, the Supreme Court of Pennsylvania
indicated that, "driving while under the influence of intoxicating
liquor with its very great potential for harm and serious injury may
under certaincircumstances be deemed 'outrageous conduct' and
a 'reckless indifference to the interest of others' sufficient to allow
the imposition of punitive damages."" 0 Therefore, this court also
recognized that despite a defendant's intoxication, circumstances
would have to be present which warranted submission of the
punitive damages issue to a jury.
The Focht court similarly reflected concerns expressed by other
courts as well. It proposed that a defendant's "misconduct may
be established without reference to motive or intent""' in
deter108. However, legal intoxication, as prescribed by statute, may not necessarily
indicate that the defendant motorist had so dull d his senses as to be incapable of
driving competently. Some alcoholics have sueh a high resistance to alcohol that
they remain essentially unimpaired, even though their blood-alcohol content may
be considerably higher than .10%. See Zylman, Hostile Drivers and Alcohol Don't
Mix, TRiAL Oct. 1976, at 60. The alcoholic should not be given the benefit of the
doubt, however, and should be found negligent if violation of the applicable
statute is viewed as negligence per se.
But, in the context of actual and punitive damages, one should not be liable
because his blood-alcohol content is higher than that allowed by statute; rather, the
plaintiff should be required to demonstrate that the defendant's negligent conduct
was a direct result of his drinking. In the vast majority of cases this will be easily
109. 217 Pa. Sup. Ct. 35, 268 A.2d 157 (1970); accord, Harrell v. Ames, 265 Or. 183,
508 P.2d 211 (1973).
110. 217 Pa. Sup. Ct. at 40, 268 A.2d at 158.
111. Id. at 41, 268 A.2d at 161.
mining whether or not he acted with reckless indifference. Again,
the implication is clear that many of the courts within majority
jurisdictions are willing to examine only the defendant's conduct
and ignore his mental state in order to determine the propriety of
imposing exemplary damages. However, the court took a
moderate position when it noted that "malice" was still an element that
necessarily involved the requisite mental state,112 and the
"conscious disregard" test was the applicable standard.
A few of the jurisdictions that presently allow the imposition of
exemplary damages against drunken drivers have engaged in
reasoning so liberal that they may be considered extreme in the
positions that they have taken.113 A recent case that best exemplifies
this is the Florida decision of Ingram v. Petit.14 In a somewhat
haphazard opinion the Ingram court held that a drunken driver
could be held liable for punitive damages:
[WIithout regard to external proof of carelessness or abnormal driving,
provided always the traditional elements for punitive liability are proved,
including proximate causation and an underlying award of compensatory
damages. We do not hold that intoxication coupled with negligence will
always justify an award of punitive damages. We affirmatively hold that
the voluntary act of driving "while intoxicated" evinces, without more a
sufficiently reckless attitude 1 15 for a jury to be asked to provide an award
of punitive damages if it determines liability exists for compensatory
This statement, replete with inherent contradictions and
inconsistencies, indicates the Ingram Court was marching to two
different drummers. On the one hand, the court emphasizes the need
for causation, but on the other hand, says proof of intoxication"17
113. Malice is the term minority jurisdictions have emphasized. See note 51
114. 340 So. 2d 922 (Fla. 1976). See also, Note, Negligent Intoxicated Driver
Liablefor Punitive Damages Without Proofof Abnormal or Reckless Driving, 6 FLA.
ST. U.L. REV. 221 (1978).
115. Justice Sundberg, in his dissent, stated, "I suggest that the law of torts as
it has been carefully developed over the years permits an award of punitive
damages in personal injury cases involving vehicles where reckless conduct is
involved, not reckless attitude." 340 So. 2d at 927 (emphasis in original).
116. Id. at 924 (emphasis added).
117. Based on the facts of Ingram, it is clear what drummer the majority is
marching to. The facts, as stated by the court, were:
The record in this case indicates that Ingram's car was hit by Pettit from
the rear while standing at an intersection in a well-lit area. Pettit's car
had not been moving at an excessive rate of speed, and it had not been
seen to swerve or veer outside the marked lines of traffic. In fact, except
for conflicting evidence as to whether Pettit applied his brakes before his
vehicle struck Ingram's, there was no indication that the operation of
Pettit's car up to the time of the accident was other than normal. This
accident is before us solely because Pettit submitted to a breathalyzer test
which showed his blood-alcohol content to be .26% on a scale where the
legal presumption of intoxication arises at .10%.
Id. at 923.
"without more" is a sufficient justification for imposing exemplary
damages. Since the defendant's negligence in Ingram was never
attributed to his intoxication,'"8 and was of the same character
that a non-intoxicated driver may have exhibited, 119 evidently the
court's real intention was to deter120 the drunken driver at any
cost, including holding him strictly accountable for any mishap in
which he is involved.
The scathing dissent in Ingram was quick to point out the legal
contortions the majority had performed.' 2' Justice Sundberg
correctly indicated that the majority was holding a defendant
motorist strictly liable based solely on evidence of his intoxication. 22
He further added that, "[t]he intoxicated driver becomes an
insurer, to the full extent of punitive damages, irrespective of any
showing that his conduct in the operation of the automobile fell
below that standard of care which is expected of a reasonable,
prudent man under similar circumstances."123 Justice Sundberg
This is identical to the hypothetical given earlier exemplifying a situation where
punitive damages probably should not be given. See note 108 supra. Thus, it
seems that in Florida, intoxication alone is sufficient.
118. 340 So. 2d at 923.
120. The Ingram court felt that the Florida Legislature "evolved the notion that
drunk drivers menace the public safety and are to be discouraged by
punishment." Id. at 924.
121. Id. at 926 (Sundberg, J., dissenting).
122. Id. accord, Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977). In Smith,
the Arizona Supreme Court stated:
We disagree, however, with that court's legal opinion that "intoxication
plus negligent driving equals reckless disregard for the safety and rights
of others," under all circumstances. The law of torts does not permit such
a sweeping inference; it eliminates the necessity of showing proximate
cause and makes a driver, who has had some alcoholic beverage previous
to driving, an insurer in strict liability for punitive damages, whether or
not the consumption of alcohol has anything whatever to do with a
115 Ariz. at 214, 564 P.2d at 903.
123. 340 So. 2d at 924 (emphasis in original). Justice Sundberg also noted:
The majority opinion extends the strict liability concept to the recovery of
punitive damages, but says that the traditional elements such as
proximate causation and an underlying award of compensatory damages must
still be proved. But what does this mean-that the accident caused injury
or that the intoxication, without more, caused the accident to occur? If the
latter, then the position is untenable in a situation such as we have at bar
where there is no evidence at all that the intoxication caused any
irregularities in the operation of the vehicle. If the former, then notwithstanding
the lip service paid to it, the concept of proximate causation has gone by
Id. at 926 (Sundberg, J., dissenting).
carefully discussed the ultimate purpose of tort law, 124 and
concluded that the majority had twisted this purpose and had
"eliminated even the necessity for a single separate act of simple
negligence where evidence of intoxication is present."'125
This sampling of cases from those jurisdictions that permit the
assessment of punitive damages against drunken drivers
establishes a predilection for such terms as "conscious disregard," to
the literal exclusion of other descriptive terms. The term chosen
by the majority of the states does not carry an easy burden of
presenting a prima facie case, but those courts have liberalized
the term's application. Their willingness to exclusively limit
themselves to an examination of the defendant's conduct,
de-emphasized direct evidence of the defendant's state of mind. The
majority view avoids other definitions such as "malicious"126 or
"wicked,"127 which, most would agree, carry the requisite state of
mind, and which are distinctly favored by the minority
jurisdictions. Based on the foregoing analysis, practitioners seeking
exemplary damages would be well advised to use the appropriate
language and plead every feasible factual argument that fulfills
the syllogism that the majority viewpoint implicitly relies upon.
