Bolsta v. Johnson

Annotate this Case
Bolsta v. Johnson (2003-004); 176 Vt. 602; 848 A.2d 306

2004 VT 19

[Filed 04-Mar-2004]

                                 ENTRY ORDER

                                 2004 VT 19

                      SUPREME COURT DOCKET NO. 2003-004

                             NOVEMBER TERM, 2003

  Sarah Bolsta	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Addison Superior Court
                                       }	
  Michael Johnson 	               }
                                       }	DOCKET NO. S 19-1-00 Ancv

                                                Trial Judge: Helen M. Toor

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Appellant Sarah Bolsta appeals the trial court's denial of a
  punitive damages award in her personal injury action based upon a motor
  vehicle collision caused by a drunk driver, Michael Johnson.  We agree that
  the actions of the driver do not constitute the kind of malicious,
  intentional acts that punitive damages are designed to address, and
  therefore, we affirm. 

       ¶  2.  The accident occurred in September, 1999.  Johnson failed to
  stop at an intersection controlled by a stop sign, causing a collision with
  appellant's oncoming vehicle.  Appellant's car was totaled, and she
  suffered several injuries, including a broken kneecap and permanent damage
  to her  knee mechanism.  According to witness testimony, immediately after
  the accident  Johnson took beer bottles from his vehicle, and broke them on
  the road.  The officer who conducted the investigation of the accident
  concluded that Johnson was at fault.  Johnson was uninsured.

       ¶  3.  Johnson was processed for driving under the influence of
  alcohol, and was found to have a BAC of 0.156 approximately two hours after
  the accident.  Johnson stated that he had consumed two beers and three
  shots in the hour prior to the accident, and admitted being "slightly"
  under the influence of alcohol.  Johnson had a suspended license -
  resulting from a prior DUI conviction - and three prior convictions for
  driving with a suspended license in Vermont.  He was charged in district
  court with DUI, second offense, and with driving with a suspended license,
  fourth offense.  Johnson entered no contest pleas to both charges. 

       ¶  4.  Appellant commenced a personal injury action against Johnson
  and against appellant's uninsured motorist insurance carrier, Concord
  General Mutual Insurance Co.  In her complaint, she sought both
  compensatory and punitive damages for Johnson's negligence.  Because
  Johnson failed to answer or make an appearance, appellant was granted a
  default judgment.  Appellant and Concord Mutual reached a settlement, and
  the insurance carrier was dismissed from the case.  The  court then
  determined that Johnson owed appellant compensatory damages in the amount
  of $ 131,921.35.  The court rejected appellant's motion for punitive
  damages, finding that the standard articulated in Brueckner v. Norwich
  Univ., 169 Vt. 118, 730 A.2d 1086 (1999) had not been met, as there was no
  evidence of the requisite element of malice.  This appeal followed.
   
       ¶  5.  Punitive damages are permitted upon evidence of malice,
  "'[w]here the defendant's wrongdoing has been intentional and deliberate,
  and has the character of outrage frequently associated with a crime.'" Id.
  at 129, 730 A.2d  at 1095 (quoting W. Keeton et al., Prosser and Keeton on
  the Law of Torts § 2 (5th. ed. 1984)).  Actual malice may be shown by
  conduct manifesting personal ill will or carried out under circumstances
  evincing insult or oppression, or conduct showing a reckless disregard to
  the rights of others.  Id.  In any case, however, there must be some
  evidence of bad motive, as mere negligence or even recklessness are not
  sufficient to show malice and therefore do not justify the imposition of
  punitive damages.  Id. at 130, 730 A.2d  at 1095.  Accordingly, in Brueckner
  we found that it was inappropriate to impose punitive damages against
  Norwich University for their conscious inaction and inattention to the
  issue of hazing despite numerous - often serious - incidents, because there
  was no evidence of bad motive.  Id. at 130-31, 730 A.2d  at 1095-96.

       ¶  6.  Appellant claims that Johnson's conduct and history of
  conduct is either sufficient to prove malice as required for punitive
  damages under the Brueckner standard or, alternatively, that the standard
  should be amended.  Appellant argues that punitive damages are warranted
  when a repeat drunk driver or a person who repeatedly drives with a
  suspended license injures another driver through negligent driving. 
  Appellant asserts that to purposefully and repeatedly commit these crimes
  requires a bad spirit or wrong intention, because the driver consciously
  chooses to pursue a course of conduct knowing that it creates a substantial
  risk of significant harm to others.  According to appellant, the reasoning
  used to deny punitive damages to the plaintiff in Brueckner is inapposite
  in this case, as the conduct at issue is distinguishable.  Appellant argues
  that unlike defendant Norwich University in Brueckner, defendant Johnson
  willfully committed criminal acts.  In essence, defendant would have us
  adopt a rule that drunk driving is per se evidence of malice sufficient to
  impose punitive damages in every case in which the negligent act of a drunk
  driver causes injury.  We are unwilling to do so because such a rule would
  be inconsistent with our standard for imposing punitive damages.

