Bolsta v. Johnson (2003-004); 176 Vt. 602; 848 A.2d 306
2004 VT 19
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."
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