B. JurisdictionDisapproving128 the Assessment of Punitive
DamagesAgainst Drunken Drivers
Of the states that have addressed the issue of whether punitive
damages may be applied against drunken drivers, only seven to
date have responded in the negative. 29 These states have not
refused to impose exemplary damages on ideological grounds.
Rather, their refusal has been predicated upon an extremely
strict definitional framework which has been imposed on those
seeking punitive damages. As indicated earlier, the minority of
states have placed great credence in the term "malice" and the
concurrent burden of proof the term carries. These states require
124. Classically, in the law of torts, it is substandard conduct in the
performance or nonperformance of an act which subjects the actor to liability
for compensatory damages. If the conduct of an individual in operating an
automobile is not otherwise substandard, evidence of intoxication on the
part of that individual, in and of itself, logically cannot convert the
conduct into a category which will permit recovery of punitive damages
without totally emasculating the principle of proximate causation.
125. Id. at 927.
126. See note 52 supra.
127. See note 90 supra.
128. This term is used for lack of a better term. These jurisdictions have not
conclusively disapproved the assessment of punitive damages against drunken
drivers in their respective states. Rather, the term is meant to imply that no case
has yet been filed wherein "malice" exists to the court's satisfaction.
129. See note 92 supra.
that the plaintiff plead and prove the requisite state of mind
malice implies, independent of the defendant's conduct. Even under
a more traditional setting and circumstances, this is an onerous
burden of proof. But modern considerations such as those
involved in drunk driving do not fit easily, if at all, under the
anachronistic framework set forth by the term "malice." Proving malice
outside the context of conduct is almost futile in drunken driving
cases, thus the burden of proof will rarely be met.130 Therefore,
from a practical standpoint, punitive damages are effectively
precluded by these minority jurisdictions.
This fondness for the term "malice" and the requirements
accompanying it, were outlined by the Virginia high court in the
decision of Baker v. Marcus.'3 ' The court mentioned several
common law descriptions that have traditionally been the basis
for the imposition of punitive damages, 132 but demonstrated its
inclination toward the term malice when it stated:
One who knowingly drives his automobile on the highway under the
influence of intoxicants, in violation of statute, is, of course, negligent. It is a
wrong, reckless and unlawful thing to do; but it is not necessarily a
malicious act. Evidence may be offered to show the negligence of a driver; but
in the absence of proof of one or more of the elements necessary to justify
an award of punitive damages, it may not be used to enlarge an award of
jduarmyasguefsfebreedy.o1n3d3 that which will fairly compensate the plaintiff for the
inThe Baker court reflected its concern for the defendant's
mental state when they indicated she had shown "no motive" to
injure the plaintiff nor demonstrated any "ill will" toward him.134
Most decisions from the minority view point have decided the
issue of punitive damages in drunk driving cases in a similar
manner to that of the Baker court. 35
130. See note 92, 93 supra and accompanying text.
131. 201 Va. 905, 114 S.E.2d 617 (1960). It must be noted that factual proof of the
defendant's intoxication in this case was weak and very probably played a role in
the court's decision. Id. at 114 S.E.2d at 906. Nevertheless, it is submitted that the
court would have ruled as it did even if the evidence had been stronger based on
the court's substantive position on the issue.
132. Id. at 909, 114 S.E.2d at 620-21.
133. Id. at 910, 114 S.E.2d at 621 (emphasis added).
134. See note 131 supra.
135. See note 89 supra. Cf., Brake v. Harper, 8 N.C. App. 327, 174 S.E.2d 74
(1970). In Brake the term "recklessness" implied intentional, and inferred that
punitive damages were only recoverable where there was an intent to injure. Under
this view, one would not wish to seek punitive damages because in the event they
were proved, the defendant's carrier would be able to absolve itself of any
financial responsibility, based on the common public policy of refusing to insure
The Kansas decision of Gesslein v. Britton136 also summarized
the considerable burden placed on plaintiffs seeking punitive
damages in these minority jurisdictions. The court initially made
reference to the numerous adjectives used to describe the
conduct that is a prerequisite to the imposition of punitive damages
and correctly pointed out that they were mere conclusions that
must be proven by the facts of the case. 137 The Gesslein court
then engaged in a sophistic attack on the plaintiff's pleadings by
[NI o one condones the act of driving an automobile while under the
influence of intoxicating liquor, but, that is not the question here. Nowhere
does plaintiff allege that the defendant's being under the influence of
intoxicating liquor caused him to drive on the wrong side of the road,
caused him to fail to give a warning or signal his intention to turn, and
caused him not to have his vehicle under proper control.
The court's statement has two principal weaknesses. First, it
seems abundantly clear the defendant's intoxication caused him
to drive in the erratic manner the court described; it is rare when
a non-intoxicated individual will drive in the manner described.
Second, even excluding evidence of intoxication, the defendant's
conduct alone, such as driving on the wrong side of the road,
surely justifies being labeled reckless and in conscious disregard
of the rights and safety of others. Even licensed drivers of low
intellect and little common sense are aware of the dangers posed by
such driving. The dissent in Gesslein found it difficult to conceive
of a better case where there were facts of wanton, reckless
against intentional torts. See also Note, The Drinking Driver and Punitive
Damages, WAKE FOREST L. REV. 528 (1971).
136. 175 Kan. 661, 266 P.2d 263 (1954).
137. Id. at 664, 266 P.2d at 265.
138. Id. The plaintiff in Gesslein plead four counts of negligence, the fourth of
which was the defendant's intoxication. The court criticized the plaintiff's
complaint and said he had failed to connect the defendant's conduct with his
intoxication. This is not quite true as the plaintiff's fourth allegation indicates:
4. Defendant was guilty of negligence in the operation of said automobile
(a) While under the influence of intoxicating liquor, defendant at said
time and place drove his automobile in violation of and contrary to
G.S. 1949, 8-530.
(b) In failing to drive said automobile on the right or East half of said
highway as provided by G.S. 1949, 8-537 and in violation of said statute.
(c) In failing to give a signal of intention to turn left continuously for
100 feet prior to the turning of his automobile as provided by G.S. 1949,
8-547 and in violation of said statute.
(d) In failing to have said automobile under proper control so as to
have avoided turning said automobile to the left to the wrong side of
the highway and into the path of and into the automobile in which
plaintiff was riding.
Id. at 662, 266 P.2d at 264. It seems clear that the courts disgruntlement with this
particular case runs much deeper than a mere dissatisfaction with the pleadings.
139. Id. at 666, 266 P.2d at 266-67 (Smith, J., dissenting).
Despite the conduct in Gesslein being of such a reckless
character, with or without evidence of intoxication, the majority of the
court immersed itself in an incredibly technical and literally
specious discussion of what a plaintiff must plead and prove before
submitting the issue of exemplary damage to the jury. Therefore,
it again seems clear punitive damages will rarely be given in
these minority of jurisdictions.
The examination of these selected cases, representative of
minority states, outlines the tremendous uphill battle facing
plaintiff's attorneys in their quest for exemplary damages. Where
possible, they should attempt to prove actual malice,o40 even
though the minority decisions state in dictum that malice can be
implied by a wrongful act.141 Moreover, the practitioner should
carefully cultivate in his pleadings every conceivable factual
nexus between the defendant's intoxication and his driving.
Lastly, in the minority states, the practitioner is cautioned to use
terms that imply intent very wisely, and sparingly because should
he successfully prove the defendant intentionally caused the
plaintiffs injuries, he may find himself without the insurance that
normally covers compensatory damages.