       ¶  7.  We have previously rejected the contention that violation of
  the law  is sufficient evidence of malice.  Willful violation of the law is
  insufficient evidence of malice, if not accompanied by "a showing of bad
  faith."  See Bruntaeger v. Zeller, 147 Vt. 247, 254, 515 A.2d 123, 127
  (1986) (punitive damages properly denied despite violation of consumer
  fraud statute because defendant's conduct was wrongful but not malicious);
  Meadowbrook Condo.  Ass'n v. S. Burlington Realty Corp., 152 Vt. 16, 28,
  565 A.2d 238, 245 (1989) (willful violation of consumer protection statute
  is wrongful conduct, but not evidence of degree of malice required for
  punitive damages).  However wrongful, Johnson's conduct does not evince
  more than a reckless disregard of the right of others.  As we pointed out
  in Brueckner, allowing punitive damages solely on that basis presents "'the
  danger of . . . a test which may be so flexible that it can become
  virtually unlimited in its application.'"  Brueckner, 169 Vt. at 131 n.3,
  730 A.2d  at 1096 n.3  (quoting Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 651 (Md. 1992)).   

        
       ¶  8.  We are aware that some jurisdictions have adopted a "per se"
  approach.  See Honeycutt v. Walden, 743 S.W.2d 809, 810 (Ark. 1988); Taylor
  v. Superior Court of Los Angeles County, 598 P.2d 854, 857 (Cal. 1979); 
  Ingram v. Pettit, 340 So. 2d 922, 924 (Fla. 1976);   Calloway v. Rossman,
  257 S.E.2d 913, 917 (Ga. Ct. App. 1979); Sebastian v. Wood, 66 N.W.2d 841,
  844-45 (Iowa 1954); Anderson v. Amundson, 354 N.W.2d 895, 898 (Minn. Ct.
  App. 1984); Allers v. Willis, 643 P.2d 592, 596 (Mont. 1982); Harrell v.
  Ames, 508 P.2d 211, 214 (Or. 1973).  Many other states, however, determine
  whether punitive damages are warranted in DUI cases by conducting an
  individualized inquiry into the driver's conduct and any other aggravating
  circumstances.  See Smith v. Chapman, 564 P.2d 900, 903-04 (Ariz. 1977);
  Infeld v. Sullivan, 199 A.2d 693, 694-95 (Conn. 1964); Madison v. Wigal,
  153 N.E.2d 90, 94-95 (Ill. App. Ct. 1958); Collins v. Black, 380 So. 2d 241,
  244 (Miss. 1980); McMahon v. Chryssikos, 528 A.2d 104, 109 (N.J. Super. Ct.
  Law Div. 1986); Cabe v. Lunich, 640 N.E.2d 159, 162-63 (Ohio 1994); Focht
  v. Rabada, 268 A.2d 157, 160 (Penn. 1970); Pratt v. Duck, 191 S.W.2d 562,
  565 (Tenn. 1945); Baker v. Marcus, 114 S.E.2d 617, 621 (Va. 1960).  We find
  this latter approach preferable and consistent with our jurisprudence.

       ¶  9.  The trial court's findings regarding punitive damages
  will be disturbed only if the court abused its discretion.  Finley v.
  Williams, 142 Vt. 153, 156, 453 A.2d 85, 87 (1982).  Given the evidence in
  this case, there was no abuse.  Defendant was found to have a BAC of 0.156
  at the time of processing, and a suspended license resulting from a prior
  DUI conviction in 1997.  While Johnson's conduct can be characterized as
  negligent or even reckless, there are no special circumstances, such as
  personal ill will or bad motive, to support a finding of actual malice. 
  Cf. Cooper v. Cooper, 173 Vt. 1, 14-15, 783 A.2d 430, 441 (2001) (upholding
  punitive damages award in emotional distress claim where there was evidence
  that defendants breach of fiduciary duty in foreclosure of mortgage was
  motivated by desire to retaliate against former daughter in law for
  divorcing their son); Pion v. Bean, 2003 VT 79  40, 14 Vt. L. Wk. 243
  (punitive damages appropriate where defendants harassed adjoining
  landowners in order to drive them out of their home); Sweet v. Roy, 173 Vt.
  418,  445-46, 801 A.2d 694, 714 (2002) (upholding punitive damages award
  against defendant who engaged in unlawful self help eviction in order to
  gain ownership of the homes at unreasonable low prices).  It was well
  within the court's discretion to conclude that "[t]he actions of defendant
  in this case do not constitute the kind of malicious, intentional acts that
  punitive damages are designed to address."

       Affirmed.




                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Paul L. Reiber, Associate Justice