Driving While Intoxicated; A Formula for Punitive Damages

Louisiana Civil Code Article 2315.4 provides for additional damages when a defendant is intoxicated. The Article specifically provides:

In addition to general and special damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause-in-fact of the resulting injuries.

Our courts have been faced with the challenge of deciding specifically when and how to award exemplary damages.(1) This has been somewhat complicated by the fact that civil litigants cannot employ the statutory presumption of intoxication that is allowed in criminal proceedings. However, while test results cannot unilaterally carry the day, the evidence does have probative value regarding the exemplary damage issued. McDaniel v. DeJean, 566 So.2d 1336 (La. App. 3 Cir. 1990). A wide number and variety of factors are considered, including breathalyzer test results, alcohol odor, erratic driving, slurred speech, blood alcohol level, balance, and others. Inexplicable behavior, failure to pay heed to traffic signals and causing an accident, along with evidence of alcohol consumption, can support exemplary damages. In Bourgeois v. State Farm Mutual Auto. Ins. Co., 562 So.2d 117 (La. App. 4 Cir. 1990), writ denied, 567 So.2d 611 (La. 1990), the Fourth Circuit warned:

"In light of the broad efforts to educate the public concerning drinking and driving, it is common knowledge that even a minimal amount of alcohol may cause a functional impairment. Everyone knows that an intoxicated motorist is unable to react quickly, or, in some instances, to even retain control of the vehicle. Thus, when a person who has been drinking drives, he knows that the odds of being involved in a serious accident increase with each and every drink. A motorist who has consumed even a small amount of alcohol is aware that his alcohol consumption might affect his driving ability. Thus, he gets behind the wheel only at the risk that he might cause an accident. Therefore, the act of driving after consumption of a couple of beers, or after participating in a cocktail hour, not only exposes a driver to possible criminal consequences, but also may expose him to civil liability for negligence, provided there is proof of the effect of the alcohol on that particular driver." Bourgeois at 1183.

Anatomic and clinical pathologists are often called upon to testify regarding whether a certain blood alcohol level would result in an individual's physical abilities and mental judgment being impaired. Pathologists and toxicologists are often employed to opine whether a defendant would be able to effectively operate a vehicle, how the consumption of alcohol impairs one's ability to operate a motor vehicle in a safe manner. The amount of alcohol consumed and details regarding over what period that alcohol was consumed is a key inquiry. Arresting and investigating officers also typically testify regarding their observations and the results of field sobriety tests.

An interesting evidentiary question is raised by whether evidence of prior DWI convictions is admissible. In Angeron v. Martin, 649 So.2d 40 (La. App. 1 Cir. 1994), an issue arose regarding an intoxicated defendants' involvement in a prior automobile accident where the defendant pleaded no contest to a charge of DWI, a second offense DWI which formed the basis for the third offence DWI in the case at bar. The court concluded that pursuant to LSA-C.E. Art. 404 B, evidence of other crimes or misconduct is inadmissible to prove the character of a person in order to show he acted in conformity therewith. Notwithstanding this, that evidence may be admissible for other purposes. In the case at bar, the court concluded that the evidence in question was offered to prove that the defendant's actions were "wanton and reckless disregard for the rights and safety of others". This, the court concluded, was an integral part of the act, which was subject of the proceedings in question. Under these circumstances, the court concluded that evidence of the defendant's knowledge of this past acts and his disregard of the danger in the face of that knowledge was admissible and probative in the case at bar.

In Brumfield v. Guilmino, 633 So.2d 903 (La. App. 1 Cir. 1994), the defendant contended that the trial court erred in allowing the jury to learn that the defendant was convicted of DWI in criminal proceedings arising from the accident in question. The First Circuit concluded that the defendant failed to establish that the alleged error, if any, had any substantial bearing or effect on the outcome of the case inasmuch as the defendant admitted he had consumed alcoholic beverages before the accident and in view of the testimony of the investigating offer and toxicology expert.

Another question is whether an exemplary award should be reduced by the percentage of fault apportioned to any other defendants. Brumfield rejects this notion and concludes that Article 2351.4 was designed essentially to penalize and deter drunk drivers and to provide damages for the victim of such drivers. Exemplary damages are available solely due to the conduct of the intoxicated driver and not other defendants. Brumfield held that there was no basis for reducing any exemplary award to the plaintiff by any fault attributed to other defendants.

In Hill v. Samson, 628 So.2d 81 (La. App. 2 Cir. 1993), the defendants argued that evidence of intoxication needed to be proved by "clear and convincing" evidence. Rejecting this argument, the Second Circuit opined that had the legislature intended a higher standard of proof than that of a preponderance of evidence, it would have clearly so indicated, as it has done on any number of occasions. The court went on to note what may be necessary to prove injuries are caused by "wanton or reckless disregard for the rights and safety of others". No evidence of any specific action on a defendant's part is necessary. A plaintiff need only establish a general state of mind and a conscience indifference to the consequences, i.e. where the driver knows or should know his actions will cause harm and proceeds anyway.

An appellate court recently concluded that a review of the jurisprudence indicates there is no specific formula in awarding exemplary damages. Salvage v. Robert Levis Chevrolet, Inc., 719 So.2d 1088 (1998). The amount of exemplary damage awards affirmed by our appellate courts range from roughly one half of the amount awarded in general damages to several times that amount. In the case before them, they found no abuse of discretion by the trial court which rendered an exemplary damage award equal to the general damage award.

In Angeron v. Martin, 649 So.2d 40 (La. App. 1 Cir. 1994), the court summarized key factors in determining the amount of exemplary damages:

  1. The nature and extent of the harm to the plaintiff;
  2. The wealth or financial situation of the defendant;
  3. The character of the conduct involved;
  4. The extent to which the conduct offends a sense of justice and propriety.

1. Exemplary damages are available when:

1. The defendant was intoxicated or had a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties;

2. Drinking was a cause-in-fact of the accident;

3. The injuries were caused by a wanton and reckless disregard for the rights and safety of others. Minvielle v. Lewis, 610 So.2d 942 (La.App. 1 Cir. 1992).