Punitive damages in California are a creature of statute.142
Historically, the courts have been extremely conservative in their
application of the statutory language controlling exemplary
damages, and for many years this class of money damages was
not feasible against drunken drivers.143 Recently, the California
140. See BLACK'S LAW DICTIONARY 863 (5th ed. 1979).
141. See definition of legal malice, id. at 806.
142. CAL. Crv. CODE § 3294 (West 1970) which provides that: "In an action for
the breach of an obligation not arising from contract, where the defendant has
been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in
addition to actual damages, may recover damages for the sake of example and by
way of punishing the defendant." See note 29 supra.
143. In California, the issue of whether or not a drunken driver could be held
liable to an injured party for punitive damages was first addressed in the case of
Strauss v. Buckley, 20 Cal. App. 2d 7, 65 P.2d 1352 (1937). Twenty-one years
following the Strauss decision, the case of Gombos v. Ahse, 158 Cal. App. 2d 517, 322 P.2d
933 (1958) was decided. Agreeing with the position taken by a minority of
jurisdictions, Gombos held:
[T] he mere characterization of the conduct challenged as wilful, reckless,
wrongful and unlawful is not in itself sufficient to charge the malice in fact
required to sustain a cause of action for punitive damages ... (158 Cal.
App. 2d at 529, 322 P.2d at 940) .... One who becomes intoxicated,
knowSupreme Court removed this barrier in the case of Taylor v.
Superior Court,4 4 holding that, under certain circumstances, a
drunken driver may be held liable for punitive damages.
Justice Richardson, who wrote the majority opinion,145 defined
the issue before the court as "whether punitive damages (Civ.
Code, § 3294) are recoverable in a personal injury action brought
against the intoxicated driver."146 After noting the allegations147
charged against the defendant, the majority concentrated its
efforts on defining and applying the "malice" element of section
3294 of the California Civil Code. The court defined malice, which
is the only element of the statute remotely relevant to a drunk
driving context, as a term which "implies an act conceived in a
spirit of mischief or with criminal indifference towards the
obligations owed to others.' 4 8
Following its discussion of section 3294, the majority jumped
into the definitional fray surrounding the term "malice," which
has caused extensive divisiveness among the states attempting to
define and apply it. The court noted that the defendant's
successing that he intends to drive his automobile on the highway, is of course
negligent, and perhaps grossly negligent. It is a reckless and wrongful and
illegal thing to do. But it is not a malicious act. (158 Cal. App. 2d at 527,
322 P.2d at 940).
For an interesting but limited discussion of the case law that led up to the
decision in Taylor v. Superior Court, see Fernandez, PunitiveDamages and the
Intoxicated Driver: An Approach to Taylor v. Superior Court, 31 HASTINGS L.J. 307
(1979). This article is not helpful with the analysis of Taylor because it was
published before that decision was announced.
144. 24 Cal. 3d 890, 598 P.2d 853, 157 Cal. Rptr. 693 (1979). The court did not
grant punitive damages, but merely held the plaintiff's complaint sufficiently
stated a cause of action for these damages.
145. The majority consisted of Justices Richardson, Tobriner, Mosk, and
Manuel. Chief Justice Bird concurred in part and dissented in part, with Justices
Newman and Clark concurring with her opinion. Justice Clark filed the sole
146. 24 Cal. 3d at 892, 598 P.2d at 855, 157 Cal. Rptr. at 694.
147. The allegations leveled against defendant Stille were:
1) That he had previously caused a serious automobile accident while
driving under the influence of alcohol; 2) That he had been arrested and
convicted for drunk driving on numerous prior occasions; 3) That at the
time of the accident herein, Stille had recently completed a probationary
period following a drunk driving conviction; 4) That one of the conditions
of Stille's probation was that he refrain from consuming any alcoholic
beverage at least six hours before driving; 5) That at the time the accident
herein occurred, Stille was facing a pending criminal drunk driving
charge; 6) That Stille accepted employment as a liquor salesman which
required him to transport alcoholic beverages in his car to various
commercial establishments; and 7) That at the time the accident occurred, Stille
was transporting alcoholic beverages while intoxicated. Id. at 893, 598 P.2d
at 855, 157 Cal. Rptr. at 695.
148. Id. at 894, 598 P.2d at 855, 157 Cal. Rptr. at 695, quotingfrom Ebaugh v.
Raskin. 22 Cal. App. 3d 891, 894, 99 Cal. Rptr. 706, 708 (1972). The court also noted
malice in fact was sufficient, as opposed to the legal malice described and that this
could also be established circumstantially.
ful demurrer to the plaintiff's complaint at the trial level
requesting exemplary damages had been premised on the plaintiff's
failure to plead an actual intent to harm others.149 The court
quickly rejected the argument that actual intent is imperative to
the imposition of punitive damages, recognizing that both
respected legal scholars,o5 0 and its own recent decisions have held
such damages may be assessed where the defendant acted "with
the intent to vex, injure, or annoy, or with a conscious disregard
of the plaintiffs rights.'51 The court further buttressed this point
by concurring with the recent case of G.D. Searle & Co. v.
Superior Court152 respecting that decision's treatment of "conscious
disregard"'5 3 which stated that, "in order to justify an award of
punitive damages on this basis, the plaintiff must establish that
the defendant was aware of the probable dangerous
consequences of his conduct, and that he wilfully and deliberately
failed to avoid those consequences."154
This passage in Taylor is especially significant because it
precisely states the court's position on the crucial issue of the
defendant's state of mind. Under this definition of "conscious
disregard," one need not engage in the potentially self-defeating
effort of establishing actual intent to injure on the part of the
defendant and also need not be hampered by the cumbersome
burden of proof peculiar to the term "malice." In compelling the
defendant to demonstrate a state of mind wherein the defendant
possessed an awareness of the probable consequences of his
conduct, the majority in Taylor created a moderating influence
between the majority decisions which have suggested intoxication,
in itself, is sufficient for punitive damages and those opposite
cases in minority jurisdictions that would burden plaintiffs with
the cross of an anachronistic definition. To be sure, the majority
in Taylor did not urge that the defendant's state of mind must be
established independent of his conduct; but rather, that the
plaintiff must plead and prove the requisite mental state, and that he
may do so circumstantially through conduct if necessary.X55 This
modifying approach taken by the majority in Taylor assures
justice to both litigants in a drunk driving case. The plaintiff is not
crushed with an impossible burden of proof, and the defendant is
protected because the plaintiff must establish that he knew of the
dangerous circumstances his conduct created, a burden not easily
majority in Taylor noticed the factual similarity with its
predecessor Gombos v. Ashe,156 which held against punitive
damages. The plaintiff in Taylor tried to distinguish that similarity. 15 7
The majority agreed with the plaintiff and imposed punitive
ages, but cautioned that all of the plaintiff's factual distinctions
were not necessary because the court noted that "while a history
of prior arrests, convictions and mishaps may heighten the
probability and forseeability of an accident, we do not deem these
aggravating factors essential prerequisites to the assessment of
punitive damages in drunk driving cases."' 58 After noting its
agreement with the plaintiff, but before expressly overruling
Gombos, the court respectfully pointed out Gombos had been
decided twenty years earlier when conceptual difficulty existed as to
whether or not a defendant could be held liable for exemplary
damages based on a conscious disregard for the safety of
The majority next addressed the deterrent aspects 160 of
punitive damages concluding that, "[wie discern no valid reason for
155. Id. at 894, 598 P.2d at 856, 157 Cal. Rptr. at 695.
156. See note 143 supra.
157. See 24 Cal. 3d at 896, 598 P.2d at 857, 157 Cal. Rptr. at 697.
158. Id. This statement by the court raises an interesting question of degree.
In this case there were many factors militating against the defendant and the
imposition of punitive damages was justified. The court's statement that all factors
are not necessary is not very helpful. Perhaps the advice that can be gleaned from
the court's statement is that one should plead every possible factual argument
that would indicate "the defendant was aware of the probable dangerous
consequences of his conduct, and that he wilfully and deliberately failed to avoid those
consequences." Id. at 895-96, 598 P.2d at 856, 157 Cal. Rptr. at 696. Thus, one is
back to square one in that factual arguments are the essence of a request for
punitive damages, the difference according to Taylor arises within the various
definition of actions which merit punitive damages as they are applied by the trial court.
It is interesting to speculate how the court in Gesslein v. Britton, 175 Kan. 661, 266
P.2d 263 (1954), would have decided the case given the overwhelming evidence of a
dangerous alcoholic. See notes 136-39 supra and accompanying text.
159. 24 Cal. 3d at 896, 598 P.2d at 857, 157 Cal. Rptr. at 697.
160. Id.; see generally Harrell v. Ames, 265 Or. 183, 508 P.2d 211 (1973); Dorn v.
Wilmarth, 254 Or. 236, 458 P.2d 942 (1969).
immunizing the driver himself from the exposure to punitive
damages given the demonstrable and almost inevitable risk
visited upon the innocent public by his voluntary conduct as alleged
in the complaint."'1' 1 After discussing the Legislature's posture' 62
on drunken drivers and persuasive statistical data linking drunk
drivers with a high incidence of collisions,163 the court concluded:
It is crystal clear to us that courts in the formulation of rules on
damages assessment and in weighing the deterrent function must recognize
the severe threat to the public safety which is posed by the intoxicated
adrreiveerx.trTemheellyessdoanngiesrsoeulsf-epveiodpelnet.1a6n4d widely understood. Drunken drivers
Chief Justice Bird concurred with the judgment, but dissented
respecting the majority's reasoning at arriving at its
conclusions. 165 The Chief Justice emphasized the element of malice, 166
and agreed with the pronunciation given in Gombos on the
issue.167 She implicitly argued that drunk drivers cannot manifest
a malicious state of mind when she likened malice "with the
knowledge that harm to others was substantially certain or at
least highly probable, 168 but felt that, [plersons who drive while
under the influence often lack a conscious appreciation of the
high risk of harm they present to others."'169
The Chief Justice, not oblivious to the persuasive facts in
Taylor indicating the existence of a dangerous drunk who callously
disregarded his own drinking problem and the threat it posed to
society at large, believed that in this case "it may be possible for a
jury to conclude that the 'second time was no accident.' "170 The
Chief Justice then noted that one who had only a "few drinks"
would not fit this category, and that to hold to the contrary would
"open a Pandora's Box."'171
The Chief Justice's opinion contains several inconsistencies
that diminish the forcefulness of her arguments. It is clear that
Chief Justice Bird would require the plaintiff to prove an
enormous quantum of evidence. She indicated that there would only
be a possibility of finding punitive damages, despite evidence that
the defendant had been drunk at the time of the collision, had
numerous previous drunk driving convictions, had a previous
collision while drunk which caused serious injury, and had
employment which required him to transport alcoholic
beverages.' 72 Coincidentally, this large quantum of proof would
indirectly satisfy the state of mind the Chief Justice views as
necessary. Yet, a greater quantum of evidence showing repeated
intoxications and deeper level of intoxication arguably enhances
her logic that one who is under the influence to this extent lacks
conscious awareness of his risk of harm to others.173 Obviously,
the greater the influence of alcohol, the less awareness one may
Conversely, the Chief Justice urges that one who has consumed
only a "few drinks" may not manifest the state of mind necessary
167. Id. The Gombos stance is identical to that taken in minority states. See
note 143 supra.
168. 24 Cal. 3d at 900, 598 P.2d at 860, 157 Cal. Rptr. at 699 (Bird, C.J., concurring
and dissenting). Ironically, Chief Justice Bird's definition of malice coincides with
the majority's definition of conscious disregard.
169. Id. at 901, 598 P.2d at 860, 157 Cal. Rptr. at 700 (Bird, C.J.. concurring and
170. Id. (emphasis added).
for the imposition of punitive damages. But the question could be
asked: would not an individual become less consciously aware of
the dangerous and probable consequences of his drinking the
more he drank? If this question is answered in the affirmative, as
it must be, then it is logical that those who have consumed only a
"few drinks" are surely more aware of their intoxication, the
effect their intoxication has on their ability to drive safely and the
consequences their conduct holds for the general public, than one
who has consumed heavily and is under a strong influence of
alcohol. By this logic it would be reasonable and appropriate to
hold one who had consumed only a "few drinks" liable for
exemplary damages, as long as he had not consumed enough to destroy
his awareness of the risks his intoxication posed to society. In
effect, under the Chief Justice's reasoning, a plaintiff who
satisfactorily brought forth the requisite large quantum of proof showing
repeated massive intoxications would be inversely proving a lack
of awareness on the defendant's part, while proof of a few drinks,
which may show awareness, nevertheless immunizes the
defendant from punitive damages. The Chief Justice has founded her
opinion on two distinct lines of logic, which are unfortunately in
fundamental conflict. The better logic would be to recognize that
the quantity of alcohol one has consumed should be immaterial to
a determination of whether or not the defendant should be held
liable for exemplary damages. Rather, the issue should be
decided upon the degree of incapacitation174 one has brought upon
oneself through consumption of alcohol, and what impact that
incapacitation may have had on one's awareness and conduct.
Justice Clark did not address himself to the issue framed by the
majority, but instead used his lengthy dissent as a forum with
which to express his general dissatisfaction with the doctrine of
punitive damages.175 The majority of the Justice's dissent
involves a six-point indictment against the use of exemplary
damages. 1 76 Justice Clark's first two objections to punitive damages
are that they constitute unjust enrichment 177 and that they are an
174. Such tests as a breathalyzer could determine the extent of incapacitation.
175. Id. at 901-06, 598 P.2d at 860-63, 157 Cal. Rptr. at 700-03 (Clark, J.,
176. The six points that Justice Clark raises are simply a number of commonly
cited disadvantages to the doctrine of punitive damages.
177. Id. at 902, 598 P.2d at 860, 157 Cal. Rptr. at 700 (Clark, J., dissenting).
aberration infusing the criminal law into the civil.17 8 It was also
noted that punitive damages are awarded at the jury's whim. This
last remark did not address one problem: even without punitive
damages, a jury will overcompensate a plaintiff with excessive
compensatory damages where they are outraged by the
The third objection raised by the dissent is that a jury is
informed of the defendant's financial status. However, this is
allowed so that a jury may arrive at a figure that is fair to the
defendant but will be one that will nevertheless deter and punish
him.179 This financial information may certainly become a valid
concern in some instances and a major issue at trial;180 still, it
must be remembered that the trial judge has the authority to
remit an excessive punitive damages award.' 8 '
Justice Clark's fourth criticism of punitive damages involved
the old argument that such damages serve no deterrent
purpose.182 The dissent then became zealous in its atttack on
punitive damages, arguing that they were assessed on a purely
fortuitous basis because, "[d]runk drivers not involved in
accidents--comprising the vast majority-are not subject to the
penalty [of punitive damages]."183 However, this argument overlooks
the fact that selective enforcement is not limited to the imposition
of punitive damages. Even traffic laws, for example, are enforced
on a fortuitous basis because, while many drivers travel in excess
of fifty-five miles per hour, law enforcement officials only issue
tickets to those that are caught. Few, however, would agree this
traffic law is unfairly applied, 84 and that its enforcement should
consequently cease. Nonetheless, Justice Clark attempted to
further his argument by expressing the thought that those held
liable for punitive damages are "chosen by lot."185 While the
Justice's allusions to The Common Law by Justice Holmes1 86
makes for very interesting argumentation, the argument leaves a
lot to be desired because drunken drivers held liable for
exemplary damages are not held so by lot or by the throwing of dice,
but by the terrible devastation to human lives and property they
The dissent's fifth and sixth objections to the doctrine of
exemplary damages are that they fail to take insurance into account18 7
and impair the implementation of the comparative negligence
system.' 88 The latter objection is certainly a legitimate concern,
whose end result may be viewed as either beneficial or
detrimental, depending on one's point of view. 89 From a practical
standpoint, it appears that the situation Justice Clark envisions will
occur with infrequency since accidents involving drunken drivers
are almost invariably caused by them.
The remainder of Justice Clark's dissent involves a general
discussion of malice and the deterrent effect of punitive damages. 90
Justice Clark, following the line of thought found in the minority
jurisdictions, believes that malice implies evil motive, 191 and that
this element "is not satisfied by conduct only unreasonably,
negligent, grossly negligent or reckless. ' '192 He further argued that
in185. 24 Cal. 3d at 904, 598 P.2d at 862, 157 Cal. Rptr. at 701 (Clark, J., dissenting).
187. Id. at 904, 598 P.2d at 862, 157 Cal. Rptr. at 702 (Clark, J., dissenting).
188. Id. at 906, 598 P.2d at 863, 157 Cal. Rptr. at 703 (Clark, J., dissenting).
189. The arguments for and against preventing a drunken driver from
counterclaiming against a negligent plaintiff are many. For example, one could argue that
in all fairness, a drunken driver, who displayed abhorrent behavior in conscious
disregard of the rights and safety of others, should not be allowed to recover from
an accident primarily his fault. On the other hand, one could argue that to deny a
drunken driver the right to recover from a negligent plaintiff is grossly unfair in
two respects: (1) it sets up the drunk driver as an insurer and is akin to imposing
strict liability on the drunk driver. See note 122 and accompanying text; and (2)
that, as it would be contributory negligence, the negligent plaintiff is completely
absolved of any liability, even in those rare instances where he is primarily
responsible for the accident. However, if the negligent plaintiff were entirely
responsible for his injuries, no punitive damages could be assessed against the
defendant because no compensatory damages, a prerequisite to punitive damages,
would be paid by the drunken driver. In such an instance, the defendant's
intoxication would not be of issues and he should be able to recover from a negligent
190. 24 Cal. 3d at 906-11, 598 P.2d at 866-69, 157 Cal. Rptr. at 703-05 (Clark, J.,
191. This is the position prevalent in minority states.
192. 24 Cal. 3d at 906, 598 P.2d at 863, 157 Cal. Rptr. at 703 (Clark, J., dissenting).
toxication does not satisfy the malice requirement, and that
"thousands, perhaps hundreds of thousands, of Californians each
week reach home without accident despite their driving
intoxicated."193 Justice Clark concluded his opinion by engaging in
semantical swordplay with the majority over their use of the word
"probable" in describing the nature of a defendant's conduct.194
ProperlyPleadingthe Case in California
Several practical considerations should be explored that
directly result from the decision of Taylor. As will be discussed in
section IV.A. the plaintiff in California should avoid using
language that charges the defendant with intentional conduct
because an insurer may seize upon this to attempt to deny
coverage. 195 It is instead suggested that the allegations be
couched in the identical language used by the court in Taylor, i.e.,
that the defendant acted with intent to vex, injure, or annoy, or
with a conscious disregard of the plaintiffs rights. Also, the
plaintiff may find it advisable to plead a cause of action for simple
negligence, to obviate any coverage problems and to guard against a
jury finding that the defendant's acts did not constitute anything
more than negligence.
While it is questionable how beneficial Taylor will be in those
instances where a defendant does not own appreciable assets
outside insurance coverage, the case and its approval of punitive
damages would seem to give the plaintiffs attorney considerable
leverage during settlement negotiations. Although no cases have
specifically held an insurance company is under an obligation to
settle compensatory damage claims in order to avoid exposing its
insured to punitive damages, it is likely an appellate court would
do so. 196
Another possible benefit derived from Taylor is that it appears
unlikely a defendant will be able to admit liability in an effort to
prevent the jury from hearing the details of his reckless acts.
Finally, based on the courts language in Taylor, the plaintiffs
attorney should submit jury instructions that reflect more artful
193. Of course, the fact that many people are guilty of drunken driving does not
mean that they lack malice, nor does it mean such action is any less dangerous or
outrageous. See note 184 supra.
194. 24 Cal. 3d at 907, 598 P.2d at 864, 157 Cal. Rptr. at 704 (Clark, J., dissenting).
195. Gray v. Zurich Ins. Co., 65 Cal. 2d 263, 419 P.2d 168, 54 Cal. Rptr. 104 (1966).
196. One of the obligations an insurance company has toward its insured is the
protection of his peace of mind. See, e.g., Egan v. Mutual of Omaha, 24 Cal. 3d 809,
598 P.2d 452, 151 Cal. Rptr. 482 (1979); Crisciv. Security Ins. Co., 66 Cal. 2d 425, 426
P.2d 173, 58 Cal. Rptr. 13 (1967); Cain v. State Farm Mut. Auto Ins. Co., 47 Cal. App.
3d 783, 121 Cal. Rptr. 200 (1975).
INSURANCE FOR PUNITVE DAMAGES
The issue of whether exemplary damages may be insured
against has been the subject of extensive commentary19 8 and
judicial opinions.199 Justice Clark, in his dissenting opinion in Taylor
v. Superior Court,200 correctly stated that "the prevalence of
punitive damages in accident cases, especially in the context of
deterrence, must consider the insurance factor."201 Therefore, this
section, will briefly highlight this concern in order to re-emphasize
the importance of examining the pervasive effect insurance has in
personal injury actions, particularly in drunk driving cases
involving punitive damages.
144 (1957). See generally 7 & 8 J. APPLEMAN, INSURANCE LAW AND PRACTICE §§ 4312,
4900 (1962 & Supps. 1972, 1973); D. DOBBS, supra note 10, § 3.9, at 216-17; Scheil,
Punitive DamageAwards: The InsuranceIndustry is Placedon Notice, 45 INS.
SEL J. 350 (1978); Stillman, Insurancefor the Commission of Intentional Torts, 20
HASTINGS L.J. 1219 (1969); Young, Insurability of Punitive Damages, 62 MARQ. L.
REV. 1 (1978); Zuger, Insurance Coverage of Punitive Damages,53 N.D.L. REV, 239
199. The following cases have held that the general public liability policy does
not provide coverage for punitive damages: American Surety Co. v. Gold, 375 F.2d
523 (10th Cir. 1966); Northwestern National Casualty Co. v. McNulty, 307 F.2d 432
(5th Cir. 1962); Commercial Union Insurance v. Reichard, 262 F. Supp. 275
; American Insurance Co. v. Saulnier, 242 F. Supp. 257 (D. Conn. 1965);
Hanna v. State Farm Mutual Automobile Insurance Co., 233 F. Supp. 510
; Arnold v. State ex rel. Burton, 220 Ark. 25, 245 S.W.2d 818 (1952); Universal
Indemnity Insurance Co. v. Tenery, 96 Colo. 10, 39 P.2d 776 (1934); Brown v.
Western Cas. & Surety Co., 484 P.2d 1252 (Colo. Ct. App. 1971); Tedesco v. Maryland
Casualty Co., 127 Conn. 533, 18 A.2d 357 (1941); Nicholson v. American Fire &
Casualty Insurance Co., 177 So. 2d 52 (Fla. Dist. Ct. App. 1965); Yesel v. Watson, 58 N.D.
524, 226 N.W. 624 (1929); Teska v. Atlantic Nat'l Ins. Co., 59 Misc. 2d 615, 300 N.Y.2d
375 (1969); Crull v. Gleb, 382 S.W.2d 17 (Mo. App. 1964); Commonwealth Casualty
Co. v. Headers, 118 Ohio St. 429, 161 N.E. 278 (1928); Esmond v. Liscio, 209 Pa.
Super. Ct. 200, 224 A.2d 793 (1966); Laird v. Nationwide Insurance Co., 243 S.C. 388,
134 S.E. 2d 206 (1964). The following cases have held that the general public
liability policy provides coverage for punitive damages: Pennsylvania Threshermen &
Farmers' Mutual Casualty Insurance Co. v. Thornton, 244 F.2d 823 (4th Cir. 1957);
General Casualty Company of America v. Woodby, 238 F.2d 452 (6th Cir. 1952);
New Amsterdam Casualty Co. v. Jones, 135 F.2d 191 (6th Cir. 1943); Ohio Casualty
Insurance Co. v. Welfare Finance Co., 75 F.2d 58 (8th Cir. 1934), cert. denied, 295
U.S. 734 (1935); Concord Gen. Mut. Ins. Co. v. Hills, 345 F. Supp. 1090 (D. Me. 1972);
United States Fidelity & Guaranty Company v. Janich, 3 F.R.D. 16 (S.D. Cal. 1943);
Capital Motor Lines v. Loring, 238 Ala. 260, 189 So. 897 (1939); American Fidelity &
Casualty Co. v. Werfel, 230 Ala. 552, 162 So. 103 (1935); Price v. Hartford Acc. &
Indem. Co., 108 Ariz. 485, 502 P.2d 522 (1972); Southern Farm Bureau Casualty
Insurance Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969); Abbie Uriguen Olds Buick,
Inc. v. United States F.I. Co., 95 Idaho 501, 511 P.2d 783 (1973); Scott v. Instant
Parking, Inc., 105 Ill. App. 2d 133, 245 N.E.2d 124 (1969); Maryland Casualty Co. v.
Baker, 304 Ky. 296, 200 S.W.2d 757 (1947); Wolff v. General Cas. Co., 68 N.M. 292, 361
P.2d 330 (1961); Morrell v. Lalonde, 45 R.I. 112, 120 A. 435 (1923); Carroway v.
Johnson, 245 S.C. 200, 139 S.W.2d 908 (1965); Lazenby v. Universal Underwriters
Insurance Co., 214 Tenn. 639, 383 S.W.2d 1 (1964); Dairyland County Mutual Insurance
Co. v. Wallgren, 477 S.W.2d 341 (Tex. Civ. App. 1972). See also Reynolds v. Willis,
209 A.2d 760 (Del. Sup. Ct. 1965). See also Punitive Damages on Parade: an
Update of Recent CaliforniaAppellate Decisions Affecting Punitive Damage Claims,
1979 INS. L.J. 247, Punitive Damages II: A FurtherUpdate of Recent
CaliforniaAppellate Decisions Affecting Punitive Damage Claims, 1979 INS. L.J.
200. 24 Cal. 3d 890, 598 P.2d 853, 157 Cal. Rptr. 693 (1979).
201. Id. at 904, 598 P.2d at 862, 157 Cal. Rptr. at 702 (Clark, J., dissenting).
The issue respecting the insurability of punitive damages is
bifurcated into sub-issues. 202 The first is whether the insurance
contract actually covers exemplary damages. This issue is not
within the scope of this article as it focuses exclusively on
contractual interpretations. The second issue centers around public
policy that directly involves the deterrence and punishment
aspects of punitive damages. 2 03
The leading case prohibiting insurance coverage for punitive
damages on public policy grounds was Northwestern National
Casualty Company v. McNulty.204 This drunk driving case
involved intoxication, high speed driving, and hit and run on the
part of the insured. The plaintiff, McNulty, who suffered
extensive personal injuries, including permanent brain damage,
recovered $57,500 at trial, of which $20,000 had been awarded as
punitive damages. 20 5 In an extensive opinion, Judge Wisdom
concluded that governing state law viewed the purpose of punitive
damages as punishment and deterrence, and that those purposes
would be lost if a defendant were allowed to shift the burden to
his insurance carrier. Judge Wisdom stated:
Considering the theory of punitive damages as punitory and as a
deterrent and accepting as common knowledge the fact that death and injury
by automobile is a problem far from solved by traffic regulations and
criminal prosecutions, it appears to us that there are especially strong public
policy reasons for not allowing socially irresponsible automobile drivers to
escape the element of personal punishment in punitive damages when
they are guilty of reckless slaughter or maiming on the highway .... To
make that policy useful and effective the delinquent driver must not be
allowed to receive a windfall at the expense of purchasers of insurance,
transferring his responsibility for punitive
the driving public-to whom he is a menaced.2a0m6 ages to the very
people202. D. DOBBS, supra note 10, § 3.9 at 216; W. PROSSER, supra note 9a, § 2 at 13.
203. W. PROSSER, supranote 12, § 2 at 13.
204. 307 F.2d 432 (5th Cir. 1962).
205. Id. at 433.
206. Id. at 441-42. Judge Wisdom also argued that:
The argument that insurance against punitive damages would contravene
public policy is sometimes said to rest on the doctrine that "no one shall
be permitted to take advantage of his own wrong." Mr. Justice Cardozo in
Messersmith v. American Fidelity Co., 232 N.Y. 161, 133 N.E. 432, 19 A.L.R.
876 (1921). That doctrine is not necessarily applicable to cases of
automobile liability insurance covering punitive damages. In such cases the
public policy against coverage is not so much to prevent encouragement of
wrong-doing by obstructing the hopes of profit; it is rather to make
effective the discouragement of wrong-doing by the imposition of punishment.
Where a person is able to insure himself against punishment he gains a
freedom of misconduct inconsistent with the establishment of sanctions
against such misconduct. It is not disputed that insurance against
Most commentators that have written on the subject have
agreed with Judge Wisdom's forceful arguments. 20 7 The logic of
the argument is certainly compelling. However, the court in Price
v. Hartford Accident & Indemnity Co.208 exemplifies the point
made by various other courts that all deterrence is not lost
because the effects of punitive damages are diminished by
insurance. These courts have argued that a defendant will not escape
punishment because there is the direct deterrence of ciminal
penalties and the indirect deterrence of having one's insurance rates
soar.20 9 Notwithstanding this rebuttal, the underlying
justifications for punitive damages, that of deterrence and punishment,
are measurably eroded if not completely emasculated by
The posture adopted by McNulty on the issue of insurance and
punitive damages poses problems for the plaintiff's attorney.
First, even though exemplary damages would ordinarily enhance
one's total recovery considerably, without insurance coverage
these money damages almost assuredly will not be as readily
collectible. Second, where both compensatory and punitive damages
are requested, a jury may place a portion of a punitive award
under the compensatory headings of pain, suffering and mental
anguish, or include a portion of damages in a punitive award that
are better placed under compensatory damages. The tactical
complexities involved may lead some attorneys to dispense with
punitive damages where insurance is a factor. In such an
instance, McNulty would certainly defeat its own purposes because
punitive damages would be discarded simply because of their
The most prominent decision propounding the view contrary to
that of McNulty was Lazenby v. Universal UnderwritersInsurance
Co.211 In Lazenby, the plaintiff recovered a judgment of $1,087.97,
including $1,087.00 in punitive damages.2 12 The court took issue
with the McNulty conclusion that punitive damages serve a
deterrence purpose. Questioning the effectiveness of this sanction the
This State, in regard to the proper operation of motor vehicles, has a great
many detailed criminal sanctions, which apparently have not deterred this
criminal fines or penalties would be void as violative of public policy. The
same public policy should invalidate any contract of insurance against
civil punishment that punitive damages represent.
Id. at 440.
207. See note 200 supra.
208. 108 Ariz. 485, 502 P.2d 522 (1972).
209. Id. at 524.
210. See text accompanying notes 204-06.
211. 214 Tenn. 639, 383 S.W.2d 1 (1964).
212. Id. at 641, 383 S.W.2d at 2.
slaughter on our highways and streets. Then to say the closing of the
insurance market, in the payment of the punitive damages, would act to
deter guilty 2d1ri3vers would in our opinion contain some element of
The Lazenby court made several other arguments, but
concluded with the argument that was perhaps most persuasive to
the majority. The court reasoned that public policy should be the
basis for a decision only when it is clear and unequivocal. Here
the court believed there were competing 2 14 public policies that
were ambiguous, and therefore, concluded that the issues
presented in the case should have been decided on the basis of
interpreting and consulting the insurance contract.215
Are the Insurance CompaniesRequired to Cover Punitive
Another problem facing the plaintiff who requests exemplary
damages in a case involving insurance coverage, is that the
insurance carrier will attempt to deny all coverage including coverage
for compensatory damages, by urging that the conduct justifying
the imposition of punitive damages is intentional and therefore
the intentional tort exclusion to insurance coverage should apply.
This potential occurrence has been the concern of some judges. 216
This concern is more than likely misplaced because it would he
highly inconsistent for a state to allow the assessment of punitive
damages against drunken drivers on the one hand, and yet allow
insurance companies to deny any coverage on the basis of an
intentional tort exclusion on the other. Some states have expressly
ruled on this point, as Missouri did in the case of Crull v. Gleb.217
The court there stated:
Wanton and reckless conduct may, and often does, include negligence.
Intentional conduct does not. Therefore, wanton and reckless acts of the
insured do not amount, in law, to intentional acts so as to permit the insurer
to deny coverage under the provision of a clause, in a liability insurance
policy, which provides that2 i1t8 does not provide coverage for injury
intentionally caused by insured.
213. Id. at 647, 383 S.W.2d at 5.
214. The court believed that in addition to the public policy behind punitive
damages, there was a public policy behind contracts, particularly insurance
contracts, that required that any ambiguity be interpreted against the writer of the
215. 214 Tenn. at 648, 383 S.W.2d at 5.
216. 24 Cal. 3d at 904, 598 P.2d at 862, 157 Cal. Rptr. at 702.
217. 382 S.W.2d 17 (Mo. App. 1964).
218. Id. at 22 (citations omitted).
Drunken driving has become a social dilemma of epic
proportion in the United States. Every time an individual travels upon
the streets and highways of this country, he is exposed to the
insidious and statistically great danger of being killed or maimed by
a drunken driver. If this epidemic of social irresponsibility is ever
to be thwarted, society must devise creative responses that
maximize the punishment and deterrence that drunken drivers are
The imposition of punitive damages against drunken drivers,
under appropriate circumstances, is one such creative sanction.
Based on the foregoing analysis and discussion, it is submitted
that intoxicated drivers should be held liable for punitive
damages, notwithstanding strong but unsubstantiated criticism that
punitive damages are not a deterrent. Punitive damages should
be used in conjunction with other sanctions in that they have a
far greater impact than nominal fines and strike the drunken
driver where he is most sensitive--his pocket book.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant .
12. W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 2, at 9 (4th ed. 1971 ) [hereinafter cited as W . PROSSER].
13. Id . at 7.
14. Fay v. Parker , 53 N.H. 343 , 382 ( 1873 ).
15. Luther v , Shaw , 157 Wis. 234 , 238 , 147 N.W. 18 , 20 ( 1914 ).
16. See generally DEFENSE RESEARCH INSTITUTE , THE CASE AGAINST PUNrrIVE DAMAGES (D. Hirsch & J. Pouros eds. 1969 ) ; DuFFY, PuNrrivE DAMAGES: A DocTRINE WHICH SHOULD BE ABOUSHED IN THE CASE AGAINST PUNITIVE DAMAGES 9 ( 1969 ) ; FORD, THE CONsTrrTUONALrrY OF PUNITIVE DAMAGES IN THE CASE AGAINST PUNITrVE DAMAGES 15- 16 ( 1968 ) ; Igoe, Punitive Damages: An Analytical Perspective , TRIAL Nov. 1978 , at 48; Corboy, Should Punitive Damages be Abolished? A Statement for the Negative, 1965 ABA SECT . INS . NEGL. & CoMP . L 292; Ghiardi, Should Punitive Damages be Abolished? A Statement for the Affirmative, 1965 ABA SECT . INS . NEGL. & COMP . L. 282; Ghiardi , The Case Against Punitive Damages , 8 FORUM 411 ( 1972 ) ; Comment, The Relationship of Punitive Damages and CompensatoryDamages in Tort Actions, 75 DICK. L REV. 585 ( 1971 ) ; Note, Exemplary Damages in the Law of Torts, 70 HARV . L. REV. 517 ( 1957 ) ; Note, The Imposition of Punishment by Civil Courts: A Reappraisal of Punitive Damages , 41 N.Y.U.L. REV. 1158 ( 1966 ). PunitiveDamages: A Common Law Doctrinein Need of Legislative Reform , 16 TRIAL 30 ( 1980 ).
17. Exodus 12 : 29 , 22 : 1 , 22 : 4 , 22 : 9 .
18. Plato , Protagoras,324b; Plato, Laws, 9 .855b and 9 .934a.
19. 95 Eng. Rep . 768 (K.B . 1763 ).
20. See Note, Exemplary Damages in the Law of Torts , 70 HARv. L. REv. 517 , 518 - 19 ( 1967 ).
21. Id .
22. In Huckle, Lord Camden wrote, "[TIhe small injury done to the plaintiff , . . . did not appear to the jury .... The great point of law . . . they saw a magistrate... exercising arbitrary power ... and I think they have done right in giving exemplary damages . " 95 Eng. Rep. at 769.
23. Id .
24. Id .
25. England has abolished punitive damages except where they could serve a "useful purpose," by penalizing oppressive and arbitrary action by government servants, or tortious conduct calculated to make a profit for the actor and the like . See Rookes v. Barnard, [ 19641 A.C. 1129 .
26. Genay v. Norris , 1 S.C.L. (1 May) 6 ( 1784 ).
27. 54 U.S. ( 13 How.) 363 ( 1851 ).
28. Id .
29. California accepted the doctrine of punitive damages in 1872 by enacting Civil Code § 3294, which provided for the award of punitive damages "Where the defendant has been guilty of oppression, fraud, or malice." CA. CrV . CODE § 3294 (West 1970 ). The earliest reported case in which the California Supreme Court had the opportunity to review the validity of the doctrine of punitive damages was Russell v . Dennison , 45 Cal. 337 ( 1873 ). California decisions addressing the possible juxtaposition of punitive damages and drunken driving will be discussed in section III. C.
56. D. DOBBS, supra note 10, § 3 .9, at 205; W. PROSSER, supranote 12 , § 2, at 10.
57. E.g., Santiesteban v . Goodyear Tire &Rubber Co., 306 F.2d 9 ( 5th Cir . 1962 ) ("malice" under Florida privacy law); Anderson v . Knox , 297 F.2d 702 ( 9th Cir . 1961 ) (Hawaii uses the terms "willful, oppressive, or wanton commission of a tort "spirit of mischief or criminal indifference to civil obligations"); State Farm Mut . Ins. Co. v. St. Joseph's Hospital , 107 Ariz. 498 , 489 P.2d 837 ( 1971 ) ('reckless acts of spite or ill will"); Nance v . Cook , 240 Ark. 336 , 399 S.W.2d 262 ( 1966 ) ("wanton disregard of the rights and safety of others"); Cotton v . Fisheries Products Co., 181 N.C. 151 , 106 S.E. 487 ( 1921 ) ("malicious, wanton, and reckless manner," "reckless and criminal indifference to plaintiff's rights"); Cooperative Ref . Assn. v. Young, 393 P. 2d 537 ( Okla . 1964 ) ("fraud, malice or oppression," "evil intent" ).
58. D. DOBBS, supra note 10, § 3 .9, at 205-6.
59. See note 7 supra .
60. See generally cases cited note 7 supra.
61. See note 25 supra.
62. C. McCORMICK , supranote 8 , § 77, at 276, D. DOBBS, supra,note 10 , § 3 .9, at 205, 220 .
63. D. DOBBS, supra note 10, § 3 .9, at 220. See also, DEFENSE RESEARCH INSTITUTE , THE CASE AGAINST PUNITIVE DAMAGES (D. Hirsch &J. Pouros eds. 1969 ).
64. See Morris , Punitive Damages in PersonalInjury Cases, 21 OHIO ST. L .J. 216 , 226 ( 1960 ); Why Everybody is Suing Everybody, U.S. NEWS AND WORLD REPORT, Dec. 4 , 1978 , at 54.
65. See generally , DRINKING, supra note 2.
66. There is simply no statistical method of ferreting out those who are deterred by criminal sanctions or punitive damages; this section of the population is
74. D. DOBBS, supra note 10, § 3 .9, at 205; C. McCoaMIcK , supra note 10, § 77 , at 277; W. PROSSER, supra note 12, § 2, at 11; see also Smith v. Dunaway , 77 IllA.pp. 2d 1 , 5 , 221 N.E.2d 665 , 667 ( 1966 ); Dorris v . Miller , 105 Iowa 564, 568 , 75 N.W. 482 , 483 ( 1898 ); Brewer v . Homestake Prod. Co., 200 Kan . 96 , 98 - 9 , 434 P.2d 828 , 831 ( 1967 ); Dahl v . Prince , 119 Utah 556, 230 P.2d 328 , 329 ( 1951 ). Contra International Elec. Co. v. N.S.T. Metal Prod . Co., 370 Pa. 213 , 225 , 88 A.2d 40 , 46 ( 1952 ).
75. D. DOBBS, supra note 10, § 3 .9, at 220.
76. U.S. CONST. amend. V.
77. C. MCCORMICK , supra note 10, § 77 , at 276, W. PROSSER, supra note 12, § 2, at 11.
78. The doctrine of punitive damages has nevertheless been held to be constitutional . See note 27 , supra and accompanying text.
79. In other words, the constitutional guarantee against double jeopardy guards against even trivial prosecutions, such as receiving two parking tickets for the same violation .
80. C. MCCORMICK , supra note 10, § 77 , at 277.
81. Id .
82. Id .; W. PROSSER, supranote 12 , § 2, at 11.
83. C. McCoRmIcK , supranote 10 , § 77 , at 278.
84. Id ., at 276; D. DOBBS, supra note 10, § 3 .9, at 219; W. PROSSER, supra note 12, § 2, at 11.
85. C. McCoRmiCK , supra note 10, § 77 at 276; D. DOBBS, supranote 10 , § 3 .9, at 219; W. PROSSER, supra note 12, § 2, at 11.
86. See Note, Insurancefor Punitive Damages: A Re-evaluation, 28 HASTINGS L .J. 431 , 443 - 45 ( 1976 ).
87. D. DOBBS, supra note 10, § 3 .9, at 220.
88. See note 7 supra .
89. The eighteen states that have allowed the imposition of punitive damages against drunken drivers are: Arizona , Arkansas, California, Connecticut, Delaware, Florida, Georgia, Illinois, Iowa, Kentucky, Mississippi, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, and Wisconsin.
90. Two of the eighteen states have very liberal views on punishing drunken drivers with punitive damages. They are Florida (Ingram v . Petit, 340 So. 2d 922 (Fla . 1976 ) and New Mexico (Svejcara v . Whitman , 82 N.M. 739 , 487 P.2d 167 ( 1971 )).
91. The principal restriction alluded to is that there exists the traditional pre-
149. Id . at 895 , 598 P.2d at 856, 157 Cal. Rptr. at 696.
150. The court cited W . PROSSER, supra note 12, § 2, at 9-10.
151. 24 Cal. 3d at 895 , 598 P.2d at 856, 157 Cal. Rptr. at 696 (emphasis in original). The court cited Neal v . Farmers Ins. Exchange, 21 Cal. 3d 910 , 922 , 582 P.2d 980 , 986 , 148 Cal. Rptr. 389 , 395 ( 1978 ); Silberg v . California Life Ins. Co., 11 Cal. 3d 452 , 462 , 521 P.2d 1103 , 113 Cal. Rptr. 711 ( 1977 ); Seiman v . Southern Pac. Transportation Co., 67 Cal. App. 3d 600 , 607 , 136 Cal. Rptr. 787 , 791 ( 1977 ); G. D. Sourle &Co. v. Sup. Ct., 49 Cal. App. 3d 22 , 29 - 30 , 122 Cal. Rptr. 218 , 223 ( 1975 ).
152. 49 Cal. App. 3d 22 , 122 Cal. Rptr. 218 ( 1975 ).
153. ' "The phrase conscious disregardis sometimes used to describe the highly culpable state of mind which justifies an exemplary award .... We suggest conscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary award when non-deliberate injury is alleged . " Id. at 32 , 122 Cal. Rptr. at 225 (emphasis in original).
154. 24 Cal. 3d at 895-96 , 598 P.2d at 856, 157 Cal. Rptr. at 696.
161. 24 Cal. 3d at 897-98 , 598 P.2d at 858, 157 Cal. Rptr. at 697.
162. 24 Cal. 3d at 898 , 598 P.2d at 858, 157 Cal. Rptr. at 698.
"[Tihe Legislature has expressly acknowledged that '[t]he consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.' (Civ . Code, § 1714 , subd. (b)). " Id. This raises an interesting question as to whether and to what extent a legislature may usurp the evidentiary and causation requirements of a substantive area of law, in this case the law of torts.
163. Id .
165. Id . at 900 , 598 P.2d at 859, 157 Cal. Rptr. at 699 (Bird, C.J. , concurring and dissenting).
178. Id . at 902 , 598 P.2d at 861, 157 Cal. Rptr. at 701 (Clark, J., dissenting). Justice Clark also noted the double jeopardy concern discussed earlier . Id.
179. Id . See generally Note, Punitive Damages and the Reasonable Relation Rule: Study in Frustrationof Purpose , 9 PAC. L.J. 823 ( 1978 ). See also, Bertero v . Nat. Gen. Corp., 13 Cal. 3d 43 , 529 P.2d 608 , 118 Cal. Rptr. 184 ( 1974 ); Merlo v . Standard Life & Acc. Ins. Co., 59 Cal. App. 3d 5 , 130 Cal . Rptr. 416 ( 1976 ) ; RESTATEMENT OF TORTS (SECOND ) § 908 ( 1979 ).
180. 24 Cal. 3d at 903 , 598 P.2d at 861, 157 Cal. Rptr. at 701 (Clark, J., dissenting).
181. See , e.g., CAL. CIV. PRo. CODE § 662.5 (West 1976 ).
182. 24 Cal. 3d at 903 , 598 P.2d at 861, 157 Cal. Rptr. at 701. (Clark, J., dissenting).
183. Id .
184. Some would surely argue that the 55 mile per hour speed limit is unfair. This analogy is meant to show the ludicrousness of advocating the elimination or non-use of a law or legal doctrine on the basis that it is selectively enforced. Even the criminal law, to which Justice Clark alludes, is dependent upon selective enforcement. The point emphasized is that no individual would urge society to release all murderers, rapists, and burglars because only a fraction of them have been caught. This is perilously close to the argument which Justice Clark urges us to accept with respect to the drunken driver .
197. One source has suggested the following as more appropriate jury instructions in light of Taylor.
Or, alternatively: You may award punitive damages against defendant for the sake of example and by way of punishment if you find a preponderance of the evidence that defendant willfully (and voluntarily) consumed alcoholic beverages to the point of intoxication knowing (from the outset of his drinking) that he thereafter must operate a motor vehicle . Sacks & Levy , CaliforniaTort Reporter (special Introductory Edition , Supplement to Los Angeles Daily Journal), Oct. 24 , 1979 .